Pinellas | Case 17-5886 | 2018-08-02

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS **, Petitioner, vs. Case No. 17-5886E PINELLAS COUNTY SCHOOL BOARD, Respondent. _______________________________/ FINAL ORDER A final hearing was held in this matter before Todd P. Resavage, an Administrative Law Judge of the Division of Administrative Hearings (DOAH), on xxx xx through xx, xxxx, in Largo, Florida. APPEARANCES For Petitioner: xxxx X. XXXXXXX, Esquire XXXXXXXX XXXXXXXX, Esquire Special Education Law and Advocacy 2509 First Avenue South Saint Petersburg, Florida 33712 For Respondent: XXXXXXXXX XX. XXXXXXX, Esquire Pinellas County School Board 301 Fourth Street Southwest Largo, Florida 33779-2942 STATEMENT OF THE ISSUES Whether Respondent violated the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq., in finding Petitioner ineligible for special education services

2 under the eligibility category of XXXXXXXXXXX XXXXX XXXXXXXXX (XXX); and, if so, to what remedy is Petitioner entitled. PRELIMINARY STATEMENT Respondent received Petitioner’s Complaint on xxxxxxxx xx, xxx, and forwarded the same to DOAH on the same date. The parties participated in mediation on xxxxx xx, xxxx, however, as the parties wished to engage in further resolution thereafter, they requested an extension of the resolution period until xxxxxxxxx xxx, xxxx. This request was granted. On xxxxxxxxxx xxx, xxxxx, the undersigned issued an Order Requiring Response, directing the parties to advise as to whether the parties desired to continue the resolution period or set the matter for final hearing. On xxxxxxxx xx, xxxxx, Respondent filed a Notice of Case Status advising that the parties had been unsuccessful and requested the matter be set for hearing. On xxxxxxxx xxx, xxxxxx, the final hearing was scheduled for xxxxxxx xxx through xx, xxxxx. After granting a motion for continuance, the final hearing was rescheduled for xxxxxxxx xx through xx, xxxxx. On xxxxxxxxxx xx, xxxx, Petitioner filed a motion for continuance, which was granted, and the final hearing was rescheduled for xxx xx through xx, xxxx. On xxxxx xx, xxxxx, the parties filed a Joint Stipulation of Facts, wherein the parties stipulated to certain facts as admitted and requiring no further proof at hearing. To the

3 extent relevant, those stipulated facts are incorporated in this Final Order. The final hearing was conducted as scheduled. The final hearing Transcript was filed on xxxxx xx, xxxxx. 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 the proposed final orders would be filed no later than xxxxx xx, zxxx, and that this Final Order would issue on or before xxxxx xx, xxxxx. The parties timely submitted 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 will use xxxxxx pronouns in the Final Order when referring to Petitioner. The xxxxx pronouns are neither intended, nor should be interpreted, as a reference to Petitioner’s actual gender. FINDINGS OF FACT 1. At the time of the final hearing, Petitioner was xx years old and an xxxxx-grade student enrolled at School A, a public xxxxxxx school in Respondent’s school district. 2. Petitioner, in November xxxx, was determined to be a xxxxx student. A xxxxxx student is one who has xxxxxxxx xxxxxxxxxxxx xxxxxxxx and is capable of xxxxx xxxxxxxxx.1/

4 In xxxxx, xxx full-scale intelligent quotient (IQ) was xxx. A more recent IQ obtained in xxxx indicates an IQ of xxx. To date, Petitioner is considered a xxxxxx student. 3. Petitioner’s academic record is xxxxxxxxx xxxxxxxxxxxx. A review of xxx grades since xxxx reveals that xxx has never made lower than a “x,” and the majority of xxx grades have been “x”s. xxx curriculum includes xxxxxx or xxxxxx courses, some of those entitling xxx to xxxx school credit as a xxxx school student. xxx current cumulative GPA is documented as a xxxxx. 4. xxx is a xxxx, xxxxxxxxxx, and xxxxxxx student with xxxxxx and xxxxxxxxxx parents. Petitioner credibly testified that xxx spends as much as xxxxxx to xxxx hours xxxxxx per day because, “xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx.” In response to the query of how xxx makes such good grades, xxx candidly testified that “xxxxxxxxxxx xxxx xxxx.” 5. Petitioner’s xxxxxxx have obtained xxxxxx xxxxxxxxx for xxx for several years in the area of xxxxxxxx. Petitioner’s xxxxxxx credibly testified that xxx started providing xxxxxxx xxxxxxx in xxxx grade (xxxx-xxxxx school year) to “xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxx” within the xxxx classroom. 6. Petitioner was XXXXXXX by a XXXXXXX psychologist in xxxxx grade with xxxxxxxxxxxx xxxxxxxxxx. As contained in the

