Miami-Dade | Case 17-2306 | 2018-08-17

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS **, Petitioner, vs. MIAMI-DADE COUNTY SCHOOL BOARD, Respondent. _______________________________/ Case No. 17-2306E FINAL ORDER A due process hearing was held before Administrative Law Judge Diane Cleavinger on xxxxxx XX through XXX, XXXX, and XXX XX through XXXXX XX, XXXX, in Fort Lauderdale, Florida. APPEARANCES For Petitioner: Petitioner (Address of Record) For Respondent: XXXXXXXXXX, Esquire Miami-Dade County Public Schools 1450 Northeast 2nd Avenue Miami, Florida 33132 STATEMENT OF THE ISSUES The issues in this proceeding are: a. Whether, prior to the XXXX-XXXX school year, the Miami- Dade County School Board (School Board) failed to properly evaluate the Student to determine the student's eligibility. b. Whether, prior to or during the XXXX-XXXX school year, the School Board incorrectly identified the Student as eligible

2 under XXXXXXX XXXXXXX XXXXXXX (XXX), when, in fact, the Student should have been determined eligible under XXXXX and XXXXXX XXXXXXXX and XXXXXXXXXXXXXXXXXXXXXX(XXX). c. Whether, immediately prior to or during the XXXX-XXX school year, the School Board failed to develop an appropriate individualized education plan (IEP) for the Student in that the subject IEP failed to provide appropriate services, accommodations, and support for a student who is XXXXXX and XXXXXXXXX XXXXXXX and diagnosed with XXXXXXXXX XXXXX XXXXXXXXXXXXXX XXXXXXX (XXXX). d. Whether, during the XXXX-XXXX school year, the Student's placement in the XXXXXXX XXXXXXXX and XXXXXXXXXXXX setting violated the least restrictive environment requirement (LRE). e. Whether, during the XXXX-XXXX school year, the School Board failed to implement XXXXXXX services as provided on the IEP as related to services provided by a speech and language pathologist. f. Whether the School Board failed to implement the controlling IEP in that it failed to provide the student extended school year (ESY) services, consistent with the IEP. PRELIMINARY STATEMENT A Request for a Due Process Hearing was filed on XXXXXXXX, XXXX. The matter was initially assigned to Administrative Law Judge Todd P. Resavage. The request did not seek compensatory

3 education. A Case Management Order was issued on the same day, establishing deadlines for a sufficiency review, as well as for the mandatory resolution session. On XXXXXXXX, XXXX, Respondent filed a Notice of Insufficiency, arguing that Respondent had neither fair notice of what it must defend or a fair opportunity to resolve the issues. On XXXXXXXXXX, XXXX, an Order of Insufficiency, stating that Petitioner had failed to sufficiently set forth an appropriate proposed resolution of the issue. As a result, Petitioner amended the Request for Due Process Hearing on XXXXXX, XXXX. On XXXXXXX, XXXX, an Amended Case Management Order was entered, extending the deadlines for a sufficiency review, as well as for the mandatory resolution session. Respondent again filed a Notice of Insufficiency, and amended it, on XXXXXX, XXXX. An Order on Respondent’s Notice of Insufficiency was entered on XXXXXXX, XXXX, finding Petitioner’s amended complaint set forth sufficient allegations and a proposed resolution. That same day, Respondent filed a Motion for Enlargement of Time for Final Order and amended it that day. Respondent was seeking the final order period be enlarged to allow for proper discovery, evaluation of settlement, hearing preparation with Respondent’s key witnesses, and a telephone conference to discuss discovery and dates for a final hearing. Additionally, on XXXXXXX, XXXX, Respondent filed a Motion for Protective Order, and amended it the same day, arguing that Petitioner’s subpoenas for records were not issued utilizing

4 proper procedure and sought to quash those subpoenas. An Order on Pending Motions was entered on XXXXXXXX, XXXX, granting the Motion for Protective Order, quashing the subpoenas directed to Respondent, but denying the motion to the extent it sought an order requiring Petitioner to engage in formal discovery to obtain educational records related to the Student. Following a telephonic conference between both parties on XXXXXXXX, XXXX, an Order of Specific Extension of Time for Final Order was entered on XXXXXX, XXXX, granting Respondent's Amended Motion for Enlargement of Time for Final Order, giving the parties until XXXXXXX, XXXX, to conclude discovery, and until XXXXXXX, XXXX, to provide a status report on the matter. On XXXX XX, XXXX, Respondent served Petitioner with a Notice of Production from Non-Parties with XXX attached subpoenas. The subpoenas were objected to in Petitioner's Objection to Respondent's Notice of Production for Subpoena of Records on XXXXXX, XXXX. On XXXXXX, XXXX, Respondent filed a Motion for Ruling on Petitioner's Objection to Respondent's Subpoenas for Records, seeking a resolution as to the issue of the notice of production. This motion was granted in part and denied in part on XXXXXXX, XXXX, when an Order on Petitioner's Objections to Respondent's Subpoenas for Records was entered, granting Petitioner’s objection with respect to the issuance of a subpoena

5 directing XXXXXXXXXX to produce any records, but allowing said subpoenas for all other non-parties. On XXXXXXXXXX, XXXX, Petitioner filed a Motion to Compel Production of Records, but did not include a certification that Petitioner had conferred or attempted to confer with Respondent in good faith. An Order Denying Motion to Compel was entered XXXXXXXX, XXXX. On XXXXXX, XXXXX, Petitioner filed a Request for Enlargement of Time for Discovery and Final Order. Petitioner did not specify, however, the specific relief sought and whether Respondent had any opposition to the request. Petitioner was ordered on XXXXXX, XXXXX, by an Order Requiring Response to notify in writing of the specific extension of time sought and whether Respondent had any objection to the same, on or before XXXXXXX, XXXX. Petitioner provided this response, and absent Respondent’s objection, an Order of Specific Extension of Time was entered on XXXXXXX, XXXX, giving the parties until XXXXXXXX, XXXX, to conclude the resolution period. On July 10, 2017, Petitioner served Respondent with Notice of Production for Subpoena of Non Parties for records from XX. XXXX XXXX and XX. XXXXXXX XXXXXXXX. Respondent objected, and on XXXXXXXXXXX, XXXX, an Order Requiring Submission of Documents for In Camera Review, amended that same day, ordered that Respondent shall, on or before, XXXXXX, XXXX, deliver to the undersigned, by hand-delivery or U.S. mail, all

6 pertinent test protocols that have been administered to Petitioner and that are at issue. An Order on Petitioner’s Motion to Compel was entered on XXXXXXXX, XXXX, in response to Petitioner's 2nd Request for Motion to Compel Production of Records, filed on XXXXXXXX, XXXX. On XXXXXXXXX, XXXX, an Order of Specific Extension of Time was entered, granting Petitioner’s Amended Request for Enlargement of Time for Final Order, filed XXXXXXXX, XXXX, giving the parties until XXXXXXXXXX, XXXX, to conclude the resolution period. On XXXXXXXX, XXXX, a Notice of Transfer was entered, transferring the case to the undersigned for all further proceedings. On XXXXXXXXXXX, XXXX, Petitioner filed a Motion to Vacate Order on Petitioner's Motion to Compel and Request Ruling on Petitioner's 2nd Request for Motion to Compel, and that same day filed a Motion for Ruling on Pending Motions. These were both denied by Order Denying Motion to Vacate and Request for Ruling, entered on XXXXXXXXX XX, XXXXX. On XXXXXXXXXXX, XXXX, an Order on Petitioner’s Third Request for Motion for Enlargement of Time for Final Order was entered, incorporating denials for mootness on Petitioner's 3rd Request for Motion to Compel Production of Records, filed XXXXXXXX, XXXX, and the multiple objections, responses, and amendments that followed. Following the filing of Petitioner’s Notice of Production for Subpoenas of Non Parties on XXXXXXXX, XXXX, and the subsequent

7 responses and objections by Respondent and Petitioner, an Order on Respondent’s Objections to Petitioner’s Subpoenas for Records was entered on XXXXXXXXXXX, XXXXX, sustaining the objection and thus quashing the subpoenas to XX. XXXXX and XXX. XXXXX requested by Petitioner. An Amended Order on the Third Request for Motion for Enlargement of Time for Final Order was entered on XXXXXXXXXX, XXXX, denying the motion as moot, since the records which Petitioner had not identified to this tribunal had been tagged and identified between the parties and produced by Respondent. Petitioner filed a 4th Request for Enlargement of Time on XXXXXXXXXXXX, XXXX, which was granted that same day in an Order of Specific Extension of Time and Case Management Order, giving the parties until XXXXXXXXXXX, XXXXX, to conclude discovery and establishing a telephonic case management conference to be held on XXXXXX XX, XXXXXXX. On XXXXXXXXX XX, XXXX, an Order Denying Petitioner’s Motion for Second Request for Production from Non-Parties was entered. That same day, an Order on Petitioner's Motions to Compel and Protective Order was entered establishing that the 11 documents and information produced by Respondent, in camera, were placed under a protective order and that such materials would be sealed and maintained as confidential. Petitioner objected to the protective order and filed a Request for Assignment of New Administrative Law Judge on XXXXXXXXX, XXXX. The request was

8 denied on XXXXXXXXXXX, XXXX, in an Order Denying Request for Assignment of New Administrative Law Judge. Subsequently, after conferring with the parties, the hearing was set for XXXXXXXXXXXX through XX, XXXXXXX. Petitioner filed a Motion for Records Used During Deposition on XXXXXXXXXX, XXXX. The motion was denied on XXXXXXXXXX, XXXX, in an Order Denying Petitioner's Motion for Records. That same day, Petitioner also filed a 2nd Request for Transcripts from Depositions Obtained by Respondent, which was also denied in an Order Denying Petitioner's Request for Deposition Transcripts. A telephonic motion hearing was set for XXXXXXXXXX, XXXX. On XXXXXXXXXX, XXXX, Petitioner filed a Motion for Continuance. During the telephonic motion hearing, Petitioner’s motion was granted. An Order Granting Continuance was entered on XXXXXXXXXX, XXXX, establishing XXXXXXXX, XXXX, as the date of a telephonic scheduling conference. After conferring with the parties, the hearing date was set for XXXXXXXXX through XX, XXXX. On XXXXXXX, XXXX, Petitioner filed a Request for Hearing Location, which was denied in an Order Denying Petitioner's Request to Change Hearing Location that same day. Petitioner filed a Request for Re- consideration of Hearing Location on XXXXXXXX, XXXX, which was also denied in an Order Denying Petitioner's Request for Reconsideration of Hearing Location on XXXXXXXX, XXXX. The hearing was partially held on the scheduled dates. After

9 conferring with the parties, the continuation of the hearing was set for XXXXXX through XXXXXX and XX, XXXX. Petitioner filed a Request for List of Exhibits Entered into Evidence on XXXXXX, XXXX, but the request was denied in an Order on XXXXXXXXX, XXXX. The continued hearing was held on XXXXXXXX, XXXX, and finished on XXXXXXXXX, XXXX. At the final hearing, Petitioner presented the testimony of the parent and four additional witnesses, as well as entered the deposition testimony of XXXXXXXXXX, XXX. Petitioner’s Exhibits 3, 4, 8, 10-13, 15, 16, 16A (pages 181-182), 17, 18, 20, 24, 25 (pages 200-243), 26-37 (pages 379, 380, and 386-413), 39, 41, 42, 43, 58, 61 (page 709), 63, 67, 70, 75, 76, 78-80, 84, 86 (excluding pages 1039-1065), 87-89, 96, 103 (pages 1419-1435), 106 (pages 1477-1487), 109, 111, 116 (pages 1756-1764), 119, 129, 133 (pages 126-135), and 139 were admitted into evidence. Respondent presented the testimony of 10 witnesses. Respondent’s Exhibits 1, 2, 5, 7-10, 13, 14, 19-21, 22, 26, 27, 30, 33, 36, 40-43, 45, 46, 50, 54, 61, 63, and 118 (pages 1797- 1800 and 1809-1813) were admitted into evidence. Following the conclusion of the hearing, a discussion was held with the parties regarding the post-hearing schedule. Based on that discussion an Order Establishing Deadlines for Proposed Orders and Final Order was entered on XXXXXX, XXXX. The order was amended on XXXXXXX, XXXX, because the length of the transcript

