The Issue Whether Petitioner satisfies the statutory definition of "autism," pursuant to Section 323.063(2), Florida Statutes, so as to qualify for developmental services administered by Respondent, Department of Children and Family Services a/k/a Department of Children and Families, f/k/a Department of Health and Rehabilitative Services (Department).
Findings Of Fact The statutory definition at issue is found in Section 393.063(2), Florida Statutes, which provides: "Autism" means a pervasive, neurologically based developmental disability of extended duration which causes severe learning, communication, and behavior disorders with age of onset during infancy or childhood. Individuals with autism exhibit impairment in reciprocal social interaction, impairment in verbal and non verbal communication and imaginative ability, and a markedly restricted repertoire of activities and interests. (Emphasis supplied) In addition to the statutory definition of "autism" for Developmental Services eligibility, which is set out above, there are several other definitions of the words "autistic," "autism," and/or "autistic disorder," including one used in the rules of the Florida Administrative Code applicable to educational assessments for individual educational plans (IEPs); one used in the Diagnostic and Statistical Manual, Edition III (Revised); one used in the Diagnostic and Statistical Manual, Edition IV; another definition as used by the Autism Society of America; and yet another definition as used by the "International Classification of Diseases." Petitioner is a resident of Gainesville, Alachua County, Florida, and is 26 years old. Petitioner graduated high school with a regular diploma in June 1989. On December 23, 1996, Petitioner was involuntarily committed to the Department under Chapter 394, Florida Statutes, and placed at Northeast Florida State Hospital (NEFSH). She was discharged from NEFSH on September 4, 1997, and is currently residing and receiving services at EX-ARTS in Gainesville, Florida, a Level I Extended Adult Residential Treatment Facility operated by Meridian Behavioral Healthcare, Inc., under contract with the Department. Petitioner has received no services from the State of Florida for any developmental disability, but is presently receiving mental health services from the State of Florida. There is no dispute that Petitioner needs some undefined daily living skills guidance. The issue herein, however, is whether or not the Department is obligated to provide them under the statutory provisions which target autism. On August 23, 1996, when Petitioner was 24 years old, Dr. G. Randall Williams, a psychiatrist, diagnosed Petitioner as follows: Although Ms. Damron has had several diagnosis [sic] in the past including Severe Learning Disability, Attention Deficit Disorder, Seizure Disorder, and Schizophrenia, it is my opinion that Ms. Damron satisfies the criteria for Autistic Disorder as follows. [sic] According to the DSM-IV an individual must have a qualitative impairment in social interaction that is manifested by the failure to develop pier relationship [sic] appropriate to development [sic] level and a lack of social and emotional reciprocity. Further, the manual requires qualitative impairments in communication in that with adequate speech capacity there is a marked impairment in the ability to initiate and sustain a conversation with others. Further, I have noted by [sic] obsessive preoccupation with one or more stereo-typed [sic] and restricted patters of interest of abnormal intensity as well as an apparently inflexible adherence to specific non-functional routines or rituals. Unfortunately, due to my having no prior access to this patient whom [sic] is now age 24, the requirement for onset prior to age 3 can only be derived from a review from [sic] her developmental history. This is portrayed by her mother as being characterized as her being a "difficult child" with few friends, developmental delay, including marked difficulty in achieving a fine motor skills [sic] various learning delays included [sic] dyslexia, dysgraphia, dyscalculia, and attention deficit disorder diagnosed at age 14. The above diagnosis [sic] are supported by complaints by the parental caregivers as well as my personal interactions. The differential diagnosis includes severe pervasive learning disability as well as schizophrenia. I do [sic] however feel that based on the DSM-IV criteria, she does indeed satisfy the criteria for Autistic Disorder. (emphasis supplied) Dr. Ralph C. Maurer, also a licensed psychiatrist, conducted a joint report with Dr. Vardi at the University of Florida on September 25, 1996. Their joint 1996 report, issued when Petitioner was 24 years old, and to which Dr. Maurer issued a later addendum, diagnosed Petitioner with "pervasive developmental disorder, not otherwise specified." (PDD-NOS) (Emphasis supplied) Despite Dr. Williams's and Dr. Maurer's respective diagnoses of "autistic disorder" and "PDD-NOS," and despite the fact that the statute does not define or cover PDD-NOS, the Department stated in its November 8, 1998, letter denying Developmental Services, that its decision was: based upon the requirement in the Florida Statutes that a specific diagnosis of autism or pervasive developmental disorder be made by a competent psychiatrist or licensed psychologist and that this condition manifests itself in infancy or early childhood. Despite the parties' preoccupation with the appropriateness, vel non, of the Department's denial of benefits in November 1996, this proceeding is not designed as an "appeal" or "review" of agency action, but constitutes a de novo proceeding. Petitioner asserted herein that because her lengthy medical and educational history demonstrated some symptoms of autism before age 24 and a diagnosis of autism after age 24, the Department was remiss in denying benefits. The Department's position was that all of Petitioner's symptomatology, taken as a whole, and her late diagnosis of "autism" do not meet the statutory definition of "autism" or the Department's internal eligibility guidelines. At formal hearing, Petitioner presented a number of evaluations, including the two foregoing psychiatric evaluations. The culled portions of the other reports that Petitioner principally relies upon may be summarized as follows: In January 1977, when Petitioner was 5 1/2 years old, she was evaluated by the University of Florida Health Center. This evaluation showed that on the Denver Developmental Screening Test Petitioner was at a 3 1/2 years old equivalence in the domain on "personal-social." In 1977, when Petitioner was 6 years old, Petitioner was diagnosed by the University of Florida Hospital and found to have a provisional diagnosis of "Socially Developmentally Delayed" and was found to have "Auditory Processing Problems." In January 1977, an educational evaluation recommended that Petitioner repeat kindergarten, and that she "should be encouraged to pursue fine and gross motor activities . . ." In 1978, when Petitioner was seven years old and in the second grade, the Alachua County School District identified her as an "emotionally handicapped" (EH) child and she was placed in a special education program. On December 1, 1978, the Alachua County School District wrote an "Individual Education Plan," (IEP) stating Petitioner ". . . shows non-attention, irrelevant activities, and low academic achievement . . ." In 1978, Petitioner's WISC-R intelligence test conducted by Alachua County School Board reflected a 23 point discrepancy between verbal and non verbal scores. Petitioner had a verbal IQ of 103, a performance IQ of 80, and a full scale IQ of 91. Based on her IEP, Petitioner was removed from the regular classroom and "placed in a resource program at Archer Community School" in the Alachua County School District. In 1978, an Alachua County School District psychological evaluation found that "Susanne spent most of her time engaged in non-productive off-task behavior" and "projective testing revealed a child who has not developed many of the social skills needed to effectively relate to both children and adults in non-academic situations." It concluded, "in terms of Special Assistance, Susanne's behavior is disrupting her performance in the classroom & thus an emotional handicap is present." In the summer of 1979, at about age 8-9, "Susanne was evaluated . . . by an occupational therapist and found to have sensory integration dysfunction." She was found to have "deficits in processing vestibular stimulations, bilateral integration, and visual perception with associated motor problems." By second grade, the school educators recommended retention because she was reading at a late first grade level. In July 1980, Petitioner's exceptional education placement was change from an EH program to a "Specific Learning Disabilities" (SLD) program. In 1980, Petitioner's teachers said the following about her: "significant problems were noted as ability to concentrate on tasks and completing work on time." In 1980, in a private school, Petitioner "received swimming lessons by an Adapted Physical Education teacher and has received occupational therapy at the University of Florida . . ." In 1980, "fine and gross motor skills were rated as problems" for Petitioner and her teachers noted that "Susanne's eyes often . . . show a blank stare." The 1980 Alachua County School Board Report referred to Petitioner's social behavior as a "moderate problem, in spite of the fact that she was described as a highly motivated student." In 1980, the school psychological evaluation indicated that Petitioner had severe "visual processing deficits." Also in 1980, Petitioner's teachers believed they were "helping" Petitioner by putting Petitioner in a "refrigerator box to block out visual distractions . . ." In 1981, a psychological report stated that "it was felt that Susanne was now showing signs of an emotional disability." In 1982, when Petitioner was in the sixth grade, a school psychological evaluation stated that "'memory for letters' and 'disarranged pictures' were the tests and the visual cluster that were below the significant age score, and 'memory for words' were below the score in the auditory cluster." . . . "the teacher indicates that self-motivation and independent work habits were areas that caused the most concern in the classroom. Susanne's mother rated her as having 'significant' problems in the areas of ego strength, academics, and attention on the Burks' Behavior Rating Scale. As a teenager, Petitioner was tested continuously for learning disabilities because her academic performance continued to be significantly below average. At the age of 16, Petitioner was tested at the Mailman Center for Child Development. At this time, Petitioner's performance IQ was 70. She "displayed above average in verbal abstractions, but her particular weakness to hold and retrieve short-term verbal information [sic]." The Mailman evaluation also observed the Petitioner attempting to mimic a "sophisticated mode of communication, and that she severely lacks social development skills for her age." It concluded that Petitioner's arithmetic calculations and problem solving were categorized in the "severe deficit" category. Furthermore, the Mailman evaluations stated that beyond the specific learning disabilities, Petitioner showed definite signs of an "emotional disability." In November of 1990, Hartman & Associates conducted a learning evaluation. This report stated that Susanne has to be aware that it is not she who has failed the system but the system that has failed to give her the academic skills that she needs to even have basic literacy levels," and it concluded that Petitioner has a severe learning disability. In none of the foregoing reports, rendered by a variety of experts before Petitioner turned 18 years old, was Petitioner ever diagnosed as "autistic," by any definition of that word. In fact, no evaluator from any professional discipline mentioned autism as a possible diagnosis until after the Petitioner had manifested a mental illness and attained at age 24. Schizophrenia characteristics can develop in adolescence, early adulthood, or later life. Petitioner apparently manifested schizophrenia-like symptoms after high school graduation at age 18 and before age 21. Dr. Ralph C. Maurer, M.D., testified at formal hearing. He is an Associate Professor at the University of Florida (UF). He also is Director of the Center for Autism at UF and is on the Board of Directors of the Advocacy Center for Persons with Disabilities. Dr. Maurer is board-certified in the field of psychiatry and is qualified by education, training, and experience to render an expert opinion in autism and schizophrenia. However, Dr. Maurer clearly stated that he does not consider himself an expert in "schizophrenia," and his evidence has been weighed accordingly. Dr. Alan J. Waldman, M.D., testified by deposition. He is a Diplomat of the American Board of Psychiatry and Neurology (i.e. Board Certified) and is qualified by education, training, and experience to render an expert opinion in neuropsychiatry, psychiatry, and schizophrenia. However, Dr. Waldman does not consider himself an expert on "autism," and his evidence has been weighed accordingly. Dr. Marci Z. Whittenberger, Ph.D., testified at formal hearing. She is a Florida licensed psychologist with additional training and experience in Developmental Services. She is currently employed as a senior psychologist for the Department of Children and Families. Dr. Whittenberger is qualified by education, training, and experience to render expert opinions in developmental disabilities and autism and is the most articulate and persuasive of the experts. She conducted a review of all evaluations and other reports submitted to the Department by the Petitioner. Dr. Williams, (see Finding of Fact 8), did not testify at formal hearing. Experts Waldman and Whittenberger testified that a neurological examination cannot differentiate between autism and schizophrenia. Drs. Waldman and Maurer concurred that autism is not an illness that correlates with specific neuropsychological findings. There is no "litmus test" for autism, by any definition. However, there are specific recognized diagnostic interview and rating skills that aid and assist in the diagnosis of autism. One methodology of diagnosis which is generally accepted by psychiatrists and psychologists is contained in the current edition of the Diagnostic and Statistical Manual (DSM). The current edition at the date of formal hearing was the DSM-IV. The DSM-IV and its predecessor edition, the DSM-IIIR, are texts which define, characterize, and rank various diseases, conditions, traumas, and injuries. Diagnosis is arrived at by rating specific-named criteria for each defined disease, condition, trauma, or injury. Dr. Waldman and Dr. Whittenberger accepted the DSM-IV as authoritative for the diagnosis of "autism." Dr. Maurer did not accept either the DSM-IIIR or the DSM-IV as definitive for purposes of diagnosing "autism." The Department spokesman, Michael Hemingway, articulated Departmental statewide policy as being that in order to qualify for Developmental Services, an applicant must provide a clear diagnosis by either a "psychiatrist, a Florida licensed psychologist, or a psychologist employed by the Department who is qualified by training and experience to make the diagnosis of 'autism'" as defined by Section 393.063(2), Florida Statutes. According to Mr. Hemingway, although Department personnel often expect to see a diagnosis which would include the numbering system and rating criteria of the current DSM, for the Department's purpose, the DSM is "almost incidental." (TR Vol. I pp. 212-213) The Department is not concerned with the steps one of the named professionals takes to come to a diagnosis, but is concerned that one of the named professionals follows the standards of practice for his/her discipline. Further, although the DSM may include a condition of PDD-NOS, the Department does not engraft that portion of the DSM upon the statutory definition, which statutory definition does not name PDD-NOS. This policy has not been promulgated as a rule of the Department, but this policy does not alter the statutory definition of "autism" in any way or require that a diagnosis be rendered in terms of the DSM (any edition). It merely requires that the diagnosis be rendered by one of the named professionals in terms of that professions standards of practice. Despite three exhibits showing how Agency policy has evolved and changed over time, I find that the Department has "proven up" only the incipient policy as found in the immediately preceding Finding of Fact; that the policy has existed since the current statutory definition of "autism" was added to Chapter 393 in the late 1980's; and that the policy does not impact this case in any way because the only "diagnoses" Petitioner relies upon were rendered by psychiatrists, while the Department relies on a diagnosis by a Florida licensed psychologist, each of which are one of the professional groups named in the policy as able to render diagnoses. Neither party suggested that a diagnosis by same other professional would be sufficient. Dr. Maurer, Dr. Whittenberger, and Mr. Hemingway all testified that the definition of "autism" in Section 393.063(2), Florida Statutes, was taken from the DSM-IIIR diagnostic criteria for "autistic disorder." Dr. Maurer's current career thrust is directed to his work with the UF Center for Autism. He became involved with, and evaluated, Petitioner only after Petitioner's mother repeatedly contacted the UF Center for Autism, insisting that Petitioner was autistic and requesting help to obtain services from the Department. Dr. Maurer is also on the Board of Directors of the Advocacy Center for Persons with Disabilities. The Petitioner was already 24 years of age when she was first evaluated by Dr. Maurer. Pursuant to Dr. Maurer's expert testimony at formal hearing, Petitioner suffers from more than one problem. Petitioner demonstrates learning disabilities; schizophrenia-like symptoms or psychotic behavior which could arise from schizophrenia or from temporal lobe epilepsy; seizure disorder; and post traumatic stress or anxiety. Dr. Maurer originally diagnosed Petitioner as PDD-NOS. (See Finding of Fact 9) because Petitioner did not fit the DSM- IIIR criteria for "autistic disorder." The DSM-IIIR definition of "autistic disorder" matches the criteria of the controlling statute. Dr. Maurer testified that the DSM-IIIR diagnostic criteria for PDD-NOS covered people who have some of the deficits, but who also do not meet some of the criteria, for "autistic disorder," which is a separate category. Dr. Maurer testified that Petitioner also does not fit the DSM-IV criteria for "autistic disorder," which definition does not match the statutory definition. Dr. Maurer testified that Petitioner did not have "typical autism." Dr. Maurer ultimately opined that the statutory definition of autism should be broad enough to include Petitioner as a high-functioning autistic person, whom the mental health system does not support properly because of her underlying disabilities, saying: She has disabilities of a severe nature which the mental health system does not know how to serve. . . . She does not have typical autism. . . . It fits within the statute. (TR Vol. I p. 153) . . . I'm not maintaining that Susanne is autistic. I'm maintain[ing] that that definition of autism in 393 is sufficiently broad to include her. (TR Vol. I p. 163) Dr. Maurer reviewed the 1977 Communicative Disorder Consultation Report (age 5); an occupational evaluation dated 1/26/77 (age 5); the School Board of Alachua County Psychological Report dated 11/08/78 (age 6); the School Board of Alachua County Psychological Report dated 11/02/80 (age 8); the School Board of Alachua County Psychological Report dated 10/28/82 (age 10); a Report by William Beatty dated 2/9/88 (age 18) and the Mailman Center Reports from 1981 (age 9) and 1987 (age 15). From his testimony, it is clear that Dr. Maurer culled certain terms and phrases from these reports to