Seminole | Case 18-1717 | 2018-08-13

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS **, Petitioner, vs. Case No. 18-1717E SEMINOLE COUNTY SCHOOL BOARD, Respondent. _______________________________/ FINAL ORDER A due process hearing was held in this case before Jessica Enciso Varn, an Administrative Law Judge with the Division of Administrative Hearings, from xxxx XX through XX, XXXXX, in Sanford, Florida. APPEARANCES For Petitioner: XXXX XXXX, Esquire XXXX XXXX XXXXX XXX, P.A. Suite 101 1220 Commerce Park Drive Longwood, Florida 32779 For Respondent: XXXXXXX XX. XXXXXXXX, Esquire School Board of Seminole County, Florida 400 East Lake Mary Boulevard Sanford, Florida 32773 STATEMENT OF THE ISSUE Whether the School Board failed to provide a free and appropriate public education (FAPE) by failing to properly implement the student’s Individualized Educational Plan (IEP); by

2 failing to design an IEP that included End of School Year (ESY) and XXXXXX and XXXXXXXXXXXXX (XX) services; by failing to complete an XXX evaluation; and by failing to respond without unnecessary delay to the student’s request for an independent educational evaluation (IEE) in the area of XXX. PRELIMINARY STATEMENT Petitioner filed a request for a due process hearing (Complaint) on XXXXX XX, XXXX, alleging that the School Board had failed to provide a FAPE to a XXXXXXXXXX XXXXX student. After a telephone conference with the parties, the due process hearing was scheduled for XXXX XX through XX, XXXX, and the hearing was held on those dates. During the hearing, testimony was heard from: the student’s XXXXXX; XXXXX XXXXXX, teacher; the student; XXXXXXXXX XXXXX, teacher of students with XXXXX XXXXXXXXXX (XXX); XXXXXXXXXX XXXXXX, clinical social worker; XXXXXX XXXXXXXXXX, professor; XXX XXXXXXXXX, supervisor at XXXXXXXX XXXXXXXXXX XXXXXXXXXXX XXXXXXXX for the XXXXXXX XXXXXXX; XXXXXXXX XXXXXXXX, teacher; XXXXXXXX XXXXXXXX, teacher; XXXXX XXXXXX, XXXXXXXXX; XXXXX XXXXXXXXX, XXX; XXXX XXXXXXX, technology instructor; XXXXX XXXXXX, teacher; XXXXXXXX XXXXXXX, ESE administrator; XXXXX XXXXXXX, teacher; XXXXXXX XXXXXXX, teacher; XXXXX XXXXX, teacher; XXXXX XXXXXXXX, assistant principal; XXXXXXXX XXXXXXX, teacher; XXXXX XXXXX, principal at XXXXXXX XXXXX XXXX XXX XXXXX XXXX XXXXXX; XXXXXX

3 XXXXXX, assistant principal; XXXXXXX XXXXXX, technology support; XXXXXXXXX XXXXXXX, IDEA compliance administrator; and XXX XXXXX, administrator of XXXXXXX services at XXXXXXXX XXXX XXXXXXXXXXXX. The School Board’s Joint Exhibits 147, 177, and 197 were admitted into the record; and Petitioner’s Joint Exhibits A, C, E, K, L, Q (pages 31 through 49), R, S (Sections 4 and 15), U (Tinkle Input), and W (parts 1, 3, and 5) were admitted into the record. The School Board’s Exhibits 1, 2, 6, 8, 9, 14, 18 through 21, 24, 29-35, 37, 38, 40, 61, 62, 65 through 68, 71, 73, 74, 76 through 82, 84, 90, 96, 98 through 106, 108, 112, 123 through 125, 127 through 129, 132 through 134, 138, 141, 145, 148, 150 through 153, 157, 158, 160, 163 through 166, 173 through 175, 178 through 193, 196, and 198 were admitted into the record; and Petitioner’s Exhibits B, D, F through J, M through O, P (sections 2 and 4), S (sections 1 through 3, 5, 6 (pages 2 and 3)), T, U (Delong, Darling, and Boucher Teacher Input), V (page 3), Y, and Z (pages 11 through 14) were admitted into the record. The Transcript was filed on XXXXX XX, XXXX. By agreement of the parties at the conclusion of the due process hearing, the proposed final orders were due on XXXXX XXX, XXXX; and the Final Order was due on XXXXX XX, XXXX. By Order dated XXXXX XX, XXXX, and with the agreement of the parties, the deadline for the Final Order was extended to XXXXXX XX, XXXXX. The parties’ proposed