5 parties’ Joint Stipulation of Facts, on xxx xx, xxxxx (during xxx xxxxxx-grade year), Petitioner was found eligible, under xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, with a disability of xxxxx, and has had a xxxxxxxxxxxx xxxxxxxxxxxxx xxxxx since that time. Said plan is not at issue in this proceeding. The parties stipulated that Petitioner is a student identified with a disability. 7. Following the summer of xxxx xxxxxxx-grade year, Petitioner received xxxxxxx xxxxxxxx from xxxxxxx-xxxxx, which continued throughout xxxxx grade (xxxx-xxx school year). Petitioner’s xxxxxx testified that, at the end of xxxxx grade (xxxx-xxxx school year), Petitioner started to xxxxxxx a bit more, and the progress previously observed from xxxxxxxxx-xxxx xxxxx. 8. On xxxx xx, xxxx, Petitioner’s XXXXXX, believing that the existing XXX XXX was insufficient to meet Petitioner’s needs, requested a XXXXXXXXXXXXXX evaluation and consideration of whether Petitioner would be eligible for exceptional student education and related services in the area of XXX. The record evidence suggests that Petitioner’s XXXXXX signed the appropriate consent for the evaluation on XXXX XX, XXXX. 9. On XXXXXXXX XX, XXXXXX, Petitioner was evaluated and observed by XXXXXXX XXXXXX, a licensed school psychologist and

6 mental health counselor for Respondent. XX. XXXXX issued XXX XXXXXXXXX Report on XXXXXXX XX, XXXX. 10. Of relevance to the issues here, XX. XXXXX administered the XXXXXXX clusters of the XXXXXXXX-XXXXXX XX XXXXX of XXXXXXXXXX (XX-XX XXX) on XXXXXXXXXXX XX, XXXX.2/ The XXXXXXXX testing yielded scores that placed Petitioner in the “XXXXXX” XXXXXX in comparison to national norms in the areas of XXXXXX XXXXXXXX XXXXX (XX=XXXX), XXXXX XXXXXX (XX=XXXX), XXXXXX XXXXXX (XX=XXXX), and XXXX XXXX (XX=XXX) with XXXXXXX XXXXXXXXXXXXX across XXXX XXXXX. 11. XX. XXXXXX report further documented that analyses had been completed using a variety of XXXXXXXX measures to sample Petitioner’s BBBB XXXXXX XXXXXXXXXXXXX.3/ Specifically, on XXXXXX XX, XXXX, a XXXXXX assessment, utilizing XXXXXXX probes, was conducted regarding Petitioner’s XXXXXXXX XXXXXXXXXXXXX and XXXX XXXXXXX XXXXXXXX. At that time, the assessment documented that Petitioner was performing at the XXXX percentile for XXXXXXX XXXXXXXXXXXX and the XXXX percentile in XXXXXX XXXXXX XXXXXXXXX. XX. XXXXX report further documented that by XXXX XX, XXXX, XXX XXXXXX XXXXXXX had improved to the XX percentile and XXXXX XXXXXXXX XXXXXXXXXXX to the XXXX percentile. 12. Additionally, the report documented that XXXXX XXXXXXXXXXXX testing administered in XXX XXXXXXXXXX XXXXXXXX XXX class on XXXXXXXXX XX, XXXX, revealed an XXXX grade level