10 required more time to transcribe than originally had been anticipated. The amended order extended the deadline for filing proposed final orders to XXXXXXXXXX, XXXX. The deadline for entering the final order was extended to XXXXXXX XX, XXXX. After the hearing, Petitioner timely filed a Proposed Final Order on XXXX XXX, XXXXX. Likewise, Respondent filed a Proposed Final Order on the same date. To the extent relevant, the filed proposed orders were considered in preparing this Final Order. Unless otherwise noted, citations to the United States Code, Florida Statutes, Florida Administrative Code, and Code of Federal Regulations are to the current codifications. For stylistic convenience, the undersigned will use XXXXX pronouns in this Final Order when referring to Petitioner. The XXXXXX pronouns are neither intended, nor should be interpreted, as a reference to Petitioner’s actual gender. FINDINGS OF FACT 1. The Student in this case has been enrolled in the Miami- Dade County School District (District) since XXXXXXXXXXXXXXXX (XXXX). During that time, the Student attended ESY services in the summer of XXXX, XXXX, and XXXX. ESY services during those years are not at issue in this proceeding. 2. At the time of the hearing, the Student was XXXXX years old, born XXXXXXX XX, XXXXX. The Student was withdrawn from

11 public school in XXXXXXXX and has been enrolled in private school since that time. 3. Initially, the Student was categorized in XXXXXXX under the category of XXXXXXXXXXXXXXXXXXXXXX. Before beginning XXXXXXXXXXXX the Student was determined eligible for exceptional student education (ESE) services in the categories of XXX and XXX. The XXX designation was primarily based on the Student’s XXXX. The parent has vehemently disagreed with the XXX eligibility, asserting that the Student should be eligible in the categories of XXXXXXXXXXXXXXXX (XX), XXXXXXXXXXXXXXXXXXXXX (XX), and XXX. The parent firmly believes that the Student’s poor XXXXXXXXXXXXX are caused by the Student’s XXXXXXXXXXXXXXXXX difficulties. 4. In infancy, the Student was diagnosed with XXXXXX XXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXX, and XXXXXXXXXXXXXXXXXXXXXX. XXXXXXXXXXXX can cause a variety of conditions like XXXXXXXXXXX XXXXXX, including XXXXXX and XXXXXXXXXXXXX; and XXXXXXXXXXX XXXXXXXX, including XXXX and XXXXX. In XXX XXXXXX years, the Student’s XXXXX was monitored with a XXXX log and over time has improved in the quantity and types of XXXX the Student would XXXXXXXX. The Student continues to have issues with the XXXXXXXX of certain XXXX. 5. Due to the Student’s disability, the Student has XXXXXXX XXXXXXXXX issues. XXX is extremely XXXXXXXXXX, XXXXXXXXX on

12 XXXXXXXXXX and XXXXXXX. The Student requires XXXXXXXXXXXXXXXXX for XXXXXX because XXX has XX XXXXXXXXXX of the dangers in XXX XXXXXXXXXXX. Additionally, the Student requires XXXXXXXXXXX XXXXXXXXX. XXX demonstrates XXXXXXXXXX or XXXXXXXX XXXXXXXX of XXXXXXXXXX, XXXXXXXXX, or XXXXXXXXXX, with XXXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, and XXXXXXXXXXXXXXXXXXXXXXXX. The Student does not XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX with them. 6. Although the parent disputes that the Student exhibits XXXXXX, the better evidence demonstrated that the Student exhibits XXXXXXXXXXXXXX and often XXXXXXXXXXXXXXXXXXXXXXXXX that are XXXXXXXXXXXXX. The Student also engages in XXXXXXXXXXXX XXXXXXXX and XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, XXXX XXXXXXXX, XXXXXXXXXXXXXX, as well as, XXXXXXXXXXXXXXXXXXXXXXXXXX or XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, while XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX. 7. Additionally, the Student will XXXXXX teachers or other students. The Student also has a XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.1/ The Student communicates XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXX, XXXXXXXXXXXXX, XXXXXXXXX, and XXXXXXXXX. 8. The evidence also demonstrated that the Student’s XXXXXXXXXXXXXXXXXX falls in the XXXXXXX range and that XXX is capable of learning. However, given XXXXXXXXXXXXX, the evidence

13 demonstrated that expected educational progress was, and will be, XXXXXXXX than XXXXXXXXX, but can be made by the Student. As such, the Student has had an IEP since XXXXXX and continues to have an IEP to date. 9. The Student receives additional therapies outside of school including XXXXXX, XXXXXXXXXX and XXXXXXXX therapy, along with ZZZZZZZZZXXXXXXX (XXX) XXXXXXX. 10. The parent, who at the hearing was observed to be XXXXXXXXXXX and XXXXXXXXXXXXXX at times, was a highly active participant in every IEP, eligibility, and reevaluation plan meeting; advocated and had others advocate for the Student; and otherwise actively communicated with school staff. While the parent testified that XXX did not believe XXX was a full participant, the better evidence demonstrated the school met the procedural requirements under the Individuals with Disabilities Education Act (IDEA) for parent participation. In fact, the evidence was clear that the parent had a great deal of input during IEP meetings, eligibility meetings, and reevaluation plan meetings; brought other individuals to meetings; and otherwise fully participated in all meetings and IDEA-related educational decisions concerning the Student. XXXXXXXXXXXX 11. In XXXX, the Student was attended School A for XXXXX and remained enrolled in a District school until XXXXXXXXX, when,

14 as indicated earlier, the Student was XXXXXXXX from the public school system. Throughout the Student’s XXXXX years, the Student had the same teacher and attended the same school. 12. In XXXXX, the Student attended a special class known as “XXXXXXXXXXXXXXXXXXX” for XXXXX years, including the Student’s last XXXXXXXXX in XXXXXXXXXXX. The XXXXXXXXXXXXXXXXXXX class contained approximately XX to XX children with XXXXXXXXXXXX, along with XXX to XXX XXXXXXXXXXXXXXXXX. The class was designed to provide XXXXXXXXXX students a XXXXXXXXXXXXXXXXXXXXXX with XXXXXXXXXXXXXXXXXXXXXXXXXXXX, as well as with XXXXXXXXXXXXX XXXXXXXX within the classroom and throughout the day (0-40 percent of the time). Credible teacher testimony demonstrated that the Student needed a XXXXX classroom setting in order to receive all of XXX accommodations and XXXXXXXXXXXXXX. The evidence also demonstrated that the Student’s placement was appropriate for XXX given the impact of XXX disability on XXX education. 13. During the Student’s XXXXXXXXXX, the Student received XXXXXXXXXX, XXXXXXXXXXX and XXXXXXXXXXXXXXX in school as related services; however, XXX did not receive XXXXXXXXXXXX. 14. Additionally, the evidence showed that the Student’s XXXXXXXXX teacher credibly testified that the Student was at a “XXXXXXXXXXXXXXXXXXX” XXXXXXXXXXXXXXX and XXXXXXXXXXXXXXXXXXXXXX during XXX final XXXXXXXXXXX. XXX also required a XXXXXXXXX

15 XXXXXXXXXXXXXXXXXXXXXXX and XXXXXXXXXXXXXXXX to keep XXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. 15. The Student also required XXXXXXXXXXXXXXXXXXXXX to XXXXXXXXXXXXXXXXXXXXXXX in XXXXX. XXX loved XXXXXXXXX but XXXXXX at the beginning of the school year. As a result, the Student was taught how to use XXXXXXXX, as well as how to use XXXXX and the XXXXXXX. These items were the Student’s main reinforcers. 16. The better evidence also showed that the Student XXX XXX XXXXXXXXXX with XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. XXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX. 17. The Student needed XXXXXXXXXXXX, including a XXXXXX XXXXXXX, XXXXXXXXXXXXXXXXXXXXXXXXXXXXX, and XXXXXXXXXXXXXX, XXX as XXXXXXXXXXXX, to attend to activities in XXXXXXXX ESE class without XXXXXXXXXXXXXXXXXXXXXXX or seeking to XXXXXXXXXXXXXXXX. XXXX IEP contained a provision for XXXXXXXXXXXXXXXXXXXXXX to XXXXXXXXXXXXXXXXX because the Student was XXXXXXXXXXXXXXXXXXXXXX in XXX environment. Towards that end, the XXXXXX classroom paraprofessional XXXXXXXXXXXXXXX with the Student. 18. During XXXXXXX, credible teacher and staff testimony showed that the Student was XXXXXXXXXXXX for more than XX minutes at a time. The Student’s XXXXXXXXXXXXXXX continued in XXXXXXXXXXXX. Further, the Student had XXXXXXXXXXX with XXXXXXXXXXXXXXXXXXXXXX. XXX also could not XXXXXXXXXXXXXXXXXXXX

16 XXXXXXXXXXXXXXXXX; XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXX; did not XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX; would XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, XXXXXXXXX teachers, or other students; and needed XXXXXXXXXXXXXXXXXXXXXXXX, and a XXX XXXX, to XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. XXX IEPs contained XXXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXXXXX, and XXXXXXXXXXXXXXX to assist XXX with these XXXXXXXXX. 19. The evidence demonstrated that, during the time period relevant to this case, the Student’s XXXXXXXXXXX and XXXXXXXX were well understood by school staff and have generally been appropriately addressed through the Student’s IEPs and classroom management techniques used in the Student’s classroom. 20. As indicated, the Student was categorized as XXXXXXXXXXXXXXXXXXXXXXX for ESE purposes, since XXX was under the age of XX. The educational XXXXXXXXXXXXXXXXXX category is used for young XXXXXXXX under the age of XXX because of the XXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX for ESE eligibility under that age. As a student approaches the age of XXX, Florida’s IDEA regulations (Florida Administrative Code Rule 6A-6.03027) require a student to be reevaluated and receive a new ESE eligibility designation prior to turning XXX. Because the Student was approaching the age of XXXX during the 2014-2015 school year, the school alerted the parent and the team that the Student should be reevaluated to determine her eligibility category for continued

17 ESE services. The parent was also very interested in ensuring that appropriate services were in place to help the Student XXXXXXXXXX from XXXX to XXXXXXXXXX the next school year. As a consequence, a reevaluation team meeting was scheduled with the parent for XXXXXXXXXXXX, XXXX. 21. On XXXXXXXXXXX, XXXX, the reevaluation team, which included the parent, met to discuss the reevaluations that should be performed to determine eligibility for the Student. The team determined that reevaluation was necessary in the areas of XXXXXXXXXXXXXX, XXXXXXXXXXXXXX, XXXXXX, XXXXXXXXXXXXX, XXXXXXXXX, XXXXX, and any other area deemed necessary by the school psychologist. The evidence did not demonstrate the school psychologist determined any other areas needed to be screened. The team did not determine that XXXXX should be screened because the Student XXXXXXXXXXXXXXXXXXX by XXX teachers and peers. As a result, XXXXX was not an educationally relevant area for reevaluation. The better evidence supported the team’s decision regarding XXXXXX. The XXXXX consented to the evaluations at the meeting and signed the consent form. 22. Around mid-XXXXXXXXXXXXXXX, the XXXXXXXX decided to withdraw XXX consent to the XXXXXXXXXXXXXXXXXXXXXXX reevaluation because XXX thought it was premature given the Student’s XXXXXXX level. By the end of XXXXXXXXX, after discussion with school