emphasize, but that he had no clear idea of how terms in some reports are defined or used by the educational teams or evaluators who prepared their reports pursuant to Chapter 231, Florida Statutes, and Chapter 6A-6, Florida Administrative Code, applicable to IEPs. Also, in forming his opinion that Petitioner meets the statutory definition of "autism," Dr. Maurer testified that he primarily relied on Dr. Kytja Voeller's report of neurological and other tests of Petitioner's abilities in 1992 when Petitioner was already 21 years old. Dr. Voeller had not diagnosed Petitioner as "autistic." By all accounts, Petitioner's level of functioning significantly deteriorated after she graduated high school in 1989 and before she was evaluated by Dr. Voeller in 1989 through January 1993 and further deteriorated before she was seen by Dr. Maurer in 1996. Experts Maurer, Walden and Whittenberger all testified that a serious psychotic disorder such as schizophrenia can cause a deterioration in the person's ability to learn, verbal and non- verbal communication, behavior, and reciprocal social interaction and imaginative ability. Individuals with serious psychotic disorders also may show a restrictive repertoire of activities in interest. At the time she was evaluated by Drs. Voeller and Maurer, Petitioner was taking haldol, a psychotropic medication used to treat schizophrenia, and cogentin. Dr. Voeller's reports included no malingering tests to evaluate whether the Petitioner was presenting herself in a worse light so as to obtain services. In their evaluations of the Petitioner, neither Dr. Voeller nor Dr. Maurer used any of the generally accepted specific diagnostic interview and rating scales that aid and assist in the diagnosis of autism, although Dr. Voeller used generally accepted standardized tests to reach her conclusions of mixed learning disabilities and emotional problems. Dr. Maurer's conclusion that there was an impairment in Petitioner's verbal and non verbal communication in infancy and early childhood was based on his inference that the 1992 disabilities reflected in Dr. Voeller's report went back into Petitioner's early childhood because in his opinion there was, "the lack of evidence for any medical illness or injury that could have caused those problems" and a "small amount of positive evidence here and that's not conclusive." However, Dr. Maurer also conceded that someone with Petitioner's present disabilities in 1996 could not have graduated high school with a regular diploma, and he could not describe any severe behaviors or communication problems of the Petitioner that were present during her infancy or early childhood. Dr. Maurer conceded that what is a learning disability, schizophrenia, or autism cannot be sorted out with regard to Petitioner at this late stage. Although Dr. Maurer is clearly highly qualified to treat autism and related syndromes, his candor and demeanor while testifying, also clearly demonstrated that he was not comfortable as a witness in this proceeding and that he was reluctant to define Petitioner as "autistic," without reference to studies predating and differing in part from the statutory definition. His ultimate opinion was not specifically rendered within reasonable medical probability or certainty. Psychologists are extensively trained and required to look for and mention in psychological evaluation reports all behaviors that are outside the normal range. Dr. Whittenberger testified that in her eligibility review she read every report submitted by the Petitioner and wrote down every behavior mentioned that would indicate or contra-indicate a diagnosis of autism. As a licensed clinical psychologist capable of an independent diagnosis, Dr. Whittenberger's practice is to approve eligibility for Developmental Services if sufficient symptoms of autism are reported in childhood evaluations and other information submitted by the applicant, even if the "autism" label was not previously assigned to that behavior manifestation. Dr. Whittenberger uses the current DSM for all her evaluations because she considers it to be professionally mandated by her discipline. In evaluating the Petitioner, she used the DSM-IV, even though its definition of "autistic disorder" is not identical to the statutory definition. Dr. Whittenberger also examined the submitted reports for descriptions by primary caretakers and others of behaviors in the child's history that indicated impairments in reciprocal social interaction, verbal and non verbal communication and imaginative ability, and a restricted repertoire of activities and interests, elements of autism specifically named in the statute. Petitioner's submittal provided much more information than is typical for most applicants for autism services. Standard professional practice is that if some behavior or lack thereof is mentioned by the caretaker, it is recorded and investigated by the evaluator so as to confirm or rule out its presence. Likewise, if this behavior or lack thereof is observed by the evaluator, then the evaluator records it and either confirms or rules it out. If no severe behavior disorders were noted at all, it may be reasonably assumed by a reviewing professional that none were reported or observed in any of the foregoing evaluations. Dr. Whittenberger opined that the behavior deficits observed in autistic individuals are not subtle, but are significant and severe. If present, these deficits would typically be mentioned in psychological reports. Examples of behaviors typically reported about autistic children are: Obsess or focus on one part of a toy, such as repeatedly spinning a toy truck's wheel instead of playing normally with the toy or all toys; sitting with a tricycle and spinning the wheels or staring at the seat handle. This child won't come out of the corner. This child won't leave the piece of string he has saved for the last two years and we can't get it away from him without horrible tantrums. Can't get him out from under the bed. He won't pay attention to anything except red objects. She just sits on the couch and rocks. She has a friend but they don't talk and they do their separate things, or she doesn't have any friends. Failure to make friends, failure to fit in, failure to get along. She won't talk to us. He's not talking yet. They don't play right or the same as my other children did. [sic] They never play with dolls, or dress up, or they just focus one part of one toy and it might not even be appropriate for that toy. A sentence structure was usual. [sic] Word order is mixed up, such as "no, please cookie I want." They use pronouns incorrectly. She said the same thing over and over. I asked her one question and she stuck to it for three or four times. They might talk in a monotone, or have inflections that are inappropriate or inaccurate for the content of the speech. It was difficult to get her to focus. It was difficult to get her to look at us. She doesn't seem to relate to us. We're not bonding. Dr. Whittenberger found no such similar severe behavior disorders prior to age 18 reported by the Petitioner's mother, teachers, or evaluators in any of the evaluation reports. She concluded, on the basis of her professional education, training, and experience (see Findings of Fact 19 and 53) that this absence of anecdotal material denoting any severe behavior disorders meant that none were present. Dr. Whittenberger stated that the critical elements required for a diagnosis of autism are missing from the evaluation reports. Although the reports discuss learning problems consistent with a severe learning disability, the Petitioner had no significant communication problems, no significant behavior problem and no indication of a severe lack in social reciprocity until, as an adult, she was diagnosed with a mental illness, schizophrenia. According to Dr. Whittenberger, because Petitioner began suffering psychotic symptoms/schizophrenia as a young adult, the evaluations conducted after age 19 cannot be counted upon to provide reliable information about her childhood behaviors. This is due to the severe impairment in functioning caused by the mental illness itself. Even so, the evaluations and reports submitted by the Petitioner indicate that from age five until the onset of a mental illness, at about age 20 in 1992, she was normal in many ways, including behavior, but that she had severe processing and specifically catalogued learning problems. The critical factors required for a diagnosis of autism are not present in the observations reported consistently over the Petitioner's childhood years by her mother, teachers and evaluators. The critical factors required for a diagnosis of autism were not present in the observations recorded consistently over Petitioner's childhood. Dr. Whittenberger sited numerous references in the psychological and other reports done prior to age 19 which showed a pattern of normal behaviors and social skills which are inconsistent with autism. She relied primarily on these observations recorded by those early evaluations: At age 5 years 7 months, (1/26/77) the Petitioner's verbal ability was slightly above age level and her hearing was normal. She played with a shelf full of toys and was cooperative. The mother reported that she played with a variety of toys. She had no behavior problems during the testing and her IQ indicated that she was able to learn. At age 7 years 3 months (11/8/78) the referral question for the evaluation was related to academic performance and made no reference to impairments in social interaction. Petitioner was cooperative and demonstrated good conversation skills. Petitioner's verbal ability was higher than her non verbal/performance ability, and she met the criteria for "learning disability" in the school system. In an occupational therapy evaluation on 6/20/80, the Petitioner was extremely cooperative and displayed no attention problems or tactual/tactical densiveness during the testing. At age 9 (7/2/80) the referring question has nothing to do with social or behavior problems. At this time, the Petitioner was described as highly motivated, very social, very popular, and learned many things on her own at home. Her mother reported that she made a great deal of progress at the school and that the Petitioner has a friend. During the testing, the Petitioner was cooperative, initiated conversation and rapport was established easily. Her verbal IQ was normal (103) although her performance IQ was 77, indicating specific learning disabilities. On December 10, 1981, Petitioner's full scale IQ was still within the normal range. Petitioner's mother reported to the evaluator that Petitioner's interests were gymnastics, swimming, gym, music, her dog, tortoise, reading, basketball and tv. On October 28, 1982, Petitioner was referred for evaluation to determine appropriate classroom placement with no reference to unusual behaviors. Petitioner was still having problems in the classroom related to her learning disabilities, although her IQ was in the normal range with no significant difference between verbal IQ and performance IQ. She was cooperative and related well to the examiner indicating that the Petitioner did not have impairment and social reciprocity. In 1987, the Petitioner was referred to the Mailman's Center for Evaluation of Learning Disabilities. Petitioner was described as cooperative, friendly, interacting comfortably and with good verbal abilities. Petitioner asked astute questions, was above average on her judgment of social situations, was on task and not distractible. At age 18 years, 6 months, Petitioner demonstrated normal speech syntax and word order and conversed about the trip to Chicago that she had won. Evaluations of the Petitioner after age 19 report behaviors associated with mental illness and may be skewed by her use of psycho-therapeutic drugs. The various evaluators consistently diagnosed the Petitioner as having learning disabilities, including problems with visual spatial, visual motor, reading disability and developmental dyslexia, disgraphia, and disculcula. Dr. Whittenberger testified that the specific learning disabilities noted, and primarily relied on by Petitioner herein as evidence of autism (See Finding of Fact 13) are different from autism in that individuals with severe learning disabilities are normal in other areas such as communication, and social reciprocity and behavior, in contrast to an autistic individual's severe impairment in those areas. Verbal memory loss, frontal lobe executive skill dysfunction, impairment in reciprocal social interaction, impairment in verbal and non verbal communication, and a restricted repertoire of activities and interests are all symptoms of schizophrenia, but the age of onset is usually beyond the developmental years. Memory dysfunction is not a symptom that discriminates between autism and schizophrenia. According to Dr. Waldman, Petitioner's behavior and social functioning as reported in 1990 and as reported by Dr. Voeller in 1992-1993 indicate a significant change consistent, not with a developmental disorder, but with a psychotic episode occurring prior to Dr. Voeller's evaluation. Petitioner met the school system's definition of "learning disability" because of her significant discrepancy between verbal and performance IQ scores, pursuant to Chapter 231, Florida Statutes, and Chapter 6A-6, Florida Administrative Code, or similar educational rules then in effect. Although the school system at one time classified the Petitioner as "emotionally handicapped" under its statute and rules, the reported behaviors of lack of concentration, lack of sustained attention, and lack of completion of task, are not the type of severe behaviors that are usually indicative of autism. Elizabeth Chainy, an occupational therapist presently working with the Petitioner, testified about her observations of Petitioner in February and March 1998, but she had no personal knowledge of the Petitioner in infancy or childhood. Janice Phillips is an independent support coordinator for Developmental Services clients of the Department. According to Ms. Phillips, Petitioner has been able to articulate her goals for the future and has expressed to Ms. Phillips that she likes to ride bikes, swim, ride horses, play the piano, and go to the library. All of Ms. Phillips' clients who receive Developmental Services under the "autism" category have a diagnosis of autism. The Department does not provide autism services to individuals with a diagnosis of "PDD-NOS." Mr. Hemingway knows of no individuals receiving Developmental Services for autism who do not have a clear diagnosis of autism.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services issue a Final Order finding that Petitioner does not meet the statutory criteria for "autism" and is not eligible for Developmental Services under that category, pursuant to Chapter 393, Florida Statutes. DONE AND ENTERED this 9th day of July, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1998. COPIES FURNISHED: Paolo Annino, Esquire Melissa Thorn, Certified Legal Intern Florida State University College of Law Children's Advocacy Center Post Office Box 10287 Tallahassee, Florida 32302 Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16th Avenue Box 3 Gainesville, Florida 32601 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner has a developmental disability that makes him eligible to receive services from the Department of Children and Family Services pursuant to Section 393.061, Florida Statutes, et seq.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner was born in July 1993. At the time of the application for services at issue in this proceeding and at time of the hearing, Petitioner was eight years old. Petitioner's development from birth to age two was generally normal. He was walking by nine months and spoke his first words at a normal age. However, at age two Petitioner could only speak approximately 10 words and around that time he stopped speaking altogether. Petitioner communicated his wants and needs through whining and grunting. He became extremely frustrated when he was not understood. Ms. Watson became concerned about Petitioner's lack of speech, and she took Petitioner to his pediatrician. She was told that nothing was wrong with Petitioner. Around Petitioner's third birthday, Ms. Watson was told by a friend who was a nurse that Petitioner appeared to be autistic. Autistic disorder, or autism, is a type of a pervasive development disorder (PDD). As explained in the DSM-IV, "[t]he essential features of Autistic Disorder are the presence of markedly abnormal or impaired development in social interaction and communication and a markedly restricted repertoire of activity and interests." (emphasis supplied). As used in this context, "markedly" means intense and interfering to a degree that it cannot be overcome. There are other PDDs, such as Asperger's Disorder and Rett's Disorder, and each PDD has its own characteristics. A PDD which does not meet the criteria for a specific disorder, either because all of the criteria are not present or because they do not occur at a "marked" level, is diagnosed as a PDD not otherwise specified (PDD-NOS). Based upon her nurse friend's comment and her own review of literature describing autism, Ms. Watson took Petitioner to Dr. Frank Lopez, a psychiatrist, for evaluation. Dr. Lopez diagnosed Petitioner with autism and informed Ms. Watson that Petitioner would likely end up in an institution because of the disorder. Dr. Lopez did not testify at the hearing nor was his report proffered. Thus, it is unknown what type of tests, if any, were administered to Petitioner by Dr. Lopez in reaching that diagnosis; and, the factors upon which Dr. Lopez based his diagnosis are also unknown. Accordingly, no weight can be given to Dr. Lopez's diagnosis. Ms. Watson was not satisfied with Dr. Lopez's prognosis so she asked Petitioner's pediatrician to order neurological tests of Petitioner. Ms. Watson then took Petitioner to Dr. Michael Pollack, a pediatric psychiatrist and neurologist, for evaluation of the test results. Dr. Pollack saw Petitioner in November 1996. Petitioner was three years old at the time. Dr. Pollack did not testify at the hearing. However, his report was received into evidence. The report includes Dr. Pollack's "impression that [Petitioner] does have autistic spectrum disorder and that he satisfies the criteria for diagnosis pervasive developmental disorder." That "impression" was based upon a history provided by Ms. Watson (which is consistent with her testimony at the hearing), a physical examination (with nothing abnormal noted), an examination of the neurological tests (with nothing abnormal noted), and an observation of Petitioner. No IQ test was performed. Around the same time, Petitioner applied for and was determined eligible to receive social services. Specifically, Petitioner was accepted into the developmentally delayed preschool program in the Orange County public school system, and he also began to receive Social Security disability income (SSDI) from the federal government. The record does not reflect the eligibility criteria for those programs. Accordingly, the fact that Petitioner was determined to be eligible for those programs is not determinative of his eligibility for developmental services under Chapter 393, Florida Statutes. As part of the review process for SSDI, Petitioner was referred to Dr. Cydney Yerushalmi for evaluation in March 1997. Petitioner was three and one half years old at the time. Dr. Yerushalmi did not diagnose Petitioner as autistic. Instead, Dr. Yerushalmi provisionally diagnosed Petitioner with PDD-NOS along with a possible mixed receptive- expressive language disorder. Dr. Yerushalmi's diagnosis was based upon the history provided to her by Ms. Watson as well as her observations and evaluation of Petitioner, which included the administration of the Wechsler Preschool and Primary Scale of Intelligence-Revised test. Dr. Yerushalmi's report details her observations and evaluation of Petitioner as follows: [Petitioner] vocalized often, and was understandable by this examiner on approximately sixty percent