S.R.F. v. Miami Dade Public Schools – October 2015

10/16/2015|pwsadmin|

STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
**,
Petitioner,
vs. Case No. 14-5668E
MIAMI-DADE COUNTY SCHOOL BOARD,
Respondent.
___________________/

FINAL ORDER

Pursuant to notice, a due process hearing was held in this case before Jessica E. Varn, an Administrative Law Judge of the Division of Administrative Hearings (DOAH), on February 23 through 27, March 11 through 13, and April 8 through 9, 2015, in

Miami, Florida.

APPEARANCES

For Petitioner: Allison Louise Hertog, Esquire

Making School Work, P.L.

1550 Madruga Avenue, Suite 333 Coral Gables, Florida 33146

Stephanie Langer, Esquire Langer Law, P.A.

216 Catalonia Avenue, Suite 108 Coral Gables, Florida 33134

Kristina Tilson, Esquire Langer Law, P.A.

216 Catalonia Avenue, Suite 108 Coral Gables, Florida 33134

For Respondent: Mary C. Lawson, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132 STATEMENT OF THE ISSUES

Whether the student’s Individualized Education Plan (IEP) was reasonably calculated to confer a meaningful educational benefit.

Whether the School Board failed to implement the IEP, thereby denying the student a free appropriate public education (FAPE).

Whether the School Board violated Section 504 of the Rehabilitation Act (Section 504) by discriminating against the student due to his disabilities.

PRELIMINARY STATEMENT

On December 2, 2014, the student’s parent (Petitioner) filed a request for a due process hearing. By request of both parties, the due process hearing was scheduled for February 23 through 27, 2015. The student is a triplet; he and his two brothers attended the same school during eighth and tenth grades. The student’s parent filed due process hearing requests on behalf of each of the three brothers; the parties agreed to consolidate the cases only to the extent that one due process hearing would encompass the three due process requests. The triplets attended two of the same schools, the issues raised are identical in all three cases,

the Respondent and Petitioner are the same, counsel for both parties is the same in all three cases, and the witnesses were identical for each case. Accordingly, the undersigned agreed to hold one hearing that would encompass all three brothers; the transcript of the hearing in this case addresses the three brothers, but the cases are not consolidated in any other aspect.

The hearing was held on February 23 through 27, 2015, but not concluded. The hearing was continued, and reconvened on March 11 through 13, 2015. Once again, the hearing did not conclude; it was rescheduled for April 8 and 9, 2015. At the hearing, Petitioner presented the testimony of the following witnesses: the student’s mother; the student; Miguel Fernandez, a science teacher; Claudia Gatica, a parent of a fellow student; Joyce Gato, a parent of a fellow student; Amanda Niguidila, the director of Disability Research Center at Florida International University; Sophie Guellati-Salcedo, an expert in psychoeducational evaluations; Matthew Welker, principal of the high school; Dave Edyburn, an expert in technology in special education and reading; and Thomas Vastrick, a handwriting expert. Petitioner Exhibits 2 through 21, 23 through 30, 32,

34 through 42, 44, 45, 47, 49, and 52 through 54 were admitted into evidence.

The School Board presented the testimony of the following witnesses: Cynthia McKinnon-Bodden, a special education

consultative teacher; Bridgette Gunn, a chemistry and marine science teacher; Martin Roche, an environmental science teacher; Douglas Tisdahl, a math teacher; Kristina Escobar, a biology and physics teacher; Michelle Reyes, an english teacher; Elisa Profeta, a middle school assistant principal; Mindy Fernandez, a special education consultative teacher; Arthur Larralde, a history teacher; Arlene Señas, a language arts and journalism teacher; John Zoeller, a human geography teacher; Bridgette Smith, a guidance counselor; Jose Fernandez, a math teacher; Reagan Chalmers, a curriculum support specialist; Georgina Marie Koch Hidalgo, a lead teacher; Rosalia Gallo, an instructional supervisor and expert in special education; and Sue Lee Buslinger-Clifford, an instructional supervisor and expert in

school psychology in relation to special education. School Board Exhibits 1 through 13, 15, 16, 20, 21, 23, 24, 24A,

25 through 28, and 30 were admitted into evidence.

The court reporter had indicated at the conclusion of the hearing that she would have the transcript ready in 45 days, which would fall at the end of May 2015. Inexplicably, even though three weeks had transpired between the first week of the hearing and the dates when the hearing was reconvened, and then another four weeks occurred before the final two days of hearing, by the end of May 2015, the transcript was not prepared. After waiting another two months for the transcript, on August 7, 2015,

the undersigned entered an order requiring the parties to file proposed final orders by September 21, 2015, with or without the benefit of a transcript. The 18-volume Transcript was filed with the Division of Administrative Hearings on August 27, 2015, in both paper and electronic formats. On that same date, the undersigned entered an Order Memorializing Final Order Due Date, which allowed for the parties to submit proposed final orders by September 21, 2015; the Final Order would be filed by October 21, 2015.

Both parties timely submitted proposed final orders; however, a dispute arose as to the page limit of the proposed final orders and the attachments. Accordingly, on September 23, 2015, the undersigned entered an order requiring the parties to file amended proposed final orders, by September 30, 2015, in compliance with the directions set forth in the Order, and the final order would be filed by October 30, 2015.