18 staff, the parent again provided consent for the XXXXXXXXXXXXXXXXXXXXXXXXXX reevaluation. 23. The school psychologist conducted the XXXXXXXXXXXXXXXXX reevaluation on the Student over the course of XXXXX and XXXXXXXXX. The school XXXXXXXXXXXX observed the Student in school and reviewed XXXXXXXXXX and XXXXXXXXXX records on the Student. Those records reflected, and XXX observed, that the Student exhibited XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, such as XXXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXX XXXXXXXXX, XXXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, and XXXXXXXX XXXXXXXX. The school psychologist also observed some of the same XXXXXXXXX during testing, as well as the Student’s documented XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. 24. In addition to the school psychologist’s observations and review of records, XXX administered a variety of normed and valid assessments and rating scales to determine the Student’s abilities, strengths, and weaknesses across a variety of educationally relevant domains. The assessments and rating scales XXX administered were the XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (XXXXXXXXX); XXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, Second Edition (XXXXXX); XXXXXXXX XXXXXXXXXXXXXX Form; XXXXXXXXXXXXXXXXXXXXXXXXXXXXX, Second Edition (XXXXXXX); XXXXXXXXXXXXXXXXXXXXXXXXXX, Second Edition

19 (XXXXXXX); XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, Third Edition; XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (XXXXXXX); XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, Sixth Edition; XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, XXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (XXXXXXXXXX); XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX, Second Edition XXXXXXXXXXXXXXXX (XXXXXXXXXX CCXX); XXXXXXXXXXXXXXXXXXXXXXXXXX (XXXXXXXXXXXXXXXX)--XXXXXX and XXXXXX (XXXX); and the XXXXXXXXXXXXXXXXXXXXXXXXXXXX, Second Edition (XXXXX). The evidence was clear that the XXXXXXXXXXXXXXXXX reevaluation was comprehensive with information obtained from multiple sources and across multiple settings, as well as complied with the Department of Education rules regarding such evaluations. It reflected a valid picture of the Student at the time it was performed.2/ 25. As indicated above, the XXXXXXXXX was administered as part of the XXXXXXXXXXXXXXXXXXXXXXXXXXX. The XXXXXXXXXX measures everyday behaviors associated with specific domains of XXXXXXXXXX XXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and XXXXXX XXXXXXXXXXXX related to XXXXXXXXXXXXXXX and XXXXXXXXXXXXXXXXXXX. The Student’s XXXXXXXX teacher completed the XXXXXX. The overall rating reflected that the Student had XXXXXXXXX scores, as compared to XXXXXXXXXXXXX and indicated XXXXXXXXXXXXXXXXXXXXXXXXX in the individual indexes of the inventory.

20 26. The XXXXXX and XXXX were also completed by the XXXX teacher and the parent. The XXXXX is a rating system designed to identify XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, i.e., school and home. The XXXX is used to XXXXXXXXXXXXXXXXXXXXX a child that are associated with XXXXXXXXXXXXXXXXXXXXXXXXXXXX. The scale provides a total score, as well as ratings in XXXXXXXXXXXXXXX and XXXXXXXXXXXXXXXXXXXX. 27. The XXXX completed by the teacher showed the Student to have XXXXXXX scores in the XXXXXXXXXXXXXXXX, with the Student being “XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX” and XXXXXXXXXXXXXX rather than XXXXXXXXXX and XXXXXXXXXXX in an XXXXXXXXXXXXXXXXXX. XXX was also found and to have XXXXXXX scores in the XXXXXXXXXXXXXXXXX, including XXXXXXXXXXXXX in the XXXXXXXXXXXX and XXXXXXXXXXXXXXXXXXXXXXXXXXXX with the Student exhibiting XXXXXXXXXXXXXXXX in XXXXXXXX and XXXXXXXXXXX, especially in the areas of XXXXXXXXXXXXXXXXXXXXXXXXXXX, as well as XXXXXX and XXXXXXXXXXXXXXXXXXXXX. 28. The XXXX total score, based on the teachers’ input, rates the Student in the XXXXXXXXXXXXXXXXX and XXXXXXXXXXXXX the Student has XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and the XXXXXXXXXXXXXXXXXX also rated the Student in the XXXXXXXXXXXXXXXXXXXXX and indicate the Student manifests XXXXXXXXXXXXXXXXXXXXXXXX, XXXXXXX XXXXXXXXXXXX, and XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.

21 29. The parent’s input of XXXXXXXXXXXXXXXXX the home setting on the XXXX and the XXXX was consistent with the teacher’s ratings, although the parent’s rating was reflective of XXXXXXXXXXXXXXXXXXXXXXXXX in the home setting. The XXXX total score reflected the presence of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. Such rating differences are not unusual between a school environment, where more demands are placed on a student, and the home environment, where a student is generally more comfortable with less demands. Additionally, the same XXXXXXXXXXXXXXXXXX need not be, and are not necessarily, expected to be the same between the school environment and the home environment. 30. The XXXXX provides objective and quantifiable ratings based on XXXXXXXXXXXXXXXXX observation from multiple XXXXXX. The Student’s score of XXXXXX indicates that the Student displays XXXXXXXXXXXXXXXX at the XXXXXXXXXXXX compared to XXXXXXXXXXXX children. 31. Additionally, the XXXXXXXXXXXXXXXXXXXXXXXX was administered to the parent on XXXXXXXX, XXXXXXX. The XXXXXXX assesses the degree of XXXXXXXXXXXXXXXXXX in the XXXXXXXXXXXX of XXXXXXXXXXXXXXXXX required for XXXXXX and XXXXXXXXXXXXXXXXX. Relative to the Student’s ESE eligibility, the XXXXXXXXXXXX corroborated, and was consistent with, XXXX, since the Student scored XXX in the XXXXXXXXXXXXXXXXXXXXX.

22 32. The Student’s XXXXX teacher credibly testified that the Student evidenced XXXXXXXXXXXXXXXXX when XXX had XXXXXXXX at school when faced with XXXXXXXXXXXXXXXXXXXXXXXXX. The teacher also described other XXXXXXX and XXXXXXXXXXXXXXXXXXXX that the Student displayed during XXXXX. Although the teacher did not always mark every XXXXXXXXX on every XXXXXXXXXXXXXXXXXX assessment, the teacher presented credible testimony that the Student did exhibit such XXXXXXX. 33. The parent claimed that the Student stopped having XXXXXXXXXXXXXXX long ago and that her XXXXXXXXXXXXXX XXXXXXXXXXX were XXXXX or XXXXXXXXXXXX. However, the records of the Student’s private behavior therapist contradict the parent’s position. The records of the private behavior therapist who worked with the Student in public school and in private school, contained many references to xxxxxx and made numerous notations of the Student’s continuing need for xxxxxxxxxxxxxxxxx, including XXXXXXXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXX, and the need for XXXXXXXXXXXXXXXXXXXXX. Additionally, as indicated, school staff credibly testified, contrary to the parent’s view of the Student’s XXXXXXXXXXX, that the parent was very aware of the Student’s XXXXXXXXX which were discussed at IEP meetings. 34. In sum, the XXXXXXXXXXXXXXXX evaluation supported a finding that the appropriate eligibility category for the Student

23 was XXX. The report was presented and explained to the IEP team, including the parent, at the IEP/eligibility team meeting on XXXXXXXXXXX. The team appropriately considered the information of the report, including the parent’s rejection of the proposed XXX eligibility. 35. XXXXXXXXXXX, XXXXXXXXXX Therapy XXX, and XXXXXXXXXX Therapy XXXX reevaluations were also performed by the District. The XX and XX evaluations are not at issue in this proceeding. Because the parent believed the Student should be made eligible in XXXXXX and XXXXXXXXXX, and not in XXXXXXX, the parent insisted that a XXXXXX reevaluation be completed by the District, even though the findings of the District evaluator indicated that one was not necessary. As a result, a XXXXXXXX reevaluation for XXXXXXXXXX was conducted on XXXXXXXX, XXXX, by the District. 36. The XXXXXXXXXXX reevaluation was initially completed on XXXXXXXXXXX, XXXX. At the request of the parent, a second XXXXXXXX reevaluation was conducted on XXXXXXXXX, XXXX. Both XXXXXXX reevaluations consistently showed that the Student did XXXXXXXXXXXXXXXXXXX relevant XXXXXXX issues, with XXXXXXXXXXX XXXXXXXXXXXX for XXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXXX XXXX, XXXXXXXXXXXXXXXXXX, and XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The reevaluations consistently showed that the Student needed XXXXXXXX therapy because of XXXXXXXXXXXXXXXXXXXXXXXX in XXXXXXXXXXXXXXX. Additionally, and although the Student has

24 XXXXXXXXX and XXXXXXXXXXXXXXXXXXXXXX, credible testimony by the District chairperson for XXXXX and XXXXXXX therapy demonstrated that those XXXXXX are not a XXXXXXXXXXXXXXXXXXXXX, but are XXXXXXXX to the Student’s XXX.3/ For these reasons, the Student needs XXXXXXXX therapy as a related service, in addition to the program and services that are provided to address XXX later- determined primary eligibility areas of XXX and XXX. In other words, the XXX minutes per week of XXXXXXXX, XXXXXXXXXXXXX therapy provided in the therapy room to implement the Student’s XXXXXXXXXXXX goals was a related service ancillary to the IEP goals addressing the Student’s other XXX-related educational needs.4/ 37. The XXXXXXX reevaluation also was consistent with the XXXXXXX reevaluations and showed that the Student’s XXXXXXXXXXX were observed to be XXXXXXX for XXXXXXXXXXXXX. The Student did not exhibit a need for educationally relevant XXXXXX therapy. The XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX was administered as part of the XXXXXX reevaluation. The XXXXXXXXXXXXXXXXXXXXXXXXXX by the Student’s performance on the XXXXXXXXXXX were considered XXXXXXXXXXXXXXXXXXX and something the Student XXXXXXXXXXXXXXXXX. The XXXXXXX evaluation also contained observations by the evaluator, thereby assessing the Student in different formats. The reevaluation confirmed what was already

25 known about the Student’s XXXXXXX, i.e., XXXXXXX was XXXXXXXXXXXXXXXXXXXXXXXXXXX for the Student. 38. As indicated, following the completion of the Student’s XXXX reevaluations, an eligibility team meeting was held on XXXXXX, XXXX, to review the results of the reevaluations. The parent was an active participant in the meeting. 39. As with the XXXXXXXXXXXXXXXXXXX reevaluation, the XXXXXXXXXXXXX reports met evaluation standards for XXXXXXXXXXXXXX reevaluations, and were considered and discussed with the IEP team at its meeting on XXXXXXXX, XXXX. However, because the parent had provided additional, selected XXXXXX records regarding the Student’s XXXXXX, the multidisciplinary team (M-team) needed time to review those records and perhaps obtain more information from the XXXXXXX providers. Consents for mutual exchanges of information were signed to allow the District to obtain further XXXXXX information, if needed. 40. Although the parent, as would happen throughout the time period of this case, made several accusations of procedural violations and inappropriate behavior by team members regarding this meeting, the evidence demonstrated that the District complied with the procedural requirements of IDEA regarding the meeting. The meeting was simply adjourned, since there was no agreement on the Student’s eligibility and the parent had provided the team with additional XXXXXXX information that needed

26 to be reviewed by the school as required under IDEA. As a result, the eligibility of the Student was not determined and XXX eligibility continued to be in the XXXXXXXXXXXXXXXXXXX category. The members of the M-team, who were not part of the IEP team, excused themselves from the meeting and the IEP team continued to, and did develop, an annual IEP for the Student. The IEP included XX minutes of XXXXXX therapy per week and ESY goals and services. Within days of the May meeting, the parent complained about perceived errors in the IEP. The Student attended ESY during the summer of XXXX. 41. Thereafter, on XXXXXXXXX, the parent filed a due process complaint (Complaint) against the District raising, among other things, the proposed ASD eligibility (DOAH Case No. 15-2895). The Complaint was forwarded to the Division of Administrative Hearings (DOAH) for hearing. On XXXXXX, XXXX, the Complaint was voluntarily dismissed by the parent because the District agreed to schedule an IEP/eligibility meeting for XXXXXX, XXXX. The case was dismissed on XXXXXX, XXXXX. 42. Additionally, on XXXXXX, XXXX, the District filed a due process complaint regarding a parent-requested independent education evaluation (IEE) for XXXXXX that had been denied by the District (DOAH Case No. 15-3394). The Complaint was forwarded to DOAH for hearing. On XXXXXXX, the parent withdrew the parent’s request for an IEE and the case was dismissed on XXXXXXX, XXXX.