7 performance on XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXX (XXX Lexile Percentile). 13. A review of Petitioner’s performance on the XXXXXX XXXX and XXXXXX XXXX XXXXXXXX XXXXXX XXXXXXXXXXXXX (XXX) was also conducted by XX. XXXXX. The XXX results indicate that Petitioner XXX XXXXXXXXXXX on the XXXX for the past XXX years. Specifically, for XXXX, Petitioner’s “XXXXXXXXXX” was a X, and XXX scored a XX on both the XXXXXX/XXXXXXXX XXXX and XXXX sections of the XXX. By comparison, XXX district scored a XXX; XXX school a XXX; ZZZ class a XXX; and XXX peer subgroup a XXX. 14. In 2016, Petitioner’s Expectation for the XXX was a XX, and XXX scored a XX on both the XXXXXXXX/XXXXXXX XXX and XXXX sections. By comparison, XXX district scored a XXX; XXX school a XXXX; XXX class a XXX; and XXX peer subgroup a XXX. 15. Ultimately, XX. XXXXXX report concluded that, “[t]he combined available data indicates that [Petitioner] is making XXXXXXX XXXXXXXXX XXXXX at this time with only the provision of XXXX XXXXXXX XXXXXXXXX XXXXXXXX.” 16. Petitioner’s XXXXXX credibly testified that XXX received training in the XXXXXXX-XXXXXXXXX XXXXXX program, as well as the XXXXXX XXXXXX and XXXXXXXX XXXXXX. XXX began using the XXXXXX program at home with Petitioner in XXXXXX XXXX, and was doing so at the time Petitioner’s Complaint was filed.

8 17. Following XX. XXXXXXX evaluation, an eligibility determination meeting was held on XXXXXXXX XX, XXXX, to determine whether Petitioner was eligible as a student with a XXX, pursuant to Florida Administrative Code Rule 6A-6.03018. The meeting was properly convened with all relevant members, including Petitioner’s parent(s), in attendance. 18. Based upon the available information, the school-based members of the eligibility team determined that Petitioner did not meet the eligibility criteria as a student with a XXX. Specifically, the team considered, XXXX XXXXX, Petitioner’s current XXXXXX, which included “XX” in XXXXX, XXXXXXXXX, XXXXXXX and XXXXXXXX XXXXXX XXXX, and “XX” in XXXXXXXXXXXXXX, XXXXXXX XXXXXX, and XXXXXXXXXXX XXXXXXXXXXXX; the report prepared by XX. XXXXXX and the information contained therein; Petitioner’s XXXXXXXX on the XXX (XXXXXXX XXXXXXXXXXX); and XXX XXXXXXXXX of Petitioner’s XXXXXXXX in classroom. 19. Respondent’s rationale for denying eligibility was formally set forth in its Prior Written Notice (PWN), dated XXXXXXXX XX, XXXXXX, which provides that: Based on recent XXXXXXXXXXX evaluation, [Petitioner’s] XXXXXXXX XXXXXXXX XXXXX XXXX XXXXXXXX a XXXX in XXXXXXXXX XXXXXX to [Petitioner’s] same age peers. [XXX] is making adequate learning gains at this time with only the provision of core general education supports. Based on team decision, [Petitioner] does not require interventions that differ in intensity and duration from

9 what can be provided in general education resources alone. 20. Aggrieved by this decision, and the findings of XX. XXXXXX, Petitioner’s parents requested an Independent Educational Evaluation (IEE). Respondent, without unnecessary delay, agreed to the IEE at public expense. 21. The IEE was completed by XXXXXXXX XXXXX-XXXXX, a private clinical psychologist. XX. XXXXX-XXXX has a doctorate in clinical psychology and has been licensed since XXXX. The purpose of the IEE was to provide further information concerning Petitioner’s reading abilities. XX. XXXXX-XXXX evaluated Petitioner on XXXXXXXX XX, XXXX. As part of XXX evaluation, XX. XXXXXX-XXXX reviewed Petitioner’s background information, educational history, prior educational interventions, previous evaluations, and administered several assessments. Specifically, ZXX administered the XXXXXXX XXXXXXXXX XXXXXXXXXXXX XXXX, XXX XXXXXXXX (XXXX-XXXX); XXXXXXXXX XXXXXXX of XXXXXXXXXXXXX XXXXXXXXXX, XXX XXXXXXX (XXXXXXX-X); and XXXX XXXX XXXXXXX XXXXX, XXX XXXX (XXXX-X).4/ 22. The results of the evaluation are contained in XX. XXXXXXX-XXXXX report authored on XXXXX XXX, XXXXXX. In response to the question of whether Petitioner presents evidence of an academic deficit, XX. XXXXXX-XXXXX evaluation noted that: [Petitioner] demonstrates a XXXX profile in XXXXX assessment. XXX has consistently met

