Nassau | Case 18-0936 | 2018-08-01

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS **, Petitioner, vs. Case No. 18-0936E NASSAU COUNTY SCHOOL BOARD, Respondent. _______________________________/ FINAL ORDER A final hearing was held in this matter before Todd P. Resavage, an Administrative Law Judge (ALJ) of the Division of Administrative hearings (DOAH), on XXX XX and XX, XXXX, in Yulee, Florida. APPEARANCES For Petitioner: XXXXXXX XXXXXX XXXXX, Esquire Three Rivers Legal Services, Inc. 3225 University Boulevard South, Suite 220 Jacksonville, Florida 32216 For Respondent: X. XXX XXXXX, Esquire Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32034 STATEMENT OF THE ISSUES Whether Respondent violated the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq., as alleged in Petitioner’s due process complaint (Complaint); and, if so, to what remedy is Petitioner entitled.

2 PRELIMINARY STATEMENT On or about XXXXXXX XX, XXXX, Respondent received Petitioner’s Complaint. Respondent forwarded Petitioner’s Complaint to DOAH on XXXXXXXX XX, XXXX. On XXXXX X, XXXX, the parties filed a Joint Motion to Request Extension of Due Process Timelines. The same day, the undersigned issued an Order granting the parties’ joint motion allowing the parties to conduct a resolution session on or before XXXXX X, XXXX, and extending all due process timelines commensurate with the extension. After being advised that the parties were unable to amicably resolve the matter, a final hearing was scheduled for XXX XX through XX, XXXX. On XXX XX, XXXX, in response to the undersigned’s Order of Pre-hearing Instructions, the parties filed a Joint Pre-hearing Stipulation, wherein the parties stipulated to certain facts as admitted and requiring no further proof at hearing. The parties further delineated those issues that remained to be determined at the final hearing. Per the parties’ stipulation said issues are: Whether the continued placement in the XXXX- XXXXXXXXXX classroom at [School A] would likely result in limited benefit to Petitioner based upon [XXX] XXXXXXXX circumstances. Whether the District failed to consider a XXXXXXXXXXXXXXXXXXXXXXXX and, if so, whether that constitutes a lack of consideration of

3 the continuum of placements options (least restrictive environment in which the student can be successful) and a denial of a free and appropriate public education (FAPE). Whether [School A’s] Exceptional Student Education Program setting, self- contained/separate classroom, is an appropriate placement for a student with Petitioner’s XXXXXXX XXXXXXXX. Whether the District failed to include and/or implement XXXXXXXX XXXXXXXX targeting XXXXXXXXX from [XXX] area and from the classroom and, if so, whether that constitutes a safety risk that is a denial of FAPE. Whether the District has failed to increase and/or effectively implement XXXXXXXXXXXXXXXX XXXXXX services (XXXXXXXXXXXXXXXXXXXX XXXXXXX) and, if so, whether that constitutes a denial of FAPE. The final hearing was conducted as scheduled. The final hearing Transcript was filed on XXXX XX, XXXX. The identity of the witnesses and exhibits and the rulings regarding each are as set forth in the Transcript. Upon the conclusion of the final hearing, the parties stipulated that proposed final orders would be filed within 21 days after the filing of the transcript and that this Final Order would issue 42 days after the filing of the transcript. The parties timely filed proposed final orders, which have been considered in issuing this Final Order. Unless otherwise indicated, all rule and statutory references are to the version in effect at the time of the alleged violations. For stylistic convenience, the undersigned

4 will use XXXXXX pronouns in the 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 Stipulated Facts As noted above, pursuant to the parties’ Joint Pre-Hearing Stipulation, the following facts were admitted without further proof at the final hearing, and are set forth below: 1. Petitioner is an XX-year, X-month-old student currently enrolled at [School B], a public school in the Nassau County School District. 2. Petitioner is being served in an Exceptional Student Education (ESE) Program under the eligibility categories of XXXXXXXXXXXX XXXXXXXXXXXX and XXXXXXXX XXXXXXXXXXX. 3. Petitioner receives the related services of XXXXXXXXXXXX Therapy, XXXXXXXX XXXXXXXXX, XXXXXXX XXXXXXXXXXXXX, and XXXXXXXXXX XXXXXXX Services. 4. In addition to the aforementioned disabilities, Petitioner also presents with a XXXXXXX disorder. 5. Petitioner receives the XXXXXXXXXXXXX XXX and service of XXXXXXX, which is a collaborative service between a XXXXXXXXXXXX and a XXXXXXXXXX. 6. Petitioner is XXXXXXXXXX, with a diagnosis of XXXXXXX XXXXXXXXXXXXX.