27 Subsequently, the parent again made several unfounded accusations regarding perceived procedural errors, along with demands regarding the rescheduled meeting. Additionally, the parent requested that the rescheduled meeting be directed by a Florida Department of Education (FDOE) facilitator. 43. At the state facilitated, eligibility/IEP meeting held on XXXXXXX, XXXX, the team, including the parent, again discussed the reevaluations performed by the District. Additionally, the team considered parent-provided information that the Student’s neurologist and pediatrician, XXXXXXXXXXX, and XXXXXXXXXXXXXXX, also diagnosed the Student with a XXXXXXXXXXXXXXXXXXXXXXXXXXXX. Such XXXXXXXXXXX can include XXXXXXXXXXXXXXXXXXXXX. XXXXXXXXXXXX also provided a XXXXX of XXXX. Notably, the Student’s parent did not tell the school psychologist, or any other District personnel, that by the time the District reevaluation and the XXXXXX and XXXXXXXXXXX, eligibility/IEP meetings had been conducted on the Student, XXX neurologist had XXXXX the Student with XXX, as reflected in XXX date of service note on XXXXXXXX, and various XXXXXXXXXXXXXXXX for XXXXXXXXXX.5/ 44. XXXXXXX wrote a letter “To Whom It May Concern” dated XXXXXXXXX. The letter indicated that XXXXXXX was inconsistent with the Student’s profile, despite the fact that XXXX had XXXXXX XXX with autism from XXXX through XXXX. Under the evidence regarding the Student’s XXXXXXX information, and the parent’s

28 vehemence about an XXX eligibility, the XXXXXX letter is not credible. Further, given the doctor’s shifting testimony, the change in XXXXXXXX is not given great weight. Ultimately, XXXXXXXX could not testify that the District’s decision to make the Student eligible under the category of XXX was XXXXXXXXXX at the time the decision was made. XXXXXXXXXX eventually provided a XXXXXXXX of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX for the Student. However, the evidence demonstrated that under IDEA, XXXXXXXXXXXXXXXXXXXXXXXXXXXXX is ruled out if a student XXX XXXXXXXXXXXXXXXXXXXXX measures over XX. In this case, as indicated earlier, the Student’s intellectual measures were in the XXXXXXXXXX range, well over an XXXXXXXXXXXX measure of XX. In fact, the better evidence demonstrated that at the time of the Student’s various IEP’s, the appropriate ESE category for the Student was XXX, with XXXXXXXXXX therapy as a related service. 45. XXXXXXXXXXXXXXXXXXXXXXX and recommendations were taken into consideration by the XXXXXXXXX, XXXX, eligibility and IEP team, along with the information provided by XXXXXXXXXX, the Student’s pediatrician. As indicated, the team determined that the appropriate eligibility category for the Student was XXX and XXX, with related services of XX, XX, and XXXXXXXX therapy. The XXX eligibility is not at issue in this proceeding. The parent continued to adamantly oppose the XXXXX category.

29 46. On XXXXXXXXXXX, XXXX, the IEP team agreed with the parent and proposed a placement for the Student in a XXXXXXXXXXXXXXXXXXXXXX for XXXXXXXXXXXXXX, with a XXXXXXXXXXXXX XXXXXXXX for XXXXXXXX and XXXXXXXX, and XXXXXXXXXXXXX XXXXXXXX for other subject areas. The placement was discussed among the team members, including the parent. The Student’s XXXXXXX teacher had concerns about XXXXXXXXXXXXXXXXXXXXXX for XXXXXXX and XXXXXXXXXXXXXX in XXXXXXXXXXXXXX, but was hopeful that the Student’s XXXXXXXXXX would help XXX perform successfully in such a LRE. The IEP team’s goal was to provide the Student XXXXXXXXXXXXXXXXXXXXXXXXXXXX. Since XXX showed some skills and abilities, the IEP team decided that XXX should be given the XXXXXXXXXXX to try a XXX with a XXXXXXXXXXXXXX teacher for part of the day, and a XXXXXXXXXXXXXXXXXXX teacher the other part of the day. The better evidence showed that the placement determination was appropriate for the Student at the time. 47. As such, the Student was placed in a XXXXXXXXXXXXXXXXX for XXXXXXXXXX and XXXXXXXXX, and a XXXXXXXXXXXXXXXXXXXXXXXXX for other subject areas including XXXXXXXXX, XXXXXXXXXXXXX, XXXXXXXXXXX XXXXXXXXXXX, and XXXXXXXXXXXXXXXXX. The Student was provided a XXXXXXXXXXXXX paraprofessional to assist XXXX at school. Additionally, the Student had additional XXXXXXXXXXX XXXXXXXXXXX interaction for lunch and special activities.

30 48. Although the IEP states “XXXXXXXXXXX” placement on the first page, the Educational Services section, and the Conference Notes to the IEP, specify the correct placement. The placement indicated on the first page of the IEP was corrected at an IEP meeting on XXXXXXXXXXXXXXXXXX. The evidence demonstrated that the typographical error was insignificant to the IEP, and did not amount to a procedural violation of IDEA. 49. In the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and XXXXXXXXX classes, the Student received collaboration from an XXX teacher for XXXXXXXXXXXXXXXX per week. At the time, the evidence demonstrated that the XXXXXXXXXX agreed with this service. 50. Additionally, as indicated earlier, during the Student’s time of enrollment in the District, the Student’s various IEPs contained the related service of XXXXXXXXXXXX XXXXXXXXXXXXXX. The XXXXXXXXXXX was delivered as a XXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The purpose of the XXXXXXXX was to implement the Student’s IEP goals for XXXXXXXXXXXXXXXX and was appropriate for the Student. The better evidence demonstrated that the IEP team’s determinations regarding XXXXXXXXXXXXXXXXX services were appropriate and provided the Student with a free appropriate public education (FAPE). Further, the evidence demonstrated that the XXXXXXXXXXXXX services that were provided were appropriate

31 for the Student and that the Student appropriately progressed in XXX IEP goals. 51. Because the parent disagreed with the District’s XXXXXXXXXXXXXXXX reevaluation, the parent requested a XXXXXXXXXXXXXXX IEE. The parent’s request was granted on XXXXXXXXXXX, XXXX, after the XXXXXXXXX, XXXX, eligibility and IEP meetings. The District sent the parent a list of suggested evaluators who were previously approved as independent vendors by the District. On XXXXXXXXXXXXX, XXXX, almost two months after the IEE was granted, the parent elected to choose an independent evaluator, XXXXXXXXXXXXXXX, who was not a previously approved vendor. The IEE contract with XXXXXXXX was finalized on XXXXXXXXXXXXX, XXXXXX. However, due to reasons personal to XXXXXXXXXXX, XXX could not perform the IEE. Petitioner was advised of XXXXXXXXX decision and asked how the parent wished to proceed. 52. Subsequently, around XXXXXXX, XXXX, the parent selected a new private evaluator, XXXXXXXXX XXXXXXXXXX, to perform the IEE. The contract for XXXXXXXXXX XXXXXXXXXX was finalized on XXXXXXXXXXXX. For reasons, not involving the District, but involving the waiver of HIPPA rights, the XXXXXXXX elected not to proceed with the IEE. Notably, neither of these vendors performed an IEE and no private XXXXXXXXXXXXX evaluation was submitted to the IEP team or introduced into evidence in this

32 hearing. Ultimately, the parent withdrew consent for the District to exchange information with any of the private vendors the parent had selected, thereby withdrawing the parent’s request for the IEE. 53. The Student’s parent did not disagree with the proposed placement in the XXXXXXXXXXXXXXXXX environment with XXXXXXXXXXXXXX support for some XXXXXXXXX, but continued to vehemently oppose the eligibility of XXX. As indicated earlier, the better evidence demonstrated that the Student did meet the eligibility criteria for XXX and it was appropriate for the IEP team to find XXX eligible in that category with XXXXXXXXXX therapy as a supplementary service. Ultimately, the evidence showed that the XXXX IEP was appropriate and provided FAPE to the Student. The IEP was implemented during the upcoming school year for XXXXXXXXXXX. The parent’s opposition to the XXXX eligibility continued. XXXXXXXXXXXXXX 54. During XXXXXXXXXX, the Speech Language Pathologist (SLP) assigned to the Student kept logs of XXX therapy sessions and testified credibly that she delivered XX minutes per week of XXXXXXXXXXXXX therapy to the Student in a XXXXXXXXXXXXXXXXXX. Additionally, the SLP consulted regularly with the Student’s teachers. The clear evidence demonstrated that the Student’s IEP was substantially implemented. The evidence further demonstrated

33 that the Student reasonably progressed in school and was provided FAPE by the SLP. 55. In XXXXXXXXXXXXXXX, during lunch, the Student XXXXXXXXXXXXXX teacher in a XXXXXXXXXXXX, known as the “XXXXXXXXXXXXX” that was created for XXX and included XXXXXXXXXXXX, XXXXXXXXXXX XXXXXXXXXX students. Although the parent desired the Student to eat lunch in the XXXXXXXXXXX, and claimed that the Student’s lunch arrangements were a failure to implement the IEP, and did not provide the LRE for the Student, the evidence clearly demonstrated that, due to the Student’s XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, the Student needed to eat lunch in the XXXXXXXXXXXX XXXXXXXXXXX setting. Far from isolating or stigmatizing the Student, XXXXXXXXXXXXXXXXXXXXXXXXXXXX. In fact, the XXXXXXXXXXX group was considered a desirable group to be in by the other students. The XXXXX group substantially complied with the IEP, met the needs of the Student, and provided FAPE to the Student in a creatively developed LRE designed to meet the Student’s needs. 56. During XXXXXX, the Student continued to need XXXXXXXXXXXXXXXX and XXXXXXXXXXXX. The XXXXXXX teacher also saw a lot of XXXXXXXXXX XXXXXXXX with the Student, to the point XXXXXXXXXXXXXXXXX occurring in the classroom, credibly testifying that:

34 XXX was very determined, you know, in what she liked. XXXXXXXXXXXXX, constantly. I mean, the instructional area. Often times trying to XXXXXXXXXXXXXXXXXXXX,XXXXXXXXXXXXXXXXXXX. Also, when she would, you know, XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXXXXX. . . . As a result, the Student’s IEPs contained accommodations, XXXXXXXXXXXX, XXXXXXXXXXXXXXXX, and XXXXXXXXXXXXXXXXXXXXXXX. 57. An interim IEP was developed for the Student on XXXXXXXXXXX and XXXXXXXXXXXXXXX. The typographical error referencing the XXXXXXXXXXXXX was corrected in August. Services were adjusted to increase the XXXXXXXXXXXXXXXXXX and add XXXXXXXXXXXXXX for XXXXXXXXXX and XXXXXXXXXX XXXXXXX. The evidence demonstrated that these IEPs provided FAPE to the Student and otherwise complied with the requirements of IDEA. 58. The XXXXXXXXX XXXXXXXXX teacher met with the Student’s teachers on XXXXXXXXXX, XXXX, to discuss the Student’s needs and strategies to utilize with the Student. The XXXXXXXXXX teacher visited the Student’s school several times to provide support to teachers and staff. XXX observed XXXXXXXXX similar to the XXXXXXXXXX the Student’s teachers and staff observed. 59. At some point, the parent had obtained a third private XXXXXX and XXXXXXXXX evaluation dated XXXXXXXXX, XXXX. The District had also conducted an XX assessment. Because of this new information, an interim IEP meeting was held on XXXXXXXXXXXX,