10 the benchmark standards on annual state mandated assessments (XXX, previously XXXX), indicating attainment of grade level standards on the overall XXXXXXX/XXXXXXXX XXXXX assessments. However, XXX has XXXXXXXXXXXX relative XXXXX in some areas such as XXXXXXXX, XXXXXX XXXX XXXXXX and XXXX XXXXXXX skills. XXXXXXXXXXXXXX and XXXXXX reports suggest that despite some XXXXX skills XXXXXXX [Petitioner] has XXXXXXXXX XXXXX XXXXXXXXX XXXXXXX in order to be XXXXXXXXXX in school. 23. After administering the above-noted assessments, XX. xxxxxx-xxxx concluded that Petitioner’s total academic achievement is in the xxxxxxx range with adequately xxxxxxx xxxxxxx xxxxxxxxxxxx, xxxxxx, and xxxx skills. xxx noted that “[s]pecific areas of XXXXXXX XXXXXXX are indicated for basic XXXXXX XXXXX and ZXXXX XXXXXX XXXXXX.” Petitioner’s awareness of the sounds that comprise XXXXXX XXXXXXXX were found to be average as compared to others xxx same xxx, suggesting that xxx has the necessary basis for reading at an xxx-xxxxxxxx level. 24. Concerning XXXXXXXX XXXXXXX, xx. XXXXXXX-XXXX concluded, based upon XXX evaluation, that Petitioner’s overall XXXXXXXXXX XXXXXXXX score placed XXX current performance within XXXXXX limits for XXX age; however, there was a XXXXXXXXX XXXXXXXXX for XXXXXX XXXXXX XXXXXXXXX of XXXXXXXXXX words for XXXXXXX XXXXXXX and XXXXXXXXX XXXXXXX—-suggesting that Petitioner is XXXXXXX to XXXXXXXXXXXXX with XXXXXXXXXXXX and XXXXXXXXXXXXXX XXXXX at an XXX-XXXXXXXXXXX level.

11 25. Confronting Petitioner’s XXXXX XXXXXXXX XXXXXXX and XXXXX XXXXXXXX, XX. XXXXXXX-XXXX concluded that XXX should be able to XXXXX XXXXXXXX at the same level as similar age peers and that XXX XXXXXXXXXX XXXXXXXX abilities were XXXXXX developed. Concerning XXX XXXXX XXXXXXXXX abilities, XX. XXXXXX found that Petitioner’s abilities were XXXXXXXXX developed; however, XXX demonstrated a XXXXXXXXXX XXXXXXX in XXXXXXXX XXXXXXX XXXXXXX for XXXXXXX. 26. XX. XXXXXXX-XXXXXX report noted that Petitioner “exhibits a XXXXXXXXXXXXXXX and somewhat XXXXXXX profile” and that “[XXX] demonstrates XXXXXXXXXXXXX in XXXXXXXX XXXXXXXX and XXXXXX XXXXXXXXXX XXXXXXX both within XXXXX XXXX results and XXXXXX XXXXXXXX that are XXXXXXXXXX of a XXXXXXXX XXXXXXX XXXXXXXXX in XXXXXXX (XXXXXXXX).” Additionally, XX. XXXXX-XXXXX documented that, “[Petitioner] shows XXXXXXXXX XXXXXX in XXXXXXXX, XXXXX XXXXX XXXXXXX, XXXXXXX XXXXXX, XXXXXXXXXXXXXX and XXXXXXX XXXXXXXXXX XXXXXXX-XXX areas known to be XXXXXXXXXXXXX with XXXXX.” xxx further documented that, “[i]n contrast to these obvious XXXXXXXXXXXXX, [Petitioner] performs within the XXXXXX to XXXXXXXXX range on annual state testing linked to Florida standards and receives XXXXX XXXX XXXXXXX in school.” 27. In summary, XX. XXXXXXXXX-XXXX concluded that Petitioner’s academic achievement is generally consistent with expectations based on age and ability, with the XXXXXXXXX XX