5 7. Petitioner uses the XXXXXXX XXXXXXXX XXXXXXXXXXXXX system, a XXXXXX schedule, and a XXXXX XXXXXX XXXXXX (XXXXX XXXXXXX). 8. Petitioner receives instruction in the state standards XXXXXXXXXXXXX curriculum and participates in the Florida XXXXXXXXX Assessment. 9. Petitioner scored a Level XX on both the XXXX and XXXX administrations of the Florida State XXXXXXXXX Assessment; this does not demonstrate an XXXXXXXX level of success with the Florida Standards XXXXXXXXXXXXX. 10. A student performing at Level XX of the Florida State XXXXXXXXX Assessment does not demonstrate an adequate level of success with the Florida Standards XXXXXXXXXXXXX.1/ 11. Petitioner exhibits XXXXXXXXX, which impede XXX learning and/or that of others. 12. Petitioner will XXX XXX XXX XXXXXX than XXX minutes in XXX XXXXXXXXXXXX setting; if Petitioner does not have XXXXXXXXXX XXXXXXXXXX, Petitioner will leave XXX work area. 13. Petitioner’s behaviors also include XXXXXXXXXXX of items and materials in the classroom. 14. Petitioner fails to make XXX XXXXXXX and is often XXXXXXXXXXXX in the XXXXXXX, and XXXXXXXX XX XXXXXXX adult XXXXXXXXXX.

6 15. Petitioner’s XXXXXXXXXXXX XXXXXXXXX are a XXXXXXX within the classroom and around the entire school campus. 16. Petitioner’s Individual Education Plan (IEP) provides XXXXXXXX XXXXXXX services on a XXXXXXX, XXXXXXXXXXXX basis. 17. Petitioner often requires XXXXXXXX to XXXXXXX XXXXXX XXXX to complete tasks. 18. Due to the XXXXXXXX of Petitioner’s disabilities and need for XXXXXXXXX XXXXXXXXXXXXX, Petitioner receives XXXXXXXXX XXXXXX XXXXXXXXXXX in a XXXXXXXX, XXXX-XXXXXXXXX classroom. 19. Petitioner spends an XXXXXXXXXXX day at school. Non-Stipulated Facts 20. On or about XXXXXXXX XX, XXXX, Petitioner was attending School A, a public XXXXXXXXXX school in Respondent’s school district. At that time, a XXXXXXXXXX XXXXXXX XXXXXXXX XXXXXXXX was completed wherein Petitioner’s XXXXXXX XXXXXXXX was noted as XXXXXXXX. As documented in the referral, Petitioner will “XXX, XXXXX, trying [sic] to XXXX, and XXX XXX XXXXXXXXX XXXXX XX XXX XXXX XX XXXXX XX XXX XX XXX XXXX.” The referral further documented that this XXXXXXXX occurred “XXX XXX XXXX” and that the best time to observe this XXXXXXXX was “XXXXXXX.” 21. On XXXXXXX XX, XXXX, XXXXXXX XXXXXX, XXXXXXXXXX analyst for Respondent, conducted a classroom observation of Petitioner. During XXX XX-minute observation, XX noted the following XXXXXXXXX: XXXXXXXXXX XXXXXXXXXX XXXXX, XXXXX XXXXXXXXXX XXXX,