4 final orders were considered in the preparation of this Final Order. Unless otherwise noted, all statutory and rule citations are to the versions in effect at the time the alleged violations took place. For stylistic convenience, the undersigned will use XXXXXXX pronouns in this Final Order when referring to the student. The XXXXXX pronouns are neither intended, nor should be interpreted, as a reference to the student’s actual gender. FINDINGS OF FACT 1. The student in this case is a XX-year-old XXXXX XXXXXX XXXXX XXXXXXX, eligible for exceptional student education (ESE) in the XXXXXXXX XXXXXXX (XX) category. XXX has also been diagnosed with XXXXXXX, a XXXXXX XXXXXXX where the XXXX make XXXXXXXX and XXXXXXXXXXX XXXXXXX, as well as XXXXXX and XXXXXXXXXX. XXX has no XXXXXXXXXXX or XXXXXXXXXX difficulties, XXX is educated in general education classes, and she is working toward earning a standard XXXXXX school diploma. 2. The student is a XXXX XXXXXXX XXXXXXX because XXX has XXXXX XXX XXXXXX; XXX can XXXXXX XXXXXX XXXXX (XX XXXXX XXXX or XXXXXX, and XXX prefers XX XXXXX XXXX for XXXXX XXXXXX and XX XXXXXXX XXX XXXXX) and XXXXXX. 3. By most accounts, and corroborated by the observations made by the undersigned during the due process hearing, the student is XXXXXXXX, XXXXXX, XXXX XXXXX, XXXXX to XXXXXXXX, and

5 has an XXXXXXXX XXXXXXX XXXXXXXXXX. Throughout XXXXXXX school, XXXX earned a “XX” XXXXXX, XXXXXX general XXXXXXX XXXXXX with the XXXXXXX of a XXX. 4. During the summer before XXXXXX school, which was the summer of XXXX, the student’s XXXXXX made several requests for a meeting so that XXX could confirm that the XXXX school, School A, was prepared to handle a XX student, and to make sure all teachers would be prepared to manage the accommodations that were necessary for XXX XXXXXXX to access XXXX education. 5. Because the XXX, who was assigned to the student for XXX XXXXXXXXX year, XX. XXXXXXXX, is not contractually obligated to work over the summer, the School A staff did not agree to meet with the student’s parent until two days before the student’s first day of XXX school. At that much anticipated meeting, the XXXXXX was told that all XXX concerns would be handled properly because the student had an IEP in place. 6. And so began this student’s first day of XXXX school: with an IEP in place (that was finalized on XXXXXXX XX, XXXXX), and assurances that it would be implemented as written. The IEP describes the student in this manner: When given a choice of activities by a teacher [XXX] will often appear XXXXXXXX about what choice to make, as it appears [XXX] wants to please and make it easier on the teacher by letting the teacher choose for [XXX]. [XXX] may defer to the teacher even