12 XXXXXX, which was XXXXXXXXXXXXX XXXXX. XXX concluded that Petitioner has XX XXXXXXXX in XXXXXXXXX XXXXXXXXXXXX, xxxxxxx xxxxxxxxxxxx, xxxx xxxxxxxxxxx, or xxxxxxxx xxxxxxxxxxxx. xx. xxxxxx-xxxxx opined, however, that based upon xxx evaluation and assessments, Petitioner exhibits xxxxx-xxxxxx xxxxxxx in xxxxxxx xxxxxxxx and, to some extent, in xxxxxxx xxxxxxxx. xxx opined that a xxx in xxxxxx is xxxxxxxx Petitioner’s xxxxxxxx xxxxxxxxxxx and xxxxxxxxxxxx that Petitioner receive xxxxx xxxxxxxxx in xxxxxxxx, particularly with xxxxxxxx xxxxxxx and xxxxxxx. 28. Following the evaluation by xx. xxxxxx-xxxxx, an eligibility meeting was again properly convened on xxx xx, xxxxx. Again, the relevant and necessary members of the eligibility team were present. The school-based members of the team credibly testified that the recent results from xx. xxxxx-xxxxx IEE report were considered before and during the meeting. While the level of discussion concerning the IEE may not have been subjectively sufficient to meet Petitioner’s parents’ expectations, the undersigned finds that the evaluation was given due consideration. 29. Ultimately, the school-based members of the eligibility team determined that Petitioner was not eligible for xxx. According to the PWN formally declining eligibility for xxx, the following was considered in making the determination: “xxx xxx

13 XXXXXXXXXXXXXXX, XXXXX-XXXX, XXXXXX XXXXXXXXX on XXXX, XXXXXX XXXXXX in XXXX XXXXXX [XXX] and IEE XXXXX.” The PWN also documented that eligibility was refused because: Based on current XXXXXXXXXXXX evaluation. [Petitioner’s] XXXXXXX XXXXXX does not indicate a XXX in XXXXXXXX XXXXXXX to XXXX XXX peers. XXXXXXX XXXXXXX XXXXX are XXXXXXXXX at this time. [Petitioner] XXX XXX XXXXXXX XXXXXXXXXX. Parent is not in agreement. 30. In addition to authoring the PWN, on XXXX XXX, XXXXX, Respondent completed a form entitled “XXX XXXXXXXXX XXXXXXXX XXXXXXXXXXX/XXXXXXXXX XXXXXX XXXXXX to XXXXXXXX XXXXXXXXXXX.” This form documents that the school-based members of the team concluded Petitioner did not meet the eligibility criteria set forth in Florida Administrative Code Rule 6A-6.0331(4)(a)1., 2., and 3. The undersigned finds that Respondent satisfied its obligation to document its determination of eligibility as set forth in rule 6A-6.0331(5). 31. At the final hearing, Petitioner presented the testimony of XX. XXXXXXX-XXXXX as an expert witness in psychology and psychoeducational assessments. XX. XXXXXXX-XXXXX conceded that XXX was not knowledgeable concerning the eligibility criteria, in the educational setting, for a student with a XXX. XX. XXXXXX-XXXX offered no opinion as to whether Petitioner is, in fact, eligible for XXX in the educational, as opposed to the

14 clinical setting. SSXX also did not offer any opinion as to Respondent’s decisions denying XXX eligibility for Petitioner. 32. XX. XXXXXX-XXXXX did, however, opine that based upon XXX evaluation, Petitioner did exhibit XXX-average deficits in basic XXXXX, and “some” in XXXXXX XXXXXXX. In response to why additional subtesting is necessary, XX. XXXXXX-XXXXXX explained that Petitioner’s XXXXXX XXXXXX deficit is “so specific and pretty mild.” Petitioner, according to XX. XXXXXX-XXXX, demonstrates a pattern of trading speed for accuracy in XXX XXXXXXX. 33. Petitioner also presented the expert testimony of XXXXXXX XXXXXX, Ph.D. XXX. XXXXXX has a doctorate in XXXXXXX- XXXXXXXX XXXXXXXXXX from the XXXXXXXX of XXXXXXXXX, and is XXXXXXXX the XXXXXXXXXX XXXXXXXX professor and the undergraduate program director for the XXXXXXX of XXXXXXXX, XXXXXXXX and XXXXXXXX XXXXXXXX at the XXXXXXXXXXX of XXXXXXXXXX. 34. XX. XXXXXXXXX was retained to conduct an evaluation to document Petitioner’s current level of functioning in reading and writing. The evaluation was conducted on XXXXXXXX XX, XXXXX, several months after Petitioner’s Complaint was filed. Accordingly, Respondent did not have the ability to consider the information contained within XX. XXXXXXXX report at the time the eligibility determinations at issue were made. While the undersigned found XX. XXXXXX very credible and well-credentialed,

