Orange | Case 20-0892 | 2020-09-10

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS **, Petitioner, Case No. 20-0892E vs. ORANGE COUNTY SCHOOL BOARD, Respondent. / FINAL ORDER Administrative Law Judge of the Division of Administrative Hearings A due process hearing was held in this matter before XXXXXXXXXXX, an (DOAH), on XXXXXXXXXXX, via Zoom conference. APPEARANCES For Petitioner: Petitioner, pro se (Address of record) For Respondent: XXXXXXXXXXXXXXX, Esquire Orange County Public Schools 445 West Amelia Street Orlando, Florida 32801 STATEMENT OF THE ISSUE Whether the School Board failed to properly conduct an initial evaluation, upon parental request, to determine if the student is a student with a disability and eligible for exceptional student education (ESE) services pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq.

PRELIMINARY STATEMENT Petitioner filed a Request for Due Process Hearing (Complaint) on XXXXXXXXXXXXXX. On the following date, the School Board forwarded the Complaint to DOAH, and the Complaint was assigned to Judge XXX XXXXXXXX for further proceedings. On XXXXXXXXX, the School Board filed a Notice of Insufficiency, Motion to Dismiss Claims Outside the Scope of a Due Process Hearing, and Motion to Exclude Attachments. On XXXXXXX XXX, Judge XXXXXXXXX issued an Order on Notice of Insufficiency, limiting the scope of the due process hearing to one issue: “[t]he undersigned construes Petitioner’s Complaint as sufficiently alleging that Respondent failed to properly conduct an initial evaluation, upon parental request, to determine if the subject student is a student with a disability and eligible for ESE services pursuant to the IDEA.” A telephonic pre-hearing conference with the parties was held on XXXXX XXXX, wherein the parties indicated that efforts had been made to coordinate a resolution session, but more time was requested to convene one. On Timeline and Requiring Response. XXXXXXXXXXX, Judge XXXXXX entered an Order Extending Resolution On XXXXXXXX, the School Board filed a Motion to Dismiss with Prejudice. A telephonic motion hearing was held on XXXXXXXX. On XXXXX XXXX, Judge XXXXXX issued an Order Denying Motion to Dismiss. On XXX XXXXXX, Judge XXXXXX issued an Order Requiring Response, ordering the parties to provide “several mutually agreeable dates in which the parties are available to conduct the hearing; an estimate of the time required to conduct the hearing; and the parties’ preference as to the mode of conducting the hearing (in-person, video teleconference, or Zoom conference).” 2

The School Board responded to the Order Requiring Response by indicating availability during the week of XXXXXXXX. On XXXXXXXXX, Judge XXXXXXXX issued a second Order Requiring Response, stating: On XXXXXXXX, the undersigned issued an Order Requiring Response, directing the partie s to communicate and provide the undersigned with several mutually agreeable dates to conduct the due process hearing. On XXXXXXXX, Respondent filed an Amended Notice of Unavailability and Response to Court, wherein it is represented that counsel for the u ndersigned will not be available XXXXXXXXXXX, XXXXXXXXXX. from through Respondent further requests that the matter be scheduled for hearing during the week of XXXXX XXXXXXXX. To date, Petitioner has not complied with the prior Order Requiring Response or otherwise advised of Petitioner’s availability. Accordingly, it is O RDERED that Petitioner shall, on or before XXXXXXXX, file a written response advising of Petitioner’s availability and preference for scheduling the due process hearing. Failure to comply with this order shall result in this matter being scheduled during the time period requested by Respondent and shall be construed as an agreement to extend the due process timelines. preference for video or Zoom teleconferencing, but not indicating a preference continuance on the grounds that Petitioner had not had sufficient time to conduct discovery. On XXXXXXXXXXX, Judge Resavage denied Petitioner ’s motion to continue the case for failure to show good cause for a continuance. further proceedings. On XXXXXXXXXX, Petitioner filed a Pretrial Memorandum, indicating a for dates. Judge XXXXXXXX issued a Notice of Hearing setting the due process hearing on XXXXXXXXX. On XXXXXXXXXX, Petitioner requested a On XXXXXXXXXX, this case was transferred to the undersigned for all 3