7 XXXXXXX XXXX XXXXXXX, XXXXXXXX “XXX XX XXXX” XXXXXXX, XXXXXXXX XXXXXXXXX, XXXXXX XXXXX XXXXXXX, XXXXX XX XXXXXX, XXXXXXXXXXXXX, and XXXXXXXX XXXXXXXX XXX XXX. 22. Another observation was conducted by XX. XXXXXX on XXXXXXX XX, XXXX. On this occasion, XX observed the following XXXXXXXX over a XX-minute period of time: XXXXXXXXXX XXXXXXXXX XXXXX, XXXXX XXXXXXXXX XXXX, XXXXXXX XXXX XXXXXXX, XXXXXXXX “XXX XX XXXX” XXXXXXXX, XXXXXXXX XXXXXXXXXX, XXXX XXXX/XXXXXXXXX, XXXXXXXXXXXXX, and XXXXXXXX XXXXXXX XXX XXX. 23. On XXXXXXX XX, XXXXX, an IEP team meeting was held. At that time, it was documented that Petitioner exhibited XXXXXXXXX XXXX XXXXXX XXX learning or that of others. It was further documented that XXX had a XXXXXXXXXXX XXXXXXXX XXXXXXXXX (XXX) and/or a XXXXXXXX XXXXXXXXXXX XXXX (XXX). 24. Nothwithstanding the above-noted XXXXXXXXX, the XXX developed on XXXXXXXX XX, XXXX, only addressed one XXXXXX XXXXXXXX, XXXXXXXX (XXXXXXXXX XXX XXXXX XXXXXXXXXXX XX XXX XXXXX XXXXX XXXX X XXXXXX). The XXX addressed the protocols needed to teach Petitioner appropriate XXXXXXXXX skills. XXXXXXXXX was also the only XXXXXXXXX XXXXX noted on Petitioner’s XXXXXXX XXXX IEP goals under the domain of XXXXXX/XXXXXXXXX XXXXXXXX. XXX IEP was amended to include XXXXXXXXXX XXXXXXX XXXXXXXX. Although said services are not specifically delineated they were to occur two to four times per month at “XXXXXX/XXXXX.” XX. XXXXXX

8 testified that XX believed the XXXXXXXXX issue to be the most pressing, and, therefore, the reason for the singular approach on the XXX. As noted above, Petitioner’s educational placement was that of a XXXXXXXX class setting wherein XXX spends XX percent or less of XXX school day with nondisabled peers. 25. Petitioner’s annual IEP review for the XXXX-XXXX school year was conducted on XXXXXXX XX, XXXX. At this time, it was noted that XX XXXXXXXX continued to impede XXX XXXXXXXX and/or that of others. XXX present levels of performance documented that the staff “have seen a XXXXXXXXXXX XXXXXXXXX in XXX XXXXXXXXX.” Indeed, it was noted that XXX had only XXXXXX once thus far in the school year. 26. At this time, the IEP team further documented that XXX was frequently XXXXXXXXXXXX when addressed by teachers or paraprofessionals. Often, when XXX was told to XXX XXXX, XXX XXXXX XXXXX the area or activity. The IEP documented that “[X]XXX XXXXXXXXXXXX XX X XXXXX XXXXXXX in the classroom and on the school campus.” On the positive side, XX was noted to demonstrate an increase in XXX XXXXXXXX XXXXXXXXXXXX with XXX peers and was demonstrating XXXXXXXX XXXXXXXXX XXXXXX. Although XXX had demonstrated improvement in XXX XXXXXXXXX issues, XXX was still having some issues with XXXXX XXXXXXXXX.2/ 27. Petitioner’s IEP goals were modified on XXXXXXX XX, XXXX, to reflect XXX XXXXXXXXXXXX issues. For example, the IEP

