Seminole | Case 17-1134 | 2017-09-25

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS **, Petitioner, vs. Case No. 17-1134E SEMINOLE COUNTY SCHOOL BOARD, Respondent. _______________________________/ FINAL ORDER Pursuant to notice, a due process hearing was conducted before Administrative Law Judge Jessica Varn of the Division of Administrative Hearings (DOAH) in Sanford, Florida, on June 28 and 29, 2017, and July 10, 2017. The final day of the hearing was held via webcast on July 20, 2017, with sites in Tallahassee and Sanford, Florida. APPEARANCES For Petitioner: Jamison Jessup, Qualified Representative 1642 North Volusia Avenue, Suite 201 Orange City, Florida 32763 For Respondent: Stephanie K. Stewart, Esquire School Board of Seminole County 400 East Lake Mary Boulevard Sanford, Florida 32773 STATEMENT OF THE ISSUES Whether the School Board denied the student a free and appropriate public education (FAPE) by failing to design

2 individualized education plans (IEPs) that were reasonably calculated to provide the student with a meaningful educational benefit, and whether the student should be placed at XXXXXXXXXX XXXXXXXXXXXX (XXXXXXXXXX), which is a residential facility. PRELIMINARY STATEMENT On February 16, 2017, Petitioner filed a request for a due process hearing (Complaint) alleging that the School Board had failed to design IEPs that were reasonably calculated to provide a meaningful educational benefit to the student because the IEPs did not adequately record the level of XXXXXXXXXX the student exhibited, did not provide a sufficient amount of XXXXXXXXX interventions and XXXXXXXXXXXXXXXXX procedures, and did not place the student at XXXXXXXXX. The parents also requested that the undersigned recognize XXXXXXXXXX as a qualified representative, pursuant to Florida Administrative Code Rule 28-106.107; the School Board filed no objection to that request. In an Order dated March 9, 2017, the undersigned accepted XXXXXXXXXX as Petitioner’s qualified representative. The parties jointly requested an extension of time to hold the resolution session, which was granted. An Order Extending the Deadline for Final Order was issued, extending the deadline to May 12, 2017. On March 28, 2017, after the parties were unable to resolve the issues during a resolution session, a telephone conference was held wherein the parties agreed to

3 schedule the due process hearing for June 1 and 2, 2017; the deadline for this Final Order was once again extended and set to be determined at the conclusion of the due process hearing. On May 30, 2017, during a telephone conference, Petitioner filed an ore tenus motion for emergency continuance asserting that due to XXXXXX, XXXXXXXXXX was unable to present the case as scheduled. The School Board did not object to the emergency continuance, and the hearing was rescheduled for June 28 and 29, 2017, and July 10, 2017. The hearing did not conclude on the scheduled days, and was eventually finished on July 20, 2017. During the hearing, testimony was heard from XXXXXXXXXXXX, paraprofessional; XXXXXXXXXXX, bus driver; XXXXXXXXXXXX, school bus monitor; XXXXXX XXXXXXX, staffing resource specialist and guidance counselor; XXXXXXXXXXXX, paraprofessional; XXXXXXXXXXXXXX, instructional teacher; XXXXXXXXXXX, speech pathologist; XXXXXX XXXXXXXXX, mental health counselor; XXXXXXXXXXX, school principal; XXXXXXXXXX, the student’s mother; XXXXXXXXXXXX, school principal; XXXXXXXXXXXX, deputy sheriff and school resource officer; XXXXXXXXXXX, deputy sheriff and school resource officer; XXXXXXXXXXX, social worker; XXXXXXXXXXX, executive director of exceptional student education (ESE) services; XXXXXXXX XXXX, child psychiatrist; XXXXXXXXXXXX, attorney; XXXXXXXXXXX, the student’s father; XXXXX XXXXXX, teacher; XXXXXXXXXXX, area ESE