Unless otherwise noted, citations to the United States Code, Code of Federal Regulations, Florida Statutes, and Florida Administrative Code are to the current codifications. For stylistic convenience, the undersigned will use male pronouns in the Final Order to refer to the student. The male pronouns should not be interpreted to reflect the student’s actual gender.

FINDINGS OF FACT

  1. The student is one of triplet boys, born in 1999. He is, by all accounts, a bright student who tends to get more anxious than the average student. He has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and learning disabilities. He received his education through home schooling from pre-school through fourth grade.
  2. In fifth grade, he entered the Miami Dade County public school system and attended a kindergarten through eighth grade (K-8) school. Because the student had been diagnosed with ADHD

after a private evaluation and the School Board had reviewed that diagnosis, the student was made eligible under Section 504 in February 2012. At this point, the student was in seventh grade. The School Board concluded that the student’s disability substantially limited his concentration, learning, and thinking.

  1. In March of 2013, when the student was in eighth grade, the parent provided the school with a private psychological evaluation that had been conducted by Dr. Erin McNaughton.

Dr. McNaughton ultimately found that the student presented with high-average intelligence, and had a reading disorder, a written expression disorder, anxiety disorder, and ADHD.

  1. In April of 2013, the school conducted a Functional Assessment of Behavior (FAB) to address his anxiety. The FAB revealed that the student had social anxiety, and that the

student self-reported that his personal issues distracted him from completing school work. The student was also noted to have trouble expressing his needs to teachers. The upcoming transition to high school was causing the student the most anxiety. A Behavior Intervention Plan (BIP) was developed for the student, to help him manage his anxiety.

  1. His mother explained his level of anxiety in this manner:

[The student] talks, more than any of the children, about what goes on with him and he has a tremendous amount of anxiety, and he definitely allows everything to bother him and his self-esteem plummets immediately when he doesn’t feel like he’s making the grade.

If he’s not making the grade, he’ll obsess about it. He’ll find himself at fault, he’ll start to find himself at fault in other things, and it will start to affect him in all arenas.

  1. In May of the student’s eighth grade year, a 504 Plan was developed for him, which included several accommodations: seat student in an area free from distractions; allow student to determine the best place to sit; extended time for all assignments and projects; modify or reduce the amount of homework; no penalty for spelling mistakes, poor handwriting, or poor drawing; read test items to student; extended time for tests; provide student with a copy of lab procedure when there is an excused absence; seat student out of main traffic areas; shorten length of assignments based on mastery of concept; allow

student more time to complete homework; use a homework assignment notebook to communicate with parents; read test directions to student; and provide student a copy of class notes.

  1. Also in May of 2013, the school had its own school psychologist, Dr. Laurel Taitt, review Dr. McNaughton’s evaluation. Dr. Taitt found that the student had difficulty with all aspects of executive functioning. Although Dr. Taitt found that the student’s academic performance was appropriate for his grade level, and that he could remain in the general education setting, she recommended that he receive special instruction and the accommodations spelled out in the 504 Plan.
  2. Also in eighth grade, Ms. Reagan Chalmers, a curriculum support specialist, was asked to come to the school to work with the triplets. She provided all three boys with access to two programs designed to assist with reading: Learning Ally and Achieve 3000.
  3. Learning Ally is an application that provides audio versions of textbooks and other books, such as novels. With Learning Ally, the student could download a textbook, and have a human voice read the book. The student could speed up the pace of the reading, or slow it down. The program can also highlight the words as it reads. This application was not mandated by an IEP (the student at this point did not have one) or by a 504 Plan.
  4. Achieve 3000 is a different reading program, which gave the student audio versions of informational text and then asked the student reading comprehension questions. The student could reply in writing, practicing his reading and writing skills. This program, like Learning Ally, was never mandated by an IEP or a 504 Plan.
  5. Both programs are purchased by the School Board, and students are given “licenses” to access them. The student in this case was given access to both programs and performed well in his eighth grade classes. During seventh and eighth grades, the student’s grades ranged from average to excellent, and he passed all sections of the FCAT with average to above-average scores.
  6. On May 31, 2013, the student was made eligible for Exceptional Student Education (ESE) in the category of Other Health Impaired (OHI). An IEP was developed for the student on that same day.
  7. The IEP set forth goals in the following areas: organizational skills, task completion skills, and self-help skills. No academic deficiencies were noted or addressed in the

IEP.

  1. A long list of accommodations, which were to be

implemented daily in all classes, was created for the student: written notes, outlines, and study guides; extended time to compete assignments, tests, and projects; allow the student to

sit away from distractions; flexibility in presentation; provide copy of directions for tasks when available; teachers should clarify, repeat, and summarize directions; flexibility in scheduling/timing and additional time for tasks; small group testing; preferential seating; providing a set of textbooks for home; and providing weekly information prior to upcoming assignments, reducing the amount of copying.

  1. The student returned to home school for ninth grade.

He successfully completed honors level courses through virtual school so that he could gain admittance to a marine science and technology high school, which was a magnet program housed on a university campus.

  1. He was admitted to the high school program as a tenth- grader. The school had opened its doors only one school year prior to his admission; the magnet program in marine and science technology first opened in the fall of 2013, with approximately

89 students, all freshmen. It is housed on a public university campus, but it operates as an independent high school. The goal of the program is to educate the freshman and sophomores as high- schoolers, but then the juniors and seniors transition into dual- enrollment at the high school and the university.