9 included a goal for XXX to “XXXXXXXXXXX XXXXXXXXXXX in following XXXXXXXXXXXX from adults by doing what XX XXXXX XX XXX XXXXXXX XXXXXXXX, XXXXXXXXX or XXXXXXXXX XXXXXXXX or XXXX XXXXXXX XXXXXX adult XXXXXXXXX XXX XXXXXXX XX XXX.” The goal contained short- term objectives or benchmarks to be measured by random observation and daily XXXXXXXXXX logs. An additional goal was included concerning XXXXXXXXXXX with similar short-term objectives or benchmarks and monitoring. The XXXXXXX XXXX IEP was amended to reduce the XXXXXXXX XXXXXXX services to a monthly basis. 28. On XXXXX X, XXXX, an IEP meeting was conducted to address a change in Petitioner’s educational placement. Specifically, the team considered, and initiated, a change of XXX placement to a “XXXXXXXX XXX.” For all that appears, the change was necessitated or requested due to Petitioner’s XXXXXXXXX XXXXX. The IEP addendum notes that during said XXXXX, Petitioner would remain at home and all absences would be excused. 29. For the XXXX-XXXX school year, Petitioner attended School B, another public XXXXXXXXXX school in Respondent’s school district. At the beginning of the XXXX-XXXX school year, the record evidence establishes that Petitioner remained on a XXXXXXXX school day. Under this XXXXXXXX day, Petitioner was XXXXXXXXX from school at XX:XX X.X. XX XXXXXX, XXXXXXX, XXXXXXX, and XXXXXX; XXX XX:XX X.X. XX XXXXXXXXX. Due to this XXXXXXXX

10 schedule, Petitioner required specialized transportation to transport XXX home. While on campus, Petitioner remained in a XXXXXXXX class setting. 30. In the fall of XXXX, Petitioner sustained XXXXXXXXX XX XXX XXX XXX XXX. As a result, XXX was XX XX XXX XXX XXX XXXX for XX weeks and out of school for a period of time. After returning to school in XXXXXXXX of XXXX, XXX demonstrated appropriate XXXXXX XXXXXX; however, XXX XXXXXXXXX XXXXXXXXX training program remained in place and required daily progress monitoring. 31. Petitioner’s annual IEP review meeting occurred on XXXXXXX XX, XXXX. The IEP team again documented that XXX XXXXXXXXX XXXXXXX XXX learning or that of others. Specifically, the following XXXXXXXXX were documented: [XXX] XXXXX XXXXXXX XXXXXXXXX when in a XXXXXXX setting XX XXX XXXX. [XXX] XXX not XX XXX XXXXXX XXXX XXX minutes when in an XXXXXXXXXXXX setting. [XXX] XXX XXXXXX XXX XXXX XX XXXXX. [XXX] can also demonstrate XXXXXXXX that lead to XXX XXXXXXXXXXX XX items/materials in the classroom. For example, [XXX] XXXX XXXX [XXX] XXXXX XXXXX XXX XXXXX XX XXXX X XXX XXXX XXXXX XXXX XXXXXXXXX XXXXXXXXXXX, XXXXXXXX XXXXX XXXXX, XXXXXXX, etc. XXXXXXXXX XXXXXXXXXXXXX XXX XXXXXXXXX XXXXXXXX XXXXXXXXXXXX XX X XXXXXXXXX XXX [XXX] especially later in the day. * * * When [XXX] is addressed by teachers or paraprofessionals, [XXX] is often XXX- XXXXXXXXX. XXXXX [XXX] is told to XXX XXXX, but will leave XXX XXXX/XXXXXXXX. When given