6 if [XXX] has a preference in [XXX] desire to be both cooperative and polite . . . . XX generally does a good job in making teachers aware of [XXX] needs, however, at times [XXX] appears reluctant to request accommodations available to [XXX] . . . . XX seems to experience some difficulty in making decisions. During initial meeting with [XXX] and [XXX] XXXXX, [XX] deferred to [XXX] XXXXX XX% of the time when asked a question. 7. As to XXX XXXXXXXX in XXXXXX, the IEP highlighted XXX XXXXXXXX XXXXXXXX as a priority educational need: [**] needs to improve [XXX] XXXXX XXXXXXXX rate by at XXXXXXXXXX XX% by XXXXXXXX [XXX] current XXXXXX of XX XXXXXX XXX XXXXXX to at XXXXXXX XX XXXXXXX XXX XXXXXX. XXXX needs to become aware of the changes being implemented with the impending implementation of XXX (XXXXXXX XXXXXXX XXXXXXXXX). XXX needs to become a XXXXXXXXXX and XXXXXXXXXXX user of all XXXXXXXXXXX XXXXXXXXXX XXXXXXXX that allows [XXX] equal access to XXXXXXX XXXXXX and to continue to advocate for [XXXXXX] in the classroom. 8. Indeed, the IEP team was well-intentioned in focusing on three goals that xxxxxxxxxx (xxxxx-xxxxxxx, xxxxxxx xxxxxx, and xxxxxxxxxx in using xxxxxxxx xxxxxxxxxx): this student, who hesitates to bother adults and has difficulty insisting on help from those around xxx, would become more independent if xxx learned how to self-advocate, if xxx could master xxxxxxxxx xxxxxxxx, and if xxx could master the xxxxxxxxx xxxxxxxx that is intended to make xxx world more accessible. But, as detailed in

7 the IEP, xxx needed help from the staff to achieve these educational goals. Specifically, the IEP xxxxx xxxx xxxx, xxx. xxxxxxxx, with helping xxx reach all of xxx IEP goals. 9. The IEP team also memorialized the student’s need for xxxxxxxxxxx xxxxxxxxxxxxx in order to meet xxx IEP goals and objectives. The IEP called for the use of a XXXXXXXX XXXX-XXXXX XXXXXXX, a XXXXXX XXXXXX/XXXXX XXXXXXX/XXXXX XXXXXXX, a XXXXXXXXX/XXXXX XXXXXXXXX, and XXXXXXXXXX XXXXXXX XXXXXXXX. 10. As to the accommodations needed for every XXXX school class XXXX was taking, the IEP required that every XXXXXXXXX XXXXXXXXXXX teacher and the XXX make certain that XXXX XXXXXXXX XXXXXXXXXX XXXXXXXX be prepared for the student in XXX XXXX with XXX XXXXX XXXX, and that XXX XXXXXXX XXXXXXXX would be prepared in either XXXXX or XXXXXX (XXX XXXXX XXX) XXXXXXX. Obviously, this accommodation required pre-planning on the part of the XXXXXXXXXX XXXXXXX teachers. They each had to make sure that all of the materials presented to the XXXXXX students, without fail, were accessible to the student--XXX had every reason to expect that for every class, XXX would be provided materials she could access at the same time XXX XXXXXX peers received their materials. 11. Any misstep in this process would cause delay for XXX-- while the XXXXX students were working on something, XXX would be left to do nothing, and forced to wait for the material to be

8 accessible. As XXXXX school classes move daily through subject matter material, there is no “pause” button to freeze the instruction in the classroom and wait for the student to catch up. The instruction moved on, and if XxxX was not able to access the materials at the exact time that XXX XXXXX peers received their materials, XXX would perpetually find XXXXXXX behind the pace of the class, behind all of XXXX XXXXX peers. It was, therefore, imperative that each classroom teacher work closely with the XXX to make the materials XXXXXXXXXX XXX XXXXXXX of the time. 12. Understandably, this demand on the general education teachers, who have no training in how to teach XX students, was likely met with some trepidation. The role of the XXX and the effectiveness of the XXX, then, are crucial for the proper delivery of services to this student. If the XXX is not proficient, fails to do XXX job, or has a poor working relationship with the student, faculty, staff, the student’s educational needs would likely not be met. 13. The IEP called for XXXXXXX XXXXXXXX XXXXX to be taught in the XXXXXX classroom, via XXXXXXXXX instruction provided by the XX, XXX. XXXXXXXXX. XXX. XXXXXXX was also responsible for XXX services, but these services were limited to the school campus, because the School Board’s insurance policy would not allow for community-based XXX XXXXXXXX or instruction.