  1. When it opened, it had the bare minimum in terms of staff. There was no on-site principal, or any assistant principals. There was no guidance counselor, no information

technology staff, no cafeteria staff, no office staff, no activities coordinator, no treasurer, no attendance clerk, no department chairs, and no ESE specialist. The faculty was led by Ms. Koch, who worked as the lead teacher; she took on most of the responsibilities assigned to the vacant positions.

  1. In its second year, when the student was admitted, the staff had grown to include an on-site principal, a part-time guidance counselor, and one staff member who worked as the principal’s secretary and the treasurer for the school. It had also only admitted another freshman class; for the 2014-2015 school year, the school only educated freshman and sophomores.
  2. Although the student had been found eligible for ESE services in May of 2013, the school did not form a team to address the student’s ESE needs at the start of the school year. The last IEP was dated May 2013 and was current through May 2014. The student began tenth grade at the high school on or around August 18, 2014, with no current IEP in place.
  3. On September 4, 2014, Ms. Chalmers, who had worked with the triplets in middle school, visited the school to address their ESE needs in high school. She had been asked to speak to the faculty about implementing IEP accommodations, and once again provide the student access to Learning Ally, the text-to-speech program.1/ Ms. Chalmers spoke to all the teachers and went through the accommodations that were on the middle school IEP,

even though she was of the opinion that it had “expired.” She made suggestions on how to implement the accommodations in each of their classes, and specifically recommended that extended time be given by calculating time and a half (e.g., if a test was allotted one hour, the student would receive one hour and a half). Ms. Chalmers believed that because the teachers and students used a program called Edmodo to communicate about the classes and assignments, many of the accommodations on the IEP were being met with that digital platform. Ms. Chalmers, though, did not confirm that the outlines and class notes that many of the teachers said they posted on the Edmodo site were in a format that could be accessed with text-to-speech technology.2/ Although Ms. Chalmers had given the teachers some guidance, ultimately it was not her job to supervise them and ensure that they followed her recommendations.

  1. The first grading period ended on or around October 23, 2014. Just one week before the end of the first grading period, the IEP team met to formulate an IEP for the student. This excessive delay in addressing the student’s needs meant that for the first nine weeks of his tenth grade year, the student attended school as a student deemed eligible for ESE services, but with no current IEP in place to assess his deficiencies, establish measurable goals, or mandate interventions or accommodations for him.3/
  2. The record contains multiple communications between school officials which demonstrate the school’s knowledge that the IEP for this student was not current, yet almost the entire grading quarter transpired before an IEP meeting was held.

Common sense dictates that the School Board should have known that the middle school IEP was inadequate for the student when he was in tenth grade. The student’s skill set would likely change, the curriculum is undoubtedly more complex and challenging in high school, and his social environment was entirely different.

There is also a significant difference between a general education middle school and a magnet high school program for high-achieving students who want to focus on marine science and

technology. Thus, even if the school was faithfully implementing the May 2013 IEP from middle school, that IEP was not reasonably calculated to address the student’s needs in his second year of high school.

  1. The student’s grades for the first quarter were: B’s in Honors Chemistry, Journalism, and Advanced Placement Human Geography; C’s in Honors Algebra II, Advanced Placement Environmental Science, and Research; and an F in Honors English.
  2. The October 17, 2014, IEP did not change the student’s eligibility and addressed four areas of deficiencies: organizational skills, self-advocacy skills, writing skills, and frustration tolerance. As to the organizational and writing

skills, the student was to use a graphic organizer to express his thoughts and ideas. As to self-advocacy skills, the IEP team noted that the student had the tendency to become anxious when advocating for his needs; the goal was to have the student seek assistance from an adult when he felt anxious. And as to frustration tolerance, the student was also to approach an adult when feeling elevated levels of frustration. All of the student’s identified needs were properly addressed in the IEP.

  1. A long list of accommodations was placed in the IEP: written notes, outlines, and study guides; extended time to complete assignments, projects, and tests; allow student to sit away from the hallway and windows to minimize distractions; break long assignments into small, sequential steps; flexible presentation and provide copy of directions for tasks, when available; repeat, clarify and summarize directions; flexible responding, student allowed to use tape recorder, computer, or word processor for responding; flexible scheduling, providing additional time for tasks; preferential seating with proximity control; small group testing; in the content area of all classes, allow student to orally test rather than write answers; provide weekly information prior to upcoming assignments; read classroom and test directions and classwork/test items as needed in class; reduce the amount of copying; shortened assignments based on mastery of key concepts; allow student to write directly in

workbooks or textbooks if allowable; allow student to take screen shots of classroom board or screen; no penalty for spelling or drawing, other than in language arts or when required; provide student with lab procedures if student has an excused absence; and allow student to utilize AT device for academic work when reading and writing is not being measured, as needed.4/

  1. According to the IEP, all of the accommodations were to be implemented daily in all classes. There was no requirement that the student request the accommodations from his teachers before they were implemented.
  2. The IEP team noted that at the IEP meeting, the parent gave consent for the development of an Assistive Technology Implementation Plan. The team also indicated that three goals from the 2013 IEP had been mastered: the student had kept an organized notebook with daily and upcoming assignments; the student, after receiving two verbal prompts, was completing tasks given to the entire class; the student was writing down his anxious feelings in a notebook and sharing the information with his school counselor.
  3. With the IEP in place for the second quarter of tenth grade, the student reasonably expected to receive the accommodations in every class. Instead, he experienced an entirely different response to his IEP. Many teachers failed to implement the accommodations, and many expected the student to

request the accommodations before they decided whether to provide them.

