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State
of Florida Andrew K. Whitehead, et.al, Petitioner, v. Hillsborough County Sch. Bd. Respondent. No. 93-4021E 21 IDELR 191 Go to Findings of Fact
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on September 24 and 28, 1993, in Tampa, Florida. Whether or not Respondent is providing Petitioner a free and appropriate education. Preliminary Statement On July 14, 1993, Petitioner, Andrew W., a minor child, by and through his parents, Keith and Nikole W., filed a request for a due process hearing. On July 21, 1993, Respondent, the School District for Hillsborough County, by and through its counsel, transferred this matter to the Division of Administrative Hearings for the conduct of a formal due process hearing. On July 27, 1993, the matter was initially set for hearing on August 19, 1993, but was continued based on a motion for continuance filed by Petitioner’s counsel dated August 6, 1993. On August 24, 1993, the matter was renoticed for hearing for September 24, 1993, and was heard as scheduled. At the hearing, Petitioner and Respondent presented the testimony of his parents, Dr. Keith and Nikole W.; Dr. Lorraine Jones, speech pathologist; Elizabeth Argott, Respondent’s director of exceptional student education; Suzette DeArmond, law office runner; Amy English, teacher, physically impaired programs; Susan Hays, supervisor, occupational and physical therapy, exceptional students; Valerie Jackson, speech pathologist; Barbara Earnest, speech therapist; Lynn Guilford, supervisor, speech/language services for exceptional students; Sharon Gaskins, speech/language diagnostician. Additionally, Petitioner introduced the affidavits of Philip Drash, Ph.D., and Jo Hagy, C.M.T.; and an "oral motor evaluation" conducted by Debra Bateman, MS, CCC-SLP. Petitioner introduced 49 exhibits and Respondent introduced 3 exhibits which were received in evidence at the hearing. Following the hearing, the parties filed proposed findings of fact and conclusions of law which were considered in preparation of this final order. Proposed findings which are not adopted herein are the subject of specific rulings in an appendix. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record complied herein, I make the following relevant findings of fact. 1. Andrew W., Petitioner herein, is a six-year-old child whose date of birth is August 30, 1987. Andrew is enrolled at Mintz Elementary School (Mintz) in the Hillsborough County School District (herein the District or Respondent). Andrew has Down Syndrome accompanied by an exceptional degree of hypotonia which has rendered him non-ambulatory to date, although he has recently shown some potential for ambulation with the aid of a walker. Children with Down Syndrome are believed to acquire language differently than do normal children and other children who test similarly with respect to developmental delays. 2. Andrew has manifested significant distractibility and has difficulty staying on task. These behaviors are typical in children with Down Syndrome and, for the most part, they are a product of Andrew’s disability. 3. Andrew has received speech therapy from a private speech therapist, Dr. Lorraine Jones, Ph.D., since August 1989 when Andrew was two years old. Additionally, Andrew has received occupational and physical therapy throughout his life. Prior to the 1992-93 school year, these services were provided and paid for by his parents. From August 1990 through May 1992, Andrew attended a private day school. Andrew enrolled in Mintz for the 1992-93 school year. Andrew’s enrollment and placement was initiated by his parents during May 1992. The Whitehead's discussed Andrew’s educational needs with Respondent’s exceptional student education department and provided the District Representative with test results and evaluations which had been performed. That documentation included information from Andrew’s private occupational and physical therapist along with a psychological evaluation from Dr. Dana S. DeBoskey, Ph.D., and a speech evaluation performed by Dr. Jones. 4. All of the evaluations presented by the Whiteheads to the District were "validated" by District exceptional student education personnel. The District performed no additional evaluations to determine the appropriate placement for Andrew. 5. Dr. DeBoskey’s psychological evaluation of Andrew on February 12, 1992 and March 26, 1992, while Andrew was four and one half years old included findings that Andrew had difficulty staying on task; however she found primary reinforcement to be effective in guiding him back to task. Test results were set forth and interpreted by Dr. DeBoskey who placed Andrew’s overall functioning in the lower end of the mild range of mental retardation. Quantitative skills were considered a strength based on Andrew’s test results on the Stanford-Binet Intelligence Scale. Andrew’s articulation difficulties presented problems in comprehending his responses however they were understood in context. 6. The Vineland Adaptive Behavior Scale revealed that Andrew’s socialization was a strength while deficiencies in motor skills due to his significant physical involvement were identified. Andrew’s social age tested at 41 months; his academic and communication age each tested at 30 months, while his physical abilities tested significantly lower. Dr. DeBoskey concluded that Andrew displayed learning capabilities within the mildly defective range and that he should have the opportunity to be educated with children of that learning potential. Due to his physical involvement, she recommended that he be placed in the physically impaired program, and the developmental educable mentally handicapped (EMH) program as a secondary placement. 7. Andrew’s speech evaluation was completed by Dr. Jones on November 11, 1991, when Andrew was at the chronological age of four years and two months. The evaluation was updated on April 29, 1992, to comply with District requirements. On May 26, 1992, the District accepted Dr. Jones’ evaluation and stamped it as "validated," designating that it would be considered in Andrew’s educational placement. During subsequent meetings with the Whiteheads, the District’s representative stated that the validation was only on Dr. Jones’ qualifications and did not require that the evaluation contents be considered in Andrew’s educational placement. 