11 an assignment to do at [XXX] desk, [XXX] XXXXX XXXXXXXX XXXXXXXXXXXXX XXX XXXXXXXXX XX XXXXXXXX XXX XXXX. If [XXX] XXXXXXX XXXX XXX XX XXX XXXXXXXXXX, [XXX] XXXX XXXXX [XXX] XXXX XXXX XXX XXXXXXXX XXXXX XXXXXXXXX XX XXXXXX XX XXX XXXXX XXXXX XX XXXXXXX XX XXX out of the XXXXXXXXX. XXX-XXXXXXXXXX XX X XXXXX XXXXXXX in the classroom and on the school campus. 32. At the time of the annual review, Petitioner’s XXXXXXX advised that Petitioner was having “XXXXXXXX XXXXXXXX.” As a result, Petitioner’s XXXXXX provided a XXXX-XXXX XXXXX XXXX XXXXXXXXXXX Petitioner XX XXX XXXX XXXXXX (XX XXX XXX) XXX XXXXXXXXXX the school day. Petitioner’s XXXXXX also requested XXX-XX-XXX XXXXXXX XXXXXXXXXX XXXXXXXX (XXX) services.3/ 33. The XXXXXXX XXXX IEP provided two XXXXXX/XXXXXXXXX XXXXXXXX goals. The first goal provided that, “[b]y the end of the IEP, after the teacher gives a XXXXXXXXX XXXXXXX XX X XXXXXXXXX classroom activity, and XXXXXX XXX XXXXXXXXXXXXX and/or necessary materials, [the Student] will follow the XXXXXXXXX within XX seconds, with no more than X XXXXXX or XXXXXX XXXXXXXX XXX from the teacher, in X out of X trials.” The second goal provided that “[b]y the end of the IEP, when asked to show XXXXXXXXXXXXX XXXXXXXXX during whole-group instruction and provided with a XXXXX or XXXXX XXX, [XXX] will XXXXXXX X previously-XXXXXX XXXXXXXXXXXXX XXXXXXXXX (XXXXXXX XXXXXX instruction, XXXXXXX XXXXXXXX XX XXXXXXXXX questions, XXXXXXXX XXX XXXXXXX) for no less than XX minutes in X out of X

12 opportunities.” Both goals contained short-term objectives or benchmarks to be monitored with logs. 34. Based upon the evidentiary presentation, it is difficult to discern the efficacy of Respondent’s implementation of the IEP goals directed towards Petitioner’s XXXXXXXXXX XXXXXXXX, and whether Petitioner made reasonable progress concerning the same given XXX XXXXXXX, XXXXXX XXXXXXXXXXXXX. The limited evidence establishes that Petitioner made significant progress on XXX XXXXXXXXX goals over the course of the XXXXX XXX school years. Concerning Petitioner’s XXXXXXXXX, the evidence supports a finding that, although not completely abated, Petitioner’s XXXXXXXXX was limited to XXXXX days during the XXXX- XXXX school year, and only one occasion during the XXXX-XXXX school year. There was no evidence presented to support a finding that any XXXXXXXXX by Petitioner resulted in a XXXXXX XXXXXXX.4/ 35. It is undisputed that Petitioner’s XXXXXXXXXXXX XXXXXXXX, that appeared to be XXXX XX XXXXXXXX, remained XXXXXXXXXX from XXXXXXX XXXX through the time of the filing of the Complaint. It is further undisputed that Petitioner’s XXX was not modified during this time period to address the XXXXXXXXXXXX XXXXXXXX. Respondent did, however, amend Petitioner’s IEP goals and benchmarks to address this concern. The limited documentary evidence presented supports a finding

13 that Respondent was monitoring XXX XXXXXXXX and that XXX was making progress in this respect. 36. Petitioner presented the expert testimony of XXXXXX XXXXXX, who has a master’s degree in XXXXXXX XXXXXXXX XXXXXXXX and is a XXXXX XXXXXXXXX XXXXXXXX Analyst (XXXX). XX. XXXXXX was privately retained on or about XXX X, XXXX, to conduct an assessment of Petitioner. At that time, the assessment revealed that Petitioner has XXXXXXXX XX XXXXXXXX XXXX and XXXXX XXXXXXXXX XXXXXXXX, resulting in an inability to benefit from most educational activities. The assessment further showed signs that Petitioner can exhibit xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, xxxxxxxxxxxxxxxxx and XXXXXXXXXXXXXXXXXXXXXXXX. The assessment further found that Petitioner XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. 37. XXXXXXXX has been providing XXX therapy to Petitioner to address the above-noted concerns. Initially, the XXXXXXXXX were XXXXX times per week; however, following XXXXXXXXXXXXXXX and XXX, and XXXXXXXXXX, those XXXXXX are now XXX times per week. XXXXXXXXXX opined that Petitioner has made progress in the areas of concern; however, XXX has not mastered those concerns. 38. XXXXXXXXX offered no opinions regarding the utility of the design nor the implementation of the IEPs or XXX for Petitioner. Additionally, XXX presented no criticism of