35 2015. At the meeting, the team considered the private XXXXXXXX evaluations dated XXXXXXXXXX, XXXXX, XXXXXX, XXXX, and XXXXXXX, XXXX. The team also considered input from District staff who had observed the Student two times, did not observe any difficulties with the Student’s XXXXXXXXXXX, and agreed with the earlier team conclusions regarding non-eligibility for XXXXX and XXXXXXX. Collectively, the private evaluations corroborated the Student’s need for XXXXX therapy as a related service and corroborated that the Student’s XXXXXXXXXXXXXXXXXXXXXX. However, the evidence demonstrated that private XXXXXXXX SLPs are not responsible for helping the child access FAPE and that their assessment for applying evaluation results is different than the educationally based application required of the school-based IEP team for educational purposes. The better evidence demonstrated that these private evaluations did not materially add to the information the IEP team had already collected and considered regarding XXXXXXXXXXXXXX services. However, the better evidence demonstrated that the IEP team’s determinations regarding XXXXXXXXXX services were appropriate and provided the Student with FAPE. 60. Although Petitioner wanted collaboration by the XXXXXXX and XXXXXXXXXX XXXXXXXXXXX in the XXXXXXXXXXXX classroom, the IEP team determined that the most appropriate delivery model for the Student’s XXXXXXXXX therapy XXXXXXXXXXXXXX, XXXXXXXXXXXXXXX

36 delivered by the XXXXXXXXXXXXXXXXX pathologist in a XXXXXXXXXXXX setting. The school XXXXXXX and XXXXXXXXX pathologist testified that the Student needed a small group setting for therapy, due to XXXXXXXXXXX. Petitioner did not refute the Student’s need for a XXXXXXXXXXXXXXXXXXXXX therapy model. 61. Additionally, the only IEP goals that Petitioner disputed on the November IEP was a claimed reduction of service on two goals in the domain of Curriculum and Learning that were initially being measured by the teacher and the District’S XXXXXXXXXXXXXXXXXXXXXXXXXXXX. The IEP team changed the method of measurement on XXXXXXXXXXXXX, XXXX, to reduce the number of people measuring the goal to one person. The evidence showed that the change did not reduce services and had no impact on the Student’s education. Petitioner did not agree with this change. However, the evidence demonstrated that the change did not prevent the IEP from being reasonably calculated to provide the Student with FAPE or lead to a denial of FAPE. 62. Around the XXXXXXXXXXXXXX IEP meeting, the parent requested an IEE for XXXXXXXXXX and XXXXXXXXXXX. On XXXXXXXXXXXXX and XX, XXXX, Petitioner filed two separate state complaints with FDOE regarding the eligibility determination by the IEP team. Later, on XXXXXXXXXX, XXXX, the parent filed a third state complaint with FDOE disputing the multidisciplinary

37 team report. The State complaints were dealt with in one determination letter under the FDOE Case No. BEESS-2016-004-RES. 63. On XXXXXXXXXXX, XXXX, the District denied the parent’s request for an IEE for XXXXXXX and XXXXXXXXXX because multiple District and private evaluations had been completed for the Student in those areas. The evidence demonstrated that the denial was reasonable. On XXXXXXXXXXXX, XXXX, the District filed a due process complaint regarding a parent requested IEE for XXXXXX and XXXXXX that had been denied by the District (DOAH Case No. 16-0073). The Complaint was forwarded to DOAH for hearing. On XXXXXXXXXX, XXXX, the case was settled by the parties because the District granted the parent’s request for an IEE. The case was closed on XXXXXX, XXXX. 64. On XXXXXXXXXX, XXXX, FDOE issued its determination letter on the FDOE State complaints filed earlier. As part of the State corrective action the District was required to reconvene an IEP team meeting to consider the Student’s eligibility under the categories of XXX and XX. FDOE did not direct any action regarding the determination that the Student was not eligible under the Category of XX. Further, contrary to the parent’s assertion, the District was not directed to come to a specific conclusion regarding these eligibilities at the to-be- convened IEP meeting. The District was also required to complete

38 a XXXXXXXXXXXXXXXXXXXXXX on the Student. The XXXXXX refused to consent to an XXX and had refused such consent since XXXXXXXXXX. 65. On XXXXXXXXXXX, XXXX, an IEP meeting was held specifically to comply with the FDOE determination letter to reconsider the Student’s eligibility under XXX and XX. As the team tried to go over the information and data it had relative to eligibility under XXX and XXX, the parent’s advocate objected and insisted that the team had to find the Student eligible in the category of XX and not eligible in the category of XXX. The parent and the parent’s advocate, XXXXXXXXXXXXXXX, based on a misinterpretation of FDOE’s findings, demanded that the team reach a decision before going through the proper process. Because of the disagreement and the advocate’s insistence on their misinformed position, the parent and the advocate, at the advice of the advocate, elected to abruptly leave the meeting before reconsideration of eligibility was complete. The advice of the advocate was a disservice to the Student. 66. No new information was presented at the meeting that changed the opinion of the District team members on the Student’s eligibilities. The team reconsidered the information presented in the XXXXXXXXXXXXXXXXX and multiple XXXXXX and XXXXXXX reports (both private and public), the teacher’s reports, and the information presented by XXXXXXXXXXXXXXXXX. As indicated, the parent refused to provide consent for a XXX. The IEP team

39 proceeded with the meeting as directed and determined on appropriate evidence that the Student remained eligible in the categories of XXX and XXX. Further, the team determined on appropriate evidence that the Student was not eligible under the category of XXXXXX and XXXXXXXXX. The clear evidence was that the Student’s XXXXXXXX was not educationally relevant and that the Student’s XXXXXXXXXXXXX XXXXXXXXXX, which was mostly XXXXXXXXXXXXXXXXX, was related to XXXXXXXXXX. The better evidence demonstrated that, in addition to classroom instruction and XXXXXXXXXXXXXX regarding XXXXXXXXXX, the Student was appropriately provided XXXXXXXX services as a related service to increase XXXXXXXXXXXXXX and XXXXXXXXXXXXXXXXXXXXXXXXXX. This eligibility complied with IDEA. The results of the meeting were reported to FDOE. On XXXXXXXXXX, XXXX, FDOE officially closed the State complaint based on the actions taken by the District at the XXXXXXXXXXX, XXXX, meeting. 67. At the end of XXXXXXXXXXXXXX, the XXXXXXXX expressed XXX desire for the Student to be placed in XXXXXXXXXXXXX XXXX. An IEP meeting was scheduled for XXXXX, XXXX. The XXXXXXXXX, XXXX, meeting was the beginning of a very lengthy IEP process that continued over XXXXX and XXXXX, XXXX. 68. As indicated earlier, consent to develop a XXX and XXXXXXXXXXXXXXXX(XXX), which evidence showed the parent desired, was requested of the parent on XXXXXXXXXX, XXXX, and again on

40 XXXXXXXXXXX, XXXXX. Parental consent was finally provided on XXX XX, XXXX, during the meeting. The delay in obtaining a XXX and XXX was wholly caused by the parent’s attempts to dictate the process of developing a XXX based on the parent’s misinterpretation and very rigid view of the requirements of IDEA and the parent’s mistaken impression that some type of meeting needed to be held prior to the parent providing consent for a XXX to begin. Once consent was provided, a XXX and XXX were developed for the Student. 69. During the three days of the IEP meeting, the parent and XXX attorney spent a great deal of time going over accommodations, services, and sections of the IEP. XXXXXX interrupted the team and would often not allow the teachers to speak. The evidence demonstrated that the parent and XXX attorney fully participated in the meeting. The evidence also demonstrated that the placement of the Student was not predetermined by the District. 70. The XXXXXXXXXXXXXXXX teacher did not agree with the parent’s proposed placement for XXXXXXXXXXXXXX Math because, as the teacher credibly testified, the Student XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX or XXXXXXXXXXXXXXXX, since the Student XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX environment. The better evidence showed that

41 the Student XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX setting and XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX-grade XXXXXXXXXXXXXX level. 71. The XXXX teacher also attended the three-day IEP meeting in May and June of XXXX and also did not agree with placing the Student into the XXXXXXXXXXXXXXX environment for XXXX. In fact, XXX opinion was that the Student needed a XXXXXX setting XXXXXXXX. However, the team sided in part with the parent’s request for placement in XXXXXXXXXXXXXXXX in certain subjects. For other educational areas, like XXXX, the IEP team, based on the evidence before them, placed the Student in the XXXXXXXXXXXX for XXXX grade. The better evidence demonstrated that the IEP was complete and appropriate for the Student. The evidence also demonstrated that the IEP provided FAPE to the Student in the LRE. 72. Following the last meeting in XXXXXXX, Petitioner revoked consent for the District to talk to anyone in the private sector who had worked with the Student, including IEE vendors, and persons to whom testing protocols were previously sent. The revocation prevented IEE vendors from providing information or reports to the District and the District from providing necessary information to the IEE vendors. As such, the revocation effectively served as the parent’s withdrawal of XXX request for XXXXXXXXXXXXXXXX and XXXXXXXXX IEEs.

42 73. In XXXXXXXXXXX, the private XXX selected by the XXXXXX completed XXX evaluation of the Student. The private XXX did not provide XXX evaluation to the District, since the parent had prevented XXX from doing so by revoking consent to share information. Because the District never received the private evaluation, the District appropriately did not pay for it and did not violate IDEA by not paying for the private evaluation. 74. As set forth in the stipulated facts, there is no dispute that the Student was made eligible for ESY services during all school years that XXX was enrolled in the District. Petitioner elected to have the Student attend ESY during XXXX, XXXX, and XXXX. During those times, ESY was provided only to XXXXXX Students. Similarly, ESY was provided only to XXXXXX Students in XXXX. 75. Petitioner asserted that the Student should receive ESY service in the same manner in which XXX IEPs were implemented during the school year, i.e. in a setting that XXXXXXXXXXXXXXXXX. However, IDEA does not require school districts to create new programs as a means of providing ESY services to students in integrated settings, if the District does not provide services during summer for its nondisabled students. Since the District did not provide ESY services to nondisabled students, the District has not violated IDEA in the provision of ESY services to the Student.