8. The Jones’ evaluation included comments about Andrew’s off-task behaviors and the efforts that met with success in guiding him back into productive therapy interaction. In his response to the Hawaii Early Learning Profile and the Vulpe Assessments, Andrew demonstrated overall receptive and expressive skills at the two and one half to three year level. Under the Preschool Language Skill-(R) test, Andrew’s auditory compensation was indicated to be two years, four and one half months. Andrew demonstrated a verbal ability score of two years, three months. On the Expressive One-word Vocabulary test, Andrew obtained a language age of two years, three months, yielding a standard score of sixty five. Andrew was observed using three- and four-word utterances when highly motivated. Andrew could articulate most consonant sounds at that time. Reference was made to Andrew’s "low" oral tone. The Jones’ evaluation revealed that Andrew has shown steady improvements in his receptive and expressive language skills during the period in which he received speech therapy. The Jones’ evaluation recommended that he receive individual speech and language therapy one to two times per week and that efforts be made to generalize his developing speech/language skills into the natural environment. Such generalization skills are achieved through group interaction with peers. 9. After lengthy discussions between the Whiteheads and the District, a meeting was scheduled for July 28, 1992 to determine the appropriate educational placement for Andrew. The W.sWhitehead's Whitehead'sattended the meeting, accompanied by Andrew’s physical therapist. Representatives of the District in attendance were Jim Forestal, Sharon Gaskins, Maureen Gorman and Nan Norquist, a district staffing specialist. At the outset of the meeting, the W.sWhitehead's were told that no District representative was in attendance who had the authority to make any comment concerning occupational therapy (OT) and physical therapy (PT) services that Andrew would be provided. The meeting lasted approximately three hours during which time it was determined that Andrew would be placed in the physically impaired (PI) classroom at Mintz for the entire instructional day except during his receipt of resource services. It was also determined that he would receive speech/language services on a resource basis for one to two hours per week with at least one hour of therapy being individualized. Those placements were specified on Andrew’s written, individual education program (IEP). At the conclusion of that meeting, Dr. W. signed the "Notice and Consent For Placement/Notice of Staffing Recommendation" form, giving permission for Andrew’s educational plan to be implemented as stated on the IEP. 10. Thereafter, at the W.’s request, another meeting was scheduled to take place a week later on July 30, 1992, to address Andrew’s OT and PT needs. The W.sWhitehead's were not provided notice either during that meeting or in advance thereof, of any proposed modification to the services already committed on Andrew’s IEP. The W.sWhitehead's reasonably understood the meeting to be solely for the purpose of addressing Andrew’s OT and PT needs that had not been determined on July 23, 1992. The W.sWhitehead's, along with Andrew’s physical therapist, also attended that meeting to provide information about Andrew’s unusual and fragile physical condition. District representatives in attendance were Nan Norquist, Liz Argott, Susan Hays and another physical therapy program representative. At the conclusion of the meeting, a "Notice and Consent For Placement / Notice of Staffing Recommendation" authorizing Andrew’s placement in the OT and PT programs was signed by Nikole W. An "IEP coversheet" was created at that meeting on which Andrew’s placement in the PI program and the speech language program was reiterated. However, the designation of one hour of individualized speech therapy did not appear thereon. No new goals were written with respect to Andrew’s requirements for speech therapy and no discussion occurred with respect to his speech therapy requirements. The W.sWhitehead's reasonably understood that document to incorporate, and not supersede, the goals and the specific services designated on the original IEP. 11. The District unilaterally deemed the second "coversheet" to supersede the first "coversheet," thereby relieving it of the obligation to implement the July 28, 1992 IEP. The District’s determination was made without written or oral notice to the W.sWhitehead's that the IEP’s requirement to provide Andrew individualized speech/language services would not be implemented. Instead of implementing the individualized therapy requirement, the District left it to the discretion of the speech therapist assigned to Mintz to determine whether Andrew needed one-to-one speech/language services. 12. The District has an unwritten policy in which it will not specify on any IEP a requirement to provide individual speech/language services, irrespective of a showing of need for those specific services. The District asserts that this does not constitute a denial of such services to students who need it because the services may be provided if the child’s speech therapist, in an exercise of [her] discretion, determines the need is there. The speech therapist who exercises that discretion need not be licensed as a speech pathologist in Florida and need not meet the educational or experiential requirements for Florida licensure. Nor does the speech therapist need any training in the child’s particular disability and need not have attended or participated in the child’s IEP meeting. 13. Mintz speech therapist, Ms. Barbara Earnest, did not attend either of Andrew’s IEP meetings. Ms. Earnest had little training and experience working with multi-handicapped children. Ms. Earnest is not a licensed speech therapist, nor does she meet the state’s minimum licensure requirements. In exercising her discretion, Ms. Earnest placed Andrew in group speech therapy with four other children, two of whom were entirely non-verbal. Despite Andrew’s validated evaluations indicating verbal abilities, Ms. Earnest determined that Andrew was also non-verbal and made placement and servicing decisions based upon that determination. 14. Mintz had an enrollment of approximately 1,000 students during the 1992-93 school year. During that period, Ms. Earnest was the sole speech therapist available to students at Mintz. Although free to provide individual speech therapy to students if she deemed it necessary, her workload provided a strong disincentive to do so. Specifically, Ms. Earnest, along with each of the District’s other full-time speech therapists, was expected to administer approximately 90 contact hours per week to students in her charge. One hour of one-on-one speech therapy is credited to the therapist as one contact hour. One hour of group therapy will provide the therapist credit for the number of students in the group. Consequently, a group of six children meeting in group therapy for one hour provides the therapist with credit for six contact hours. 