Miami-Dade | Case 07-1336E | 2007-06-04

Miami-Dade County School District No. 07-1335E Initiated by: District Hearing Officer: Patricia M. Hart Date of Final Order: June 4, 2007 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS MIAMI-DADE COUNTY SCHOOL BOARD, ) ) Petitioner, ) ) vs. ) Case No. 07-1336E ) .. .., ) ) Respondent. ) _________________________________) FINAL ORDER Pursuant to notice, a formal hearing was held in this case on May 8, 2007, in Miami, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. APPEARANCES For Petitioner: Laura E. Pincus, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 32399-0400 For Respondent: *** (Address of record)

STATEMENT OF THE ISSUE Whether the Petitioner should be permitted to conduct a psycho-educational evaluation of the Respondent to determine if ………. is eligible for exceptional student education ("ESE") services and, if so, to determine ………… educational needs. PRELIMINARY STATEMENT On March 15, 2007, the Miami-Dade County School Board ("School Board") filed a request for a due process hearing because ….'s parents refused to consent to the School Board's conducting a psycho-educational evaluation of …. Pursuant to notice, the due process hearing was held on May 8, 2007. An interpreter was present during the hearing to assist …..., ***, in participating fully in the hearing in *** native language of Spanish. The School Board presented the testimony of Robert Gonzalez, a general education teacher who was ….'s second grade teacher; Elena Haddad, a school psychologist at South Hialeah Elementary school; and Mary Paz, the ESE instructional supervisor for the Miami-Dade County School District's Regional Center III. Petitioner's Exhibits 1, 7, and 20 were offered and received into evidence. …. testified on behalf of …., but offered no exhibits. During the hearing, ... stated that *** had not received the School Board's exhibits or witness list, which had been sent to *** correct address by Federal Express. …. was offered the 2

opportunity to re-schedule the hearing for a later date to allow *** time to review the School Board's exhibits and witness list. *** declined the offer and stated that *** wanted to complete the hearing on May 8, 2007. No transcript of the proceedings was filed with the Division of Administrative Hearings. The School Board timely filed proposed findings of fact and conclusions of law; …. did not file any post-hearing submission. The due process hearing request was filed on March 15, 2007; the resolution period expired on April 20, 2007; this order is entered within the 45- day period for entered the final order. FINDINGS OF FACT Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: 1. …. is *** years old and is a student in the second grade at *** School. ………. was retained for a second year in the first grade, and school personnel have made the decision to retain ………… for a second year in the second grade due to deficiencies in reading and language. ……… does not meet the Sunshine State Standards. 2. …. is currently in the general education program for ESOL students. …. has some behavioral issues, specifically a problem staying in ………… seat, and has been, at times, aggressive 3

to other students. The primary cause of this behavior, in the opinion of ………… teacher, is …………… frustration because ………… cannot comprehend the instruction in the classroom, which causes ………… to be bored. …. can copy words from the chalk board but ………. misspells words and ………… cannot understand the instructions about how to complete ………… work. …. is good at mathematical computation, but ………. cannot complete a mathematics assignment involving reading problems because of ………. difficulties with reading comprehension. …. also has problems with spelling and the use of common words. 3. Spanish is ….'s primary language and is the only language spoken in *** home. …. can speak English socially and has sufficiently mastered English to understand *** teacher's instructions. Although …. cannot read or write in English, *** lack of mastery of English is not the source of *** problems with reading and language. 4. On March 3, 2006, a School Support Team met and drafted a School Support Team Intervention Plan ("Intervention Plan") for …., and a new, more extensive Intervention Plan was developed for …. on November 9, 2006. In accordance with the Intervention Plan, four different interventions were implemented to assist …. to learn to read and do mathematics at or close to grade level. The interventions included small-group instruction using a remedial reading program and one-to-one tutoring. Even 4

with these interventions, …. has not progressed and remains far below grade level in reading. 5. School Board personnel at both the school and the district level have explained ….'s problems to *** parents and attempted to obtain consent from them for a psycho-educational evaluation. Although they did consent at one time, they withdrew their consent and have subsequently consistently refused to consent to the psycho-educational evaluation. 6. School personnel want to administer the following tests to …. to determine if *** is eligible for ESE services and to determine *** educational needs: vision screening; speech and language screening; auditory screening; a social history; a bilingual assessment; an intellectual evaluation; academic levels in reading, mathematics, and written language; teacher observations; personality testing; and behavior observation scales. 7. Although ….'s parents recognize ….'s need for intensive educational services, they believe that ….'s deficiencies can be remedied if he has effective general education teachers. CONCLUSIONS OF LAW 8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 1003.57(1)(e) and 5

120.57(1), Florida Statutes (2006), and Florida Administrative Code Rule 6A-6.03311(11). 9. The School Board has the burden of proving the need for a psycho-educational evaluation for …. by a preponderance of the evidence. See Schaffer v. Weast, 546 U.S. 49 (2005). 10. The School Board is responsible for the identification, evaluation, and placement of students requiring ESE services. § 1003.57(1), Fla. Stat. 11. The School Board is required to conduct an initial evaluation before it can provide ESE services to a child, which evaluation must determine if the child is eligible for ESE services as a child with a disability and to determine the educational needs of the child. 20 U.S.C. § 1414 (2004); 34 C.F.R. § 300.301 (2006). 12. The refusal of ….'s parents to consent notwithstanding, the School Board has met its burden of proving that …. needs a psycho-educational evaluation, with all of the tests, assessments, and evaluations necessary to determine if *** is eligible for ESE services and, if so, to determine *** educational needs. CONCLUSION Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Miami-Dade County School Board conduct a psycho-educational evaluation of …. to determine if 6

*** is eligible for ESE services as a child with a disability and to determine *** educational needs. DONE AND ORDERED this 4th day of June, 2007, in Tallahassee, Leon County, Florida. S ___________________________________ PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2007. COPIES FURNISHED: Eileen L. Amy, Administrator Exceptional Student Education Program Administration and Quality Assurance Department of Education 325 West Gaines Street, Suite 614 Tallahassee, Florida 32399-0400 Laura E. Pincus, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 32399-0400 *** (Address of record) Dr. Rudolph F. Crew, Superintendent Miami-Dade School Board 7

1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1430 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 NOTICE OF RIGHT TO JUDICIAL REVIEW This decision is final unless an adversely affected party: a) brings a civil action within 30 days in the appropriate federal district court pursuant to Section 1415(i)(2)(A) of the Individuals with Disabilities Education Act (IDEA); [Federal court relief is not available under IDEA for students whose only exceptionality is “gifted”] or b) brings a civil action within 30 days in the appropriate state circuit court pursuant to Section 1415(i)(2)(A) of the IDEA and Section 1003.57(1)(e), Florida Statutes; or c) files an appeal within 30 days in the appropriate state district court of appeal pursuant to Sections 1003.57(1)(e) and 120.68, Florida Statutes. 8