of all occasions. During the session he verbally [requested] food, drinks and preferred toys. During the session, he often referred to this examiner as "honey," a name he often uses with others whose name he does not know. [Petitioner] does not respond to verbal cues consistently, and it is not clear whether this is a problem with receptive language or a "behavior." He very infrequently comes on command and rarely looks at others when directly requested to do so. Usually he ignores others who make requests of him. * * * Initially, [Petitioner] was not cooperative with the formal portion of the evaluation. When requests were made of him, he screamed and refused to participate. Finally, with behavioral procedures which included modeling and access to preferred activity after each response, whether correct or not, some cooperation was obtained. [Petitioner's] behavior interfered with this testing and the results were affected by his noncompliance. Some subtests were not administered; [Petitioner's] behavior was worse when tasks were difficult. Despite these problems, the results are considered to give an accurate picture of [Petitioner's] level of functioning on the behaviors sampled. Dr. Yerushalmi's diagnosis of PDD-NOS means that Petitioner did not meet all of the criteria of any particular PDD, such as autism. In this regard, a diagnosis of PDD-NOS and autism are mutually exclusive. Based upon Dr. Yerushalmi's diagnosis of PDD-NOS, Petitioner was also accepted into the Department's developmental disability program in the "high risk" category. That category is available only to children between the ages of three and five. Once a child reaches the age of five, he or she must be diagnosed with one of the disabilities specified in Section 393.063(12), Florida Statutes -- e.g., autism -- in order to continue to participate in the developmental disability program. The services provided to Petitioner by the developmental disability program were occupational (speech) therapy and behavior modification. After Petitioner turned five and became ineligible to receive developmental disability services in the "high risk" category, he reapplied to the program. The Department again referred Petitioner to Dr. Yerushalmi for evaluation. Dr. Yerushalmi evaluated Petitioner in September 2000. Dr. Yerushalmi saw significant improvement in Petitioner from her evaluation of him in 1997. She attributed this improvement to the early intervention and the dedication of Ms. Watson to Petitioner's therapies. At the evaluation, Petitioner listened to the conversation between Ms. Watson and Dr. Yerushalmi and, at times, interjected appropriate and relevant comments. During her evaluation of Petitioner, Dr. Yerushalmi was able to redirect Petitioner to the task at-hand. She was also able to administer the Wechsler Intelligence Scale for Children - Third Edition (WISC-III) to determine Petitioner's cognitive IQ level. Petitioner's scores on the WISC-III had some scatter, but not as much as would be expected of a child with autism. Indeed, the test showed his verbal skills to be higher than his performance skills. Dr. Yerushalmi did not observe the "marked" behavior and language idiosyncrasies which are typical to autistic children. In this regard, her report concluded: The criteria for Autistic Disorder require "marked" disturbance in social and language areas. [Petitioner] does show some disturbance in these areas according to his mother, but these are not felt to be "marked." He can carry on a conversation. He is alert and aware of his environment to the extent that he notices things in the environment and listens to and participates in conversations. He is functioning in the average range and his verbal scores are significantly higher than his performance scores. He has some communication difficulty, as indicated by his low score on the comprehension subtest of the WISC-III, but it is not "marked." [Petitioner] does not meet the criteria to be classified as "autistic" and does not meet other criteria for inclusion in Developmental Disabilities programs. Based upon her evaluation, Dr. Yerushalmi diagnosed Petitioner with attention deficit/hyperactivity disorder not otherwise specified and obsessive-compulsive traits. Again, she did not diagnose Petitioner with autism. At the time of her evaluation, Dr. Yerushalmi was aware of a diagnosis of autism rendered by Dr. George Shultz in June 2000. Dr. Shultz did not testify at the hearing, but his report was introduced at the hearing by the Department. Dr. Shultz was unable to administer the WISC-III due to Petitioner's "impulsiveness, inability to focus, as well as impairments in [his] social skills." At the hearing, Dr. Yerushalmi opined that Dr. Shultz's inability to administer the WISC-III was the result of Petitioner's learned ability to use his bad behavior to avoid tasks that he does not want to do. This opinion is consistent with the observations in several of the school records introduced by Petitioner at the hearing. Specifically, the May 2002 behavioral assessment of Petitioner (Exhibit P23) concludes that "[i]t is felt that [Petitioner] displays these behaviors to avoid tasks he does not wish to do and to seek attention from teachers/peers." Similarly, the May 2000 occupational therapy report (Exhibit P21) detailed several occasions where Petitioner engaged in "task avoidance" and had "tantrums" when required to do things he did not want to do. Based the diagnosis and recommendation in Dr. Yerushalmi's September 2000 report, the Department denied Petitioner's application for developmental disability services. Petitioner apparently did not seek administrative review of that decision. In October 2001, Petitioner filed another application with the Department for developmental disability services. The Department again solicited Dr. Yerushalmi's recommendation. Dr. Yerushalmi did not reevaluate Petitioner, nor did she write a new report. Instead, she simply "stood by" her September 2000 report. Based upon the diagnosis and recommendation in that report, the Department again denied Petitioner's application for developmental services. This proceeding followed. In addition to the testing and evaluation referred to above, Petitioner has also been evaluated in connection with the exceptional education program at his school. The evaluations were conducted by the school's psychologists. The psychologists did not testify at the hearing, but their evaluation reports were received into evidence. None of the reports diagnose Petitioner as autistic. Indeed, the report dated September 3, 1996 (Exhibit P18), showed that Petitioner had a score of 25.5 on the Childhood Autistic Rating Scale, which is in the non-autistic range. The psychologist who conducted the evaluation noted that Petitioner made "focused eye-contact with this examiner" and concluded that "although [Petitioner] is extremely self-dedicated, and tends to perseverate on certain preferred tasks, he does not appear to meet the eligibility criteria for Autism a[s] outlined by the [DSM-IV] " Another report, dated May 11, 1999 (Exhibit P20), showed that Petitioner had scored in the 99.9th percentile in the "broad reading" area which measures both the ability to read and understand what is being read. A child with autism would not have such a high score because autistic children typically have difficulties in understanding what they are reading. Another report, dated March 24, 2000 (Exhibit P19), included Petitioner's scores on the Gilliam Autism Rating Scale (GARS). An evaluation of Petitioner by his teacher resulted in a score (or "autism quotient") of 98 on the GARS which indicated an "average probability" that Petitioner is autistic. However, an evaluation of Petitioner by Ms. Watson resulted in a score of only 57 on the GARS. Because of the significant variation between the scores, the report concluded that "a definitive diagnosis cannot be made at this time." Petitioner is in an autistic class at his school. His teacher, Amanda Scott, has witnessed numerous "autistic-like" behaviors in Petitioner, such as limited eye contact, limited social interaction with peers, and lack of compassion or awareness of others. Ms. Scott characterized Petitioner as a "text book example" of an autistic child. Ms. Scott is not a psychiatrist or psychologist. Her "diagnosis" of Petitioner is based only upon her observations of Petitioner over the past school year. Petitioner's continued participation in the exceptional education program at his school is not at issue in this proceeding and will be unaffected by the outcome of this proceeding. Petitioner also participates in regular or "main stream" classes at his school. He performs well academically in those classes but sometimes has to be removed because of his behavior problems. Petitioner has seen Dr. Stephen Commins periodically since July 1999 for his behavior problems. Dr. Commins is not a psychiatrist or psychologist; he is a medical doctor with the Division of Behavioral Pediatrics at Nemours Children's Clinic in Orlando. Dr. Commins did not testify at hearing, but the office notes from his evaluations of Petitioner were received into evidence along with a May 23, 2002, letter written by Dr. Commins. Dr. Commins did not diagnosis Petitioner with autism or any other disorder. The May 23, 2002, letter and the office notes simply reference diagnoses made by others and relayed to him by Ms. Watson. The letter states that Petitioner was diagnosed with autism in March 2000 based upon his GARS score, a fact which is not correct. See Finding of Fact 31. Accordingly, the undersigned has not given any weight to Dr. Commins' notes or letter. In addition to seeing Dr. Commins, Petitioner has been a "student" at the University of Central Florida Center for Autism and Related Disabilities since 1999. Petitioner introduced a letter at hearing from the director of the Center. The letter’s description of Petitioner's behavior problems and speech delays is consistent with the testimony of Ms. Watson, Ms. Scott, and Dr. Yerushalmi, as well as the other reports introduced at the hearing. However, the director concludes the letter with her opinion that "[Petitioner's] profile is consistent with the initial diagnosis of autistic disorder made by Dr. Yerushalmi." No weight is given to this opinion because it is based upon the premise that Dr. Yerushalmi diagnosed Petitioner with autism which, as noted above, she did not.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order that determines Petitioner ineligible for the developmental disability program and denies his application for services from the program. DONE AND ENTERED this 18th day of July, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2002.
The Issue Whether the Petitioner is eligible to enroll in the Developmental Disabilities Program administered by the Respondent.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes. The program developed by the Department is known as the Developmental Disabilities Program. Mr. Davis is a resident of Miami, Florida, and is 20 years of age. Mr. Davis submitted an application to the Department requesting that it enroll him in its Developmental Disabilities Program and provide him services as a developmentally disabled individual. The Department evaluated Mr. Davis's application and determined that he was not eligible to receive services through the Developmental Disabilities Program. In making this determination, the Department considered a Psychiatric Evaluation Summary dated August 18, 1998, that was prepared by J.O. Pagan, M.D. Dr. Pagan stated in the summary that Mr. Davis was "diagnosed early in his life as a child with Autistic characteristics," and he noted that, throughout his life, Mr. Davis has "had symptoms associated to hyperactivity, Tics, and perseverance behaviors." According to Dr. Pagan, Mr. Davis "diagnostically belongs in the Autistic Spectrum and more specifically to the Asperger's Syndrome." In evaluating Mr. Davis's eligibility for enrollment in the Developmental Disabilities Program, the Department also considered a Multi-Disciplinary Team Report prepared by the Division of Student Services of the Miami-Dade County public school system. Mr. Davis was a student in the Miami-Dade County public school system's Exceptional Student Education program, which provides appropriate education for students with disabilities. The Multi-Disciplinary Team Report was part of a required re-evaluation performed by school personnel in order to determine Mr. Davis's psycho-educational status. The report is based on a re-evaluation of Mr. Davis conducted on March 25 and April 1, 1998, when he was 17 years of age and an 11th grade student at Coral Reef Senior High School. It is noted in the report that Mr. Davis "has been diagnosed with Aspergers Autism and Bipolar Disorder" and that he was first evaluated by the Dade County Public Schools in May 1987, at which time he had medical diagnoses "including Attention Deficit Disorder, Pervasive Developmental Disorder and Affective Disorder Bipolar Type." The Wechsler Adult Intelligence Scale - Third Edition was administered to Mr. Davis during the 1998 re-evaluation. Mr. Davis obtained a Full Scale IQ of 100 on the Wechsler Adult Intelligence Scale, with a Verbal IQ of 110 and a Performance IQ of 89. The evaluator also noted in the Multi-Disciplinary Team Report that Mr. Davis "is capable of completing at least grade level academic work, yet his lack of attention and concentration often impede his progress. At present, his social skills remain underdeveloped." During his last two years in high school, Mr. Davis was classified as having the exceptionality of autism,2 and he was placed in a classroom for students with varying exceptionalities. The school system provided Mr. Davis with extensive and intensive services designed to assist him in making the transition from school to independent living and employment. The school system provided Mr. Davis with a one-on- one aide to work with him on his behavioral problems, and the school system's transition team worked with Mr. Davis to help him develop independent living skills. Mr. Davis has received training in computers and took courses at the Robert Morgan Vocation School in high-level computer programming. He graduated from Coral Reef Senior High School in June 1999. Although Mr. Davis was very successful in the program developed by the school system's transition team, he is now exhibiting some behavioral problems that he did not exhibit when he finished high school. He needs individualized support in order to live independently because his autistic tendencies are very strong, especially in the area of his behavior. Mr. Davis also needs services in the area of vocational training because his level of functioning is not yet high enough to permit him to seek employment. Mr. Davis has the potential to live independently and to be a productive member of society. He is, however, in need of community services in order to meet this potential. Mr. Davis applied to the state for vocational rehabilitation services but was denied these services because his IQ is too low.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the application of Jeffrey Davis for enrollment in the Developmental Disabilities Program. DONE AND ENTERED this 25th day of September, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2001.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes (2001). The program developed by the Department is known as the Developmental Disabilities Program. Mr. Fernandez is 31 years of age and a resident of Miami, Florida. Mr. Fernandez submitted an application to the Department requesting that it enroll him in its Developmental Disabilities Program and provide him services as a developmentally disabled individual under the categories of retardation and autism. The Department evaluated Mr. Fernandez's application and determined that he was not eligible to receive services through the Developmental Disabilities Program under either category. In making this determination, the Department considered a Psychological Evaluation Report dated June 26, 2001, that was prepared by Hilda M. Lopez, Ph.D., a licensed clinical psychologist to whom Mr. Fernandez was referred by the Department.2 To assess Mr. Fernandez's intellectual functioning and cognitive abilities, Dr. Lopez administered the Wechsler Adult Intelligence Scale-Third Edition ("WAIS"). According to her report, Mr. Fernandez attained a Verbal I.Q. score of 80 points, a Performance I.Q. score of 80 points, and a Full Scale I.Q. score of 78 points. These scores place Mr. Fernandez in the Borderline range of intellectual functioning. The Department considers persons who score 70 points or less on the WAIS to be mentally retarded. The mean score on the WAIS is 100 points, and the standard deviation is 15 points. To assess Mr. Fernandez's adaptive behavior, Dr. Lopez administered the Vineland Adaptive Behavior Scales ("Vineland"). Mr. Fernandez attained an Adaptive Behavior Composite score of 66, which indicates that his adaptive behavior is in the low range. His scores reveal deficits in the domains of Living Skills, Communication, and Socialization. Dr. Lopez also tested Mr. Fernandez for autism using the Childhood Autism Rating Scale. In the report, Dr. Lopez noted that Mr. Fernandez was rated by his father and by Dr. Lopez after observing, interacting, and interviewing Mr. Fernandez. Dr. Lopez reported that Mr. Fernandez's score was 26.5 points, which places him within the non-autistic range. Dr. Lopez observed in the report, however, that Mr. Fernandez "showed the following behavior problems: inappropriate emotional reactions, mildly abnormal fear and nervousness, resistance with [sic] changes in routine, mildly abnormal adaptation to change, and restlessness." A score of 30 points or more on the Childhood Autism Rating Scale is indicative of autism disorder. When Mr. Fernandez was a child of four or five years old, he was apparently diagnosed with autism, and he and his family took part in a behavior modification program in Boston, Massachusetts. As a result of the work done by Mr. Fernandez and his parents in this program, Mr. Fernandez learned to talk, although long after his peers, and improved his social skills. Based on her psychological evaluation of Mr. Fernandez, Dr. Lopez recommended the following: Mr. Fernandez will greatly benefit from a program geared at providing him with help to enhance his functional skills. Facilitation of social services to provide needed support and monitoring. Stimulation program oriented to develop his cognitive skills, to improve attention, memory, verbal communication and problem solving in order to achieve optimal capability. He will benefit from supported employment and referral to Vocational Rehabilitation Services for proper counseling and training. Mr. Fernandez was unable to produce any documents relating to his early diagnoses and treatment or his special education placements because these documents were destroyed in a fire that destroyed the Fernandez home. According to his father, Mr. Fernandez makes friends easily and communicates verbally very effectively. He worked for a while in a family business where his limitations were tolerated, and he flourished in this job. On the other hand, Mr. Fernandez is easily frustrated and confused, and he has difficulty following directions in simple matters. His father is seeking services on Mr. Fernandez's behalf that will teach him to live on his own and to become a productive citizen. The uncontroverted evidence presented by Mr. Fernandez establishes that he is in need of several of the services available through the Department's Developmental Disabilities Program. The evidence presented by Mr. Fernandez is not, however, sufficient to establish that he is eligible to participate in the Developmental Disabilities Program under the eligibility criteria established by the legislature for developmental disabilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the application of Mikael Fernandez for enrollment in the Developmental Disabilities Program. DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2002.