The due process hearing was held on XXXXXXXXX, as duly noticed. Petitioner failed to comply with the five-day disclosure of proposed witnesses and exhibits, as required. The School Board complied with the five-day disclosure requirement. Petitioner presented one witness: the XXXXXXXXXXXX. School Board Exhibit 1 was admitted without objection. The School Board presented no witnesses. After Petitioner presented XXX case, the School Board orally moved to dismiss the matter with prejudice. After hearing from both parties, the Motion to Dismiss with Prejudice was orally granted at the due process hearing. 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 will use XXXX pronouns in this Final Order when referring to Petitioner. The XXXX pronouns are neither intended, nor should be interpreted, as a reference to Petitioner’s actual gender. F INDINGS OF FACT developed. 3. The School Board sought and received consent from the parent to The due process hearing Transcript was filed on XXXXXXXXXXX. Unless 1. In XXXXXX, the student was found eligible for ESE services in the category of XXXXXXXXXX and an Individualized Education Plan (IEP) was 2. In late XXXX, the XXXXXXXXXX requested related services in XXXX and XXXXXX, and sought a XXXXXX evaluation in order to determine eligibility in the category of XXXXXXXXXXXX evaluate the student for XXXXXXXXXXX. Later, XXXXXXXXXXXX revoked 4

XXX consent for the student to be evaluated by the School Board for any XXXXXXXXXXXXXXXX. 4. During the resolution session held for purposes of this Complaint, the School Board once again sought consent to evaluate the student for eligibility in the category of XXXXXXXXXX, and XXXXXXXXXXXXX refused to provide consent. 5. The student completed XXXXX school this last academic year XXXXX XXXXX) with a weighted grade point average of XXXXX, and is beginning XXXX school with four high school credits earned during XX time in XXXXXX school. 6. Petitioner presented no evidence establishing that the School Board failed in its duty to evaluate the student for further eligibilities. CONCLUSIONS OF LAW 7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to section 1003.57(1)(c), Florida Statutes, and Florida Administrative Code Rule 6A- 6.03311(9). 8. This case arises under the IDEA, which requires public schools to provide exceptional students a free appropriate public education (FAPE) as a condition of receiving federal funds. 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 Cty. 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). 5

9. 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). Thus, parents and children with disabilities are accorded substantial procedural safeguards to ensure that the purposes of the IDEA are fully realized. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 205-06 (1982). 10. 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), and (b)(6). 11. Petitioner bears the burden of proof with respect to the claim raised in the Complaint. Schaffer v. Weast, 546 U.S. 49, 62 (2005). That is, as applied to this case, Petitioner bears the burden of establishing that the School Board for related services. 12. Petitioner did not meet this burden of proof. The evidence instead established that the student’s parent revoked XXX consent for the School Board to evaluate the student for XXXXXXXXXXXXXX. ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Petitioner’s Complaint is dismissed with prejudice and all relief requested is denied. failed to properly conduct a XXXXXX evaluation, upon parental request, to determine if the student is a student with a XXXXXXXXXXXX and eligible 6

DONE AND ORDERED this 10th day of September, XXXXX, in Tallahassee, Leon County, Florida. S XXXXXXXXXX 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 10th day of September, 2020. C OPIES FURNISHED: Orange County Public Schools XXXXXXXXXXXX, Esquire 445 West Amelia Street Orlando, Florida 32801 (eServed) Department of Education XXXXXXXX, Esquire 325 West Gaines Street Tallahassee, Florida 32399 (eServed) Department of Education XXXXXXXXXXX, Educational Program Director 325 West Gaines Street Tallahassee, Florida 32399 (eServed) 7

XXXXXXXXXXXX, Dispute Resolution Program Director Bureau of Exceptional Education and Student Services Department of Education Turlinton Building, Suite 614 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Petitioner (Address of Record-eServed) XXXXXXXXXXX, Superintendent Orange County School Board 445 West Amelia Street Orlando, Florida 32801-0271 XXXXXXXXXXX, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) N OTICE 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). 8