15. The instructional week at Mintz is approximately 31 hours long. In order to complete her 90 contact hours, Ms. Earnest needed to receive an average of three contact hours for each instructional hour of school. 16. Ms. Earnest provided individual speech therapy to five children during the entire 1992-93 school year at Mintz. Andrew was one of the five who received such therapy. The number of hours Ms. Earnest spent on the individual speech therapy of the other four children in her group totalled approximately 10 hours during the school year. Of the four children, three were students whose physical disability was stuttering, rather than delayed in the acquisition of speech related to another disability. 17. Ms. Earnest’s experience in administering speech therapy was primarily with children whose sole handicap was a speech dysfunction such as a stuttering problem. She had little experience with multi-handicapped and developmentally delayed children and previously had work with only one child with Down Syndrome during her seven year tenure in the school system. Ms. Earnest’s conclusion that Andrew did not require individual speech therapy was based on her subjective determination that his speech abilities were consistent with his cognitive and social abilities. Her subjective determination contradicted the opinions of qualified professionals and resulted in placement and services based on a stereotype of his disabilities rather than on his individual educational needs. Ms. Earnest’s conclusion resumed in low expectations of Andrew’s abilities which impairs his opportunity to receive an appropriate education. Ms. Earnest’s exercised sole discretion in determining whether a student requires individual speech therapy. That fact, plus the District’s minimum contact hour requirement made it more likely than not, that Ms. Earnest would not properly exercise her discretion to provide appropriate speech therapy to Andrew. 18. During late September 1992, Nikole W. contacted Ms. Earnest and first determined that no individual speech therapy was being provided to Andrew. The W.sWhitehead's had noticed significant diminishment in Andrew’s expressive speech. During the months of school that had expired by that time, the W.sWhitehead's had heard nothing from Ms. Earnest about Andrew’s speech therapy. At no time did the District or Ms. Earnest inquire of the W.sWhitehead's about the discrepancy between the Jones’ evaluation results and the non-verbal skill level observed by Ms. Earnest. No suggestion was made by the District that the goals of the IEP be adjusted, given the level of speech skills being observed (of Andrew). 19. Upon learning that the IEP was not being implemented, the W.sWhitehead's contacted District officials, including a written inquire to Liz Argott, director of exceptional student education. The W.sWhitehead'sreceived no response from the District about their telephone calls or their written inquiry to Ms. Argott. 20. After several weeks, in November 1992, the W.sWhitehead's contacted the Office for Civil Rights of the United States Department of Education (OCR) and requested that it require implementation of Andrew’s IEP. Meanwhile, the W’s continued to notice a significant diminishment in Andrew’s expressive speech. 21. In January 1993, the District invited the W.sWhitehead's to attend a meeting "to change IEP coversheet." At that meeting, on January 20, 1993, a new IEP coversheet was written in response to the OCR inquiry. The rewritten coversheet combined the July 23, 1992 IEP statement requiring individual speech therapy, with the July 30, 1992 coversheet requiring OT and PT. 22. On January 22, 1993, Dr. Jones reevaluated Andrew’s speech and language development. At that time, Andrew was chronologically five years and five months old. That 1993 evaluation concluded that Andrew’s speech and language abilities had significantly regressed during the period in which he had attended public school. Andrew no longer had the ability to point to objects either for the purpose of communication or for the purpose of demonstrating cognitive skills and receptive language that might surpass his verbal expressive abilities. Andrew had to be retrained for that skill during Dr. Jones’ assessment. He engaged in task avoidance behaviors but was successfully redirected to task by use of the right reinforcement. 23. Using the Preschool Language Three test, the reevaluation demonstrated Andrew’s auditory compensation to be one year and 11 months, a regression of five and one half months from the same test administered 14 months earlier. Verbal ability skills were assessed at the two year and one month level, a regression of three and one half months. Andrew no longer made four word utterances. His comprehension of single concepts was tested using the Receptive One Word Pitch or Vocabulary test. Andrew obtained a language age of one year and ten months, a regression of five months. His production of single concepts was assessed using the Expressive One Word Pitch or Vocabulary- (R-) test. He achieved a language age of two years and two months, a regression of one month. Andrew’s reduced number of intelligible utterances rendered the tester unable to conduct a formal analysis of his language. However, in summary, Dr. Jones concluded that Andrew, based on his test scores and evaluations, demonstrated severely delayed receptive language, expressive language and speech production skills. Dr. Jones recommended that Andrew receive direct speech and language therapy and direct articulation therapy. 24. At the formal hearing, the reevaluation was challenged for not providing the resulting standard score. Dr. Jones testified that the preschool language scale is a non-adaptive language-based test which yields a "standard score" inappropriate to children with language delay related to a disability. Consequently, the "standard score" sought by the District would provide a purported IQ for Andrew based upon his language abilities. Such a scoring method would be the result of non-adaptive testing and could be misused. Dr Jones’ adaptation of the test result was appropriate in Andrew’s case given his language skill delay which is a result of his disability. 25. The re-written coversheet was implemented in January 1993 when Ms. Earnest began providing one-on-one speech therapy to Andrew from 7:45 a.m. to 8:00 a.m. four days per week. Ms. Earnest had to be relieved from other duties from 7:45 a.m. to 8:00 a.m. (school bus duties) while she provided Andrew individualized speech therapy. 