43 76. In the end, the parent withdrew the Student from the public school in mid-XXXXXXXX. As indicated earlier, XXX has since been educated in private school. 77. In sum, the evidence demonstrated that, in one school year, XXXXXX IEPs were developed for the Student on XXXXX, XXXX, XXXXXXXXXXXX, XXXXXXXXXXXXX, XXXXXXXXXXXX, XXXXXXXXXXXXXX, XXXXXXXXXXXXXX, and XXXXXXXXXXXXX. The evidence demonstrated that the IEPs developed for the Student were not static, but working documents that were changed according to the Student’s individual requirements given XXX special circumstances at the time the IEP was drafted. The better evidence demonstrated that all of the Student’s IEPs adequately addressed XXXXXXXXXX XXXXXX and XXXXXXXXXXXXXXXXXXXXXXXXXX, as well as XXXXXXXXXXXXXXXXXXXXXX. The IEPs contained goals for each of these educational needs, as well as the related service of XXXXXXXXX therapy. The private XXX who testified for Petitioner agreed that the Student needed the XXXXXXX XXXXXXXXXXXX therapy provided on her IEPs. 78. Further, the Student’s IEPs, including XXXXXXXXXXXXXXXXXXXXXXXXX IEP dated XXXXXX, XXXX, had appropriate goals and services to address XXX unique educational needs that resulted from XXX disabilities. The IEPs contained numerous services to address XXX needs, such as: goals, specialized instruction, and related services of XXXXXXXX therapy, XXXXXX

44 therapy, XXXXXXXXXX therapy, accommodations, XXXXXXXXXXXXX XXXXXXXXXXX , and XXXXXXXXXXXXXXXX support. There was nothing missing from the Student’s XXXXXXXX, XXXX, IEP or subsequent IEPs that XXX needed for support in the XXXXXXXX environment. 79. The IEPs also addressed the Student’s XXXXXXXXX needs by providing goals related to the Student’s educational needs of XXXXXXXXXX, XXXXXXXXXXXXX, XXXXXX skills, as well as XXXXXXXXXX skills. The IEPs provided specialized instruction for these skills, supplementary aids and services of collaboration by an XXX teacher in XXXXXXXXXXX XXXXXXXXXX subjects, XXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXX teacher, XXXXXXXXXXXXXXXXX, as well as a variety of needed accommodations. All of these services and accommodations were designed to assist with the Student’s educational needs and were appropriate for the Student. In fact, one of the XXXXXXXXXXXXXX with educational experience testified that, “the district was offering what the child needed in the way of services” and felt the IEP was appropriate for the Student. 80. Petitioner failed to prove that any material provision was omitted from any of the IEPs or that the implementation of any service fell significantly short of the IEPs’ requirements. Petitioner’s claim that XX services were not delivered in accordance with the IEP was unfounded. The Student received

45 XX minutes per week of XX in accordance with XXX IEP. Respondent’s witnesses testified credibly and consistently that the Student needed XXXXXXX XXXXXXX from an SLP in a XXXXXXXXXXXXXXXXXX. Petitioner did not refute the Student’s need to receive XX in a XXXXXXX setting. 81. There was no dispute by Petitioner that the Student made progress as a result of XXX IEP services and accommodations and, in fact, the Student did make progress. The private XXX who testified for Petitioner acknowledged the fact the Student made significant progress after attending District XXXX and XXXXXXXXXX and XXX documented the progress in XXX XXXXXX evaluation. 82. The evidence demonstrated that the Student was placed in a XXXXXXXXXXXXXXXX setting to the maximum extent appropriate. This placement was aided by collaboration from XXXXXX teacher, XXXXXXXXXXXXXXXX XXXXXXXXXXX, XXXXXXXXXXXXXXXXXX, XX, XX, XX, and a XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The Student’s supports and services were at their XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX placement. Petitioner failed to present evidence that it would be appropriate to place the Student in XXXXXXXXXXXXX, or any additional XXXXXXXXXXXXXXXXX. 83. Finally, the District XXXXXXXXXXXXXX teacher who worked with the Student and XXX teachers during XXXXX and XXXXXXXXXXXX, the XXXXXXXXXXXXXXXXXXXX specialist, the XXXXXX teachers, the District XXXXX and XXXXXXXXXX professionals, the school

46 psychologists, and the XXXXXXXXXXXXXXXXX teachers credibly testified that they agreed with the eligibility of XXX based on the Student’s XXXXXXXXX at school, as well as on the reports and data they reviewed. The better evidence demonstrated that the eligibility determination made by the District was appropriate for the Student based on XXXXXXXXXXXXXXX. Further, there was no evidence that, as the parent believed, some conspiracy existed amongst all the professionals in the District to make the Student’s XXXXXXXXXXXXXXXXXXXXXXXXXXXXX in order to justify the Student being placed in the XXX eligibility category. 84. In short, the better evidence demonstrated the IEP was appropriate for the Student and provided the Student with FAPE given the impact of the Student’s XXXXXXXXX on XXX educational performance. The evidence demonstrated that the Student’s goals were based on her individual needs and that reasonable progress was being made by the Student under those IEPs. As such, the evidence demonstrated that the Student’s multiple IEPs over the years were reasonably calculated to provide the Student with FAPE. Further, the evidence showed that those IEPs were substantially implemented. As indicated, the Student made reasonable progress given the impact of the Student’s XXXXXXXXXX on XXX educational performance in all years of XXX education and was provided FAPE by the School Board. Given these facts, the Complaint filed by the Petitioner should be dismissed.

47 CONCLUSIONS OF LAW 85. DOAH has jurisdiction over the subject matter of this proceeding and of the parties thereto. See §§ 120.65(6) and 1003.57(1)(c), Fla. Stat.; Fla. Admin. Code R. 6A-6.03311(9)(u). 86. Petitioner bears the burden of proof with respect to each of the issues raised herein. Schaffer v. Weast, 546 U.S. 49, 62 (2005). 87. In enacting the IDEA, Congress sought to “ensure that all children with disabilities have available to them a free appropriate public education that emphasized special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A); Phillip C. v. Jefferson Cnty. Bd. of Educ., 701 F.3d 691, 694 (11th Cir. 2012). The statute was intended to address the inadequate educational services offered to children with disabilities and to combat the exclusion of such children from the public school system. 20 U.S.C. § 1400(c)(2)(A)-(B). To accomplish these objectives, the federal government provides funding to participating state and local educational agencies, which is contingent on each agency's compliance with the IDEA's procedural and substantive requirements. Doe v. Ala. State Dep't of Educ., 915 F.2d 651, 654 (11th Cir. 1990).

48 88. Parents and students with disabilities are accorded substantial procedural safeguards to ensure that the purposes of the IDEA are fully realized. Bd. of Educ. v. Rowley, 458 U.S. 176, 205-06 (1982). Among other protections, parents are entitled to examine their child's records and participate in meetings concerning their child's education; receive written notice prior to any proposed change in the educational placement of their child; and file an administrative due process complaint "with respect to any matter relating to the identification, evaluation, or educational placement of [their] child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(1), (b)(3), & (b)(6). 89. To satisfy the IDEA's substantive requirements, school districts must provide all eligible students with FAPE, which is defined as: [S]pecial education services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under [20 U.S.C. § 1414(d)]. 20 U.S.C. § 1401(9).

49 90. The central mechanism by which the IDEA ensures FAPE for each child is the development and implementation of an IEP. 20 U.S.C. § 1401(9)(D); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 368 (1985)(“The modus operandi of the [IDEA] is the . . . IEP.”)(internal quotation marks omitted). The IEP must be developed in accordance with the procedures laid out in the IDEA and must be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas Cnty. Sch. Dist., RE-1, 13 S. Ct. 988, 999 (2017). 91. "Special education," as that term is used in the IDEA, is defined as: [S]pecially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including–- (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings . . . . 20 U.S.C. § 1401(29). 92. The components of FAPE are recorded in an IEP, which, among other things, identifies the child's "present levels of academic achievement and functional performance," establishes measurable annual goals, addresses the services and accommodations to be provided to the child, and whether the child will attend mainstream classes, and specifies the measurement

50 tools and periodic reports that will be used to evaluate the child's progress. 20 U.S.C. § 1414(d)(1)(A)(i); 34 C.F.R. § 300.320. "Not less frequently than annually," the IEP team must review and, as appropriate, revise the IEP. 20 U.S.C. § 1414(d)(4)(A)(i). 93. Indeed, "the IEP is 'the centerpiece of the statute's education delivery system for disabled children.'" Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 13 S. Ct. 988, 994 (2017)(quoting Honig v. Doe, 108 S. Ct. 592 (1988))("The IEP is the means by which special education and related services are 'tailored to the unique needs' of a particular child."). Id. (quoting Rowley, 102 S. Ct. at 3034)(where the provision of such special education services and accommodations are recorded). 94. In Rowley, the Supreme Court held that a two-part inquiry or analysis of the facts must be undertaken in determining whether a local school system has provided a child with FAPE. As an initial matter, it is necessary to examine whether the school system has complied with the IDEA's procedural requirements. Rowley, 458 U.S. at 206-207. A procedural error does not automatically result in a denial of FAPE. See G.C. v. Muscogee Cnty. Sch. Dist., 668 F.3d 1258, 1270 (11th Cir. 2012). Instead, FAPE is denied only if the procedural flaw impeded the child's right to a free appropriate public education, significantly infringed the parents' opportunity to participate

51 in the decision-making process, or caused an actual deprivation of educational benefits. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007). 95. In this case, Petitioner alleged that the School Board failed to meet the procedural requirements of IDEA by not properly evaluating the Student to determine the Student's eligibility, prior to the XXXXXXXXXXXX school year. The parent further alleged that the School Board failed to meet the procedural requirements of the IDEA by finding the Student eligible under the program category of XXXX and not eligible under the program categories of XX and XX, immediately prior to or during the XXXXXXXXX school year. The two issues are intertwined. 96. Florida Administrative Code Rule 6A-6.03027(6) requires a student to be reevaluated for continued eligibility for ESE services prior to turning six, if a student, as the Student herein, has an eligibility based on developmental delay. Further, IDEA contains "an affirmative obligation of every [local] public school system to identify students who might be disabled and evaluate those students to determine whether they are indeed eligible." L.C. v. Tuscaloosa Cnty. Bd. of Educ., 2016 U.S. Dist. LEXIS 52059 at *12 (N.D. Ala. 2016)(quoting N.G. v. D.C., 556 F. Supp. 2d 11, 16 (D.D.C. 2008)(citing 20 U.S.C.

52 § 1412(a)(3)(A)). This obligation is referred to as "Child Find," and a local school system's "[f]ailure to locate and evaluate a potentially disabled child constitutes a denial of FAPE." Id. Thus, each state must put policies and procedures in place to ensure that all children with disabilities residing in the state, regardless of the severity of their disability, and who need special education and related services, are identified, located, and evaluated. 34 C.F.R. § 300.111(a). 97. However, “Child Find does not demand that schools conduct a formal evaluation of every struggling student.” D.K. v. Abington Sch. Dist., 696 F.3d 233 (3rd Cir. 2012)(quoting J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 661 (S.D.N.Y. 2011))(“The IDEA's child find provisions do not require district courts to evaluate as potentially ‘disabled’ any child who is having academic difficulties.”)(internal quotation marks omitted). Further, a school’s failure to diagnose a disability at the earliest possible moment is not per se actionable, in part because some disabilities “are notoriously difficult to diagnose and even experts disagree about whether [some] should be considered a disability at all.” D.K., 696 F.3d at 249 (quoting A.P. ex rel. Powers v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 226(D. Conn. 2008))(internal quotation marks omitted). Additionally, the label assigned to a particular student is less important than the skill areas evaluated. The issue is whether

53 the district appropriately assessed the student in all areas of a suspected disability. See, e.g., Avila v. Spokane Sch. Dist. 81, 69 IDELR 204 (9th Cir. 2017, unpublished)(noting that a Washington district had assessed a student with autism for “reading and writing inefficiencies,” the court ruled that it properly evaluated the student for dyslexia and dysgraphia). See also, Lauren C. v. Lewisville Indep. Sch. Dist., 2017 WL 2813935, at *6, 70 IDELR 63 (E.D. Texas June 29, 2017). 98. Rule 6A-6.0331(3)(e) sets forth the requisite qualifications of those conducting the necessary evaluations and rule 6A-6.0331(5) sets forth the procedures for conducting the evaluations. In conducting the evaluation, the school district "must not use any single measure or assessment as the sole criterion for determining whether a student is eligible for ESE." Fla. Admin. Code R. 6A-6.0331(5)(a)2. To the contrary, the school district "must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student." Fla. Admin. Code R. 6A- 6.0331(5)(a)1. Further, the student shall be assessed in "all areas related to a suspected disability" and an evaluation "shall be sufficiently comprehensive to identify all of a student's ESE needs, whether or not commonly linked to the suspected disability." Fla. Admin. Code R. 6A-6.0331(5)(f), (g).