14 Respondent’s approach to Petitioner’s XXXXXXXXXXXX issues in an educational setting. 39. When questioned regarding the utility of XXX therapy to Petitioner, XXXXXXXXXXX opined as follows: I think if [XXX] could be in XXXXXXXXXXXX XXXX, it would be beneficial. Because although [XXX] is making progress, [XXX] progress is a little slow because [XXXX] only getting XXXX hours XXX times a week. If [XXX] could be in XXXXXXXXXX, that would be great, if XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX that and [XXX] wasn’t in school and there wasn’t conflicting schedules. I think [XXX] would certainly benefit from at least XXX hours of XXX a week. 40. XXXXXXXXXXXXX credibly testified that there are some private schools in the XXXXXXXXXXXX, Florida, area wherein XXX is incorporated into the classroom and where there are XXXXXXX analysts in the classroom. XXX frequently recommends the XXXXXXXXXXXXXXXXXXXXXXXXXXX for the families XXX works with. According to XXXXXXXXXXX, the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX provides XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX of the school day; behavior analysts to assess and work on XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXX skills and to decrease XXXXXXXXXXXXXXXXXX; vocational programs to address XXXX skills; and programs to work on XXXXXXXXXXXX in the home and community. 41. Neither XXXXXXXXXXX nor any other witness provided any further evidence concerning the specifics of the educational programming at the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. While

15 XXXXXXXXXX did not express any opinions as to whether Petitioner can or cannot receive a free appropriate public education (FAPE) in Respondent’s school district or whether XXX current placement is inappropriate, XXX did opine that the benefits and/or programming like those found at the XXXXXXXXXXXXXXXXXXXXXX for XXXXXXXXX are necessary for Petitioner. 42. Respondent presented the testimony of XXXX XXXXXXXXXXXXX. XXXXXXXXXXXXXXXXX received XXX XXXXXXXX degree in XXXXXXXX, with a concentration in XXXXXXXXXXXXXXXXXX. XX was previously employed as the clinical director XXXXXXXXXXXXXXXX school for XXXXXXXXXXXXXXXXXXX. Currently, XX is a XXXXXXXXXXX consultant for Respondent and, inter alia, oversees Petitioner’s XXXXXXXXXXXX services. XXXXXXXXXXXXXXXX was initially consulted concerning Petitioner’s XXXXXXXX issues. After said issue was satisfactorily managed, XX observed no other XXXXXXXXXXX issues that required XXX services. XXXXXXXXXXXX credibly testified that Petitioner’s current educational programming is consistent with XXXXXXXXXXXXXX and that the techniques being used with Petitioner, at School B, are similar to those used when XX served as XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. XXXXXXXXX ultimately opined that, from an “XXX standpoint” Respondent is providing the XXXXXXXXXX services that Petitioner requires to provide an appropriate education in the public school setting.5/

16 CONCLUSIONS OF LAW 43. DOAH has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to sections 1003.57(1)(b) and 1003.5715(5), Florida Statutes, and Florida Administrative Code Rule 6A-6.03311(9)(u). 44. Petitioner bears the burden of proof with respect to each of the claims raised in the Complaint. Schaffer v. Weast, 546 U.S. 49, 62 (2005). 45. 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 the agency's compliance with the IDEA's procedural and substantive requirements. Doe v. Alabama State Dep't of Educ., 915 F.2d 651, 654 (11th Cir. 1990).

17 46. Parents and children with disabilities are accorded substantial procedural safeguards to ensure that the purposes of the IDEA are fully realized. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. 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). 47. Local school systems must satisfy the IDEA's substantive requirements by providing all eligible students with FAPE, which is defined as: Special 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).