26. In February, the W.s were contacted by the OCR, advising that it was closing its investigation due to the District’s satisfactory response. In part, the OCR advised as follows: 28. In a telephone call with Liz Argott, the OCR required the District’s commitment that compensatory services would be provided to Andrew if needed. Additionally, the OCR required that the meeting to determine the need for compensatory services occur earlier than July 1993, which was the actual annual review date of Andrew’s IEP. 29. The District scheduled a meeting to occur on March 26, 1993. The W.s received written notice from the District that the meeting was for the purpose of a "case review." The W.s received no notice that the District was proposing to withdraw the individualized speech therapy from Andrew’s IEP. Nor did the W.s receive any notice that an evaluation of Andrew was being conducted by District personnel. In consideration of the OCR investigation conclusion, the W.s reasonably believed that the meeting was primarily for the purpose of considering compensatory speech therapy for Andrew. 30. In attendance at the March 26, 1993 meeting were Andrew’s parents and his maternal grandmother, Patricia M. The District was represented by its guidance counselor Mrs. Dennis, Liz Argott, Lynn Guilford, Barbara Earnest, Jo Ann Shaw (principal of Mintz), Amy English, Maurine Goreman, Karen Chandler, Andrew’s physical therapist, and Sharon Gregory, Andrew’s occupational therapist. The W.s requested and were granted permission to audiotape record the meeting. 31. At that meeting, the W.s told District representatives about the regression demonstrated by Dr. Jones’ 1993 reevaluation of Andrew’s speech and language skills. The regression that had been observed by Andrew’s parents and grandmother was also described to District representatives. No District representative requested an opportunity to review the reevaluation. Nor did the District representatives express concerns about the contents of the Jones’ evaluation. Ms. Earnest advised that she administered the Preschool Language Scale test to Andrew on March 10, 1993, two months into her commencement of the OCR ordered individualized therapy sessions. The single test that she administered to Andrew placed his auditory comprehension at the twenty-five and one half month level and his verbal ability at twenty-seven months. These scores showed a regression from those Andrew had achieved fourteen months earlier on the Jones’ evaluation. Nevertheless, she advised that Andrew had "improved a great deal" because he was non-verbal when he first came to school. Ms. Earnest related that group therapy was beneficial to Andrew because it would train him to sit at a table in a group and be attentive to the lesson. At that time, no claim was made by District personnel that Andrew did not also require individual speech therapy. Finally, the District took the position that it was inappropriate to specify individual speech therapy on his IEP. 32. Compensatory therapy was not substantively discussed at the March 26, 1993 meeting despite OCR’s requirement that the issue be determined before March 31, 1993. Instead, Liz Argott concluded the meeting with an assurance to the W.s that Andrew’s current IEP (including individual speech therapy) would be effective until the annual review date (July 23, 1993), and that another meeting would be scheduled for discussion of compensatory services. Meanwhile, the District would have its "expert" therapist, Ms. Betty Molina, visit with Andrew and Ms. Earnest and make recommendations regarding Andrew’s therapy. The W.s were assured that they would be notified prior to that visit, so that Andrew’s mother could meet with the therapist and attend the observation. Despite that assurance, she was not so advised. 33. At the March 26, 1993, and subsequently on several occasions, the W.s requested a copy of all evaluations and testings that had been conducted by the District on Andrew, including those referenced by Ms. Earnest as justification for her conclusion that Andrew was progressing in speech. The District never provided the W.s with a copy of the March 10, 1993 Preschool Language Scale test results administered by Ms. Earnest. Petitioners’ reviewed it shortly prior to the due process hearing as a product of their request for records made to the OCR. 34. Following the March 26, 1993 meeting, the W.s mailed a copy of Dr. Jones’ speech reevaluation to the District and requested that it be reviewed with Ms. Earnest and that comments about the reevaluation be sent to the W.s. Ms. Guilford responded on behalf of the District, stating that she had provided the reevaluation to Betty Molina, special populations resource diagnostician, to review with Ms. Earnest. Until the due process hearing, no further comment was received by the W.s with respect to that evaluation. 35. Two weeks after the March 26, 1993 meeting, Ms. Molina telephoned Dr. W. to discuss her informal observations of Andrew. Nikole W. had not received the promised notice of Ms. Molina’s visit and was unable to meet with her. Ms. Molina advised Dr. W. that Andrew is "stubborn" and needed to learn to work within a group in order to be successful in school. She voiced her belief that Andrew did not need individualized speech therapy and that the content of his group therapy could not be modified "solely because Andrew chooses not to participate." There is no indication in Andrew’s objective evaluations that his short attention span and difficulty staying on task is a matter of choice rather than a manifestation of his disability. Ms. Molina indicated that she had not performed any formal evaluation of Andrew and no documentation of her observation was provided to the W.s. Ms. Molina did not testify at the administrative hearing. 36. During that timeframe, due to Andrew’s regression in speech/language skills, the W.s sought permission for Dr. Jones to be permitted to come to Mintz during the instructional days to provide Andrew with individualized speech therapy, which request was refused. The District gave no reasonable explanation for that refusal to the W.s. On June 2, 1993, a meeting to address "follow-up IEP concerns," was held with respect to Andrew W. Again, no notice of the District’s intent to withdraw services from Andrew was provided. That meeting was attended by the W.s and their counsel, Laura L. W.; Liz Argott, Barbara Earnest, Maureen Rich, Sharon Gregory, Amy English and the PT supervisor to Karen Chandler. The W.s requested and received permission to audiotape record the meetings. (Copies of the audiotapes of both meetings were provided to the undersigned for review and were considered). 37. At the conclusion of the June 2, 1993 meeting, the District prepared a new IEP for Andrew which withdrew the individual speech therapy services. The District also concluded that no compensatory services were appropriate for Andrew. That conclusion was based upon Ms. Earnest’s opinion that Andrew’s speech abilities had advanced from his abilities noted at the beginning of the school year at which time she considered him to be non-verbal. For the first time, the District advised that Andrew did not need individual speech and that the group speech services were more appropriate. 