The Issue The issue in this case is whether the Petitioner, Robin Carter Millan, is eligible for the Developmental Services Program of the Department of Children and Family Services (DCFS).
Findings Of Fact The Petitioner, Robin Carter Millan, requested developmental services from the Department of Children and Family Services (DCFS) in September 1997, when she was 26 years old. The Petitioner's mother, Ann Millan, met with an intake counselor and completed a Referral/Intake Information Questionnaire. Consistent with a long-standing preference not to label her child as autistic, Mrs. Millan listed her daughter's primary disability as mental retardation. After the Petitioner submitted additional information, DCFS psychologist specialist-coordinator Jane Schiereck sent the Petitioner a letter dated March 6, 1998, notifying the Petitioner that DCFS had determined her ineligible for developmental services because the information submitted included IQ test scores exceeding the maximum for mental retardation. At the hearing, the Petitioner's mother presented evidence that the Petitioner actually has autism--a pervasive, neurologically-based developmental disability which causes severe learning, communication, and behavior disorders with age of onset during childhood. Schiereck testified that the evidence proved the Petitioner is eligible for developmental services under the category of autism. According to Schiereck, the Petitioner did not apply for services under the category of autism and that the Petitioner had to reapply under autism. The Petitioner agreed to do so. However, Schiereck also testified that the intake procedures and eligibility determination preceded the filing of an application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCFS enter a final order determining the Petitioner eligible for developmental services. DONE AND ENTERED this 14th day of May, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1999. COPIES FURNISHED: Amy V. Archibald, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Robin Carter Millan c/o Robert and Ann Millan 3963 Eagle Cove West Drive Palm Harbor, Florida 34685 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Is Petitioner eligible for Developmental Services from the Department of Children and Family Services?
Findings Of Fact Audrey Smith is the natural mother of Petitioner Chester (Charlie) Smith. She filed an application with Respondent Department of Children and Family Services Developmental Services Program on behalf of her son. The application was denied, and this case followed. Chester Smith did not appear for formal hearing. Audrey Smith represented that she had a power of attorney to act on her son's behalf and that she was his payee for federal SSI benefits, arising from Petitioner's disability and his father's death. Neither of these instruments was offered in evidence, but because she had applied to the agency on Chester's behalf and had requested formal hearing, Mrs. Smith was accepted as Petitioner's "next friend" and qualified representative. The Developmental Services Program, administered by Respondent, provides services to persons with specific developmental disabilities, including mental retardation, cerebral palsy, spina bifida, autism, and Prader-Willi Syndrome, pursuant to Chapter 393, Florida Statutes. Petitioner, born October 18, 1953, had originally been turned down for services as not meeting the statutory and rule requirements of "mental retardation." During the informal hearings following that denial and preceding referral of the disputed issues of fact to the Division of Administrative Hearings for formal hearing, Mrs. Smith asserted Petitioner's entitlement to services on the basis of "autism." She also asserted this entitlement in her request for formal hearing. In determining Petitioner's eligibility for services, agency staff psychologist Fe Ripka reviewed four psychological evaluations previously performed on Petitioner. Ms. Ripka did not testify, but her January 27, 1997, report was placed in evidence. She only reviewed evaluations done in May 1965, July 1966, February 1995, and April 1996. Ms. Ripka's degrees and titles show "M.A.," "LMHC," and "Psychologist." No specific education, training or experience on her part was related. Her report emphasized Petitioner's verbal IQ and full scale IQs as controlling of eligibility. She concluded, on the basis of her review, that Petitioner did not suffer from mental retardation. Her report made no determination on the basis of autism. Petitioner's mother related that Petitioner was deprived of oxygen at birth and never developed normally. She has presumed him "brain damaged." Petitioner has required special classes and other remedial help throughout his life. He is now 45 years old. From 2 ½ to 8 ½ years of age, Petitioner was treated at the Putnam Children's Clinic. Not much is known about the treatment. Petitioner's Exhibit 9 (also part of Respondent's Exhibit 4) contains records from the Devereux Foundation Schools of Devon, Pennsylvania, including an August 22, 1967, "Exit Interview and Discharge Diagnosis Form" with a discharge diagnosis of "ooo-x28 Schizophrenic Reaction, Childhood Type . . . autism and possible mental retardation." The "Initial Psychiatric Evaluation" of November 5, 1965, by Robert Ewalds, M.D., a psychiatrist, related that Petitioner's manner was "generally autistic," with borderline intellectual functioning, "a history of autism," and a thinking disorder/chronic schizophrenic process, and that Petitioner would require custodial care indefinitely. The January 7, 1966, "Psycho- Educational Evaluation" of F. Howard Buss, Ph.D., and W.S. Holloway, B.A., of Devereux's Psychology Department, made an "Educational Diagnosis" of Petitioner as "achieving academically at a level below measured intellectual functioning and well below chronological age expectations." Henry Platt, Ph.D., of the Psychology Department performed a July 30, 1966, "Psychological Evaluation" which related the following critical matters: Intelligence: Current intellectual functioning, as measured by the WISC, was at a low average level in the verbal area (IQ 86), submarginal in the performance area (IQ 62), with a marginal level for the full test (IQ 72). * * * . . . findings were in line with those reported on the WISC about a year ago, despite the slight drop in scores on present testing. VIQ2 PIQ3 FSIQ4 May 1965 89 68 77 July 1966 86 62 72 After Pennsylvania, Petitioner lived in Minnesota with his adult married sister until recently. He received developmental disability benefits from the State of Minnesota until he moved to Florida to live with his mother in 1997. Petitioner was tested February 14, 1995, by Scott County, Minnesota, Human Services agency (Petitioner's Exhibit 10). The Weschler Adult Intelligence Scale and the Vineland Adaptive Behavior Scale tests were administered. In a written opinion, April Leaveck, Psy.D., opined that Petitioner had scored a verbal IQ of 82; performance IQ of 67 and full scale IQ of 74, with a percentile ranking of four, which constituted a "borderline range of intellectual functioning." The Vineland testing showed a low-deficit adaptive level in each of the three domains and overall low-deficit adaptive level with an age equivalent score of seven years, eight months. Petitioner was 42 years old at the time. In the evaluator's opinion, a significant discrepancy in his verbal and performance scores reflected "brain damage at birth." All of the foregoing reports also attest to Petitioner's lifelong impairment in reciprocal interpersonal relationships and social interaction. All of them indicate he was hard to test because of distractibility. An April 1996 evaluation, performed when Petitioner was 43, showed a Stanford-Binet IQ of 59. (Petitioner's Exhibit 2) Approximately April 16, 1998, and subsequent to Ms. Ripka's review, Petitioner was tested by Larry Neidigh, Ph.D., Licensed Psychologist and Diplomate of the American College of Forensic Examiners. His Weschler test scoring when Petitioner was 45, showed a Verbal IQ of 69, a Performance IQ of 62, and a Full Scale Select IQ of 63. He opined that, applying all variables, a valid estimate of Petitioner's intellectual functioning was between 60 and 68. Petitioner is currently being seen at the Clay County Florida Behavioral Services Day Treatment Program by Russell Findley, M.D. Dr. Findley is a Florida-licensed medical physician. He is treating Petitioner for Bipolar Disorder, using a variety of modalities, including psychotropic drugs. He has concluded that Petitioner's medical history, including the historical facts of birth trauma and initiation of mental health treatment when Petitioner was only 2 ½ years old, is suggestive that Petitioner's "primary process is best described as developmental, not [a] mental health problem;" and that Petitioner has significant intellectual impairment, not consonant with BiPolar Disorder. Dr. Findley testified that Petitioner is "mildly mentally retarded," (TR 76-77) and again, "In my clinical impression, it is mental retardation." (TR 77) He did not consider "schizophrenia" to be a valid current diagnosis. Petitioner's Bipolar Disorder is in remission due to the drugs currently being administered to him. With the Bipolar Disorder in remission, what Dr. Findley sees in Petitioner is consistent with mental retardation. It is possible that the new medications render Petitioner's more recent IQ tests more accurate than the earlier ones because he is less distractible and more easily tested. With a standard deviation of two, Dr. Findley is aware of the prior IQs of 72 and 74. He has administered no IQ tests himself. He considers modern testing to be more accurate. Within the DSM-IV standards of medical/psychiatric diagnosis, he considers Petitioner to be "Axis I, bipolar disorder in remission with mild MR5 " extending over the whole of Petitioner's life. (TR 84) Dr. Findley was not asked about autism. The parties agreed to the admission of an excerpt from "Mental Retardation: Definition, Classification, and Systems of Support," published by the American Association of Mental Retardation which reads: Mental Retardation Diagnostic Features The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criteria A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system. General intellectual functioning is defined by the intelligence quotient (IQ or IQ-equivalent) obtained by assessment with one or more of the standardized, individually administered intelligence tests (e.g., Wechsler Intelligence Scales for Children -- Revised, Stanford-Binet, Kaufman Assessment Battery for Children). Significantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean). It should be noted that there is a measurement error of approximately 5 points in assessing IQ, although this may vary from instrument to instrument (e.g. a Wechsler IQ of 70 is considered to represent a range of 65-75). Thus, it is possible to diagnose Mental Retardation in individuals with . . . [remainder missing] To sum up, Petitioner's documented assessments, by year and age, are as follows: Exhibit No. Date Age Full Scale IQ P-9 5/65 11 ½ 77 Other Diagnosis, if any P-9 11/5/65 12 ½ generally autistic; a history of autism; P-9 7/30/66 13 72 P-9 8/22/67 14 000-x28 schizophrenic reaction, autism and possible mental retardation P-10 2/14/95 42 74 P-2 4/96 43 59 P-6 4/16/98 45 63 true IQ between 60-68 Also, the current diagnosis of Dr. Findley, pursuant to the generally recognized authority of DSM-IV, may be summed up that Petitioner suffers from mild mental retardation, previously camouflaged by his Bipolar Disorder. Petitioner has never met the standards of personal independence and social responsibility of his chronological age. He has never held other than a protected job. He has never solely cared for his own person. Since infancy, he has been under the care and supervision of either his family in Pennsylvania, his adult sister in Minnesota, where he has long received developmental benefits, or his mother since 1997. He has suffered from impairment in reciprocal social interaction continuously since infancy.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order determining Petitioner eligible for "autism" benefits and denying him retardation benefits. DONE AND ENTERED this 8th day of January, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1999.