18 48. "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). 49. 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 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). 50. "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

19 unique needs' of a particular child." Id. (quoting Rowley, 102 S. Ct. at 3034). 51. The IDEA further provides that, in developing each child's IEP, the IEP team must, "[i]n the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior." 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i)(emphasis added). 52. In Rowley, the Supreme Court held that a two-part inquiry 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. Here, Petitioner’s Complaint does not raise any procedural claims. 53. 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

20 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 "[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. 54. 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. 3034). For a student 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. 55. The assessment of an IEP's substantive propriety is further guided by several principles, the first of which is that

21 it must be analyzed in light of circumstances as they existed at the time 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). Third, 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

22 whether the IEP 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 Board of Education, 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." 56. Petitioner’s Complaint alleges that Petitioner’s IEPs were not reasonably calculated to allow XXX to make XXXXXXXXXXX progress in light of XXX circumstances. The undersigned agrees with Petitioner that the IEP developed on XXXXXXXXXXXX, XXXX, failed to adequately address Petitioner’s XXXXXXXXXX concerns as noted during the professional observations and documented in the IEP. From the evidence presented, although Respondent adequately addressed Petitioner’s XXXXXXXX concerns, Respondent failed to appropriately address XXXX XXXXXXXXXXXX concerns of XXXXXXXXXXXX, which, as noted on XXXX IEP, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX ZXXXXXXXX. Thus, it is concluded that Respondent denied this student FAPE from XXXXXXXXXXX, XXXX, through XXXXXXXXXX, XXXX. 57. It is further concluded, however, that Petitioner’s subsequent IEPs were reasonably calculated to enable XXXX to make appropriate XXXXXXXXXXX progress in light of XXX circumstances. While the evidence suggests that Petitioner may very well benefit

23 from additional XXX services, Petitioner failed to meet XXX burden of proof that the IEPs developed in January of XXXXX and XXXX violated the IDEA. 58. Petitioner’s Complaint further alleges that the educational placement decisions run afoul of the IDEA. In addition to requiring that school districts provide students with FAPE, the IDEA further gives 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. 59. 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. 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, the Florida

24 Department of Education has enacted rules to comply with the above-referenced mandates concerning LRE and providing a continuum of alternative placements. See Fla. Admin. Code R. 6A- 6.03028(3)(i) and 6A-6.0311(1). 60. 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). 61. With the LRE directive, “Congress created a statutory preference for educating handicapped children with non- handicapped children.” Greer v. Rome City Sch. Dist., 950 F.2d 688, 695 (11th Cir. 1991)(opinion withdrawn on procedural grounds and reinstated in pertinent part; see 956 F.2d 1025, 1026-27; see also 967 F.2d 470). “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 tailor each child's educational placement and program to SSS special needs.” Daniel R.R., 874 F.2d at 1044.

25 62. 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. Id. at 1048. 63. 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 XX 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 satisfactory education for the student in a regular classroom. Id. at 697. 64. Here, Petitioner does not appear to argue that XXX can be educated in a regular classroom setting, with the use of

26 supplemental aids and services. To the extent Petitioner’s Complaint can be so construed, Petitioner failed to present sufficient evidence to support such a claim. 65. Accordingly, the instant proceeding turns on the second part of the test: whether Petitioner 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 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). 66. Here, Petitioner seeks a placement that is even more restrictive on the continuum of potential placements--a private placement serving only students with XXXXXX.6/ Petitioner’s requested placement is not supported by the evidence. First, Petitioner failed to present sufficient evidence to establish

27 that the current placement is inappropriate. Second, assuming, arguendo, that Petitioner had done so, the evidence is wholly insufficient for the undersigned to conclude that the proposed private school placement is appropriate. Indeed, the only evidence presented concerning the subject school was that from XXXXXXXXX, who testified generally that XXX had referred clients to the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and provided broad testimony as to the types of services that may be available. No evidence was presented, in any detail, regarding the particular educational programming at said school proposed for this specific student. 67. As discussed above, Respondent denied this student FAPE from XXXXXXXXXXXX, XXXX, through XXXXXXXXXXX, XXXX, to which the student is entitled to compensatory education. In calculating an award of compensatory education, the undersigned is guided by Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 523 (D.C. Cir. 2005), wherein the D.C. Circuit emphasized that IDEA relief depends on equitable considerations, stating, "in every case . . . the inquiry must be fact specific and, to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place." Id. at 524. The court further observed that its "flexible approach will produce