38. Under protest from the W.s and inconsistently with Liz Argott’s assurance in March that Andrew would continue to receive the services required by the OCR through July 23, 1993, the new IEP was implemented effective the following day, June 3, 1993. July 23, 1993, was the date initially specified on the IEP as the anticipated duration of services and was the one-year anniversary of the IEP. The W.s unsuccessfully requested that the existing IEP remain in effect until they could obtain a due process hearing. Andrew did not again receive individual speech therapy until the District received formal notice of a request for a due process hearing from the W.s’ counsel. 39. As noted, transcripts of the W.s’ audiotape recordings of the March 26, 1993 meeting were provided. The audio tapes, which were prepared by professional transcribers in a manner which appears to be substantially accurate, were relied upon as evidence of the actual discussions that occurred at those meetings. 40. The District has a policy that speech/language services are a "related service" provided solely to permit a child to function in the classroom in which he is placed and that the services are not deemed to be a substantive portion of the child special education. 41. On June 9, 1993, Andrew was evaluated by Dr. Philip W. Drash, Ph.D., F.A.A.M.R. A copy of the evaluation and the affidavit of Dr. Drash was received, as well as a copy of Dr. Drash’s curriculum vitae, which reveals significant expertise in speech acquisition by special needs children, including children with Down Syndrome. Dr. Drash is a licensed psychologist in Florida and is a certified psychologist in Maryland. He is a Fellow of the American Association on Mental Retardation. Dr. Drash concluded that Andrew, based on his performance on his Expressive 1 Picture-vocabulary test, revised, functioned in the mild to moderate range of mental retardation. Andrew’s significant off-task behavior, which required redirection from the testor, indicated that group therapy is beneficial to him, although it did not provide Andrew with the fundamental skills necessary to gain from the group therapy or to gain from the educational environment. Andrew showed the need for significant redirection to gain from an educational task. Dr. Drash recommended three hours of individual speech therapy per week, and that one hour per week in sessions of at least one-half hour each, constitute the absolute minimum necessary for Andrew to receive and retain any educational benefit from the therapy. At hearing, the District suggested that regression could be related to middle ear fluid and infections, rich are common in children with Down Syndrome. Andrew has had tubes placed in his ears which have helped to regulate the fluid. The tubes were placed before he enrolled in public school. The fact that infections continue to occasionally occur, possibly rendering his hearing unstable, further underscores Andrew’s need for individual speech therapy. 42. Individual speech therapy and group speech therapy are not equivalent services and frequently are administered with different goals in mind. District personnel admitted that individual speech therapy is necessary for some students. In Andrew’s case, however, the goals of the recommended individual speech therapy are to achieve a degree of educational benefits from specific, direct, intensive therapy. Such recommendations were made in light of substantial evaluations of and exposure to Andrew, and in recognition of the handicap that Andrew’s individual circumstances create in his ability to acquire speech. 43. The W.s agree that group therapy is appropriate for Andrew. However, they recommend that opportunities for generalization of his use of speech serve to reinforce the gains that should come only from his individual speech therapy. That generalization is available in any small group situation in which the children are verbalizing and such situations should be encouraged for Andrew. But those situations serve an entirely different educational purpose than the recommended individual speech therapy and are not appropriate if provided to the exclusion of the one-on-one therapy in this particular case. In consideration of Andrew’s particular disability, his off-task behaviors and short attention span, his responsiveness to direct reinforcement, his cognitive abilities for speech, the degree of his language delay, his hypotonia, the recommendations contained in validated speech evaluations that he requires individual speech therapy, the absence of contrary objective recommendations and evaluations, his demonstrated success with individual speech therapy, and the demonstrated failure to benefit Andrew educationally that occurred during the implementation of the District proposed services (the group speech therapy), the recommendations and conclusions of Drs. Jones and Drash, that an appropriate individual education plan for Andrew include a minimum of one hour of one-on-one speech therapy per week which sessions should occur no briefer than thirty minutes each, should be designated on Andrew’s written IEP and not left to the discretion of any individual. Based on the regression that Andrew experienced when he was not provided individual therapy, a reasonable amount of compensatory therapy is one hour per week of one-on-one speech therapy for a period of twelve months. That compensatory therapy should supplement the speech therapy required by Andrew’s individual educational needs. That service must also be designated on his IEP and not left to the discretion of any individual. 44. Expenses incurred by the W.s in seeking an appropriate educational placement for Andrew include: b. Re-evaluation of Andrew by Dr. Jones in January, 1993, at a cost of $120; c. Evaluation by Dr. Philip Drash at a cost of $400; d. Transcripts of IEP meetings of March 26 and June 2, 1993, for a total of $302.50; e. Cost and attorneys fees related to the due process hearing in amounts that are, at this time, undetermined.1
46. The parties were duly noticed pursuant to Chapter 120, Florida Statutes. 47. The Individuals With Disabilities Education Act, 20 U.S.C. Section 1400 et seq., (herein the "Act" or "IDEA"), states: (ii) who by reason thereof, need special education and related services. (A) instruction conducted in the class room, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. (B) meet the standards of the state educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the state involved and (D) are provided in conformity with the individualized education program required under Section [20 U.S.C. Section 1414(a)(5)]. (C ) A statement of annual goals, including short-term instructional objectives, (D) A statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (E) The projected date for initiation and anticipated duration of such services, and (F) Appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. (b) Required procedures; hearing. . . . (C ) Written prior notice to the parents or guardian of the child whenever such agency or unit— (ii) refuses to initiate or change,