  1. Almost every teacher confirmed at the hearing that the student did not request particular accommodations in their respective classes; therefore, they were not consistently provided. The undersigned finds this practice troubling, given that the IEP team specifically articulated the student’s deficiency in the area of self-help skills. To require this student to request his IEP accommodations or go without them seems particularly obtuse, given that he struggles with self- advocacy. Further, the IEP team was certainly capable of stating that the accommodations should only be provided if requested by the student; in the absence of such a pre-requisite, it was highly inappropriate to withhold accommodations until the student requested them.
  2. In Ms. Gunn’s chemistry class, the student never received small group testing or class notes, only sporadically received extended time if he requested it, and assistive technology was not utilized in the content area. Ms. Gunn testified that she did provide all of these accommodations, but the undersigned does not find her testimony credible.5/
  3. In Mr. Roche’s advanced placement environmental science class, the student did not consistently receive the accommodation of extended time, and never received small group testing, class

notes, or the use of assistive technology in the content area. Mr. Roche testified that he did provide the student with all of his IEP accommodations when they were requested, but the undersigned does not find his testimony credible.

  1. In Ms. Reyes’s Honors English class, the student never received small group testing, class notes, and only sporadically received extended time and the use of assistive technology to access the content area. Ms. Reyes testified that she did provide all accommodations to the student when he requested them, and sometimes without the student having to request them. The undersigned does not find her testimony credible.
  2. In Ms. Señas’s journalism class, the student did not receive the accommodations of extended time, class notes, small group testing, or use of assistive technology for the content area. Ms. Señas testified to the contrary, but her testimony as to the accommodations provided to the student is not found credible.
  3. In Mr. Tisdahl’s math class, the student did not receive small group testing, class notes, or extended time during the fall semester, although he began to receive some of those accommodations in the third quarter. Mr. Tisdahl testified that he always provided the accommodations to the student, but his testimony is not found credible.
  4. The failure to implement the majority of the IEP- mandated accommodations, coupled with the imposed requirement that the student ask for his accommodations, was much more than a minor discrepancy. It constitutes a material failure to implement the IEP for the student’s second quarter of tenth grade (in the five classes listed above).
  5. The student finished the second quarter with the following grades: a D in Honors English and in Journalism; a C in Research, Honors Chemistry, and Advanced Placement Environmental Science; and an F in Honors Algebra II. These average to below average grades are not what would be expected from a student with high average intelligence, or a student who had successfully passed high level classes to be admitted into the magnet program. During the semester, he saw a tutor, a fellow student who was performing well, after school to assist him in all his courses.
  6. Many of the teachers testified that the student failed or earned a below average grade because he refused to turn in work. Dr. Edyburn, who provided informative expert testimony on assistive technology in special education, explained this pattern of behavior in the following manner:

One of the challenges of academic failure with some people is it begins a downward spiral. It’s once I start failing, it doesn’t take too long before I start to internalize that message and say, “I’m no

good at this,” and then that lowers my motivation and interest to try and come back to the table and try again. And so I’m very concerned about that long-term effort, about what it really means.

So one of the questions that I share with districts is: How much failure do you need before you know I can’t do it?

* * *

So what you see is–-the immediate effect in high school is failing grades; before long, drop out; and then post-secondary involvement of any sort because of that negative academic pattern.

  1. The student’s mother explained that when the student’s grades were average or above-average at any given time, and he was not properly accommodated, it was because he exerted great effort to earn higher grades:

[W]hen [the student] sees an F on his report card, he starts to really obsess. So [the student] hasn’t been sleeping and he’s up till all hours of the night copying and recopying and redoing and overdoing.

  1. In January of 2015, the School Board put together an Assistive Technology Implementation Plan, and gave the student access to a program called Solo, which is to assist him with writing. It is a more advanced program than other writing programs in that it has word prediction capabilities.
  2. While there is clear evidence that the October IEP was untimely, and that the IEP, once drafted, was not properly implemented, the totality of the evidence did not establish that

the School Board intentionally discriminated against the student based on his disabilities.

  1. Petitioner presented the testimony of two parents of other disabled students who claimed that the high school was unwilling to accommodate their disabled children; therefore, the students withdrew from the school. A teacher who had been dismissed by the high school also claimed that the high school administration was unwilling to accommodate disabled children. The student and parent testified regarding several instances where derogatory comments were allegedly made by teachers regarding the provision of accommodations.
  2. The student also recounted an incident in Ms. Reyes’s class as evidence of intentional discrimination. The office called Ms. Reyes and asked that the student be excused from her class and come to the office. According to the student,

Ms. Reyes knew that he was going to the office to attend his IEP meeting, and had him wear a sign around his neck that read: “I am missing out on an important educational opportunity for this frivolous errand.” The student claimed that he had never seen the sign before, and that he was forced to wear it as he walked into the IEP meeting in the office.

  1. Ms. Reyes and Dr. Welker testified about the incident, and explained that the sign was a hall pass used by all of her students when they wanted to be excused from her classroom.