28 different results in different cases depending on the child's needs." Id. at 524. 68. This qualitative approach has been adopted by the Sixth Circuit and a number of federal district courts. See Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) ("We agree with the district court . . . that a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the child's] educational problems successfully.); Petrina W. v. City of Chicago Pub. Sch. Dist., 2009 U.S. Dist. LEXIS 116223, *11 (N.D. Ill. Dec. 10, 2009) ("Because a flexible, individualized approach is more consonant with the aim of the IDEA . . . this Court finds such an approach more persuasive than the Third Circuit's formulaic method."); Draper v. Atlanta Indep. Sch. Sys., 480 F. Supp. 2d 1331, 1352-53 (N.D. Ga. 2007) (holding that, in formulating a compensatory education award, "the Court must consider all relevant factors and use a flexible approach to address the individual child's needs with a qualitative, rather than quantitative focus"), aff'd, 518 F.3d 1275 (11th Cir. 2008); Barr-Rhoderick v. Bd. of Educ., 2006 U.S. Dist. LEXIS 72526, *83-84 (D.N.M. Apr. 3, 2006) (holding that an award of compensatory education "must be specifically tailored" and "cannot be reduced to a simple, hour-for-hour formula"); Sammons v. Polk Cnty. Sch. Bd., 2005 U.S. Dist. LEXIS 45838,

29 *21-22 (M.D. Fla. Oct. 7, 2005) (adopting Reid's qualitative approach). 69. Guided by the above-noted principles, Petitioner is entitled to compensatory education, in the form of XXX therapy, from XXXXXXXXXX, XXXX, through XXXXXXXXXXX, XXXX (while school is in session), to compensate XXX for the failure to address XXX XXXXXXXXXXXXXXX. The undersigned concludes that Petitioner is entitled to 30 minutes of XXX therapy per day during said period of time. ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that: 1. Respondent violated the IDEA in failing, on XXXXXXXXXXX, XXXX, to offer Petitioner an IEP reasonably calculated to enable Petitioner to make appropriate XXXXXXXXXXXXXXXXXXXX in light of XXX circumstances. Petitioner is entitled compensatory education of XX minutes of XXX therapy per day from XXXXXXXXXX, XXXX, through XXXXXXXXXXXX, XXXX (while school was in session). 2. The balance of Petitioner’s claims fail as a matter of fact or law, and, therefore are dismissed. Petitioner’s remaining requests for relief are denied.7/

30 DONE AND ORDERED this 1st day of August, 2018, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 1st day of August, 2018. ENDNOTES 1/ While the undersigned notes this paragraph appears to be a restatement of the preceding paragraph, it is set forth here because both paragraphs were included in the Joint Pre-hearing Stipulation. 2/ At the time of the IEP meeting, it was documented that Petitioner had missed approximately XX percent of the school days. 3/ XXXXXXXXXXXXXXXXXXXX is a type of therapy that focuses on XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. 4/ Indeed, there was no evidence presented to establish the circumstances of any XXXXXXXXX. It is unclear if the “XXXXXXXX” merely constituted XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXX. 5/ XXXXXXXXXXX further testified that Petitioner could get more XXX services; however, XX believes “[XXX] is getting enough to help [XXX] succeed and learn the skills [XXX] needs.”

31 6/ Although no specific evidence was presented concerning the actual composition of the student body at the XXXXXXXXXXXXXXXX XXXXXX, it would appear that this potential school would not include the availability of interacting with nondisabled peers. 7/ On July 10, 2018, the United States District Court for the Southern District of Florida entered an order in Sch. Bd. of Broward Cnty., Fla. v. C.B., Case No. 0:17-cv-62371-UU, holding that administrative law judges with DOAH lack jurisdiction to award attorney’s fees in due process hearings held pursuant to the IDEA. COPIES FURNISHED: XXXXXXXXXXXXXX, Esquire Three Rivers Legal Services, Inc. Suite 220 3225 University Boulevard South Jacksonville, Florida 32216 (eServed) XXXXXXXXXXXXX Department of Education 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) XXXXXXXXXXXXX, Esquire Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32034 (eServed) XXXXXXXXXXXXX, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32034-3403 XXXXXXXXXXXXXX, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

32 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).