4 director, XXXXXXXXXXXX, school psychologist; XXXXXXXXXXXXX, teacher; XXXXXXX XXXXXXXX, education coordinator; XXXXXXXXXXX, behavior analyst; XXXXXXXXXXXX, speech pathologist; XXXXXXXXXXXXXX, IDEA compliance administrator; XXXXXXXXXXXX, speech language pathologist; and XXXXXXXXXXXXX, behavior analyst. Petitioner Exhibits 1 through 11, 14, 15, 35 through 38, 41, 57 through 59, 61, 63 through 66, 71, 72, 76, 78, 81, 89, 92, 94 through 96, and 98 through 100 were admitted into the record; School Board Exhibits 1, 3, 5, 6, 10 through 16, 19 through 22, 25, 26, 36, 38 through 40, 43, 44, 46, 48, 49, 51, 54 through 63, 65, 67, 70 through 72, 75, 76, 78 through 80, 83, 85 through 87, 98, and 100 were admitted into the record. The Transcript was filed on August 2, 2017; by agreement of the parties, proposed final orders were due on August 23, 2017; and the final order was due on September 13, 2017. On the day the parties’ proposed orders were due, Petitioner filed an unopposed request for a five-day extension of time in which to file the proposed orders. The request was granted, and the parties were instructed to file proposed final orders by August 28, 2017; the deadline for the final order was extended by the same number of days and was due on September 18, 2017. The State of Florida was declared a state of emergency by Governor Rick Scott in anticipation of Hurricane Irma, and state offices were closed from Friday, September 8, 2017, through Tuesday,

5 September 12, 2017. On September 13, 2017, the undersigned entered an Order Extending Final Order Deadline Due to Hurricane Irma, providing for an additional week to prepare this Final Order. The parties’ proposed final orders were considered in the preparation of this Final Order. For stylistic convenience, the undersigned will use XXXXXXXX pronouns in this Final Order when referring to Petitioner. The XXXXX pronouns are neither intended, nor should be interpreted, as a reference to Petitioner's actual gender. Unless otherwise noted, all statutory and rule citations are to the versions in effect at the time the alleged violations took place. FINDINGS OF FACT 1. The student is a XX-year-old who was in the XXXXXX grade for the 2016-2017 school year, attending School A, which is a separate day school serving mostly students with XXXXXXX XXXXXXX. XXX is eligible to receive ESE services as a student with an XXXXXXXXXXXXXXXXXX (XXXXX), XXXXXXXXXXXXXXXXXXXXX (XXX), and a XXXXXXXXXXXXXX. 2. XXXX’s been diagnosed with XXXXXXXXXXXXXXX, XXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXXX (XXXX), XXXXXXX, XXXXXXXXXXX XXXXXXX XXXXXXX (XXXX), and XXXXXX XXXXXXXXX XXXXXXXXXX (XXX). XXX’s described as having poor impulse control, poor judgement,

6 often XXXXXXXX, and sometimes XXXXXXXXXX. XXX can have XXXXXXXX XXXXXXXX, has difficulty XXXXXXXX others, finds it difficult to develop XXXXXXXXXXX, and can be highly XXXXXXXXXXXXX and become XXXXXXXXXXXXXXXXX interests. 3. The student’s behaviors can be XXXXXXX in nature, including XXXXXXXXXX on teachers or other personnel, XXXXXXX XXXXXXXXXXXX, XXXXXXXXX from the school campus, XXXXXXXX, and XXXXXXXXXX property.1/ XXXX behavior at home is described as being highly XXXXXXX, XXXXXXXXX, XXXXXXXXXXXX, and XXXXXXXXXXX. 4. During XXX four years of XXXXXXX school, the student has attended XXX different schools, and has been XXXXXXXXXXXXXXXX XXXXXXXXX to a XXXXX institution XXXXXX times. XXX attended School A for most of XXX second year of middle school (XXXXX grade), and all of XXX XXXXXXX year (repeating XXXXXX grade). 5. Twice during these XXXXXXX school years, the student was XXXXXXXX to XXXXXXXXXX. The first visit was from XXXXXXXXXXXXX, XXXXX, through XXXXXXXXXXXXX; the second visit was exactly one year later, from XXXXXXXXXXXXXXXXX, to XXXXXXXXXXXX. During both of xxxx stays at XXXXXXXXXX, the primary goal was to treat the student’s XXXXXXX and XXXXXXXXX needs; the student’s XXXXXXXXXXX was not a primary goal. 6. During XXX initial stay at XXXXXXXXXX, which lasted approximately XX days, XXX was discharged because XXX reached all treatment goals. After XXX discharge, XXX returned to School A