the identification, evaluation, or educational placement of the
child or the provision of a free appropriate public education to
the child; (E) an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child. As used in this part, consent means that: (b) the parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and list the records (if any) which will be released and to whom; and (c ) the parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time, (d) evaluation means procedures used in accordance with Sections 300.530-300.534 to determine whether a child is handicapped and the nature and extent of the special education and related services that the child needs. The term means procedures used selectively with an individual child and does not include basic tests administered to or procedures used with all children in a school, grade, or class. (b) the provision of a free appropriate public education to the child. . . . (3) For the purposes of this part: (i) Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question. (ii) Public expense means that the public agency either pays for the full cost of the evaluation or insures that the evaluation is otherwise provided at no cost to the parent, consistent with Section 300.301 of subpart C. (b) Parent right to evaluation at public expense. A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. However, the public agency may initiate a hearing under Section 300.506 of this subpart to show that its evaluation is appropriate. If the final decision is that the evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense. (c ) Parent initiated evaluations. If the parent obtains an independent educational evaluation at public expense, the results of the evaluation: (1) must be considered by the public agency and any decision made with respect to the provision of a free appropriate public education to the child, and (2) may be presented as evidence at a hearing under this subpart regarding that child. (2) refuses to initiate or change the identification, evaluation or educational placement of the child or the provision of a free appropriate public education to the child. (ii) Initial placement of a handicapped child in a program providing special education and related services. (2) a description of the action proposed or refused by the agency, an explanation of why the agency proposes or refuses to take action, and a description of any options the agency considered and the reasons why those options were rejected; a description of each evaluation procedure, test, record, or report the agency uses as a basis for the proposal or refusal; and . . . (4) A description of any other factors
which are relevant to the agencies proposal or refusal. (2) Provided in the native language of the parent and . . . . . . (c ) Tests are selected and administered so as best to ensure that when a test is administered to a child with impaired sensory, manual, or speaking skills, the test results accurately reflect the child’s aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills (except where those skills are the factors which the test purports to measure); (d) No single procedure is used as the sole criteria for determining an appropriate educational program for a child; and (e) The evaluation is made by a multi-disciplinary team or group of persons including at least one teacher or other of suspected disability. (f) The child is assessed in all areas relating to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor disabilities. (2) Insure that information obtained from all of these sources is documented and carefully considered; (3) Insure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options; and (4) Insure that the placement decision is made in conformity with the least restrictive environment rules of Sections 300.550-300.554. (5) If a determination is made that a child is handicapped and needs special education and related services, an individualized educational program must be developed for the child in accordance with Sections 300.340-300.349 of subpart (c ) (emphasis added) (2) The IEP document itself which is a written record of the decisions reached at the meeting. The overall IEP requirement, comprised of these two parts, has a number of purposes and functions: (b) The IEP process provides an opportunity for resolving any differences between the parents and the agency concerning a handicapped child’s special education needs; first, through the IEP meeting, and second, if necessary, through the procedural protections that are available to the parents. (c ) The IEP sets forth in writing a commitment of resources necessary to enable a handicapped child to receive needed special education and related services. (d) The IEP is a management tool that is used to ensure that each handicapped child is provided special education and related services appropriate to the child’s learning needs. (e) The IEP is a compliance monitoring document which may be used by authorized monitoring personnel from each governmental level to determine whether a handicapped child is actually receiving the free appropriate education agreed to by the parents and school. 64. In Georgia Association of Retarded Citizens v. McDaniel, 716 F. 2d 1565, (11th Cir. 1983), the Eleventh Circuit concluded that the school district policy of never considering a placement for educational students that provided educational services in excess of 180 days violated the act. In that case, the evidence demonstrated that some children regressed during the extended summer period without services. That policy was unlawful as a wholesale approach, ignoring the individual needs of students. The court approved the district court’s "refusal to believe that not a single child demonstrated need for extended educational placement." Id. at 1574. Here, Respondent’s wholesale policy of not writing specific speech/language services on IEPs, differs, if at all, only rhetorically from that policy disapproved in McDaniel. In effect, Respondent’s policy removes a child’s right to a written individual education program and replaces it with the possibility that the individual needs will be addressed by the exercise of one person’s discretion (the speech therapist). This possibility of appropriate services is subjectively determined and is therefore arbitrary. 