The Issue Whether Rita M. Green (Respondent), committed the violations alleged, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Brevard County Public School District (school district). As such, it has the authority to regulate all personnel matters for the school district. At all times material to the allegations of this case, Respondent was an employee of Petitioner and was subject to the disciplinary rules and regulations pertinent to employees of the school district. Respondent was assigned to teach an exceptional student education class at University Park Elementary School (UPES). Respondent's class at UPES consisted of a group of pre-K handicapped students with varying exceptionalities. Respondent allowed two students from a nearby sixth grade class to "help out" during a portion of the school day. Additionally, a full- time teacher's aide was assigned to Respondent's class who also assisted Respondent with the students. It is undisputed that Respondent's students were challenging due to their various limitations and exceptionalities. One of the students in Respondent's class was a young, non-verbal autistic child who typically spent only a half day at the school. The child, who was three or four years old, brought food for the lunch period but would primarily eat the finger foods packed by the mother that did not require a utensil. The child's mother packed a special spoon with a certain design and color that the child used for foods like applesauce. Autistic children require consistency and a strict adherence to routine. Deviations from their comfort zone and routine can lead to tantrums or other undesirable reactionary behaviors. The autistic child in Respondent's class was typical in this regard. The student did not adjust well to change and would exhibit adverse responses to the unexpected. Respondent knew the child well enough to understand the need for, and the importance of, consistency and adherence to routine. With regard to the student's individual education plan (IEP), the student was to begin working on feeding skills using a hand-over-hand teaching method. Eventually it was expected that the student would develop the skill to self-feed those foods requiring a utensil. Force feeding was not prescribed by the IEP or expected by the student. In fact, whether or not the student actually consumed food was not required by the IEP. On February 18, 2009, Respondent's aide began to set up the lunch foods for the students in the class. This was one of the aide's assigned duties and was a routine of the class day. With regard to the autistic student previously described, the aide set out the finger foods packed in the lunchbox as well as jars of other foods requiring a utensil. Unfortunately, the student's mother had forgotten to pack the special utensil that the student was accustomed to using/seeing. The student began to eat the finger foods and did not display any agitation or poor conduct. When Respondent approached the student with a disposable "spork" that she intended to use for the food in jars, the child began to tantrum. It was evident the autistic student did not react well to the spork. Respondent observed the adverse reaction but persisted in her efforts to feed the student. She wrongly presumed that if the student would taste the food, the familiarity of the food would overcome the adverse reaction to the spork. The more Respondent tried to get the student to eat, the more the student resisted and fought. At one point Respondent enlisted the assistance of one of the helper sixth grade students (both of whom were in the classroom at the time). Respondent directed the student to hold the autistic child so that she could put the spork/food into the student's mouth. Despite continuous opposition from the child, Respondent held the student's face with one hand and used her other hand to shove food toward the student's mouth. This behavior was confirmed by both of the sixth graders as well as the aide who was also present. As a result of the incident described above, the autistic student was left with bruises that depicted a handprint on one side of the face. This bruising remained visible the next day and was photographed by authorities. Respondent maintained that the student had caused the injuries by resisting and pulling away from her. It is common for autistic children to injure themselves during tantrum events. Nevertheless, had Respondent not held the face so tightly, the bruising would not have occurred. The simple solution to avoid the injury would have been for Respondent to release the student when the adverse reaction to the spork began. In fact, the proper response to any stimulus that causes an adverse reaction with an autistic child is to remove the offending trigger. Autistic children will continue to respond adversely so long as the offensive trigger remains. In this case, Respondent merely wore the student out. The thrashing and resistance continued until the student could fight no more. When the student was scheduled to go home (at the usual pick up time), Respondent advised the mother that the student was asleep. She returned later to pick up the child but noticed the student's demeanor and behavior were different. Further, the bruising on the student's face was evident. The mother accepted Respondent's explanation for the discoloration. Troubled by what she had observed Respondent do, the aide reported the incident to school administrators. Administrators spoke with the two sixth-grade students who had been in the class at the time of the incident who corroborated the aide's representation of what had occurred. The witnesses confirmed Respondent restrained the child with her legs, held the student's face tightly with one hand, and attempted to shove food with the spork. As is required by law, the school administrators reported the incident to authorities who initiated an investigation into abuse allegations. Respondent did not then, and did not at hearing, accept responsibility for causing the bruising on the student's face. Nevertheless, it is undisputed that as a direct result of Respondent's behavior the autistic student suffered bruising. No other person grabbed the student's face and held it with the force necessary to leave bruises. Respondent failed to understand that such behavior is unacceptable. Respondent failed to acknowledge that the proper response to the student's adverse reaction would have been to let the student go. Respondent was not required to feed the autistic student. Respondent was not required to hold the student so tightly that bruises were left. Respondent was not preventing the student from self-injurious behavior. The student in question was not the first autistic child assigned to Respondent's class. Prior to the incident complained, of Respondent had many times dealt with students who were similarly handicapped or limited. Prior to the incident complained of, Respondent had enjoyed a good reputation for dealing with a challenging student population. Respondent offered no credible explanation for why her behavior on the date in question deviated from acceptable teaching standards. Teachers in Florida are not allowed to physically harm students. Subsequent to the investigation of the incident Respondent was suspended from her teaching duties. On May 5, 2009, Richard A. DiPatri, acting as superintendent for the school district, notified Respondent that he intended to recommend termination of her employment as a teacher at the May 12, 2009, meeting of the Brevard County School Board. The notice further explained the basis for the termination and stated, in pertinent part: The reason for my decision is that an investigation has shown that on or about February 18, 2009, you physically abused a 3 year old special needs student assigned to your Pre-K handicapped class at University Park Elementary School. Specifically, you attempted to force feed the student by shoving a spoon down his throat while holding him by the head and neck. In doing so you used such force that the student was gasping for air and spitting up the food and suffered bruises on his face, neck and back. Respondent timely challenged the proposed termination and the matter was appropriately forwarded to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order terminating Respondent's employment with the school district. DONE AND ENTERED this 28th day of April, 2010 in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 28th day of April, 2010. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Matthew E. Haynes, Esquire Jeffrey Sirmons, Esquire Johnson and Haynes, P.A. The Barrister’s Building 1615 Forum Place, Suite 500 West Palm Beach, Florida 33401 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard A. DiPatri, Superintendent Brevard County School Board 2700 Fran Jamieson Way Viera, Florida 32940-6601
The Issue At issue in this proceeding is whether Petitioner may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled "Notice of Termination of Employment Contract and Immediate Suspension Without Pay" (the "Notice") from Superintendent of Schools Ed Pratt-Dannals to Respondent dated April 13, 2009.
Findings Of Fact Ms. Silver's education and employment history Ms. Silver has been employed as a teacher by the School Board since she graduated from George Peabody College in 1978, and works under a professional service contract pursuant to section 1012.33, Florida Statutes. Ms. Silver's personnel file indicates "tenure" as of the 1984-1985 school year, pursuant to the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended. Throughout her career in the Duval County school system, Ms. Silver has been a special education teacher. She has taught students classified with specific learning disabilities ("SLD"), and as emotionally handicapped ("EH"), trainable mentally handicapped and educable mentally handicapped. Prior to her assignment to Kernan Trail Elementary School ("Kernan Trail") at the beginning of the 2005-2006 school year, Ms. Silver had at various times taught students from kindergarten through sixth grade. She had not taught autistic students, nor had she taught pre-kindergarten ("pre-K") students. Prior to the Notice, Ms. Silver had never in her 31 years with the School Board been subjected to disciplinary action of any kind. From the 1997-1998 school year through the 2004-2005 school year, Ms. Silver taught a mixed grade class of kindergarten through second grade ("K-2") EH students at Lone Star Elementary School ("Lone Star"). Autistic students were included in the EH category during those years, and Ms. Silver taught autistic students in her class. Elizabeth Kavanaugh, who was vice principal and then principal of Lone Star during Ms. Silver's tenure at the school, testified that Ms. Silver's students had behavioral and emotional problems that required a teacher who could work with them in a flexible setting. These were "difficult" children who would kick, scream, cry, and try to run away when met with any adversity. Ms. Kavanaugh characterized Ms. Silver as a professional in the classroom, very knowledgeable about her students, and "passionate" about her work. Ms. Kavanaugh stated that the 2004-2005 school year was difficult for Ms. Silver, largely due to one very physical six- year-old boy who gave everyone in the school "a hard time." School Board personnel came out to Lone Star on several occasions for behavior management consultations, and a functional behavior assessment was performed on the child. Ms. Silver worked very hard with the boy and showed patience with him, even after he struck her in the face hard enough to leave her with a black eye. The child was sent home for the day, in spite of Ms. Silver's intervention on his behalf. Ms. Silver argued that the child was just upset and did not mean to hurt her. At the end of the 2004-2005 school year, Ms. Kavanaugh faced budget cuts to Lone Star's exceptional student education ("ESE") program due to a shortage of ESE students at the school. She would not be able to keep all of her ESE teachers for the coming school year. Ms. Kavanaugh noted the very hard year Ms. Silver had just completed, and wondered whether it might be time for Ms. Silver to move away from intense work with EH children and into a new area of teaching. Ms. Kavanaugh testified that "burnout" is common among special education teachers, and she believed that Ms. Silver had been in an EH classroom well beyond the usual burnout rate for such assignments. During the 2004-2005 school year, Ms. Silver had mused to Ms. Kavanaugh about the possibility of transferring to a new position. Because of her seniority, Ms. Silver would have to volunteer for a reassignment; otherwise, Ms. Kavanaugh would be forced to cut a younger teacher. Ms. Kavanaugh discussed the situation with Ms. Silver, who agreed to accept a "voluntary surplus" assignment, meaning essentially that she would leave Lone Star but have no control over her next assignment. At the hearing, Ms. Kavanaugh praised Ms. Silver's willingness to accept a transfer to an uncertain new position, on very short notice, to save the job of a less experienced teacher. Ms. Silver testified that she accepted the voluntary surplus because she wanted a change and with the knowledge that there were probably a lot of openings for special education teachers in Duval County. She was especially interested in the School Board's autistic program, and began attending School Board autism workshops in preparation for a potential assignment to that program. When she learned of the opening in the pre-K autistic class at Kernan Trail, Ms. Silver jumped at the opportunity. Ms. Silver has had a long-standing interest in the subject of children with autism. Her adopted son (28 years old at the time of the hearing) had shown some symptoms of autism at least since age five, and was finally diagnosed at age 11 with Asperger's syndrome, an autism spectrum disorder. Ms. Silver has been active in the autism support community in Jacksonville for many years and is well known as an advocate on issues affecting that community. Ms. Silver was assigned to teach the pre-K autistic class at Kernan Trail for the 2005-2006 school year, and continued to teach the class without complaint or incident during the 2006-2007 and 2007-2008 school years.5/ Ms. Silver's classroom in the 2008-2009 school year The 2008-2009 school year formally began on Monday, August 18, 2008, though Tropical Storm Fay caused the closure of the Duval County schools for the first week of classes, through August 22, 2008. As the year began, there were six children in Ms. Silver's pre-K autistic class. A seventh child, B.G., entered the class on October 2, 2008, though he stayed only through October 16. Children could enter the pre-K autistic class upon their third birthday. It was not unusual to have a new student come into the class after the school year was underway. Ms. Silver had two paraprofessionals in her class. Nancy Cornell had worked as a paraprofessional in the pre-K autistic class for three years under Ms. Silver's predecessor, and then continued in the same class when Ms. Silver came to Kernan Trail. The 2008-2009 school year was Ms. Cornell's fourth year under Ms. Silver's supervision. Ms. Cornell described Ms. Silver's classroom as "organized chaos." Ms. Kavanaugh testified that Ms. Silver was a "pack rat" who kept lots of things in her classroom and storage closet. Stephanie Smith, a classroom teacher who acted as Kernan Trail's autism "site coach"6/ prior to the 2008-2009 school year, testified that she had talked with Ms. Silver about problems with organization in her classroom, but that there was never a problem with Ms. Silver's direct teaching. Terrie Bennett, the coordinator of the School Board's autism program, similarly testified that the only "issues" she recalled from her observations of Ms. Silver's class involved disorganization, not quality of instruction. The other paraprofessional assigned to Ms. Silver's class was Althea Gale. Ms. Gale had been at Kernan Trail for six years, but had never worked with Ms. Silver or with pre-K autistic children before the 2008-2009 school year.7/ Ms. Gale had come to Kernan Trail after being fired from her previous job at Vicar's Landing, a retirement community at Ponte Vedra Beach. One other adult was assigned to Ms. Silver's classroom at the start of the 2008-2009 school year. Taylor Dowell was an intern completing the last semester of a dual bachelor's/master's program at Florida State University ("Florida State"). Her master's degree would be in special education, with a specialization in autism. Though she had worked in elementary classrooms during the practicum portions of her classes, Ms. Dowell had never been in a pre-K class prior to commencing in Ms. Silver's class on August 26, 2008. The children in Ms. Silver's class ranged in age from three to five years, and functioned at levels younger than their age dues to developmental delays. Some of the children were nonverbal; others could speak a few words but could not articulate sentences. Several of the children were not potty trained and wore diapers or "Pull-Ups" type training pants. Ms. Silver's was the only pre-K autistic class at Kernan Trail. The students spent the entire day in the classroom. Breakfast and lunch were served to the students in the classroom. The school day commenced at 8:00 a.m. Ms. Gale was assigned to escort children from the school bus pick-up area to the classroom while Ms. Cornell set up breakfast. Ms. Dowell sometimes accompanied Ms. Gale. Ms. Gale and Ms. Cornell served the children breakfast from 8:45 to 9:15. The remainder of the morning was filled by "circle time" (the reading of a book to the children seated in a circle), rotating activities at tables in the classroom, and a 45-minute playtime. Lunch was served to the children from 12:05 to 12:35, followed by a one-hour "quiet time," during which the children took naps or quietly watched television. Classroom activities resumed at 1:35 and continued until the students were dismissed at 2:50. Ms. Silver organized the