7 and completed the school year. XXX father, when asked to describe how the time at XXXXXXXXXX had helped the student, or why XXX felt the student “did well” at XXXXXXXXXX, answered: By the time we got [XXX] back XXXX, [XX] was in a much more controlled situation. [XX] was learning to develop what they call XXXXXX skills. And the XXXXXXX skills are things they’re teaching [XXX] how to deal with [XX] XXXXX, how to XXXXXXX [XXX] XXXXXX. And [XXXX] been working with a XXXXXXXXXXXXXXX at the facility, and a XXXXXXXXXXX, and they were providing [XXX] some guidance and [XX] exhibited pretty good. We were kind of angry because the insurance company abruptly came and arbitrarily, in our opinion, decided that they were not going to provide coverage. So they suspended coverage and we had to bring [XX] XXXX. 7. The student then spent the next school year, which was the 2015-2016 school year, at a private school. XXX was re- enrolled at XXXXXXXXXX for XX second visit there, this time from late XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. 8. When XX was admitted the second time to XXXXXXXXXX, XX completed XXX treatment goals--the program had resulted in “the absence of XXXXX and XXXXXXXXX behaviors.” The discharge summary stated: “** has benefitted from weekly individual and family XXXXXXX to address [XXX] poor XXXXXXXXXXXXXXX and XXXXXXX management. [XX] also participated in XXXXXXXXX programming and XXXXXXX training facilitating a decrease in XXXXXXXXXX behaviors and [XXX] final transition back XXXX.”2/ As compared to the other students residing at XXXXXXXXXX, the student’s behaviors were

8 described as being significantly XXXXXXXXXXX. After this second visit, the student’s father recalled that the student’s grades were “good” while XX was at XXXXXXXXXX, and that XX once again learned XXXXXX skills. 9. The student then returned in the Fall of 2016 to School A, to repeat XXXXXXX grade. Although every member of the school staff agreed that the student exhibited XXXXXXXXXXX and sometimes XXXXXXXX behavior, they credibly testified that XXX behavior was similar to behavior exhibited by most of the students at School A; in fact, the staff was clearly fond of the student, and felt certain that the student bonded with XXX education team. 10. In October of 2016, an IEP was developed for the student. It included counseling for XX minutes weekly; language therapy for XX minutes XXXXX; direct instruction in math computation, problem solving skills, reading fluency and comprehension, vocabulary, and social skills; and specialized instruction in behavior management and independent functioning. During the meeting, the parents presented a letter directed to the principal (who was not present at the IEP team meeting), requesting for the first time a residential placement for the student. 11. When the IEP team met in October, a meeting summary sheet was generated. As to concerns that were being addressed,

9 the following is stated: “Parents are concerned with **’s XXXXXXXXXXXXX towards others and property across various settings.” (emphasis added). Later in the summary, the following is found: “Target behaviors include: XXXXXXXXXXXXXX XXXXXXXXX, and XXXXXXXXXXXXXXXX.” In the section of the IEP regarding social and emotional behaviors, “XXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX” is listed as one of the behaviors that warranted a referral to the XXXXXXXX center. In the goals listed, one is: “Given frequent positive reinforcement and attention for positive behaviors, ** will keep [XXX] body parts/objects to himself in a safe manner (with no physical aggression towards XXXXXX or others with no more than two (2) verbal prompts with 80% mastery as evidence by daily data collection.” 12. XXXXXXXXXXX credibly testified that since it was the first time the IEP team was presented with the request for placement at XXXXXXXXXX, XXX was unprepared to address it at the XXXXXXX IEP meeting, but agreed to reconvene once the request had been properly considered. Just two weeks later, the IEP team met again. 13. At the XXXXXXX IEP meeting, the IEP team doubled the language therapy time weekly, but denied the request for a residential placement. The parents filed a request for a due process hearing, which was eventually withdrawn because the