Every teacher used a different hall pass, chosen by each individual teacher based on his or her own sense of humor or style. Ms. Reyes looked online and found an example of this phrase placed on a hall pass. She found it humorous, and thought it used clever vocabulary words that would be entertaining for her students to see in use. All of her students had used it, it had always been in her classroom, and some of her students found the example online and enjoyed letting her know that they found the source for her idea. Ms. Reyes credibly testified that she had no intent to ridicule the student, and that she was not aware at that moment that he was leaving her class to attend his IEP meeting. She also explained that he was never forced to wear it. Students regularly carried it, or rolled it up.

  1. The undersigned credits the testimony of Ms. Reyes and Dr. Welker in this regard, and rejects the student’s rendition of this incident.
  2. The School Board also brought forth many witnesses who explained the difficulties faced by this upstart magnet program– the lack of staff and resources that plagued this high school. The School Board claims that it essentially did its best to provide an adequate education given its limited resources. The School Board witnesses also categorically denied making any derogatory comments regarding the student’s disabilities or the provision of accommodations to the student.
  3. On balance, the undersigned believes that because the school was understaffed and ill-prepared for the demands of running a high school, the IEP was not timely prepared and its implementation was flawed due to the lack of guidance and leadership at the school. These unfortunate circumstances do not serve as an excuse for failing to provide the student with a FAPE, but they also do not rise to the level of intentional discrimination.6/

CONCLUSIONS OF LAW

  1. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to section 1003.57(1)(b), Florida Statutes, and Florida Administrative Code Rule 6A-6.03311(9)(u).
  2. Petitioner bears the burden of proof with respect to each of the claims raised in the Complaint. See Schaffer v. Weast, 546 U.S. 49, 62 (2005)(“The burden of proof in an

administrative hearing challenging an IEP is properly placed upon the party seeking relief”).

  1. The Individuals with Disabilities Education Act (IDEA) ensures that all children with disabilities receive a free and appropriate education with emphasis on special education and related services designed to meet their unique needs. 20 U.S.C.

§ 1400(d)(1)(A). 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).

  1. Parents and children with disabilities are accorded substantial procedural safeguards to ensure that the purposes of the IDEA are fully realized. See Bd. of Educ. of Hendrick Hudson

Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 205-06 (1982). Among

other protections, parents are entitled to examine their child’s records and participate in meetings concerning their child’s education; the right to be involved in the educational placement of their child; and file an administrative due process complaint “with respect to any matter relating to the identification, evaluation, or educational placement of [their] child, or the provision of a free appropriate public education to such child.”

20 U.S.C. § 1415(b)(1), (b)(3), & (b)(6).

  1. Local school systems must also satisfy the IDEA’s substantive requirements by providing all eligible students with FAPE, which is defined as:

special education services that–(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity

with the individualized education program required under [20 U.S.C. § 1414(d)].

20 U.S.C. § 1401(9).

  1. “Special education,” as that term is used in the IDEA, is defined as:

[S]pecially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including–-(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings . . . .

20 U.S.C. § 1401(29).

  1. The components of FAPE are recorded in an IEP, which, among other things, identifies the child’s “present levels of academic achievement and functional performance,” establishes measurable annual goals, addresses the services and accommodations to be provided to the child and whether the child will attend mainstream classes, and specifies the measurement tools and periodic reports that will be used to evaluate the child’s progress. 20 U.S.C. § 1414(d)(1)(A)(i); 34 C.F.R.

§ 300.320.

  1. The IDEA further provides that an IEP must include measurable annual goals designed to meet each of the educational needs that result from a student’s disability. 20 U.S.C.

§ 1414(d)(1)(A)(i)(II); Alex R. v. Forresville 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 a student’s disability, both academic and behavioral).

  1. In Rowley, the Supreme Court held that a two-part

inquiry must be undertaken in determining whether a local school system has provided a child with FAPE. First, it is necessary to examine whether the school system has complied with the IDEA’s procedural requirements. Id. at 206-07. A procedural error does

not automatically result in a denial of FAPE. See G.C. v.

Muscogee Cnty. Sch. Dist., 668 F.3d 1258, 1270 (11th Cir. 2012). Instead, FAPE is denied only if the procedural flaw impeded the child’s right to a free appropriate public education, significantly infringed the parents’ opportunity to participate in the decision-making process, or caused an actual deprivation of educational benefits. See Winkelman v. Parma City Sch. Dist.,

550 U.S. 516, 525-26 (2007); M.H. v. New York City Dep’t of

Educ., 685 F.3d 217, 245 (2d Cir. 2012).

  1. The second step of the Rowley test examines whether the

IEP developed pursuant to the IDEA is reasonably calculated to enable the student to receive educational benefits. 458 U.S. at 206-07 (1982).

  1. The due process complaint in the instant case challenges the timeliness of the student’s IEP, the facial adequacy of the IEP, and the implementation of the IEP.
  2. As to timeliness of the IEP, of particular importance is the provision in the IDEA requiring a school district to have an IEP in effect for each child with a disability at the beginning of each school year. 20 U.S.C. § 1414(d)(2)(A); 34

C.F.R. § 300.323(a).