15 XXX did not offer any opinions concerning Respondent’s eligibility decisions, and, therefore, XXX testimony was of very limited value to the pending issues. 35. XXXXXXXXXXX XXXX has a doctorate in School Psychology and is presently in private practice. Respondent called this witness to, among other things, explain the variances between the testing results obtained by XX. XXXX and XX. XXXX-XXXX. XX noted that XXX scores from XX. XXXXXX evaluation were in the XXXXXXXX range; however, most of the reading scores in XX. XXXXXX-XXXXXX evaluation were below average. XXX opined that testing scores are a reflection of that particular student’s performance on a particular day, thus there is going to be some variance. 36. XX. XXXX opined that Petitioner’s evaluation by XX. XXXXX and XX. XXXXX-XXXXX are consistent with a student that has XXXXX. XXX conceded that there are some significant differences in the basic XXXXXX scores; however, XXX opined that the scores are not to be viewed in isolation from the balance of available information. 37. XXXXXXX XXXX, one of Respondent’s school psychologists, credibly testified that in making the eligibility determination for XXX, the team not only reviews XXXXXXXXXX assessments, but also XXXXXXXXX-XXXXX assessments, XXX results, examinations, grades, XXXXXX scores, results from the XXXX, “and other things of that nature.” XX. XXXXX opined that, XXXXXX XXXXXXX, and

16 XXXXXXXXXXXXX XXXXXXX by a student in XXXXXXXXX XXXXXXXX, would be relevant to determining whether a student requires accommodations under a XXXXXXXXX XXX XXXX, but would not be relevant to the consideration of XXX eligibility and the need for specialized instruction. This specific opinion is not credited. 38. XXXXXX XXXXXXXX, Petitioner’s XXXXX-grade XXXXXXXX XXXXXXXX XXXXXXX/ class teacher credibly testified that Petitioner performs well in XXX class, performs XXXX XXXXX in exams, displays no more difficulties than any other student, and has submitted “beautiful” interactive notebooks for the class. Specifically, XXX has received XXX XXXX and one XX on the interactive notebooks. 39. Similarly, XXXXX XXXXX, Petitioner’s XXXXXXX XXXXXXXX XXX teacher for XXXXXX grade, credibly testified that Petitioner has earned “XX” up through the time of filing the instant Complaint and has made “XXXXXXX XXXXXXXX” on XXXX XXXXXX. CONCLUSIONS OF LAW 40. DOAH has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to section 1003.57(1)(c), Florida Statutes, and rule 6A-6.03311(9)(u). 41. 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).

17 42. 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). 43. The 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. § 1412(a)(3)(A)). This obligation is referred to as "Child Find," and a local school system's "[f]ailure to locate and

18 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). 44. All determinations regarding eligibility for special education are therefore governed, in the first instance, by the definition of a “child with a disability.” Pursuant to 20 U.S.C. § 1401(3)(A), a “child with a disability” is a child: (i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this title [20 USCS §§ 1400 et seq.] as "emotional disturbance"), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services. 45. Thus, eligibility determinations proceed in two steps. The first prong determines the existence of a disorder——here, a XXX. The second prong identifies whether the child with a qualifying disorder “needs” special education and related services as a result of that disorder. Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 73 (1st Cir. 2016).

19 46. A XXX is defined as follows: (i) General. XXXXXXX XXXXXXXXX XXXXXXXXXX means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. (ii) Disorders not included. XXXXXXXXX XXXXXXXX XXXXXXXX does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural, or economic disadvantage. 34 C.F.R. § 300.8(c)(10); see Fla. Admin. Code R. 6A-6.03018(1). 47. In Florida, a student meets the eligibility criteria as a student with a XXX if all of the following criteria are met: (a) Evidence of XXXXXXXXXX XXXXXXXXX XXXXXXXXXX. The student’s parent(s) or legal guardian(s) and group of qualified personnel may determine that a student has a specific learning disability if there is evidence of each of the following: 1. When provided with learning experiences and instruction appropriate for the student’s chronological age or grade level standards pursuant to Rule 6A-1.09401, F.A.C., the student does not achieve adequately for the student’s chronological age or does not meet grade-level standards as adopted in Rule 6A- 1.09401, F.A.C., in one or more of the following areas based on the review of multiple sources which may include group