9 14. ESY services were not provided for in the IEP; the staff on the IEP team told the student’s XXXXX that ESY services would be considered later in the school year. 15. The student kept track of materials that were inaccessible to XXX throughout XXX XXXXXXX year, and XXX XXXXX sent several emails explaining that materials were not accessible to the student. Materials were presented to the student in a fashion that was not accessible to XXX on multiple occasions, across multiple subject areas, all year long. The record is replete with XXXXXX of materials that were too XXXXXX, XXXXXX XXXXXXX XXXXXXXX, or not XXXXXXXX properly into XXXXXXX. In one class, the student did not receive the correct XXXXXXXX version of a textbook until well into the semester. 16. XX. XXXXXXXXX testified at the hearing. XXX corroborated the testimony given by the student and the student’s XXXXX in that XXX admitted that during the XXXXXXX class, when the IEP called for the student to work on XXX XXXXXX XXXXXX and XXXXXXXXXXX skills, XXX instead made up classwork and assignments. If the materials had been properly prepared in advance of the classes, the student would have been able to complete the work at the same time XXX XXXXXXXX peers completed the work; instead, XXX was doing schoolwork in the XXXXX class because XXX was so XXX XXXXXXX.

10 17. XXX. XXXXXXXXX was the only witness who described the student in negative terms; XXX dislike of the student, the student’s XXXXX, and XXXX job assignment as the student’s XXX was evident during XXX testimony. XXX explained that XXX had requested to be removed from the XXX assignment with the student, and that XX had almost had a XXXXX XXXXXXXXX working with the student that school year. The student credibly testified that XX. XXXXXXXX was difficult to approach, that XXX often made it seem that making materials accessible was an inconvenience, and that XX. XXXXXXXX had a negative attitude toward the student. The student’s description of interactions with XXX. XXXXXXX are found credible, and were corroborated by the defensive and hostile attitude XX. XXXXXXXXX demonstrated during XXX testimony. 18. Given the key role that the XXX had in meeting the student’s educational needs, and in implementing the IEP with fidelity, it comes as no surprise that the IEP was not properly implemented--record evidence and the testimony of the student, XXX XXXXX, and XXXXXX XXXXXXXXX establish the failure to provide accessible materials to the student throughout XXX XXXXXXXX year. 19. Where there is contradictory testimony and evidence on the issue of the accessibility of materials, the undersigned finds the testimony of the student, XXX XXXXXXX, and XXXXXX XXXXXXXX, corroborated by the student’s planner, which detailed many instances of materials being inaccessible for XXX/ and by

11 multiple emails sent by the XXXX expressing concern over the accessibility of materials for XXX XXXXXX, to be credible. 20. As to the IEP’s requirements in the realm of XXXXXXX XXXXXXXX, School A failed in this regard as well. Record evidence established that during XXX XXXXXXXX year, the student did not receive proper training on the XXXXXXX XXX-XXXXXXX XXXXXXX, XXX never received XXXXXXXXXX XXXXXXXXXXXX XXXXXX that worked, and XXX did not receive proper training for the software in order to use it during XXXX XXXXXXXX XXXX. Once again, to the extent there is contradicting testimony presented at the due process hearing, the testimony provided by the student, XXX XXXXXX, and XXXXXX XXXXXXX is found credible. 21. The IEP team developed a second IEP in January, midway through the student’s XXXXXXXXX year. The student’s first semester grades included XXX “XX” and XXX “XX.” The IEP team noted that the student’s XXXXXXX XXXXXXXX had regressed between XXXXXXX XXXX and XXXX school, and that XXX was XXX XXXXXX grade level in XXXXX XXXXXXXX. XXX was also unfamiliar with XXXXXXXX XXXX, which is used for XXXXX and XXXXXXX XXXXXX XXXXXXX (XXXXX XXXX is usually mastered before students enter XXXX school). 22. The student’s educational needs were described as: XX needs to improve XXX XXXXXXXX XXXXXXX rate by a minimum of XX% by increasing XXX current XXXXXXX of XX XXXXXXX per XXXXX to at XXXXX XXXXX XXXXX per XXXXXX. XXX needs to become a consistent and proficient user of all