10 parties agreed, among other things, to have the student undergo a XXXXXXXXXXXX evaluation, and to conduct a functional behavior assessment (FBA). 14. The XXXXXXXX IEP documented, among many other goals, the following goals that targeted physical aggression: While on school campus, ** will conduct [XXXXX] in a manner that is not disruptive, XXXXXX personal space, or does not interfere with efforts to participate in routine classroom activities while XXXXXXXXXXXXXXXX XXXXX and staff with 70% mastery as evidenced by daily data collections. While on school campus, ** will behave in a safe and compliant manner by following directions the first time given, by raising XXX hand, remaining in XXX assigned seat, and will receive instruction in small group and individual situations with 70% mastery as evidenced by daily data collections. 15. The XXXXXXXXXX evaluation was conducted by XXXXXXXXXX. XXXX spoke to each parent for two hours, the student for one hour, and interviewed four school staff members for ten minutes each. XXX never visited School A, and never observed the student while XXX was in the school environment. XXXX ultimately recommended that the student be placed in a residential facility. The undersigned finds it puzzling that a XXXXXXXXXXXX would opine regarding an educational placement without becoming more familiar with the school, without seeing the student interact with the staff at school, without speaking with all of the staff that interacts with the student, and after only spending a total of

11 40 minutes with only some of the school staff. For this reason, while the undersigned does not question the medical diagnosis provided by XXXXXXXXXX, the undersigned does not find XXXXXXXXXXX evaluation as to educational placement to be particularly helpful. 16. XXXXXXXXXXX, a mental health counselor who started to work with the student two months after the Complaint was filed, and five months after the XXXXXXXX IEP was designed, also opined that a residential placement is appropriate for the student. XXXXXXXXXXXX never observed the student at School A, never spoke with the school staff, and had no knowledge as to whether the IEPs or the behavior intervention plan (BIP) were being implemented at School A. Further, XXXXXXXXXXX admitted that XX had no access to School A’s handbooks or policies, did not have knowledge as to the types of restraints utilized at School A, and did not know what programs were used at School A. XXXXXXXXXX and XXXXXXXXXXX actually disagree as to whether the student exhibits the traits of XXX. XXXXXXXXXXX does not agree with XXXXXXXXXX diagnosis of XXX, because the student exhibits a strong XXXXXXXXXX to XXX XXXXXXX XXXXXXX. After reviewing the record as a whole, XXXXXXXXXXXX testimony is also not persuasive as to the decision that must be made on educational placement.

12 17. After the XXXXXXXXX IEP was drafted, XXXXXXXXXXX, a behavior analyst, began to work with the student. XXX conducted an FBA and developed a BIP for the student, and XXX spent approximately XX hours a week working with the student and the staff at School A. XXXXXXXXXXX meticulously charted the student’s behaviors, which included XXXXXXXXXXXXXXXXXXXXX, the amount of minutes the student spent in the XXXXXXXXXXXX XXXXXXXX (XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX), and the amount of points earned for XXXXXXXXXX behavior. The XXXXXXXXX behavior trended XXXX throughout the year, with some XXXXX due to outside of school factors (for example, the death of an NFL football player, or returning from a holiday break), and the points earned for positive behavior trended XXXXXX (the student actually had XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX at School A). 18. In the FBA conducted by XXXXXXXXXXX, the problem behaviors identified are described as follows: Non compliance: XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX Invading personal space of others (IPS): XX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXX (emphasis added).