20 and/or individual criterion or norm- referenced measures, including individual diagnostic procedures: a. Oral expression; b. Listening comprehension; c. Written expression; d. Basic reading skills; e. Reading fluency skills; f. Reading comprehension; g. Mathematics calculation; or h. Mathematics problem solving. [and] 2. The student does not make adequate progress to meet chronological age or grade- level standards adopted in Rule 6A-1.09401, F.A.C., in one or more of the areas identified in subparagraph (4)(a)1. of this rule when using a process based on the student’s response to scientific, research- based intervention, consistent with the comprehensive evaluation procedures in subsection 6A-6.0331(5), F.A.C. [and] 3. The group determines that its findings under paragraph (a) of this subsection are not primarily the result of the following: a. A visual, hearing, or motor disability; b. Intellectual disability; c. Emotional/behavioral disability; d. Cultural factors;

21 e. Irregular pattern of attendance and/or high mobility rate; f. Classroom behavior; g. Environmental or economic factors; or h. Limited English proficiency. Fla. Admin. Code R. 6A-6.03018(4)(a); see also 34 C.F.R. § 300.309(a).6/ 48. Here, it is undisputed that Petitioner has XXXXXX, a qualifying IDEA disorder for XXX. It is further undisputed that Petitioner has been previously determined eligible to receive services and protection under XXXXXXX XXX based on XXX XXXXXXXX.7/ Thus, it must be determined whether Petitioner, who has a qualifying IDEA XXX XXXXXXXXX (XXXXXXX), satisfies the criteria for XXX eligibility; and, if so, whether XXX needs special education and related services. 49. Petitioner contends that, in the categories of basic reading and reading fluency, XXX does not “XXXXXX XXXXXXXXXXXX” and “XXX XXX make XXXXXXXXXXX XXXXXXX” in those categories when using a process based on Petitioner’s response to scientific, research-based intervention. Petitioner’s evidence to support this contention primarily rests upon Petitioner’s XXXX-average scores on the selected assessments administered by XX. XXXXXX- XXXXXX on XXXXXXXXX XX, XXXXX.8/ It is undisputed that these

22 assessments were administered to Petitioner for the specific purpose of determining XXX reading deficits. 50. The undersigned finds that the XXXXX probes analysis also provides evidence of a XXXXXXXX in XXXXXX XXXXXXX as Petitioner’s XXXXXXX XXXXXX, on XXXXX XXX, XXXXXX, was still only at the XXX percentile. 51. In contrast to the specific assessments administered by XX. XXXXXXX-XXXXX addressing potential XXXXXXXX XXXXXXX, other evidence supports the contrary position that Petitioner is achieving XXXXXXXXXX and XXXXXXXXX XXXXX progress in the areas of XXXXXXXX XXXXXXXXX and XXXXXXXXXXXX. First, Petitioner’s results on the XXX in XXXXXXX/XXXXXXXX XXX demonstrate that XXX is meeting expectations. Second, Petitioner’s XXXXXXX XXXXXXXX grades in XXXXXXX XXXXXXX XXXX for the past XXX years (“XXX”) are a XXXX indicator of XXXX XXXXXXXX XXXXXXX and XXXXXXXX XXXXXXX skills. Third, Petitioner’s XXXXXXXX XXXXXXXXX success in XXX other courses, even though not specifically tailored to measure XXXXX XXXXXXXXX and XXXXXX XXXXX, is competent evidence to weigh in considering XXX eligibility. Fourth, the specific assessments administered by XX. XXXXXX (XXXX months prior to the XXXXXX-XXXX assessments) placed Petitioner in the XXXXXXX range in the categories at issue. Finally, the observations by Petitioner’s teachers in the classroom, who testified at final hearing,