classroom according to a "zone plan," which was a spreadsheet indicating where each adult should be and what the adult should be doing at any given time during the school day.8/ For example, during rotations, Ms. Silver, Ms. Gale, and Ms. Cornell would each sit at a table with a small group of children and undertake activities that included direct instruction and work on fine motor skills. Every fifteen minutes, the groups would change tables and move on to a new activity with a different adult. Punctuality was obviously important in this scheme because rotations could not work if one of the adults was missing. Also, each paraprofessional was allotted a ten-minute break in the morning and in the afternoon. The zone plan so precisely accounted for their time that if one paraprofessional took too long on her break, the other might not get a break at all. Ms. Silver ran an open classroom. Parents were free to visit the room at any time, without an appointment. Occupational therapists and physical therapists were frequently in and out of the classroom. Other teachers, such as Erin Tupper, Kimberly Bloor, and Stephanie Smith, would step into the room to speak briefly with Ms. Silver. Parents were also free to observe the classroom from the outside, through a window in the classroom door.9/ Conflicts in the classroom Ms. Silver and Ms. Cornell had been together in the pre-K autistic classroom for three years and had developed a solid working relationship. They did not always agree on every detail of the classroom. For example, Ms. Silver discontinued her predecessor's practice of taking down data during potty training as to when the child was placed on the potty, whether the child was wet or dry prior to going to the potty, and the results of each trip. Ms. Cornell found the data helpful, but Ms. Silver believed that taking down the data took more time than it was worth. Ms. Cornell disagreed with Ms. Silver, but acknowledged that the decision rested with Ms. Silver as the teacher. Such disagreements did not affect the basically positive relationship between Ms. Silver and Ms. Cornell.10/ In her time at Kernan Trail, Ms. Gale had never worked in the same classroom or with the same teacher for two years in a row, despite the generally acknowledged superiority of developing teacher-paraprofessional teams who work together over several years. Ms. Gale attributed her frequent movement to the vagaries of the School Board's assignment procedures. However, Ms. Smith testified that Ms. Gale could be confrontational, harassing, and overbearing, and that Ms. Gale's reputation for having a bad attitude made people hesitant to engage with her. Ms. Smith also testified that Ms. Gale always wanted to dictate her own schedule and work assignments. Kernan Trail's autism site coach, Karma Flotkoetter, testified that when she was a classroom teacher at Kernan Trail, Ms. Gale was assigned as her paraprofessional for a month or two. Ms. Flotkoetter stated that Ms. Gale did not come to work on time and had difficulty interacting with the children. Ms. Flotkoetter stated that she would not have hired Ms. Gale to work in a self-contained pre-K autistic classroom such as Ms. Silver's. Ms. Silver testified that she was aware of Ms. Gale's personality conflicts with other teachers. Ms. Silver's belief in her own ability to get along with people made her optimistic that she and Ms. Gale would not have any serious problems. Ms. Silver knew that Ms. Gale "had been passed around from teacher to teacher," and "figured it was just my turn" to deal with Ms. Gale. Despite Ms. Silver's initial optimism, Ms. Gale's persistent inability to come to work on schedule and outright refusal to perform some aspects of a paraprofessional's job inevitably led to conflicts. Ms. Silver did not believe she had a personality conflict with Ms. Gale, who was generally compliant with Ms. Silver's direct instructions and only became defensive when the conversation steered to her constant lateness for work. Ms. Gale, however, believed that Ms. Silver had an "attitude" toward her and essentially did not like Ms. Gale. Ms. Flotkoetter questioned Ms. Gale's basic honesty.11/ Based on his view of the testimony and demeanor of both witnesses, the undersigned finds that any "attitude" displayed by Ms. Silver was occasioned by Ms. Gale's own personal truculence, her reluctance to perform the tasks of her job unless directly told to do so, and the needless injection of anxiety into the order of the classroom by her arbitrary comings and goings. From the start of the 2008-2009 school year, Ms. Gale was persistently late in arriving at school, sometimes by as much as an hour. She was also late returning from her morning and afternoon breaks and from her lunch break. Ms. Gale's actions affected the running of the classroom and Ms. Cornell's ability to take breaks. Ms. Silver complained to Ms. Flotkoetter about Ms. Gale's lateness as early as August 29, 2008. Both Ms. Silver and Ms. Flotkoetter repeatedly counseled Ms. Gale about the need to arrive on time and to follow the zone plan, but little changed. At the hearing, Ms. Gale testified that she was not supposed to change the children's diapers, and that she only did so once or twice while assigned to Ms. Silver's class. In fact, the zone plan called for Ms. Gale to assist Ms. Silver in changing diapers, and Ms. Gale simply declined to perform this aspect of her job. Ms. Cornell regularly stepped in and performed the diapering duties, though the zone plan did not give her that assignment. Ms. Gale was reluctant to engage with the children in the classroom. Ms. Dowell witnessed Ms. Silver tell Ms. Gale that she was not doing anything with the children and that she needed to interact with them. Ms. Cornell believed that Ms.Gale could "do better" in the classroom and would not have been Ms. Cornell's choice to work with children. Ms. Silver described Ms. Gale as the worst subordinate she ever had. Ms. Silver eventually took the matter to assistant principal Alandrea Turner in hopes of having Ms. Gale transferred to another classroom, but Ms. Turner declined to move Ms. Gale.12/ As to Ms. Dowell, both Ms. Silver and Ms. Cornell described her as initially enthusiastic and happy to be in the classroom, eager to work and affectionate with the children. Ms. Dowell concurred that at first she was excited about working in a pre-K classroom. However, Ms. Dowell was repulsed by the physical appearance of the classroom. There was "stuff everywhere." The room was cluttered with paper and the toys were dirty. Ms. Silver had for years kept animals in the classroom. At the start of the 2008-2009 school year, Ms. Silver had a chinchilla and two small birds in her classroom. Ms. Dowell found the cages "filthy" and too easily accessible by the children. She found the smell offensive and would sneeze and cough at the end of the day. Ms. Gale complained that the animals affected her allergies. Ms. Dowell testified that she told Ms. Silver the cages were "disgusting" and in need of cleaning, but that Ms. Silver brushed off her complaint. Ms. Cornell, who was not opposed to the presence of the animals, conceded that feathers and feces found their way to the floor of the classroom. Ms. Dowell complained to Ms. Flotkoetter about the situation, who in turn discussed the matter with Ms. Turner and Ms. Silver. On Friday, September 12, 2008, after notifying Kernan Trail principal David Gilmore of her plan, Ms. Turner went to Ms. Silver and told her to remove the animals from the classroom. Ms. Silver did so over the weekend, and held no grudge over the incident. Ms. Dowell's attitude toward the animals and the general messiness of Ms. Silver's classroom exemplified a general clash of styles, personalities, and teaching philosophies between Ms. Silver and Ms. Dowell. Ms. Flotkoetter testified that when she walked into Ms. Silver's classroom, she could feel the tension between the two women. Ms. Cornell testified that Ms. Dowell came into the classroom expecting something different than what she found, and quickly became "unhappy and just disinterested." Ms. Silver dressed in casual clothes and tennis shoes, appropriate attire for a job that required her to spend a lot of time on the floor and to change diapers frequently. Ms. Dowell dressed in skirts and high-heeled shoes, which hindered her interaction with the children. (Ms. Flotkoetter stated that no other employee in a self-contained classroom dressed in the manner of Ms. Dowell.) Ms. Silver was loud, boisterous, and free with her opinions. Ms. Dowell was soft spoken. Ms. Silver generally had higher expectations of the students than did Ms. Dowell, who was more inclined to treat the children as infants. These differences could not help but color the relationship between the mentor and the student teacher. According to Ms. Silver, Ms. Dowell seemed to "hit it off" immediately with Ms. Gale. Ms. Dowell and Ms. Gale were friendly with each other in the classroom. They chatted with each other more than either of them talked with Ms. Silver or Ms. Cornell.13/ They talked during nap time, despite Ms. Silver's admonitions that the room needed to be quiet. However, Ms. Dowell and Ms. Gale had no relationship outside of the school. Ms. Silver, who had supervised many interns over the years, found Ms. Dowell puzzling. Ms. Silver had never before "had to lead an intern by the hand and tell them this is what you have to do." Because she would be expected to take over and run the class by the time her semester at Kernan Trail was over, Ms. Dowell should have been sitting with Ms. Silver and watching her perform direct instruction to the children. Instead, Ms. Dowell would sit with Ms. Gale and chat while Ms. Silver instructed the children. Ms. Silver mentioned several times that Ms. Dowell needed to watch the direct instruction, but Ms. Dowell did not comply. Ms. Silver also talked to Ms. Dowell about lesson plans. Ms. Silver understood that Florida State would expect to see lesson plans developed by Ms. Dowell, and Ms. Silver offered to stay after school and help her with them. Ms. Silver also wanted Ms. Dowell to look at IEPs14/ and become familiar with the children's goals in order to facilitate direct instruction, but never saw Ms. Dowell do so. Ms. Dowell testified that she picked up some of the IEPs and "scanned" them one day, but never fully studied them. Ms. Silver also saw no indication that Ms. Dowell reviewed Ms. Silver's lesson plans for the class, even though Ms. Silver gave her a copy of the lesson plans every week. Ms. Silver continued to produce lesson plans for as long as she worked with Ms. Dowell, though at some point Ms. Dowell should have taken over that function. Ms. Cornell testified that she never saw Ms. Dowell working with an IEP, and that she never saw a lesson plan produced by Ms. Dowell Ms. Dowell conceded that she prepared no lesson plans while interning at Kernan Trail. Ms. Silver encouraged Ms. Dowell to start leading circle time because that was the easiest thing for the teacher to do. Circle time was held early in the morning. It was the vehicle for introducing concepts and skills that would be taught during the remainder of the day. Ms. Dowell began leading circle time, but never took on the task of preparing the materials for circle time. Ms. Silver continued to select the books to read and bring in the materials to be used. Ms. Silver testified that Ms. Dowell would frequently try to avoid even leading circle time, asking Ms. Silver if she wanted to take over. Ms. Silver insisted that Ms. Dowell do it as part of her transition to taking over the class. Ms. Silver was further disappointed by the fact that Ms. Dowell did not seem to want to do anything else. Ms. Silver would give her suggestions, but Ms. Dowell would ignore them. Ms. Dowell denied her lack of participation in classroom activities, but Ms. Silver's view on the matter was confirmed by Ms. Cornell and Ms. Flotkoetter. Ms. Dowell claimed that she was "running the classroom" with the assistance of Ms. Gale and Ms. Cornell as early as the first part of September, when Ms. Silver was preoccupied with potty training L.P. She stated that she was doing circle time, providing direct instruction, taking the children to the playground, and helping with lunch. No other adult who was present in the classroom corroborated Ms. Dowell's assertion that she was "running the classroom." Ms. Silver wanted Ms. Dowell to run the class but could not persuade her to take charge. Ms. Cornell pointedly denied that Ms. Dowell ever took over the running of the class. She overheard Ms. Dowell telling Ms. Gale that she was there to watch the class, not to take it over. Ms. Dowell never gave any instructions to Ms. Cornell in the manner of a teacher in charge of the class.15/ Ms. Flotkoetter visited Ms. Silver's classroom at least three or four times every week. She never saw Ms. Dowell "running" anything other than circle time. Erin Tupper, an occupational therapist who took children out of the classroom once a week for therapy sessions, never noticed Ms. Dowell running the class. Ms. Tupper noted that Ms. Dowell showed a distinct lack of curiosity as to what the occupational therapist does with the children. In Ms. Tupper's experience, interns tend to show more interest and to ask more questions than did Ms. Dowell. They want to be able to help the teacher follow through on the therapy. Ms. Tupper testified that some interns have even accompanied her to the therapy sessions, and that she would have been happy to take Ms. Dowell had she been interested. Ms. Dowell testified that she did not know Erin Tupper, testimony that supports Ms. Tupper's observation that Ms. Dowell showed little interest in what was happening in the classroom.16/ One goal of the Kernan Trail pre-K autistic classroom was to foster independence in the students. In their testimony, both Ms. Silver and Ms. Flotkoetter emphasized that there should be a minimum of "babying" the children. Ms. Silver would ask parents not to carry their children into the classroom, but to let them walk in like big boys and girls. Ms. Flotkoetter would stop parents who were carrying their children into the school and ask them to put the children down. Ms. Silver worked on teaching the children to use utensils and feed themselves at breakfast and lunch. It was considered appropriate to give a child a brief hug when the child had performed a task successfully or when the child needed to be comforted, but it was not appropriate to sit and hold the children for extended periods of time. As Ms. Cornell stated, the children want to be cuddled all the time, and it was best not to be "too huggy" with them. If the child is hurt, the adult gives the child a brief hug, and then attempts to redirect the child. Ms. Cornell testified that all of the adults in the classroom would give brief hugs to the children. Ms. Dowell had a propensity for picking up and holding the children, and compounded the problem by choosing one child, Z.G., as her particular favorite. She would sit and hold Z.G. at lunch, feeding him like a baby and paying attention only to him, cooing over him and calling him her "boyfriend." Ms. Silver testified that Ms. Dowell would actually tell other children to go away when she was holding Z.G. Ms. Cornell confirmed that Ms. Dowell would sit and hold Z.G. and attend only to him. She noted that when Ms. Dowell led circle time, Z.G. would often end up sitting in her lap. Ms. Silver attempted to counsel Ms. Dowell about excessive holding of the children and about lavishing attention on one child. She told Ms. Dowell that it is only natural to have a favorite student, but that it is the teacher's job not to let the other children pick up on the fact that she has a favorite. Every child should see himself as the favorite. Ms. Dowell simply said that she disagreed with Ms. Silver, and carried on as she had been. Ms. Cornell testified that the more Ms. Silver would ask Ms. Dowell not to hold Z.G., the more Ms. Dowell would do it. In her testimony, Ms. Dowell stated that she would hold Z.G. in her lap, and that she saw no harm in it. Ms. Dowell agreed that Ms. Silver had a rule against picking up the children, and further agreed that she chose not to follow that rule. She could not understand why an adult would not hug or pick up a three or four-year-old child if the child wanted it. Ms. Dowell stated that she picked up all of the children, but that she probably did hold Z.G. more than the others because he was hypersensitive to the sound of Ms. Silver's "screaming." D.G., the mother of B.G., testified that from outside the room she would see Ms. Dowell holding her son. (D.G. also once saw Ms. Dowell holding Z.G.) She would also see Ms. Gale or Ms. Dowell rocking him to sleep during naptime. D.G. approved of Ms. Dowell's "sensitive" actions, and resented the fact that Ms. Silver put a stop to it. J.J., the mother of G.J., a student in Ms. Silver's class, testified that she witnessed Ms. Dowell "fawning all over the kids, and some of these kids didn't want it. And she was coochie-coochying them, if I can use that as a word." Though never approaching the level of Ms. Gale, Ms. Dowell had problems keeping to the class schedule. She would be on time some days, but on others she would be a little late. Ms. Silver granted that Ms. Dowell would call in when she was going to be more than a few minutes late, and that such occasions were infrequent. More serious was the fact that Ms. Dowell had a second job teaching cheerleading after school. Ms. Dowell acknowledged that the terms of her internship prohibited "involvement in out- of-school activities that would interfere with teaching responsibilities in any way," but believed this job did not interfere with her school duties because it was after hours.17/ Ms. Dowell stated that the cheerleading job started at 3:15 or 3:30 p.m., and she was finished at Kernan Trail by 3:00. Ms. Dowell would walk the children to the bus pick-up, then walk back to the classroom and ask Ms. Silver if there was anything else she needed to do. If