  1. The School Board in this case did not develop an IEP for the student until the end of the first quarter of his tenth grade year. From the beginning of the school year until then, the student was enrolled in a rigorous magnet program with no current IEP to address his deficiencies, set measurable goals, or mandate interventions and accommodations.
  2. The School Board asserts that it was faithfully adhering to the middle school IEP during the first quarter and before the high school IEP team convened. Even if the undersigned accepted this contention, it is obvious that the middle school IEP was not reasonably calculated to provide the student a FAPE in high school. In fact, the high school IEP team formulated an entirely different IEP: the list of accommodations was different (notably adding assistive technology) and lengthier; some middle school goals, according to the IEP team, had been mastered; and the IEP team set different measurable goals for the student. The high school IEP necessarily formulated an IEP with the high school curriculum in mind; that is, the IEP team was cognizant of the fact that high school

demands on a student are different from those in middle school; the content is more challenging, the workload is increased, the amount of guidance and assistance given to students diminishes, and the social setting is quite different. Here, there is also a significant difference between a general education middle school and a magnet program for high achieving high school students focused on marine science and technology. Thus, even if the undersigned accepts that the middle school IEP was being implemented in the first quarter of tenth grade, the middle school IEP was not reasonably calculated to provide this student with a FAPE. See Anchorage Sch. Dist. v. M.P., 68 F.3d 1047, 1058 (9th Cir. 2012)(holding district’s use of an outdated IEP resulted in FAPE denial where a second grade IEP was being implemented at the end of third grade, and as the student was advancing to fourth grade).

  1. Based on the totality of the circumstances, the failure to provide the student with a current IEP until mid-semester of his tenth grade year resulted in substantive harm to the student and resulted in a denial of a FAPE for the first quarter of the student’s tenth grade. See, e.g., K.E. v. Dist. of Columbia, 19

F. Supp. 3d 140, 149 (D.D.C. 2014)(finding that an eleven-day delay from the start of the school year before developing an IEP for a student was a denial of a FAPE); Maynard v. Dist. of

Columbia, 701 F. Supp. 2d 116, 123-24 (D.D.C. 2010)(finding that

it was a denial of a FAPE where, as a result of the school’s failure to convene any IEP team meeting prior to the first day of school, the student’s IEP was not developed by that date); Alfono

v. Dist. of Columbia, 422 F. Supp. 2d 1, 5-8 (D.D.C. 2006) (finding that the school’s failure to incorporate the findings of various evaluations in the student’s IEP prior to the first day of school amounted to a denial of a FAPE until two months later, when the student’s “goals and objectives or a means for measuring her progress” were incorporated into her IEP).

  1. Petitioner also argues that the IEP, when it was eventually developed, was not facially adequate, thus advancing a substantive challenge to the IEP.
  2. Most circuits describe the second Rowley step as requiring “some benefit” that is “more than de minimis.” See,

e.g., Sytsema v. Acad. Sch. Dist. No. 20, 538 F.3d 1306, 1313 (10th Cir. 2008). This standard has been articulated in slightly different terms: “[T]o comply with the IDEA, an IEP must be reasonably calculated to confer a meaningful educational benefit.” D.B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012);

Ridley Sch. Dist. v. M.R., 680 F.3d 260, 269 (3d Cir. 2012); N.B.

v. Hellgate Elem. Sch. Dist., 541 F.3d 1202, 1212-13 (9th Cir.

2008); Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840, 862

(6th Cir. 2004).

  1. The assessment of an IEP’s substantive propriety is guided by several principles, the first of which is that it must be analyzed in light of circumstances as they existed at the time of the IEP’s formulation; in other words, an IEP is not to be judged in hindsight. See M.B. v. Hamilton Se. Sch., 668 F.3d

851, 863 (7th Cir. 2011)(holding that an IEP can only be evaluated by examining what was objectively reasonable at the time of its creation).

  1. Second, an assessment of an IEP must be limited to the terms of the document itself. See Knable v. Bexley Cty. Sch.

Dist., 238 F.3d 755, 768 (6th Cir. 2001)(stating that IEPs must be evaluated as written); County Sch. Bd. v. Z.P., 399 F.3d 298,

306 n.5 (4th Cir. 2005)(“The School District complains that the hearing officer ignored the fact that an aide was hired for Z.P. after the IEP was written. We believe that the hearing officer properly focused on what was actually contained in the written IEP when determining the appropriateness of that IEP.”).

  1. Third, deference should be accorded to the reasonable opinions of the professional educators who helped develop an IEP. See Sch. Dist. of Wisc. Dells v. Z.S. ex real. Littlegeorge, 295 F.3d 671, 676-677 (7th Cir. 2002).
  2. Guided by these principles, the undersigned concludes that the IEP developed for the student—-as written—-was reasonably calculated to confer a meaningful educational benefit

to the student. The IEP, once it was developed, addressed the student’s needs, gave measurable goals, and mandated appropriate interventions and accommodations.

  1. Petitioner also challenges the implementation of the IEP. The determination that a school board has failed to implement an IEP, and therefore denied the student a FAPE, requires proof of a material failure to implement the child’s IEP—that is, something more than a “minor discrepancy” between the services a school district provides and the services required by the IEP. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822

(9th Cir. 2007). This materiality standard “does not require that the child suffer demonstrable educational harm in order to prevail.” Id. at 822 (emphasis added). Thus, a material failure to implement an IEP could constitute a FAPE denial, even if, despite the failure, the child received non-trivial educational benefits.

  1. Here, the IEP accommodations were not properly implemented in that they were conditioned upon the student requesting them. This practice is inappropriate not only because it was a condition imposed by the faculty but never articulated in the IEP; it is also wholly inappropriate given that the IEP identified self-advocacy as an area in which the student had a deficiency. More troubling is the fact that even if the student requested the accommodations, they were not consistently

provided. During the fall semester of tenth grade, he did not consistently receive accommodations (specifically class notes, extended time, small group testing, and assistive technology in the content areas) in five classes.