12 XXXXXXXXX XXXXXXXXXX that allows XXX equal access to learning media. XXX needs to become a more XXXXXX XXXXXXXXXXX. 23. On this IEP, the XXXXXXXXXXX XXXXXXXX remained the same, as did XXX XXXXXXXXX (limited to the school campus), and ESY services were indicated as needed, and would be addressed in XXXXXXXX of XXXX, at the conclusion of the school year. The student’s XXXXX requested an IEE in the area of XXX, and was denied the request based on the School Board’s position that it had never conducted an initial XXX evaluation. 24. At the conclusion of XXX XXXXXXXX XXXX, the student had XXXXXX XXX XXXXX classes, XXXXXXX and XXXXXXXX. Due to having to take the summer classes for the failed classes, XXX was not given ESY services. To make matters worse, the platform used for the summer XXXXXXXX class was completely inaccessible to the student; therefore, the student’s XXXXXX agreed to XXXX all material to the student to have XXX complete the summer class for XXXX school credit. 25. Because XXX. XXXXXXXX requested to be removed from XXX position as a XXX for the student, the XXX for XXX XXXXXXXXX XXX was XX. XXXXX. During the fall of XXXX, the School Board agreed to provide distance learning tutoring sessions with XXXXXX XXXXXXXX, who had completed an evaluation of the student in the summer of XXXX and who was asked to teach the student XXXXXXX XXXXXXXXX skills with the XXXXXXXXXXXXX XXX, and to teach XX

13 XXXXXXXXXX SSSS. This tutoring was done for seven weeks. xx. XXXXXXXXX, whose testimony is credited in its entirety, also completed an XXX evaluation, which revealed the student’s need for XXX services. 26. During the student’s XXXXXXX year, the School Board also agreed to provide age-appropriate XXX XXXXXXXX (presumably the insurance concerns had been resolved), which included one trip to a local store. 27. Also during the XXXXXXXXX year, the student was evaluated by XX. XXXXXXXX. The School Board had requested that XXX conduct an XXX evaluation. XX. XXXXXXXX suggested that the XXX and the student be trained on the new XXXXXXXXX XXXXX, once the student was proficient in the use of the XXXXXXXX XXXXXX. XX. XXXXXXXX testified that XXX could not provide an XXX because XXX worked for the School Board, but that XXX could provide the parties names of professionals who could perform an XXX. Curiously, XX. XXXXXXX allowed XXX. XXXXX to complete the evaluation, and even edit XXX. XXXXXXX recommendations. There were also unusual delays in the reporting from XX. XXXXXXXXX, causing delays that were not caused by either party, but resulted in a delay in services to the student. 28. From the summer of XXXX through XXXXXX of XXXX, the parties participated in mediations which resulted in many agreements on outstanding issues. In XXXXXX XXXX, within the

14 request for a due process hearing, the student’s XXXX once again requested an IEE in the area of XXX. 29. The student became more proficient in the use of the XXXXXXXXXXX XXX, and also received some training with the XXXXXXXXXXX XXX and with the computer software that XXX had not previously been able to use. These trainings all occurred after the Complaint was filed. 30. The most recent IEP, developed in XXXXX of XXXX, did provide for community XXX instruction and provided for ESY services. 31. The Complaint in this case requests XX XXXX of compensatory services for XXX, XX XXXXX of compensatory services for XXXXXXXXXXX, and XX XXXXX of compensatory services in XXXXXXXXXXXX XXXXXXXXXX instruction. CONCLUSIONS OF LAW 32. The Division of Administrative Hearings (DOAH) has jurisdiction over the subject matter of this proceeding and of the parties thereto. See §§ 120.65(6) and 1003.57(1)(c), Fla. Stat.; Fla. Admin. Code R. 6A-6.03311(9)(u). 33. Petitioner bears the burden of proof with respect to each of the issues raised herein. Schaffer v. Weast, 546 U.S. 49, 62 (2005). 34. In enacting the IDEA, Congress sought to “ensure that all children with disabilities have available to them a free