65 Respondent violated the rights of Petitioner’s parents to participate in their child’s educational program by the following actions: (c ) failing to respond to the written inquiries of the parents about failure to implement the child’s IEP. (d) failing to give written notice to the parents of the district’s proposal to change the IEP to remove the individual speech therapy at the meeting of March 26, 1993. (e) failing to give written notice to the parents of the district’s proposal to evaluate the child on March 10, 1993. (f) failing to provide to the parents a copy of the preschool language scale testing and results, which testing was administered by Barbara Earnest on March 10, 1993 without the W.’s knowledge. (g) failing to give written notice to the parents of the district’s proposal to change the IEP to not provide the individual speech therapy at the meeting of June 2, 1993. (h) failing to implement the "stay-put" provision of the IDEA during the period in which they were on notice of the parental disagreement with the modification to the IEP and their intention to seek a hearing. (i) failing to provide the parents with access to records and evaluations regarding the child’s education and response to requests from the parents for copies of all of the records concerning Andrew W. The documents the W.s knew they did not receive include correspondence to the OCR by Liz Argott concerning Andrew’s educational placement, correspondence from Barbara Earnest that was sent to the OCR and a Report of Communications Disorders regarding Andrew W. prepared by Barbara Earnest, which was sent to the OCR. (j) failing to appropriately consider the uncontradicted evaluation of Dr. Jones in determining the appropriate speech placement for Andrew W. (b) permitting the individual education program to be determined by the exercise of the discretion of a single individual who may or, may not exercise that discretion consistent with IDEA. See, 20 USC Sections 1415(b)(1)(c), 1412(5)(c); 34 CFR Sections 300.504(1), 300.533; 34 CFR Section 300, et seq., Appendix C, I. (c ) intentionally failing to implement an IEP developed with the parent’s consent. See, 20 USC Sections 1415(b)(1) and (c), 1401(18), 1400(c); 34 CFR Sections 300.500, 300.504(a)(1), 300.504(b)(ii), 300.533; 34 CFR Section 300, et seq., Appendix C. (d) failing to describe the specific services to be provided to the child in writing so that the district’s commitment of resources would be made to enable the child to receive needed special education and related services. (e) modifying the IEP without objective or adequate justification for that decision. (f) failing to consider the validated speech/language evaluation of Dr. Jones in determining the appropriate placement for Andrew W. See 34 CFR Section 300.503 (c ) (g) failing to consider what additional services should be implemented to achieve the failed goals set forth in Andrew W.’s IEP. See, 20 USC Section 1401(20)(F); 34 CFR Section 300.346. (b) using the OCR-imposed deadline for consideration of compensatory services as a forum for a modification of the IEP without the notice required in 34 CFR Sections 300.504 and 300.505. (c ) failing to invoke the stay-put provision upon notification that the parents would seek review of the modified IEP and failing to appropriately seek an agreement with the parents concerning the services that would be provided during that period of time. See 34 CFR Section 300 et seq. Appendix C, (XXXII and XXXV). (d) failing to allow the private speech therapist to provide services to Andrew at Mintz during the instructional day. (e) failing to implement the OT portion of Andrew’s IEP at the time of the hearing. (f) making a determination that a placement modification was necessary without the use of objective criteria but based only on subjective observations of district personnel. (g) failing to consider the evaluations of all of the professionals concerning Andrew W.’s unique educational needs. 69. The procedural inadequacies resulted in a loss Andrew W. of educational opportunity. These inadequacies also infringed upon the parent’s right to meaningfully participate in the IEP formulation process. 70. Respondent failed to show, by a preponderance of the evidence, that it followed the Act’s procedures in determining a modification of Andrew’s IEP or that such was necessary. 71. While it is recognized that Respondent is not required to provide Petitioner with a maximum educational improvement, the minimum requirement is that "some" or "adequate" educational benefit must be gained by the child. See JSK v. Hendry County School Board, 942 F. 2d 1563, 1572 (11th Cir. 1991). The Court there said: We, in fact, do define "appropriate education" as making measurable and adequate gains in the class room. 941 F. 2d at 1573. 73. The low expectations which affected the services offered toe Andrew W. precluded Andrew’s opportunity to receive adequate educational benefits. The "benefit" fell below minimal or trivial. In fact, Andrew regressed under the district’s proposed placement. Consequently, the educational plan proposed by the district was not reasonably calculated to provide educational benefit and did not provide a free appropriate public education to him. In Andrew’s case, the degree of language delay is so severe that speech therapy forms a major portion of his special education. 74. It is true, as Respondent contends, that a child’s need for individualized speech therapy may be dynamic. However, that does not justify failing to specify the services required by the student at the time of the IEP placement decision. In fact the IDEA, in itself, anticipates that children will progress and has their needs will change. Congress accommodated the dynamics of education by placing in the IDEA a requirement that the IEP state, in writing, the anticipated duration of the specific services being provided. Additionally, when it is shown that a child no longer requires the services through the date specified, the district is free to schedule an IEP review, upon notice to the parents, of its specific proposal to remove individualized services from the IEP. This very specific procedural format encourages effective and cooperative communication between the parents and the school district about the child’s progress. Further, it provides a forum for the determination of the changing needs for services in which all persons who may have knowledge of the child’s development can participate. Respondent’s, policy of placing the determination in the hands of a single individual, who may or may not be trained in the special needs of the student and whose determination is a commitment of her own resources rather than those of the district, flies in the face of the IEP process. The very purpose of the IEP is to make a commitment of resources to the child’s education, taking into consideration the various aspects of the child’s circumstances and in which the input of all informed personnel is melded. The whole process is a nullity if a single individual decides the intensity and type of therapy the child requires. 