13 19. The BIP developed by XXXXXXXXXXXX is highly detailed, with specific directions for the staff members. The paraprofessionals who worked with the student felt that XXXXXXXXXX provided them with very good support and specific instruction on how to mold better behavior. Both paraprofessionals credibly testified that the student was typical of all students at School A, and that while XX experienced some lapses, overall XXXX behavior improved over time. 20. XXXXXXXXXXXX, the speech pathologist who worked with the student on XXX language IEP goals, spent XX minutes a week with XXX, which was eventually increased to XX minutes a week. XXX focused XXX therapy on social and pragmatic language, emotional vocabulary, social situations, perspective taking, observing nonverbal language, assessing social situations, and modulating behaviors. 21. XXXXXXEaton, who the undersigned found to be candid and credible, recalled that at the XXXXXXXXX IEP meeting, the parents brought a letter requesting residential placement, but that since their advocate (XXXXXXXXXX) was not present, the entire team agreed to reconvene the IEP team in a few weeks to discuss the requested change in placement. 22. When XXXXXXXXXXXX first started working with the student, XXX was presented with the IEP from XXXXXXXXXX, which only provided XXXXXXXXXXX of language therapy in a group setting.

14 XXXXXXXXXXXX designed more detailed and more comprehensive language goals, and eventually tripled the amount of minutes. XXXXXXXXXXXX saw the student’s progress in all of the IEP goals for which XXXX was responsible. 23. Specifically, the student learned how to identify the zones of regulation, increased XXXXX emotional vocabulary, was better able to identify social issues and provide an acceptable solution for both parties, learned breathing strategies, and picked up on verbal cues given by a partner. During the hearing, XXXXXXXXXXXX described a typical day with the student: Q: And if you could give an example of how you would work with ** in—and [XX] IEP goals, and, you know, helping [XXX] meet those. A: Okay. There’s many. There’s so many examples. Okay. So ** is a fun kid and [XX] needs to be dazzled a little bit. So when I would come in I would say these are your goals, [XX] aware of what [XXXX] working on. And I say what do you feel like working on today, because I don’t mind where I start and I can work on goals depending on what [XX] picks. So if [XX] would say—-or I would say we need to read something, we could get that out of the way, read a high interest story and then answer questions, and if [XX] knocks that out we could go to Uno [a card game used to teach the zones of regulation] and do zones of regulation type emotional vocabulary. There were vocabulary words on the board on a Monday and we used them in sentences and try to catch each other using them in sentences and try to explain what they were to increase [XXX] vocabulary, and by the end of the week, [XXXX] be at hundred percent.

15 So just little things like that. I know that when [XX] read a high interest story and then answered questions, I would then have [XX] retell the story to someone else to see if [XX] could get the key points, and [XX] has a good memory for that. And then [XX] could write a paragraph about it or how [XX] would change the story or add on to it. And then we’d go back and edit, because [XX] needs work on editing strategies. And that’s just a typical day. I could keep going. 24. Tracking of the student’s academic progress was also done and showed improvement over the course of the academic year. Other than the parents of the student, most witnesses (including XXXXXXXXXXXXX) agreed that the student progressed academically through the year. Reading scores across all reading components steadily showed progress, although math proficiency varied depending on the day and showed less consistent progress.3/ 25. There was no evidence presented by any witness as to what type of educational program would be in place for the student at XXXXXXXXX; in fact, XXXXXXXXXXXXX specifically stated that XX was unfamiliar with the program at XXXXXXXXXX, and XX could only provide general information as to the XXXXXXXXXXXXXX benefit of residential programs.4/ XXX recommendation that the student be placed there was solely based on the student’s XXXXXXXXX and XXXXXXXXX needs, not XXX XXXXXXXXXXXX needs. 26. The information in the record specific to XXXXXXXXXX is limited to the past—-the two periods of time when the student was admitted to XXXXXXXXXX and then discharged because XX met the

16 XXXXXXXXXXXXXXX treatment goals. It was clear to the undersigned that both visits were intended to address the student’s XXXXXXXXXXX state; when XX successfully met XXXX treatment goals, XXX was returned to School A to be educated. 27. No credible evidence was presented to establish that XXXXXXXXXX can provide an appropriate education at this point in time, or even what educational plan might be put into place to meet the student’s educational needs. CONCLUSIONS OF LAW 28. DOAH has jurisdiction over the subject matter of this proceeding and of the parties thereto. See § 1003.57(1)(c), Fla. Stat.; Fla. Admin. Code R. 6A-6.03311(9)(u). 29. Petitioner bears the burden of proof with respect to each of the issues raised herein. Schaffer v. Weast, 546 U.S. 49, 62 (2005). 30. 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