15 appropriate public education that emphasized special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A); Phillip C. v. Jefferson Cnty. Bd. of Educ., 701 F.3d 691, 694 (11th Cir. 2012). The statute was intended to address the inadequate educational services offered to children with disabilities and to combat the exclusion of such children from the public school system. 20 U.S.C. § 1400(c)(2)(A)-(B). To accomplish these objectives, the federal government provides funding to participating state and local educational agencies, which is contingent on each agency's compliance with the IDEA's procedural and substantive requirements. Doe v. Ala. State Dep't of Educ., 915 F.2d 651, 654 (11th Cir. 1990). 35. Parents and students with disabilities are accorded substantial procedural safeguards to ensure that the purposes of the IDEA are fully realized. Bd. of Educ. v. Rowley, 458 U.S. 176, 205-06 (1982). Among other protections, parents are entitled to examine their child's records and participate in meetings concerning their child's education; receive written notice prior to any proposed change in the educational placement of their child; and file an administrative due process complaint "with respect to any matter relating to the identification, evaluation, or educational placement of [their] child, or the

16 provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(1), (b)(3), & (b)(6). 36. To satisfy the IDEA's substantive requirements, school districts must provide all eligible students with FAPE, which is defined as: [S]pecial education services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under [20 U.S.C. § 1414(d)]. 20 U.S.C. § 1401(9). 37. 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 a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 13 S. Ct. 988, 999 (2017). 38. The IDEA provides that an IEP must include measureable annual goals designed to meet each of the educational needs that

17 result from the child's disability. 20 U.S.C. § 1414(d)(1)(A)(i)(II); Alex R. v. Forrestville Valley Cmty. Unit Sch. Dist. #221, 375 F.3d 603, 613 (7th Cir. 2004) (explaining that an IEP must respond to all significant facets of the student's disability, both academic and behavioral); CJN v. Minneapolis Pub. Schs., 323 F.3d 630, 642 (8th Cir. 2003) (“We believe, as the district court did, that the student's IEP must be responsive to the student's specific disabilities”). 39. Here, Petitioner takes issue with the design of the student’s IEP because it failed to provide for ESY services, and failed to properly address XXX needs. Up and until the end of XXX XXXXXXXXXX year, the student’s IEP did not address age- appropriate community XXX instruction and did not provide for ESY services. The record evidence, and the inclusion of those services in later IEPs, establishes that these educational needs did not suddenly surface in the student’s XXXXXXXXXX year--these needs existed from the moment XXX entered XXXXX school. The student had regressed in XXXX XXXXXXX XXXXX, was never at grade level in XXX XXXXXX XXXXXXXXX or XXX XXXXXXX XXXXX XXXXXX, and yet XXX was not offered after XXX XXXXXX year. Also during her XXXXXXX year, the student was denied XXX services beyond the school campus because of insurance reasons. 40. The IEPs designed during the student’s XXXXXXX year of XXXX school are found to be deficient for these reasons. They

18 did not meet every educational need, and therefore were not reasonably calculated to enable the student to make progress in light of XXX circumstances. 41. The Complaint also alleges that the IEPs were not properly implemented because School A failed to provide accessible materials to the student and failed to meet the student’s XXXXXXXXXX XXXXXXX needs. 42. Because these claims challenge the School Board's implementation of Petitioner's educational programming--rather than its substance--a different standard of review applies. L.J. v. Sch. Bd. of Broward Cnty., 850 F. Supp. 2d 1315, 1319 (S.D. Fla. 2012). In particular, a parent raising a failure-to- implement claim must present evidence of a “material” shortfall, which occurs when there is “more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP.” Van Duyn v. Baker Sch. Dist., 502 F.3d 811, 822 (9th Cir. 2007). Notably, this standard does not require that the student suffer demonstrable educational harm in order to prevail. Id. at 822; Colon-Vazquez v. Dep't of Educ., 46 F. Supp. 3d 132, 143-44 (D.P.R. 2014); Turner v. Dist. of Columbia, 952 F. Supp. 2d 31, 40 (D.D.C. 2013). Rather, the materiality standard focuses on “the proportion of services mandated to those actually provided, and the goal and import (as articulated in the IEP) of the specific service that was

19 withheld.” Wilson v. Dist. of Columbia, 770 F. Supp. 2d 270, 275 (D.D.C. 2011). 43. Here, the credible evidence establishes that the student did not receive all of XXX learning materials in an accessible manner, and that XXX was never trained or received proper support on the proper use of the XXXXXXXXXX XXXXXXXXX devices during all of XXXX XXXXXXXXX year, and some of XXX XXXXXXXXXX year. 44. Applying the materiality standard detailed above, the credible evidence in the record leads to the conclusion that the School Board did not properly implement the student’s IEP during all of XXX XXXXXXX year and some of XXXX XXXXXXX year. 45. Because the School Board denied the student a FAPE by failing to design appropriate IEPs and also failed to implement the IEPs, the student is entitled to compensatory education. 46. 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