54 99. Under Florida law, at the time the Student’s psychoeducational evaluation was performed in 2015, ASD was defined in rule 6A-6.03023 as: (1) Definition. Students with XXXXXXXXXXXXXXXXX. XXXXXXXXXXXXXXXXXX is defined to be a range of pervasive developmental disorders that adversely affects a student’s functioning and results in the need for specially designed instruction and related services. Autism Spectrum Disorder is characterized by an uneven developmental profile and a pattern of qualitative impairments in social interaction, communication, and the presence of restricted repetitive, and/or stereotyped patterns of behavior, interests, or activities. These characteristics may manifest in a variety of combinations and range from mild to severe. Autism Spectrum Disorder may include Autistic Disorder, Pervasive Developmental Disorder Not Otherwise Specified, Asperger’s Disorder, or other related pervasive developmental disorders. (2) General education interventions and activities. Prior to referral for evaluation the requirements in subsection 6A-6.0331(1), F.A.C., must be met. (3) Evaluation. In addition to the procedures identified in subsection 6A- 6.0331(5), F.A.C., the evaluation for determining eligibility shall include the following: (a) Documented and dated behavioral observations conducted by members of the evaluation team targeting social interaction, communication skills, and stereotyped patterns of behavior, interests, or activities, across settings. General education interventions and activities conducted prior to referral may be used to

55 meet this criterion, if the activities address the elements identified in this paragraph; (b) A comprehensive social/developmental history compiled with the parents(s) or guardian(s) that addresses the core features of XXXXXXXXXXXXXXXXXXXXXX; (c) A comprehensive psychological evaluation to identify present levels of performance and uneven patterns of development in language, social interaction, adaptive behavior, and cognitive skills; (d) A comprehensive speech/language evaluation; and, (e) Medical information provided shall be considered. (4) Criteria for eligibility. A student with XXXXXXXXXXXXXXXX is eligible for exceptional student education if all of the following criteria are met: (a) Evidence of all of the following: 1. Uneven developmental profile as evidenced by inconsistencies across or within the domains of language, social interaction, adaptive behavior, and/or cognitive skills; and 2. Impairment in social interaction as evidenced by delayed, absent, or atypical ability to relate to people or the environment; and 3. Impairment in verbal and/or nonverbal language or social communication skills, and 4. Restricted repetitive, and/or stereotyped patterns of behavior, interests, or activities; and

56 (b) The student needs special education as defined in paragraph 6A-6.03411(1)(kk), F.A.C. The XXXXXXX rule was amended on XXXXXXXXXX, XXXX. However, the changes to the rule do not impact the findings in this case. 100. In Florida, LI is defined in rule 6A-6.0301210 as: (1) XXXXXXXXXXXXXXXX are disorders of language that interfere with communication, adversely affect performance and/or functioning in the student’s typical learning environment, and result in the need for exceptional student education. (a) A XXXXXXXXXXXXXXXXXXX is defined as a disorder in one or more of the basic learning processes involved in understanding or in using spoken or written language. These include: 1. Phonology. Phonology is defined as the sound systems of a language and the linguistic conventions of a language that guide the sound selection and sound combinations used to convey meaning; 2. Morphology. Morphology is defined as the system that governs the internal structure of words and the construction of word forms; 3. Syntax. Syntax is defined as the system governing the order and combination of words to form sentences, and the relationships among the elements within a sentence; 4. Semantics. Semantics is defined as the system that governs the meanings of words and sentences; and, 5. Pragmatics. Pragmatics is defined as the system that combines language components in functional and socially appropriate communication.

57 (b) A XXXXXXXXXXXXX XXXXXXXXXX may manifest in significant difficulties affecting listening comprehension, oral expression, social interaction, reading, writing, or spelling. A language impairment is not primarily the result of factors related to chronological age, gender, culture, ethnicity, or limited English proficiency. 101. Notably, both the XXX and XX categories address XXXXXXXXXXXX issues involving XXXXXXXXX and overlap in their scope. 102. Herein, the better evidence showed that at the reevaluation plan meeting, the necessity for reevaluations in multiple areas were discussed along with current information regarding the Student and an appropriate reevaluation plan was implemented for the Student. As such, the School Board met the procedural requirements for reevaluations under IDEA. Further, the evidence was clear that the psychoeducational reevaluation was comprehensive with information obtained from multiple sources and across multiple settings, as well as, complied with DOE rules regarding such evaluations. It reflected a valid picture of the Student at the time it was performed. Similarly, the better evidence showed that, as with the psychoeducational reevaluation, the various speech/language reports met evaluation standards for speech/language reevaluations. All of the relevant evaluations evaluated the Student’s skills as they related to socialization

58 and communication issues. The relevant evaluations were also properly considered by the IEP team. 103. Additionally, considerable evidence was presented in this matter relative to the Student's educational needs. Ultimately, the IEP team, based on the evidence before it, reasonably categorized Petitioner as XXX for education and IEP purposes. The team reasonably did not categorize Petitioner as XX because the Student’s communication issues were related to XXXXXXX. The evidence showed that the XXX category was a better fit given the impact of the Student’s disability on XXX educational performance. As such, the Student was eligible to receive XXX services as a related service secondary to XXX primary eligibility of XXX. Further, the evidence did not support a need to additionally recognize the Student in the category of XX and the IEP team appropriately determined the Student was not eligible in that category. As such, the School Board met the requirements of IDEA and provided FAPE to the Student regarding its evaluation and categorization of the Student during the school years relevant in this case. Therefore, the portions of the Complaint relative to the evaluation and eligibility of the Student should be dismissed. 104. In Florida, XX is defined in rule 6A-6.03012 as:

59 (1) XXXXXXXXXXXXXXXXX are disorders of speech sounds, fluency, or voice that interfere with communication, adversely affect performance and/or functioning in the educational environment, and result in the need for exceptional student education. (a) Speech sound disorder. A speech sound disorder is a phonological or articulation disorder that is evidenced by the atypical production of speech sounds characterized by substitutions, distortions, additions, or omissions that interfere with intelligibility. A speech sound disorder is not primarily the result of factors related to chronological age, gender, culture, ethnicity, or limited English proficiency. 1. Phonological disorder. A phonological disorder is an impairment in the system of phonemes and phoneme patterns within the context of spoken language. 2. Articulation disorder. An articulation disorder is characterized by difficulty in the articulation of speech sounds that may be due to a motoric or structural problem. (b) Fluency disorder. A fluency disorder is characterized by deviations in continuity, smoothness, rhythm, or effort in spoken communication. It may be accompanied by excessive tension and secondary behaviors, such as struggle and avoidance. A fluency disorder is not primarily the result of factors related to chronological age, gender, culture, ethnicity, or limited English proficiency. (c) Voice disorder. A voice disorder is characterized by the atypical production or absence of vocal quality, pitch, loudness, resonance, or duration of phonation that is not primarily the result of factors related to chronological age, gender, culture, ethnicity, or limited English proficiency.

60 105. The clear evidence demonstrated that the Student was not eligible under the XX category, since XXX could be understood by others and could access her education. As such, the team’s determination that the Student did not qualify for XX met the procedural requirements of IDEA and provided FAPE to the Student regarding its evaluation and categorization of the Student as not eligible for XX during the school years relevant to this case. Given these facts, the portions of the Complaint relative to the eligibility for XX should be dismissed. 106. Pursuant to the second step of the Rowley test, it must be determined if the IEP developed, pursuant to the IDEA, is reasonably calculated to enable the child to receive "educational benefits." Rowley, 458 U.S. at 206-07. Recently, in Endrew F., the Supreme Court addressed the "more difficult problem" of determining a standard for determining "when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the Act." Endrew F., 13 S. Ct. at 993. In doing so, the Court held that, "[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Id. at 999. As discussed in Endrew F., "[t]he 'reasonably calculated' qualification reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials," and that

61 "[a]ny review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal." Id. 107. The determination of whether an IEP is sufficient to meet this standard differs according to the individual circumstances of each student. For a student who is "fully integrated in the regular classroom," an IEP should be "reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Id. (quoting Rowley, 102 S. Ct. at 3034). For a student, like Petitioner in this case, who is not fully integrated in the regular classroom, an IEP must aim for progress that is "appropriately ambitious in light of [the student's] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." Id. at 1000. This standard is "markedly more demanding" than the one the Court rejected in Endrew F., under which an IEP was adequate so long as it was calculated to confer "some educational benefit," that is, an educational benefit that was "merely" more than "de minimis." Id. at 1000-1001. 108. The assessment of an IEP's substantive propriety is guided by several principles, the first of which is that it must be analyzed in light of circumstances as they existed at the time

62 of the IEP's formulation; in other words, an IEP is not to be judged in hindsight. M.B. v. Hamilton Se. Sch., 668 F.3d 851, 863 (7th Cir. 2011)(holding that an IEP can only be evaluated by examining what was objectively reasonable at the time of its creation); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990)("An IEP is a snapshot, not a retrospective. In striving for 'appropriateness,' an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated."). Second, an assessment of an IEP must be limited to the terms of the document itself. Knable v. Bexley Cty. Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001); Sytsema v. Acad. Sch. Dist. No. 20, 538 F.3d 1306, 1315-16 (8th Cir. 2008)(holding that an IEP must be evaluated as written). 109. Third, great deference should be accorded to the reasonable opinions of the professional educators who helped develop an IEP. See Endrew F., 13 S. Ct. at 1001 ("This absence of a bright-line rule, however, should not be mistaken for an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review" and explaining that "deference is based on the application of expertise and the exercise of judgment by school authorities."); A.K. v. Gwinnett Cnty. v. Sch. Dist., 556 Fed. Appx. 790, 792 (11th Cir. 2014)("In determining whether the IEP

63 is substantively adequate, we 'pay great deference to the educators who develop the IEP.'")(quoting Todd D. v. Andrews, 933 F.2d 1576, 1581 (11th Cir. 1991)). As noted in Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir. 1989), "[the undersigned's] task is not to second guess state and local policy decisions; rather, it is the narrow one of determining whether state and local officials have complied with the Act." 110. Further, the IEP is not required to provide a maximum educational benefit, but only need provide a basic educational opportunity. Todd D. v. Andrews, 933 F.2d 1576, 1580 (11th Cir. 1991); C.P. v. Leon Cnty. Sch. Bd., 483 F.3d 1151, 1153 (11th Cir. 2007); and Devine v. Indian River Cnty. Sch. Bd., 249 F.3d 1289, 1292 (11th Cir. 2001). 111. The statute guarantees an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)(internal citation omitted); see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-534 (3d Cir. 1995); Kerkam v. McKenzie, 862 F.2d 884, 886 (D.C. Cir. 1988)("proof that loving parents can craft a better program than a state offers does not, alone, entitle them to prevail under the Act"). Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998); and Doe v. Bd. of Educ., 9 F.3d 455, 459-460 (6th Cir. 1993)("The Act requires that the Tullahoma schools provide

64 the educational equivalent of a serviceable Chevrolet to every handicapped student. Appellant, however, demands that the Tullahoma school system provide a Cadillac solely for appellant's use . . . . Be that as it may, we hold that the Board is not required to provide a Cadillac . . . ."). 112. In this case, Petitioner alleged that immediately prior to or during the XXXXXXXX school year, the District failed to develop an appropriate IEP for the Student in that the subject IEP failed to provide appropriate services, accommodations, and support for a student who is XXXXXX and XXXXXXXXXXXXXXX and XXXXXXXXXXXXXXXXXXXXXXXXX. Petitioner also alleged that, during the XXXXXXXXXX school year, the Student's placement in the XXXXXXXXXXXXX and XXXXXXXXXXXXXXX setting violated the LRE requirement. Additionally, Petitioner alleged that, during the XXXXXXXXXXX school year, the District failed to implement therapy services as provided on the IEP as related to services provided by a speech and language pathologist. Lastly, Petitioner alleged that, the District failed to implement the controlling IEP in that it failed to provide the Student ESY services, consistent with the IEP. 113. Relative to the appropriateness of the Student’s IEPs, the better evidence demonstrated that the various IEPs were appropriate for the Student and provided the Student with FAPE given the impact of the Student’s disability on XXX educational