17 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). 31. Parents and children 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 may 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). 32. 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

18 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). 33. "Special education," as that term is used in the IDEA, is defined, in relevant part, 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). 34. The central mechanism by which the IDEA ensures a 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 the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982).5/ School districts must also ensure that, "[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled." 20 U.S.C. § 1412(a)(5)(A). In other words, the school district must endeavor to educate each disabled child in the least

19 restrictive environment (LRE). A.K. v. Gwinnett Cnty. Sch. Dist., 556 Fed. Appx. 790, 792 (11th Cir. 2014). 35. Here, Petitioner asserts that the IEPs in XXXXXX and XXXXXXXXXXXXXX did not adequately describe the XXXXXXXXXXX XXXXXXXXXXXX behavior exhibited by the student. The undersigned disagrees. As reflected in the facts recited above, the IEPs designed for the student and the FBAs documented XXXXXXXXX XXXXXXXXXXX satisfactorily, and established goals to address the behavior. IEPs need not detail every incident of maladaptive behavior; undoubtedly, the school staff was well acquainted with the student’s behaviors and simply summarized them. 36. Petitioner also takes issue with the alleged lack of consideration given to the parents’ request for a residential placement at the XXXXXX IEP meeting. The undersigned rejects this argument based on the credible testimony provided by the school staff, which explained that the request was a surprise to the school staff at the XXXXXXXX meeting, and that the parents agreed to reconvene the IEP meeting when their advocate could attend and after school staff had time to adequately consider the request. 37. As promised, the request was properly considered at the XXXXXXXX IEP meeting. After considering XXXXXXXXXXX opinion, the IEP team rejected the requested residential placement, finding that the IEP was designed to meet the student’s educational

20 needs, and that FAPE had been provided to the student up until that point in time.6/ 38. Turning to the issue of placement, the IDEA mandates that: To the maximum extent appropriate, children with disabilities . . . 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. 20 U.S.C. § 1412(a)(5)(A). "Educating a handicapped child in a regular education classroom . . . is familiarly known as 'mainstreaming.'" Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1039 (5th Cir. 1989). Courts have acknowledged, however, that the IDEA's strong presumption in favor of mainstreaming must be "weighed against the importance of providing an appropriate education to handicapped students." See Briggs v. Bd. of Educ., 882 F.2d 688, 692 (2d Cir. 1989). 39. In evaluating whether an IEP places a student in the LRE, a two-part test is applied: First, we ask whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily. If it cannot and school intends to provide special education or remove the child from regular education, we ask, second, whether the school has

21 mainstreamed the child to the maximum extent appropriate. Greer v. Rome City Sch. Dist., 950 F.2d 688, 696 (11th Cir. 1991)(internal citation omitted); L.B. v. Nebo Sch. Dist., 379 F.3d 966, 976 (10th Cir. 2004); Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir. 1989). 40. To determine whether a child with disabilities can be educated satisfactorily in a regular class with supplemental aids and services (the first part of the test described above), several factors are properly considered: (1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class. P. v. Newington Bd. of Educ., 546 F.3d 111, 120 (2d Cir. 2008) (quoting Oberti v. Bd. of Educ., 995 F.2d 1204, 1217-18 (3d Cir. 1993)). 41. As to whether the student should be placed in a residential facility, and when tuition reimbursement is at issue, Courts have adopted an analysis that, "[m]ust focus . . . on whether full-time placement may be considered necessary for educational purposes, or whether the residential placement is a response to medical, social or emotional problems that are