23 provide competent evidence weighing against a finding of XXX eligibility. 52. Petitioner’s overall XXXXXXX performance is the result of XXX XXXX XXXXXXXX, XXXXXXXX XXXXX XXXXXXX, and devoted parents, as well as accommodations provided by the school pursuant to XXX XXXXXXXX XXX XXX. While Petitioner’s XXXXXXXX XXXXXXXX may have contributed, in part, to XXX reading academic success to date, the impact is difficult to quantify based on the evidence presented. 53. As discussed in Doe, infra, the weight due to any particular factor depends on the unique circumstances of the child. Doe, 832 F.3d at 81. “[W]e determine that, much as no single assessment or measure could support a finding of a XXXXXXX XXXXXXXX deficit, no single assessment or measure may undermine a finding of a XXXXXXXXX XXXXXXX deficit where other measures could support such a finding.” Id. 54. While the undersigned is mindful that where, as here, a student’s XXXXX XXXXXXXXX, XXXXX XXXXXXXXXXXXXX, XXXXXXXXXXX XXXXX, and XXXXXXXX XXXXXXXX XXXXXXXXXXX could mask XXX XXXX, the undersigned concludes that the greater evidence establishes that Petitioner did not satisfy the eligibility criteria at the time of XXXX eligibility determination meetings. Accordingly, the undersigned concludes that Petitioner failed to establish the first prong of the eligibility analysis.

24 55. Assuming, arguendo, that Petitioner had established that XXX XXX the criteria for XXX, Petitioner is further required to establish that XXX needs specialized education and related services by reason of XXX disability. 56. Petitioner contends that XXX needs special education to remediate XXX deficiencies in XXXXXX XXXXXXX and XXXXXX XXXXXXX skills and suggests, as a proposed conclusion, that XXX be provided a XXXXXXXXX XXXXXXXXX program for XXX hour per day, XXXX days per week, for XXXX years. Applying a similar analysis to that above in the first prong, the evidence establishes that, at the time of the eligibility determinations at issue in this proceeding, Petitioner was not in need of special education and related services. Although Petitioner’s IEE by XXX. XXXXX-XXXXX placed XXX in the XXXXXX-average range in the categories at issue, this one assessment does not override the balance of evidence pointing to the lack of need for special education and related services. Accordingly, Petitioner failed to present sufficient evidence to satisfy the second prong of the inquiry. ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Petitioner’s Complaint is denied in all respects.

25 DONE AND ORDERED this 2nd 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 2nd day of August, 2018. ENDNOTES 1/ See Fla. Admin. Code R. 6A-6.03019(1). 2/ The XX-XX ACH is a comprehensive set of individually administered tests to measure educational achievement in the areas of reading, mathematics, written language, oral language, academic skills fluency, and applications. 3/ The report documents that XXXXXXX is an online program utilized by Respondent to monitor progress at the Tier 3 level. The report further provides that, although Petitioner’s parent refused multi-tiered learning supports beyond the original general education learning plan, a goal for improvement in Petitioner’s measured oral reading fluency rate was established to better assess her learning gains in response to only core instruction and general education learning supports. 4/ The XXXX-XXX is an individually administered test that evaluates academic achievement in reading, math, and writing, and oral language (expressive and receptive); the XXXXX-X assesses phonological awareness, phonological memory, and rapid naming in children and adults ages 5 to 24; the XXXX-X is a norm-referenced test of oral reading rate, accuracy, fluency, and comprehension.

26 5/ The XXXXXXXXXX XXXXXXX XXXXXX class provides three high school science credits. 6/ Florida Administrative Code Rule 6A-1.09401 sets forth the Student Performance Standards, defined as the Next Generation Sunshine State Standards, establishes core content of the curricula to be taught, and specifies the core content knowledge and skills that K-12 public school students are expected to acquire. 7/ Accordingly, it was previously determined that her dyslexia substantially limits one or more major life activities. See 29 U.S.C. § 705(20)(B). 8/ The parties do not dispute the validity or reliability of any of the selected assessments administered. COPIES FURNISHED: XXXXXXX X. XXXXXXX, Esquire Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779-2942 (eServed) XXXXXX XXXXXXX, Esquire Special Education Law and Advocacy 2509 First Avenue South St. Petersburg, Florida 33712 (eServed) XXXXX XX. XXXXXXXXXX, Esquire Special Education Law and Advocacy 2509 First Avenue South St. Petersburg, Florida 33712 (eServed) XXXXXX XXXXXXX Department of Education 325 West Gaines Street Tallahassee, Florida 32399 (eServed)

27 XXXXXXX XXXXX, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) XX. XXXXXXX XX. XXXXXXX, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770-2942 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).