65 performance. The evidence demonstrated that the Student’s goals were based on her individual needs and that reasonable progress was made by the Student under those IEPs. The better evidence also demonstrated that the Student’s IEPs were “appropriately ambitious” and “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” because, as a threshold matter, they contained a statement of XXX current educational performance, a statement of annual goals, a statement of the specific education and related services to be provided, a statement of how much she would participate in regular education programs, and the dates for and initiation of such services. More importantly, the evidence showed that the Student reasonably progressed given the impact of the Student’s disability on XXX educational performance in all years of XXX education. Additionally, the better evidence demonstrated that the Student’s XXXXXXXXXXXXXXXXXXX needs were properly met through her IEPs and met all of her unique needs. As such, the evidence demonstrated that the Student’s multiple IEPs over the years met the requirements of IDEA and provided the Student with FAPE. Thus, the portions of the Complaint relative to the appropriateness of the Student’s IEPs should be dismissed. 114. As indicated Petitioner alleged that the Student’s IEP was not implemented during the XXXXXXXXXXXX school year relative

66 to services provided by a speech and language pathologist and the provision of ESY services to the Student. 115. Because this claim challenges the District’s implementation of Petitioner's educational programming——rather than its substance——a different standard of review applies. L.J. v. Sch. Bd. of Broward Cnty., 850 F. Supp. 2d 1315, 1319 (S.D. Fla. 2012). In particular, a parent raising a failure-to- implement claim must present evidence of a “material” shortfall, which occurs when there is “more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP.” Van Duyn v. Baker Sch. Dist., 502 F.3d 811, 822 (9th Cir. 2007). Notably, this standard does not require that the student suffer demonstrable educational harm in order to prevail. Id. at 822; Colon-Vazquez v. Dep't of Educ., 46 F. Supp. 3d 132, 143-44 (D.P.R. 2014); Turner v. Dist. of Columbia, 952 F. Supp. 2d 31, 40 (D.D.C. 2013). Rather, the materiality standard focuses on “the proportion of services mandated to those actually provided, and the goal and import (as articulated in the IEP) of the specific service that was withheld.” Wilson v. Dist. of Columbia, 770 F. Supp. 2d 270, 275 (D.D.C. 2011). 116. Relative to the implementation of the Student’s IEPs, the evidence demonstrated that the XXXXXXXXXX SLP assigned to the Student credibly testified that XXX delivered XX minutes per week

67 of XX to the Student in a XXXXXXXXXXXX setting as required by the Student’s IEPs. Additionally, the XXX consulted regularly with the Student’s teachers. The clear evidence demonstrated that the Student’s IEP was substantially implemented in regard to XXXXXXXXXXXXXXX services. The evidence further demonstrated that the Student reasonably progressed in school and was provided FAPE by the XXX. 117. Further, the evidence showed that those IEPs were substantially implemented relative to ESY. The Student was offered appropriate ESY services throughout the years of XXX education. The Student participated in those ESY services until the summer of XXXX when XXX declined to attend ESY because ESY services were only offered to disabled students. However, IDEA does not require school districts to create new programs as a means of providing ESY services to students in integrated settings if the District does not provide services during summer for its nondisabled students. A.L. v. Jackson Cnty. Sch. Bd., 635 Fed.Appx. 774, 783 (11th Cir. 2015). Since the District did not provide ESY services to nondisabled students, the District has not failed to implement the Student’s IEP and has not violated IDEA in the provision of ESY services to the Student. Therefore, the portions of the Complaint relative to the implementation of the IEP should be dismissed.

68 118. Finally, Petitioner alleged that, during the XXXXXXXX school year, the Student's placement in the general education and resource room setting violated the LRE requirement of IDEA. 119. In that regard, the IDEA provides directives on students' placements or education environment in the school system. Specifically, 20 U.S.C. § 1412(a)(5)(A) provides as follows: Least restrictive environment. (A) In general. To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 120. Notably, although not defined in the IDEA, the term “educational placement” has been interpreted by courts to mean a child’s overall educational program, not the particular institution where the program is being implemented. Hill v. Sch. Bd. of Pinellas Cnty., 954 F. Supp. 251, 253 (M.D. Fla. 1997), aff’d sub nom, 137 F.3d 1355 (11th Cir. 1998). 121. Pursuant to the IDEA's implementing regulations, states must have in effect policies and procedures to ensure that public agencies in the state meet the LRE requirements.

69 34 C.F.R. § 300.114(a). Additionally, each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services. 34 C.F.R. § 300.115. In turn, FDOE has enacted rules to comply with the above-referenced mandates concerning the LRE and providing a continuum of alternative placements. See Fla. Admin. Code R. 6A-6.03028(3)(i) and 6A-6.0311(1). 122. In determining the educational placement of a child with a disability, each public agency must ensure that the placement decision is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options. 34 C.F.R. § 300.116(a)(1). Additionally, the child's placement must be determined at least annually, based on the child's IEP, and as close as possible to the child's home. 34 C.F.R. § 300.116(b). 123. With the LRE directive, "Congress created a statutory preference for educating handicapped children with nonhandicapped children." Greer v. Rome City Sch. Dist., 950 F.2d 688, 695 (11th Cir. 1991). "By creating a statutory preference for mainstreaming, Congress also created a tension between two provisions of the Act, School districts must both seek to mainstream handicapped children and, at the same time, must

70 tailor each child's educational placement and program to his special needs." Daniel R.R. v. State Bd. of Educ., 874 F.2d at 1044. 124. In Daniel, the Fifth Circuit set forth a two-part test for determining compliance with the mainstreaming requirement: First, we ask whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child. See § 1412(5)(B). If it cannot and the school intends to provide special education or to remove the child from regular education, we ask, second, whether the school has mainstreamed the child to the maximum extent appropriate. Daniel, 874 F.2d at 1048. 125. In Greer, infra, the Eleventh Circuit adopted the Daniel two-part inquiry. In determining the first step, whether a school district can satisfactorily educate a student in the regular classroom, several factors are to be considered: 1) a comparison of the educational benefits the student would receive in a regular classroom, supplemented by aids and services, with the benefits he will receive in a self-contained special education environment; 2) what effect the presence of the student in a regular classroom would have on the education of other students in that classroom; and 3) the cost of the supplemental aids and services that will be necessary to achieve a

71 satisfactory education for the student in a regular classroom. Greer, 950 F.2d at 697. 126. Against the above legal framework, we turn to Petitioner's substantive claim. Here, Petitioner contends that the appropriate placement should be that of a regular general education classroom for XXXX. However, the better evidence establishes that the Student has been mainstreamed to the maximum extent possible in general education Science, Social Studies, Reading Intervention, and Physical Education. The Student was provided a part-time paraprofessional to assist XXX at school. Further, the better evidence demonstrated that the Student cannot be satisfactorily educated in the regular general education classroom for the subject of XXXX, with the use of supplemental aids and services, because XXX is not able to handle the larger group setting and access the curriculum. 127. Accordingly, the instant proceeding turns on the second part of the test: whether the Student has been mainstreamed to the maximum extent appropriate. In determining this issue, the Daniel court provided the following general guidance: The [IDEA] and its regulations do not contemplate an all-or-nothing educational system in which handicapped children attend either regular or special education. Rather, the Act and its regulations require schools to offer a continuum of services. Thus, the school must take intermediate steps where

72 appropriate, such as placing the child in regular education for some academic classes and in special education for others, mainstreaming the child for nonacademic classes only, or providing interaction with nonhandicapped children during lunch and recess. The appropriate mix will vary from child to child and, it may be hoped, from school year to school year as the child develops. If the school officials have provided the maximum appropriate exposure to non-handicapped students, they have fulfilled their obligation under the [IDEA]. Daniel, 874 F.2d at 1050 (internal citations omitted). 128. In this case, during the XXXXXXXX school year, the Student was placed in a resource room setting for XXXX. The credible evidence provided by the educational staff demonstrated that the Student was struggling in XXXX provided in the resource room even though maximally accommodated in that class. The evidence also showed that the Student did not work well in a large group, general education setting and could not access the curriculum difficulty at the XXXXX-grade level. In fact, the Student needed a small group, resource room setting for XXXX. Given these facts, the Student’s placement in the resource room was appropriate for the Student and provided the Student with FAPE in the LRE. Thus, the portions of the Complaint relative to the LRE should be dismissed. 129. Finally, the balance of Petitioner’s claims as asserted in the Complaint were not supported by the evidence, and, therefore, are dismissed.

73 ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Petitioner’s Complaint is DISMISSED in its entirety. DONE AND ORDERED this 17th day of August, 2018, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2018. ENDNOTES 1/ In fact, the District has never disputed that part of the Student’s disabilities include significant language delays that impact XXX education. The dispute in this case has not been over the amount of XX, but has always been over whether such therapy should be delivered through a program eligibility in XXXXXX and XXXXXXX or secondarily as a related service under an XXX program eligibility. 2/ The District’s XXXXXXXXXX reevaluation remains unchallenged on this record. No independent education evaluation contradicting the District’s reevaluation was introduced into evidence. Similarly, no expert testified contradicting the District’s reevaluation or the protocols underlying that evaluation. Other parentally introduced evidence regarding the District’s evaluation was unpersuasive.

74 3/ In fact, IDEA does not require that eligibility for a XXXXXXXXXXXXXXX program be recommended over XX as a related service where the impairment is related to or results from the primary eligibility. 4/ There was no evidence that the Student should or would receive more XXXXXXXXX or XXXXXXX therapy services if XXX was eligible for such services under separate eligibility XXXXXXX and XXXXXXX XXXXXXXX categories. The better evidence demonstrated that the Student would not receive more services. In essence, the parent’s demand that the Student be evaluated and/or recognized for eligibility in the XXXXXX and XXXXXXXXXX program category is a distinction without a difference and not material to the provision of FAPE in this case or procedural compliance under IDEA. 5/ The XXXXXXX diagnosis remained in the doctor’s records through XXXXXXXXXXX, XXXXXX, as reflected in the date of service note for that date. 6/ To the extent that the three-year review period was approaching for the Student at the time of the hearing and given the Student is no longer enrolled in public school, this issue appears to be moot. T.P. by T.P. and B.P. v. Bryan Cnty. Sch. Dist., 115 LRP 29136 (11th Cir. 07/02/15). COPIES FURNISHED: XXXXXXXXXXXXX, Esquire Miami-Dade County Public Schools 1450 Northeast 2nd Avenue Miami, Florida 33132 (eServed) XXXXXXXXXXXXX Department of Education 325 West Gaines Street Tallahassee, Florida 32399 (eServed) Petitioner (Address of Record-eServed) XXXXXXXXXXXX, General Counsel

75 Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) XXXXXXXXXXXX, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue #912 Miami, Florida 33132-1308 NOTICE OF RIGHT TO JUDICIAL REVIEW This decision is final unless, within 90 days after the date of this decision, an adversely affected party: a) brings a civil action in the appropriate state circuit court pursuant to section 1003.57(1)(c), Florida Statutes (2014), and Florida Administrative Code Rule 6A- 6.03311(9)(w); or b) brings a civil action in the appropriate district court of the United States pursuant to 20 U.S.C. § 1415(i)(2), 34 C.F.R. § 300.516, and Florida Administrative Code Rule 6A-6.03311(9)(w).