22 segregable from the learning process." Kruelle v. New Castle Cnty. Sch. Dist., 642 F.2d 687, 693 (3d Cir. 1981) (emphasis added); see also Munir v. Pottsville Area Sch. Dist., 723 F.3d 423, 433 (3d Cir. 2013) (explaining that, pursuant to Kruelle, the "relevant question . . . is whether [the child] had to attend a residential facility because of XXXX educational needs—because, for example, XX would have been incapable of learning in a less structured environment—or rather, if XXX required residential placement to treat medical or mental health needs segregable from XXX educational needs."). The Kruelle test has been cited with approval by the Fourth, Sixth, Ninth, Eleventh, and D.C. Circuits. See Richardson Indep. Sch. Dist. v. Michael Z, 580 F.3d 286, 298 n.8 (5th Cir. 2009) (collecting cases); J.S.K. v. Hendry Cnty. Sch. Bd., 941 F.2d 1563, 1573 (11th Cir. 1991)(defining “appropriate” education as making measurable and adequate gains in the classroom, not across settings). 42. Although Petitioner is not seeking reimbursement in this case, the undersigned is guided by the same principles articulated in the above cited cases; that is, the record here reflects that the past placements at XXXXXXXXX were motivated by the difficulties the student was exhibiting in regulating XXX behavior across all environments in XXX life, and not because the student was not receiving an appropriate education at School A.

23 43. The record establishes that the IEPs were reasonably calculated to address all the student’s needs, both academic and behavioral, and that the student progressed in all areas while at School A. School A has provided support, intensive instruction, behavior plans, and intense individual support to the student, in an effort to provide XXX an appropriate education in the least restrictive environment possible at this point. 44. The evidence as a whole establishes that the nature and severity of the student’s disability is such that education at School A, with the use of supplementary aids and services, can be achieved satisfactorily, and that the School Board has properly mainstreamed the student to the maximum extent possible at this juncture. ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the IEPs were reasonably calculated to provide a meaningful educational benefit to the student, and the student’s placement at School A is appropriate and the least restrictive environment. DONE AND ORDERED this 25th day of September, 2017, in Tallahassee, Leon County, Florida.

24 S JESSICA E. VARN 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 25th day of September, 2017. ENDNOTES 1/ At least one incident, which occurred on the same date the Complaint was filed, resulted in the student being XXXXXXX and charged with XXXXXXXXXXXXX. 2/ Found in School Board Exhibit 87, page 978, which was admitted as a Joint Exhibit. The parents disagree and stated at the hearing that their insurance company declined to fund the residential stay any longer. The exhibits show otherwise and are corroborated by the testimony of the XXXXXXXXX staff person, XXXXXXXXXXX. 3/ School Board Exhibit 86 is replete with academic progress reports, completed with extensive detail. 4/ The student’s father testified that the student earned good grades while at XXXXXXXXXX. XXXXXXXXXX testified that Brevard County provided the IEP while the student was there; and, in the IEP, the team noted that placement at XXXXXXXXXX was not because Brevard County Schools could not provide a proper education during the school day. No one testified as to what academic accommodations would be utilized, what educational programs would be implemented, or what strategies would be used to help the student reach academic success if placed there presently. 5/ On March 22, 2017 (after the instant Complaint was filed), the United States Supreme Court readdressed this prong, finding that a school board must offer an IEP that is reasonably calculated to enable a student to make progress appropriate in light of the

25 student’s circumstances. Endrew F. v. Douglas Cty. Sch. Bd., 137 S. Ct. 988, 991(2017). Given that this is a substantive change to the legal standard, it is not applicable to the instant case, which was filed prior to the decision being issued. Assuming, arguendo, that it is applicable, applying the facts of this case to the Endrew standard would result in the same outcome. 6/ Both parties entered exhibits into the record and elicited testimony regarding events that occurred well past the date the Complaint was filed, and past the date the IEP was designed (November 2016). It is well-settled that an IEP must be analyzed in light of the circumstances as they existed at the time of its formulation. 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."). As such, the record evidence concerning Petitioner's post-November behavior is irrelevant to the instant claim. COPIES FURNISHED: Stephanie K. Stewart, Esquire School Board of Seminole County 400 East Lake Mary Boulevard Sanford, Florida 32773 (eServed) Jamison Jessup Suite 201 1642 North Volusia Avenue Orange City, Florida 32763 (eServed) Walt Griffin, Superintendent School Board of Seminole County 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Leanne Grillot, Dispute Resolution Program Director Bureau of Exceptional Education and Student Services

26 Department of Education Turlington Building, Suite 614 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) 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).