  1. The fact that the student passed the first semester of tenth grade is not dispositive of the implementation issue. In fact, since the school was not providing many of the accommodations, the student was tutored by another high school student who was performing well in school. See Houston Indep. Sch. Dist. v. VP, 582 F.3d 576, 587-90 (5th Cir. 2009)(finding

that although the student received passing grades, the school district materially failed to implement the IEP, and therefore denied the student a FAPE).

  1. Accordingly, the School Board materially failed to implement the IEP for the entire second quarter of tenth grade, thereby denying the student a FAPE during the second quarter of tenth grade.
  2. The denial of a FAPE in this case, which was due to an untimely IEP, and the material failure to implement the IEP once it was in effect, resulted in substantive harm; therefore, Petitioner is entitled to an award of compensatory education.7/ The goal of such an award is to place the student in the same position that he would have occupied but for the denial of a FAPE. An award of compensatory education must be reasonably

calculated to provide the educational benefits that would have accrued from special education services the School Board should have provided to begin with. Reid ex rel. Reid v. Dist. of

Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); Jana K. v. Annville

Cleona Sch. Dist., 39 F. Supp. 3d 584, 609 (M.D. Pa. 2014).

  1. The School Board argues that Petitioner failed to present any evidence as to the amount of compensatory education that should be awarded; therefore, the undersigned should not award any compensatory education. The undersigned is guided by the court’s reasoning in Pennsbury School District, 65 IDELR 220

(Pa. S.E.A. Mar. 2, 2015), wherein the court explains that in the absence of evidence to prove the type or amount of compensatory education, the hour-for-hour approach is the default approach,8/ unless the record establishes such a widespread decline that full days of compensatory education are warranted, as is the case here. See also Jana K. v. Annville Cleona Sch. Dist., 39 F.

Supp. 3d 584, 609 (M.D. Pa. 2014)(explaining that an award of full days of compensatory education is warranted where the school board’s “failure to provide specialized services permeated the student’s education and resulted in progressive and widespread decline in [the student’s] academic and emotional well-being.”); Tyler W. v. Upper Perkiomen Sch. Dist., 963 F. Supp. 2d 427, 439 (E.D. Pa. 2013)(awarding full days of compensatory education for

15 school weeks, the span of time that the school district failed to implement the child’s IEP).

  1. Here, the School Board’s failure to develop the IEP until the end of the first quarter of tenth grade deprived the student of a FAPE for seven of those weeks.9/ The material failure to then implement the IEP permeated the student’s entire education for the second quarter of tenth grade.
  2. Accordingly, Petitioner is entitled to full days of compensatory education for 16 weeks of his fall semester of tenth grade year.
  3. As the prevailing party in this due process hearing, Petitioner is entitled to attorney’s fees and costs pursuant to rule 6A-6.03311(9)(x).

Section 504

  1. Section 504, which is found at 29 U.S.C. § 794(a), provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
  2. While the IDEA imposes an affirmative obligation on states to assure disabled children a FAPE, Section 504 broadly prohibits discrimination against disabled persons in federally

assisted programs or activities. D.A. v. Houston Indep. Sch.

Dist., 629 F.3d 450, 453-54 (5th Cir. 2010).

  1. Because denial of a FAPE is an actionable claim under the IDEA, there is obvious overlap between Section 504 and the IDEA. Brennan v. Reg’l Sch. Dist. No. Bd. of Educ., 531 F. Supp.

2d at 279. Nonetheless, there is at least one important difference between claims under the IDEA and Section 504: Section

504 only remedies acts of intentional discrimination against the disabled. Id.

  1. As applied in this case, Petitioner must present evidence that the School Board was deliberately indifferent to a strong likelihood that the student’s federal rights would be violated. Id.
  2. When a petitioner’s claims under Section 504 are factually and legally indistinct from the IDEA claims, as is the case here, general principles of issue preclusion will bar redundant claims. Pace v. Bogalusa City Sch. Bd., 403 F.3d 272,

297 (5th Cir. 2005). “[T]o establish a claim for disability discrimination, in the educational context, something more than a mere failure to provide the free appropriate education required by IDEA must be shown.” D.A., 629 F.3d at 454 (internal

citations omitted). Thus, facts demonstrating professional bad faith or gross misjudgment are necessary to substantiate a cause of action for intentional discrimination under Section 504

against a school district when the claim is based on a disagreement over compliance with the IDEA. Id. at 455.

  1. Here, Petitioner is claiming that by not implementing the IEP, and by not providing the student with a working tablet and particular assistive technology tools (speech-to-text technology and text-to-speech technology), the School Board violated Section 504. Petitioner also recited an incident where the student was allegedly forced, by Ms. Reyes, to wear an offensive sign to an IEP meeting. As explained in the Findings of Fact, the undersigned does not find the student’s rendition of this story credible. Citing other additional alleged treatment of the student by administrators and the faculty, Petitioner alleges that the School Board acted with deliberate indifference to a strong likelihood that the student’s federal rights would be violated.
  2. There is no credible evidence of professional bad faith or gross misjudgment on the part of the school staff and faculty; instead, the evidence establishes that the school was ill- prepared to handle student needs because it was understaffed.