20 place.” Id. at 524. The court further observed that its “flexible approach will produce different results in different cases depending on the child's needs.” Id. at 524. 47. 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) (agreeing with the district court that a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address the student’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) (noting that a flexible, individualized approach is more consonant with the aim of the IDEA, the Court found 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

21 Cnty. Sch. Bd., 2005 U.S. Dist. LEXIS 45838, *21-22 (M.D. Fla. Oct. 7, 2005) (adopting Reid's qualitative approach). 48. Guided by the above-stated principles, Petitioner is entitled to compensatory education for a period of time that could encompass the entire XXXXXXX year; however, the Complaint specifically requested XX XXXX of compensatory services for XXX, XX XXXXX of compensatory services for XXX services, and XXX XXXXX of compensatory services in XXXXXXXXX XXXXXXXXXXXX instruction. The undersigned is aware that the parties diligently attempted to resolve all disputes, and did so with many of the problems that arose. 49. Given that the parties have negotiated terms of agreement over the course of a year and a half, and many issues were successfully resolved to the apparent satisfaction of both parties, the award of compensatory education is limited to that which has been requested. 50. The only remaining issue is the puzzling issue of the IEE in XXX. At the outset of the due process hearing, the School Board asserted that it had properly addressed the request for an IEE and provided one. Presumably, that XXX was the one conducted by XX. XXXXXXXXXX, who testified that XX could not provide an IEE because XXX worked for the School Board, and XXX in fact had asked XX. XXXX to complete the evaluation. Given this strange testimony, the undersigned is not satisfied that an IEE in XXX

22 has in fact been provided. Accordingly, the School Board is ordered to either file a request for a due process hearing to establish the appropriateness of the XXX evaluation, or make the decision to provide an IEE in XXX. ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that: 1) The School Board denied the student a FAPE by failing to design IEPs that addressed all of the student’s educational needs; 2) The School Board denied the student a FAPE when it failed to properly implement the IEPs; 3) The School Board is ordered to provide XX hours of compensatory services for XX, XX hours of compensatory services for XXXXXXXXXX, and XX hours of compensatory services in XXXXXXXXXXXX XXXXXXXXXX instruction; 4) The School Board has yet to respond to Petitioner’s request for an IEE in XXXX, and is ordered to do so within the next 15 days; and 5) All other requests for relief are denied.2/

23 DONE AND ORDERED this 13th day of August, 2018, in Tallahassee, Leon County, Florida. 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 13th day of August, 2018. ENDNOTES 1/ XXX. XXXXXXX and the student’s XXXXXXXXXX XXXXXXXXXX XXXX XXXXXXXX teacher knew that the student was taking notes in XXX planner regarding the accessibility of her educational materials; therefore, the undersigned is satisfied that the notes contained in the planner were taken contemporaneously with the events taking place, and not simply for purposes of the due process hearing. 2/ Petitioner’s requests for prospective relief are denied, as those issues are not ripe for adjudication. The requests for sensitivity training and attorney’s fees and costs are denied because the undersigned has no jurisdiction to award the requested relief. COPIES FURNISHED: XXXXXX XXXXXX, Esquire XXXXXXX XXXXXXXX XXXXXXX XX, P.A. Suite 101 1220 Commerce Park Drive Longwood, Florida 32779 (eServed)

24 XXXXXXXXXX XX. XXXXXXX, Esquire School Board of Seminole County, Florida 400 East Lake Mary Boulevard Sanford, Florida 32773 (eServed) XXXXXXXX XXXXXXXX Department of Education 325 West Gaines Street Tallahassee, Florida 32399 (eServed) XXXXX XXXXXXX, Superintendent Seminole County Public Schools 400 East Lake Mary Boulevard Sanford, Florida 32773 XXXXXXX XXXXXXX, 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).