75. In determining the appropriateness of Andrew’s placement, behavioral issues that are a manifestation of his disability cannot be ignored or used against him. In the case of Cleavenger v. Oakridge School Board, 744 F. 2d 514 (6th Cir. 1984), the court rejected a school district’s claim that it need only provide a learning environment in which the student could take advantage of if he so desired, concluding that the school district ignored reality and its obligation under the Act where the adult student’s primary learning problem was his inability to cooperate with authority. Id. at 516. 76. Respondent failed to provide Andrew W. a free appropriate public education by failing to consider his individual requirements with respect to speech therapy and by failing to give due weight to the objective evaluations available to them and by failing to provide 1-on-1 speech language services to him as required on his IEP. 77. Violation of the IDEA procedural protections will justify an order requiring reimbursement of expenses made to retain an appropriate education. Hall v. Vance City Board of Education, 774 F. 2d 629, 633 (4th Cir. 1985). Similarly, the expenses incurred by parents who obtain an appropriate educational opportunity for the child while the school district has proposed inappropriate placement should be reimbursed. See, Drew v. Clarke County School District, 877 F. 2d 927. (11th Cir. 1989) Reimbursement merely requires the Respondent to belatedly pay for appropriate education services. See Jenkins v. Florida, 815 F. 2d 629 (11th Cir. 1987). The services provided by Dr. Jones were appropriate and the W.s should be reimbursed. See Burlington School Commission v. MA Department of Education, 471 U.S. 359, 105 S. Ct. 1996, 85 L.Ed. 2d 385 (1985). 78. The Rehabilitation Act, 29 U.S.C. Section 794, prohibits discrimination against handicapped individuals in any program that receives federal funding. Thus, it applies to Respondent. Regulations have been enacted by Respondent to carry out the terms of the Rehabilitation Act with respect to education. Those regulations are set forth in 34 CFR Sections 104.31-104.41. The Rehabilitation Act also prohibits retaliatory acts against persons who have complained of discrimination. 79. Mere possession of a handicap is not a permissible ground for assuming an inability to function. Southeastern Community College v. Davis, 442 U.S. 397 (1979). In this case, Ms. Earnest, into whose hands Andrew’s educational program was placed, assumed he is non-verbal and that he did not have the cognitive abilities to acquire speech. Consequently, she deemed him unqualified for individual speech therapy, in violation of the Rehabilitation Act. Additionally, Ms. Earnest and Ms. Molina subjectively determined that Andrew needed to learn to conform within a group rather than to receive direct speech therapy. That determination influenced the provision of services to Andrew in violation of the Rehabilitation Act’s requirement that such determination be submitted to a trained and knowledgeable group of persons who determines whether the behavior bore a relationship to the handicapping condition. See, S1 v. Turlington, supra. The evidence in this case indicates that it was Andrew’s handicap that influenced the determination by Ms. Earnest not to provide individual speech therapy services to him. The children to whom she choose to administer 1-to-1 therapy were those who had only a speech disability and not multi-handicaps. That discrimination violated the Rehabilitation Act. See, New Mexico Association for Retarded Citizens v. New Mexico. 678 F. 2d 847 (10th Cir 1982). 80. It is a violation of the Rehabilitation Act to fail to consider the individual needs of handicapped children in educational placements. See, McDaniel, supra. As discussed above, such consideration was not provided to Andrew W. 81. Finally, Respondent engaged in retaliatory actions including its refusal to permit a private speech therapist to administer therapy to Andrew W. during the instructional day at Mintz while the same therapist is permitted to do so for other of the district’s elementary students. 82. The Hearing officer concludes that the W.s should be compensated, as specifically noted in paragraph 44, in the amount of $2,905.00 for the expenses borne by them in their efforts to obtain a free appropriate education to which their child is entitled. Additionally, it is concluded that they are entitled to reimbursement for reasonable attorneys’ fees and related costs expended in connection with this proceeding. Jurisdiction is reserved for a determination of the specific amount of attorneys’ fees and costs to be awarded.
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that: Respondent provide the speech services to Andrew W. as stated in his IEP of July 23, 1992. Additionally, Respondent is required to write a new IEP with the requirement for a minimum of one hour per week of one-on-one speech therapy in sessions at least thirty (30) minutes in duration. The Respondent is prohibited from engaging in retaliatory conduct towards Andrew W. and his parents. The W.s are entitled to recover reasonable attorneys’ fees and costs in an amount to be determined by the Hearing Officer upon affidavits submitted within thirty days hereof by counsel for the parties or alternatively, by an evidentiary hearing. 1 The parties will be allowed an opportunity to submit affidavits in support of their costs and attorney fees which if not agreed upon, will result in a scheduled evidentiary hearing to review and finalize such costs and fees. Appendix
Appendix to Final Order in DOAH Case Number 93-4021E Rulings on Petitioner’s proposed final order. Paragraphs 1-4, adopted in the preliminary statement. Paragraph 45, adopted as modified, paragraph 39, final order. Paragraph 53, adopted as modified, paragraph 42, final order. Paragraph 54, adopted as modified, paragraph 42, final order. Rulings on Respondent’s proposed findings of fact. Paragraph 1-3, adopted in the preliminary statement of the final order. Paragraph 5, rejected, irrelevant. Paragraph 10, last sentence rejected, irrelevant and not probative. Paragraph 12, rejected, contrary to the greater weight of the evidence, see paragraphs 3, 5-8, 13, 22, 23, 24, 31, 34, 35, and 36 of the Final Order. Paragraph 13, rejected contrary to the greater weight of the evidence, paragraphs 41 and 42, of the final order. Go Back to the Top
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