Ms. Silver said there wasn't, Ms. Dowell would leave for cheerleading. Ms. Silver's recollection differed from that of Ms. Dowell. Ms. Silver did not approve of Ms. Dowell's working a second job, and stated that Ms. Dowell never asked for her approval. Ms. Dowell asked Ms. Silver if she could come to school early and leave early. Ms. Silver explained that teachers do not have comp time. No matter how early a teacher arrived at Kernan Trail (Ms. Silver often arrived as early as 7:15 a.m.), the teacher was required to stay until 3:10 p.m. Ms. Silver testified that Ms. Dowell would sometimes leave as early as 2:45, without asking anyone for permission.18/ Ms. Silver's testimony on the question of Ms. Dowell's leaving early is credited. Ms. Dowell inadvertently admitted that she left the school early when she testified that she would leave at 3:00 p.m. Ms. Silver's uncontested testimony was that teachers were required to stay until 3:10.19/ Ms. Flotkoetter believed there was a personality conflict between Ms. Silver and Ms. Dowell, and stated that she could feel the tension when she walked into the room. As the fall semester of the 2008-2009 school year progressed into October, Ms. Silver became increasingly concerned that Ms. Dowell was not fulfilling the requirements of her internship. Ms. Silver had not been asked to formally evaluate Ms. Dowell, although the FSU Handbook, discussed in endnote 17, supra, called for biweekly evaluations of a student teacher's performance. Ms. Silver worried that she could not in good conscience give Ms. Dowell a passing grade. Ms. Silver testified that no matter what she thought of Ms. Dowell, it was her job to see to it that Ms. Dowell successfully completed her internship. The potty training allegations In September 2008, L.P. was a four-year-old student20/ who had been in Ms. Silver's class since the 2006-2007 school year. L.P.'s mother, T.P., testified that she enrolled L.P. at Kernan Trail after visiting Ms. Silver's class. T.P. hoped that the structured environment of the school would help L.P. learn to attend to different activities. L.P. entered Ms. Silver's class in late October 2006, just after he turned three. L.P. was completely nonverbal at the time. He could make some noises, but nothing that could be called the beginning of word formation. At the time of L.P.'s enrollment, T.P. had no expectations regarding potty training, because L.P. would not even sit on a toilet. During the summer of 2008, T.P. began working with L.P. and was able to get him to sit on the toilet, though he never actually voided. T.P. used gummy snacks and Skittles candies as reinforcers for the behavior of sitting on the potty. Due to the intensity of the potty training process, Ms. Silver trained only one child at a time. By the start of the 2008-2009 school year, T.P. and Ms. Silver agreed that L.P. was ready to begin potty training at school. There was a bathroom within Ms. Silver's classroom. The bathroom door was never closed unless an adult was using the bathroom. When the bathroom door was open, its interior could be viewed from the classroom. In addition to a changing table, a regular toilet, and a sink, the bathroom contained a Rifton "Blue Wave" potty chair. The Rifton chair is designed for children with physical infirmities. It is a full chair, with arms, legs and a back. The chair is adjustable for height, and has an opening in the seat for toileting, with a removable basin beneath the opening. The chair may also be placed directly over a toilet, but was not used this way in Ms. Silver's classroom. The Rifton chair has a belt at the waist and other straps to enable a disabled child to remain upright during toileting. The waist belt closes with a snap buckle such as that used on a bicycle helmet or a modern dog collar. It is easily fastened by snapping the male end into the female end, but requires the user to simultaneously squeeze the sides and pull the ends apart in order to unfasten it. Terrie Bennett, the School Board's autism specialist, testified that the autistic children in Ms. Silver's class would have no need of a Rifton chair. She stated that it would never be proper to use a Rifton chair as a means of restraint. Ms. Bennett testified that the School Board has no requirement that teachers be formally trained in how to conduct potty training. The School Board produced no evidence that it had a formal policy regarding the use of Rifton chairs during the period relevant to this proceeding. Ms. Silver testified that the chair was in her classroom when she arrived at Kernan Trail. In fact, there were two Rifton chairs in her classroom when she came to Kernan Trail. Ms. Silver had no idea why they were there. Ms. Cornell, who had been at Kernan Trail since the school opened, testified that the Rifton chairs had always been there. One of the chairs bore the letters "OT," indicating that it belonged to occupational therapy. Ms. Silver's original site coach at Kernan Trail, Paula Quirk, told Ms. Silver that pre-K autistic children were not to be restrained under any circumstances, and therefore the belts on the Rifton chairs or on a wooden occupational therapy chair that was also in the classroom were never to be used. Ms. Silver testified that she never used the belts and that she instructed her paraprofessionals never to use the belts to restrain the children. Ms. Silver recalled that in the 2007-2008 school year, one of her paraprofessionals, Mamie Byrd, had strapped a student into the Rifton chair that sat out in the classroom. One child in the class required a great deal of supervision. He could not be still. If Ms. Byrd was doing an activity with this child but needed briefly to walk across the classroom, she would strap the child into the Rifton chair. Ms. Silver told Ms. Byrd several times not to strap the child in the chair, but the problem persisted. Ms. Byrd was moved to a different classroom after the 2007-2008 school year. Ms. Cornell believed that the Rifton chairs were appropriate for the pre-K autistic children to use during potty training because the chairs had backs and arms, which allowed the children to sit safely and with more confidence than on a regular toilet. Ms. Cornell noted that some of the autistic children are afraid of the regular toilet flushing, whereas the Rifton chair does not flush. Ms. Silver told T.P. that the training plan would be to give L.P. plenty to drink and then bring him to the toilet every 15 minutes. Ms. Silver explained that, with four adults in the classroom, it would not be a problem to bring L.P. to the bathroom that often. Ms. Silver did not mention how long L.P. would be allowed to sit during each trip to the bathroom. T.P. testified that Ms. Silver did not mention a "Rifton chair," but did tell her that the classroom potty had a belt clasp that she would use to keep L.P. in position on the potty. T.P. stated that the booster chair in which L.P. ate his meals at home had a similar strap, and the strap on the potty therefore was not of great concern. Ms. Cornell testified that Ms. Silver would set aside a length of time that she termed a "session" during which frequent opportunities would be made for the child to sit on the potty. The potty training of L.P. was conducted in three-hour sessions. During these sessions, L.P. would be placed on the Rifton chair for 10 to 15 minutes at a time, after which he would get a 30-minute break. Ms. Silver and Ms. Cornell would watch the clock to make sure L.P. wasn't on the potty for too long. The idea was to place him on the Rifton chair frequently enough that L.P. would actually urinate and the adults could make a big fuss over his success.21/ Ms. Cornell explained that at the outset of potty training, the child is placed on the potty for three minutes, which is slowly built up to 15 minutes. The child is then taken off the potty for 15 to 20 minutes, or for an hour if he actually urinated. When the child first begins potty training, an adult stays in the bathroom with him. When the child becomes more comfortable with the process and is ready to move to the regular toilet, the adult may leave the bathroom while keeping the child in sight. Ms. Cornell testified that during the entirety of L.P.'s potty training, she never saw him on the Rifton chair for more than a 30-minute period that was interrupted by a five- minute break. J.J. is the mother of G.J., a child who was potty trained in Ms. Silver's class. J.J. testified that Silver encouraged her to wait on potty training until G.J. had the sensory capacity to know when he needed to go, because it takes autistic children longer to make the connection between brain and bodily function. J.J. did not rely entirely on Ms. Silver's expertise, but her outside research confirmed Ms. Silver's advice. J.J. testified that some experts advise setting aside a three-day weekend for potty training, or keeping the child on the potty for the better part of a day to get the child used to sitting on the toilet. J.J. and Ms. Silver talked specifically about the potty training method Ms. Silver would use. Ms. Silver showed J.J. the potty chair, which had a belt. G.J. would sit on the potty for a few minutes at first, to gain the habit. The emphasis would be less on urinating than on sitting on the potty. He would sit for five to seven minutes at a time, several times within a short period, in order to "imprint the pattern" of sitting on the toilet. J.J. testified that she was never told that Ms. Silver would be the only person in the bathroom with G.J., but she was assured that either Ms. Silver or a paraprofessional would be watching G.J. in the bathroom. Ms. Silver would send notes home with G.J. regarding his progress. By the spring of 2008, G.J. was potty trained. Ms. Cornell was not sure whether L.P. was capable of standing to urinate. L.P. did not appear to want to stand. He automatically went to the Rifton chair when he was told it was time to go potty. Ms. Cornell testified that L.P. would often go into the bathroom and sit on the Rifton chair without any prompting from an adult. Ms. Cornell testified that Ms. Silver was in charge of the potty training, but was seldom the person who actually accompanied L.P. to the bathroom. Most of the time, Ms. Cornell or Ms. Gale took L.P. to the bathroom. Ms. Cornell testified that L.P. would go into the bathroom with only a verbal instruction, because he knew that he would get a reward for going to the potty. Ms. Silver would keep one of L.P.'s favorite toys or books out of reach but where he could see it from the bathroom. If L.P. urinated, he would get the "big reward" of playing with the favored item. If he did not urinate, then he would get a smaller reward just for sitting, such as a Skittles candy. Ms. Cornell never saw Ms. Silver strap L.P. to the Rifton chair. Ms. Cornell testified that she herself strapped L.P. to the chair very briefly on one occasion. L.P. was jumping up and down as he was urinating, and another child entered the bathroom with his pants down. Ms. Cornell quickly strapped L.P. to the Rifton chair so that she could attend to the other child, then unstrapped L.P. Ms. Cornell characterized the belt as something to be used only in an emergency.22/ Ms. Cornell testified that L.P. was not afraid of the Rifton chair, that he was adept at strapping himself to the chair, and that he regarded doing so as a game.23/ He liked to play with the belt, but found it much easier to close the snap buckle than to open it. Ms. Cornell testified that she would make sure to un-strap L.P. if she heard the click of the buckle. If L.P. was on the Rifton chair for 10 to 15 minutes, Ms. Cornell would check to make sure he had not strapped himself into the chair. She never saw any indication that L.P. was able to take the belt off for himself. On one occasion, Ms. Silver told Ms. Cornell to leave L.P. on the chair after he had strapped himself on, in order to see whether he could unfasten the buckle for himself. After a few minutes, Ms. Cornell unstrapped L.P. T.P. testified that, even as of the date of the hearing, L.P. had trouble unfastening the kind of snap buckle found on the Rifton chair. She was certain that L.P. would not have been able to unfasten the buckle in September and October of 2008. Ms. Silver testified that L.P. had been in her classroom longer than any of the other children, and that she had a rapport with him. She told T.P. about her use of the Rifton chair, and offered T.P. the use of the second Rifton chair at home. Ms. Silver believed that having a Rifton chair at home would make things more consistent for L.P., whose small size made it difficult for him to hold himself up on a regular toilet. The Rifton chair was smaller, with arms and a back, and L.P. could sit comfortably on it. Ms. Silver recalled telling T.P. that the Rifton chairs have belts but denied telling T.P. that L.P. would be strapped into the chair. To the contrary, Ms. Silver told T.P. that school personnel are not allowed to use the buckle on the Rifton chair. Ms. Silver stated that she was not the primary potty trainer, in the sense of hands-on participation in taking L.P. to the bathroom. Ms. Silver was usually too involved with teaching the class to perform the potty training duty, though she did keep her eye on the bathroom. Once Ms. Dowell took over circle time, Ms. Silver was able to help with L.P. during that portion of the day. The Rifton chair had a short step up to the seat, and L.P. could easily seat himself. Ms. Silver did not physically place L.P. on the potty chair. L.P. pulled his own pants up and down. The basic procedure was that Ms. Silver would tell him it was time to go to the potty, and L.P. would go into the bathroom and get on the Rifton chair by himself. Sometimes Ms. Silver would walk to the bathroom with him, and sometimes she would merely watch him. Ms. Silver testified that she tried never to let L.P. sit on the potty for more than 15 minutes, though she conceded there may have been times when he spent between 15 and 20 minutes on the potty. Ms. Silver stated that L.P. liked going to the potty, but that he had a very short attention span and would not have fun on the potty, or doing anything else, for 20 minutes. Ms. Silver testified that as the potty training progressed into October, the adults were able to observe L.P. from outside the bathroom. Ms. Silver stated that the goal in potty training is for the attending adult to get farther and farther away so that the child can become independent in toileting. Ms. Silver testified that, prior to October 22, 2008, the only problem of which she was aware regarding L.P.'s potty training was a direction from Ms. Turner to cease allowing L.P. to run around the classroom in his shirt and underpants during the training sessions. Ms. Silver's prior site coaches had allowed the practice, and Ms. Silver saw no harm in allowing a very young child to discard his shorts and wear only underpants, which made it easier for L.P. to help himself on and off the potty. Though she disagreed with Ms. Turner's order to put on L.P.'s pants, Ms. Silver complied immediately. Notes written by Ms. Flotkoetter (who was the first to see L.P. and reported the situation to Ms. Turner) indicate that this incident occurred on September 5, 2008, the Friday before Ms. Silver allegedly commenced strapping L.P. to the Rifton chair.24/ Ms. Dowell was the chief accuser in this case, the only witness who unequivocally stated that she saw Ms. Silver strap L.P. to the Rifton chair. Ms. Dowell testified that on September 8, 9, and 10, 2008, Ms. Silver strapped L.P. to the Rifton chair for virtually the entire day, letting him up only for lunch. She left open the possibility that the strapping also occurred on September 11, 2008, but the general thrust of her testimony limited those occurrences to the three previous days.25/ Ms. Dowell's testimony as to the dates is directly contradicted by T.P., L.P.'s mother. Contemporaneous notes made by T.P. were introduced into evidence. These notes indicated that L.P. was not in school at all on September 9 and 10, 2008. At the hearing, T.P. affirmed the accuracy of these notes. Ms. Dowell testified that the longest continuous stretch of L.P.'s being strapped to the chair was three hours, from the end of breakfast at 8:45 a.m. until lunch at 11:45, when Ms. Cornell allowed him off the chair to eat. Ms. Silver strapped L.P. right back onto the chair after lunch. Ms. Dowell testified that L.P. often struggled to get off the chair. One day, Ms. Cornell said something to Ms. Silver about L.P.'s struggles. Ms. Silver responded by pulling a curtain across the bathroom door so that no one could see into the bathroom and L.P. could not see out. Ms. Dowell stated that Ms. Cornell eventually pushed the curtain back open. Out of a dozen faculty and parent witnesses who were familiar with Ms. Silver's classroom, Ms. Dowell was the only one to mention there being a curtain across the bathroom door. Ms. Dowell testified that she made no move to unstrap L.P. because Ms. Silver made it clear that this was "her deal" and she was going to be the one to take care of L.P. This was Ms. Silver's way of doing toilet training and Ms. Dowell and the paraprofessionals were not to interfere. Ms. Dowell testified that on the first day, September 8, she saw Ms. Silver walk L.P. to the bathroom, but did not see her strap him to the Rifton chair. On the second day, she was more attentive and saw Ms. Silver strap the child to the chair, both in the morning after breakfast and then after lunch. On the first day, L.P. remained strapped to the chair for the three hours between breakfast and lunch. As to the second day, Ms. Dowell could not be certain how long L.P. was strapped to the chair because she was busy "running the classroom." See Findings of Fact 49-53, supra, for a discussion of the credibility of Ms. Dowell's claim that she ever "ran the classroom." Ms. Dowell testified that she was in charge of the classroom, and had no help from the teacher because Ms. Silver was too busy with the potty training of L.P. This testimony is directly contradicted