One lead teacher was essentially the acting on-site ESE specialist, part-time guidance counselor, and various assistant principals. Under these conditions, it was inevitable that tasks would not be completed and duties would be mishandled or simply not performed. This was an unfortunate setting for the student

to find himself in; the end result was a failure to provide him with a FAPE. These circumstances, though, fall short of demonstrating intentional discrimination based on the student’s

disability.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

  1. The IEP was untimely; this procedural violation caused substantive harm by denying the student a free appropriate public education.
  2. The School Board materially failed to implement the IEP.
  3. Petitioner is entitled to an award of full days of compensatory education for 16 weeks of his first semester of tenth grade.
  4. Petitioner is entitled to attorney’s fees and costs.

Petitioner shall have 45 days from the date of this Final Order within which to file a motion for attorney’s fees and costs (under this case number), to which motion (if filed) Petitioner shall attach appropriate affidavits (e.g., attesting to the reasonableness of the fees) and essential documentation in support of the claim, such as time sheets, bills, and receipts.

  1. Petitioner’s other requests for relief are denied.

DONE AND ORDERED this 27th day of October, 2015, 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 27th day of October, 2015.

ENDNOTES

1/ There is conflicting testimony as to whether the student had access to Learning Ally in tenth grade, which would have given him access to textbooks and novels in digital format. The undersigned credits Ms. Chalmer’s testimony in this regard, and rejects all testimony to the contrary.

2/ Dr. Edyburn and Ms. Chalmers explained that in order to access any document for text-to-speech technology, the document only has to be in Microsoft Word format. Most of the teachers admitted that they never checked to see if their Edmodo outlines and notes were available to be converted for text-to-speech assistance, and some were not certain that all of the notes from all of their classes were uploaded.

3/ The School Board argues that during the month of September, there were attempts to schedule an IEP meeting, but Petitioner’s attorney was unavailable and being unreasonable in her demands as to the participants at the meeting. The portions of the exhibits that are cited for this argument do not support the School Board’s contentions. While it is true that there was correspondence regarding his brother’s IEP meeting, there was no communication regarding this student’s IEP meeting until October.

4/ The undersigned construes the IEP accommodation which states “utilize AT device for academic work when reading and writing is not being measured, as needed” to mean text-to-speech and speech- to-text technology because, based on the totality of the evidence, it is the only logical meaning of the words.

Dr. Edyburn’s testimony and the teachers’ testimony support this meaning, as they also understood it to mean the ability to use text-to-speech and speech-to-text technology for their respective content areas. This meaning is also consistent with the fact that the School Board provided text-to-speech technology to the student via Learning Ally in eighth and tenth grade, despite the fact that in middle school, there was never a 504 Plan or IEP that mandated that type of assistance.

5/ The teachers were all instructed, around the middle of the fall semester, to begin filling out slips of paper where they checked off which accommodations were provided to the student for each assignment, test, or project. A slip was supposed to be attached by every teacher to every graded assignment or assessment. However, since at least one teacher admitted that the slips were not always accurate, and because the act of checking off boxes does not establish that the accommodations were actually given, the undersigned is not persuaded that the slips are accurate.

The teachers also annotated their electronic grade books throughout the school year. Many of the notations by the teachers reflect that accommodations were provided. Because these grade books can be accessed and edited by the user at any time, the undersigned does not find these notations persuasive on the issue of whether the accommodations were actually provided to the student. To the extent that they contradict the student’s and mother’s testimony, the documentary evidence is not found credible.

6/ Findings of Fact 40-47 and Conclusions of Law 77-83 are to be considered recommended only; the undersigned has final order authority as to the due process complaint, but only recommended order authority as to the Section 504 allegations.

7/ 20 U.S.C. § 1415(i)(2)(C)(iii); See e.g., Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009)(stating that when a court or hearing officer concludes that a school district failed to provide a FAPE and the private placement was suitable, it must consider all relevant factors in determining whether reimbursement for some or all of the cost of the private school is warranted); M. M. v. Sch. Bd. of Miami-Dade Cty., 437 F.3d

1085, 1101 (11th Cir. 2006)(stating that the ALJ and the district court did have jurisdiction to award the parents reimbursement for tuition and related services for a child who had never enrolled in the Dade County public school system, but had been denied FAPE).

8/ See, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389, 397 (3d Cir. 1996).

9/ Guided by the cases cited in Conclusion of Law 61, where one court found that an 11-day (from the start of the school year) delay in developing the student’s IEP was sufficient to find a denial of a FAPE, the undersigned finds that this school administration should have developed the IEP within the first two weeks of the school year.

COPIES FURNISHED:

Liz Conn, Dispute Resolution Program Director Bureau of Exceptional Education

and Student Services Department of Education

325 West Gaines Street, Suite 614

Tallahassee, Florida 32399-0400 (eServed)

Allison Louise Hertog, Esquire Making School Work, P.L.

1550 Madruga Avenue, Suite 333 Coral Gables, Florida 33146 (eServed)

Mary C. Lawson, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132 (eServed)

Stephanie Langer, Esquire Langer Law, P.A.

216 Catalonia Avenue, Suite 108 Coral Gables, Florida 33134 (eServed)

Kristina Tilson, Esquire Langer Law, P.A.

216 Catalonia Avenue, Suite 108 Coral Gables, Florida 33134 (eServed)

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Alberto M. Carvalho, Superintendent Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132-1308 (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:

  1. 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
  1. 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).

S.R.F. v. Miami Dade Public Schools – October 2015Download