by Ms. Silver and Ms. Cornell, both of whom testified that Ms. Silver's hands-on participation in the potty training process was minimal, except during the short periods when Ms. Dowell was in charge of circle time. The testimony of Ms. Silver and Ms. Cornell is credited. The greater weight of the evidence establishes that Ms. Dowell never ran the classroom, and certainly not as early as September 8, after a mere two weeks on the job. Ms. Dowell asserted that this sequence of events, strapping L.P. to the chair after breakfast and again after lunch, became the "routine," and was repeated on the third day. Ms. Dowell stated that by the third or fourth day, L.P. caught on to urinating in the potty, and therefore was not forced to sit for hours at a time. Ms. Dowell testified that on one of the days, Ms. Cornell commented that L.P. was getting a red mark around his waist, presumably from the strap on the Rifton chair. Ms. Gale reported this to Ms. Flotkoetter, who in turn stopped Ms. Dowell in the hall and told Ms. Dowell to come get her if she saw Ms. Silver strapping the child to the Rifton chair.26/ Ms. Flotkoetter flatly denied having such a conversation with Ms. Dowell, and denied knowing anything about allegations of Ms. Silver strapping L.P. to the Rifton chair until long after September 10, 2008. Ms. Flotkoetter testified that she saw L.P. walking in and out of the bathroom during this period. Ms. Flotkoetter did recall bumping into Ms. Gale in the hallway and Ms. Gale telling her in passing that she believed L.P. was spending too much time on the potty. Ms. Gale made no allegation that the child was strapped onto the potty. Ms. Gale did not seek out Ms. Flotkoetter to tell her about L.P. This was not a "big moment," in Ms. Flotkoetter's words, but a brief conversation in the hallway. Ms. Flotkoetter could not recall precisely when Ms. Gale told her about L.P. on the potty, but remembered that she immediately reported the matter to Ms. Turner. Ms. Turner testified that her first inkling of any allegations of Ms. Silver committing any kind of abuse came in mid-October. Ms. Silver's only recollection of anything being said about marks on L.P.'s waist was her own statement, made when she noticed such marks on a day when the child wore pants with a tight elastic waistband. At the hearing, T.P. agreed that the elastic on L.P.'s shorts would leave a mark on his waist, an "indentation." Ms. Dowell asserted that one reason Ms. Silver stopped strapping L.P. to the chair was that Ms. Turner and Ms. Flotkoetter were increasing their vigilance over the classroom due to the reports from Ms. Dowell and Ms. Gale. Ms. Dowell testified as to one incident in which Ms. Turner was walking into the classroom, and Ms. Cornell "sprinted to the bathroom" to unstrap L.P. before Ms. Turner could see him. No other witness corroborated Ms. Dowell's testimony on this point. As noted above, neither Ms. Turner nor Ms. Flotkoetter had any contemporaneous knowledge of allegations regarding Ms. Silver's strapping L.P. to the chair. Ms. Flotkoetter testified that she was given no instructions to be extra watchful of Ms. Silver's classroom. Ms. Turner had no recollection of seeing a paraprofessional rush into the bathroom and emerge with a child. Neither Ms. Flotkoetter nor Ms. Turner witnessed anything in September 2008 that would have led them to suspect that any abuse was occurring in Ms. Silver's classroom. Ms. Turner testified that on one occasion she went into Ms. Silver's classroom and saw a little boy on the potty seat. She did not recall the boy's name, but it is undisputed that L.P. was the only child being potty trained at the start of the 2008-2009 school year. (The child also could have been G.J., who was already potty trained.) Ms. Turner asked Ms. Silver how long the boy had been on the seat, and Ms. Silver responded that he had just gotten on. Ms. Turner stayed to see how long the little boy sat on the seat. He finished and got right off the seat. No adult went into the bathroom to hurry the child off the potty seat. Ms. Cornell recalled an incident in which she went in to check on L.P. just as Ms. Turner was walking into the room, but stated that it was merely a coincidence. L.P. had been in the bathroom for about 15 minutes, and no one else was checking on him. Ms. Cornell noticed that L.P. was not running back and forth as he tended to do when in the bathroom, and she feared that he might have buckled himself into the Rifton chair. Ms. Turner happened to walk into the room just as Ms. Cornell entered the bathroom. Ms. Cornell's testimony is credible on this point. Ms. Dowell conceded that there were times during L.P.'s potty training when she saw L.P. off the potty and peeking around the corner of the bathroom, or coming out of the bathroom on his own after Ms. Silver had taken him in. Ms. Dowell attributed these incidents to L.P.'s ability to unfasten the buckle on the Rifton Chair's strap. As noted above, Ms. Cornell never saw L.P. unbuckle the strap. L.P.'s mother was certain that he was incapable of unbuckling the strap. Ms. Dowell made no contemporaneous mention of the potty chair situation to her supervising professor, Dr. Karen Patterson of the University of North Florida.27/ Ms. Dowell explained her failure to report obvious child abuse by stating that Ms. Silver had claimed to be a close friend of Dr. Patterson. Ms. Dowell stated that this fact made her hesitant to confide in Dr. Patterson. Ms. Silver denied telling Ms. Dowell that Dr. Patterson was her friend, and was at a loss to explain how Ms. Dowell could have had that impression. In her discussions with Ms. Dowell, Ms. Silver never even referred to Dr. Patterson by her first name. Ms. Silver knew Dr. Patterson through their professional contacts in the Jacksonville autism community, but never presumed to think of Dr. Patterson as her friend. Dr. Patterson confirmed that she knew Ms. Silver professionally, but had no social relationship whatever with Ms. Silver. In her initial e-mail correspondence with Ms. Dowell, Dr. Patterson referred to the teacher as "Ms. Silva." A couple of years before these events, Dr. Patterson had had another intern placed in Ms. Silver's class. Dr. Patterson testified that the intern had a great experience and no complaints. Ms. Dowell's testimony was inconsistent as to what and when she reported prior to mid-October 2008. She stated that during the first two weeks of school, prior to the potty incidents with L.P., she had talked to Ms. Flotkoetter about problems in Ms. Silver's classroom, in particular Ms. Silver's habits of "screaming and yelling" at the children and of spending an inordinate amount of time on the computer rather than teaching the class.28/ Ms. Dowell stated that Ms. Flotkoetter told her to keep a log of these incidents. However, before she could commence work on the log, word was relayed to her via Ms. Turner that the principal of Kernan Trail, David Gilmore, did not think it was a good idea to write anything down.29/ At another point in her testimony, Ms. Dowell testified that she reported the toileting issues to Ms. Flotkoetter on September 18. She also insisted that she spoke to Ms. Turner about the toileting issues well before October 22, 2008.30/ Ms. Dowell stated that Ms. Turner and Ms. Flotkoetter separately told her to come to one of them if she ever again saw Ms. Silver strap a child to the Rifton chair. Ms. Dowell told Detective Arflin that, on or about September 20, she had told Ms. Turner that she was afraid Ms. Silver would give her a bad grade on her internship because she disagreed with much of what Ms. Silver did in the classroom. Ms. Turner told Ms. Dowell not to worry, that she and Ms. Flotkoetter would back her up. Ms. Flotkoetter told Ms. Dowell that they were trying to make Ms. Silver mad enough to resign from her job. Ms. Flotkoetter denied telling Ms. Dowell that the administration of Kernan Trail was trying to goad Ms. Silver into resigning. Ms. Turner denied having a conversation with Ms. Dowell in which she promised to back up Ms. Dowell if she received bad grades from Ms. Silver. Ms. Turner denied that Mr. Gilmore ever directed her to tell Ms. Dowell not to keep a written record of events in Ms. Silver's class, and stated that Mr. Gilmore would never do such a thing. Ms. Turner repeatedly, and with force, stated that neither she nor Mr. Gilmore would ever tell an employee not to report abusive conduct. Ms. Turner further testified that in her visits to Ms. Silver's room, she never saw anything to support any of the allegations made against Ms. Silver.31/ Ms. Turner testified that the first time she heard allegations regarding Ms. Silver strapping a child to a toilet seat was on October 22, 2008. This is in direct conflict with Ms. Dowell's testimony that she reported to Ms. Turner several times to inform her of what she was seeing and hearing in Ms. Silver's class, including details about L.P.'s potty training.32/ Ms. Flotkoetter testified that every time she went into Ms. Silver's classroom, she asked Ms. Dowell how things were going. With the exception of the one time she complained about the animals, Ms. Dowell's response was invariably that everything was fine. Ms. Dowell comes forward On October 13, 2008, Z.G.'s mother, S.G., was in the classroom to pick up her child. According to S.G., she and Ms. Silver were chatting when Z.G. bent down to pull out a cubby shelf. Ms. Silver snapped her finger and said, "Don't touch." S.G. testified that her son jolted as if he had been shocked, then wrapped himself around her leg and covered his ears. As S.G. was walking with her child, she saw Ms. Dowell and Ms. Gale walking children to the bus. When asked by S.G. what was going on between Ms. Silver and Z.G., Ms. Dowell replied that he was "terrified" of Ms. Silver. Ms. Dowell urged S.G. to speak up, because Ms. Silver was "always screaming and yelling" at the children. Ms. Gale "butted in" to confirm Ms. Dowell's statements, saying that Ms. Silver was "mean," that she "yanks the kids around all the time and all she does is scream." Ms. Dowell told S.G. that she had tried to talk to Ms. Silver, "but she wasn't getting anywhere." S.G.'s testimony establishes that before Ms. Dowell brought her allegations against Ms. Silver to her superiors at Kernan Trail, she began making the allegations to the parents of children in the classroom, undermining Ms. Silver's authority before any official investigation could even commence. In her own testimony, Ms. Dowell acknowledged that her responsibility as an intern teacher was to report abuse to the school administration before going to the parents. On October 15, 2008, Ms. Dowell came to Ms. Flotkoetter to lodge a complaint about Ms. Silver's actions in the classroom. At that moment, Mr. Gilmore was in a meeting with his assistant principals, Ms. Turner and Ms. Mackey. Ms. Flotkoetter told Ms. Dowell to go into that meeting and make her complaint to the school's administrators. Ms. Dowell entered the meeting and stated that there were problems in Ms. Silver's classroom. Her sworn testimony was that she discussed "more than just [Ms. Silver's] yelling," but was otherwise unspecific as to the details of the conversation.33/ Ms. Turner recalled that Ms. Dowell accused Ms. Silver of screaming in children's faces and holding them down during nap time, without specifying when or how often these events occurred. Mr. Gilmore recalled Ms. Dowell stating that Ms. Silver yelled at the children and grabbed their hands. Mr. Gilmore stated that Ms. Dowell repeatedly voiced her concerns about the yelling. "That was the large amount of her conversation." Mr. Gilmore testified that Ms. Dowell may have mentioned that Ms. Silver strapped a child to the potty chair.34/ Ms. Dowell testified that Mr. Gilmore reiterated his advice not to put anything on paper. She stated that she asked Mr. Gilmore what she should do if parents asked her questions about the abuse occurring in the classroom. Mr. Gilmore replied that she should tell the parents she didn't notice anything. Ms. Dowell testified that she refused to lie outright to the parents, and informed Mr. Gilmore that she would answer "yes" or "no" questions put to her by the parents. Both Ms. Turner and Mr. Gilmore strongly denied that the latter ever gave Ms. Dowell any general instruction to keep quiet about her allegations. John D. Williams, the School Board's director of professional standards, testified that he knew Mr. Gilmore was displeased at hearing that Ms. Dowell had discussed these matters with parents. If Ms. Dowell were having conversations with one parent about confidential matters concerning another parent's child, it would have been entirely appropriate for Mr. Gilmore to caution Ms. Dowell to cease such conversations.35/ While it is plausible that Mr. Gilmore made some cautionary statement to Ms. Dowell, it is not plausible that he told her to pretend that she hadn't seen anything and to affirmatively lie to the parents. Ms. Dowell stated that, a day or so after this meeting, she inquired as to the status of the investigation she presumed was occurring. Ms. Flotkoetter told Ms. Dowell, in reference to Ms. Silver, that they were preparing to "rock her world." Ms. Flotkoetter denied telling Ms. Dowell that they were going to "rock her world," and was incredulous that any such unethical and unprofessional statement was attributed to her by Ms. Dowell. Ms. Flotkoetter's testimony is credited on this point.36/ Both Ms. Dowell and Ms. Gale testified that they believed Mr. Gilmore, Ms. Turner, and Ms. Flotkoetter were engaged in a cover-up of Ms. Silver's actions. Ms. Gale believed they were "covering their butts." Ms. Dowell stated that the administrators were initially on her side, but that at some point they decided that she "[knew] too much." Because they were "going down with the teacher," they intended to "screw" Ms. Dowell.37/ Ms. Turner testified that no one at the school was trying to hurt Ms. Dowell or keep her from finishing her internship. Ms. Turner, Ms. Silver, and Mr. Gilmore all agreed to help Ms. Dowell if she wanted to go to a different classroom or finish her internship at another school. Ms. Turner, Ms. Flotkoetter, and Mr. Gilmore all acknowledged that as school personnel they were mandatory reporters under section 39.201, Florida Statutes, meaning that if one of them knew or had reasonable cause to suspect that a child was being abused, he or she would be required to report the suspected abuse to the Department of Children and Family Services ("DCF") central abuse hotline. D.G.'s allegations Ms. Turner explained that, up to this point, nothing said by Ms. Gale or Ms. Dowell had established reasonable cause for her to suspect Ms. Silver of child abuse. In Ms. Turner's mind, Ms. Silver had been accused only of being too loud and too abrupt with the children. Ms. Turner testified that this changed when a parent named D.G. came forward with new allegations. D.G. is the mother of B.G., an autistic boy who turned three in mid-September 2008. D.G. and her husband were both experienced registered nurses at a local hospital, and were able to adjust their schedules so that one of them was always with B.G. D.G. worked one day during the week, and weekends. B.G. entered Ms. Silver's class on October 2, 2008, after visits to four other schools. D.G. testified that Ms. Silver was very cordial, and discussed the fact that she had adopted a son with Asperger's and was very active in the autistic community. D.G. stated that this made her and her husband more comfortable, because Ms. Silver was the only teacher who seemed so involved and knowledgeable on the subject of the autism spectrum. D.G. also liked the fact that the children in Ms. Silver's class were smaller and more under control than the children in other classes. B.G. was small for a three-year-old, and D.G. admitted to being extremely anxious about leaving him at school for the first time. D.G. testified that she had a telephone conversation with Ms. Silver on the day before B.G. entered the class. The conversation itself involved feeding and frequently giving juice to B.G., which Ms. Silver assured D.G. would not be a problem because she had two paraprofessionals in the room with her. However, D.G. found it disconcerting that Ms. Silver would interrupt the conversation to yell at the children "in a very loud voice, very boisterous." Because B.G. was sensitive to sudden loud noises, which often made him crouch and cover his ears or cry, Ms. Silver's loud voice caused D.G. some concern. D.G. testified that on the first day, October 2, she and her husband stayed for over an hour, observing the class. Two boys were playing with trucks on the floor. Suddenly, Ms. Silver yelled at the boys to "get over here right now." D.G. stated she "jumped out of her skin" at the sound of Ms. Silver's voice. D.G. stated that she thought she should have taken her son out of the school that second, but she did not. B.G. actually attended Kernan Trail for only about ten days. He was sick on October 17, 2008, and D.G. never brought him back. He never attended a full day because D.G. took him out at 1 p.m. every day for applied behavior analysis ("ABA") therapy. D.G. testified that, "I had suspicions from day one from all of the screaming and yelling there's more going on." This was due to her "mother's instinct." Because of her work schedule, D.G. was able to watch Ms. Silver's classroom extensively, perhaps obsessively. D.G. knew that Ms. Silver had an open door policy, but she did not want Ms. Silver to know she was watching. D.G. would drop off B.G. in the classroom, walk down the hallway to make Ms. Silver believe she had left the premises, wait outside on a bench for about an hour, then slip back inside the hallway and surreptitiously watch the classroom from the outside. She testified that she left the campus on only one day during B.G.'s tenure at Kernan Trail. D.G. testified that one day she came early to pick up B.G. for his ABA therapy, and the class was still in naptime. She quietly entered the darkened room and waited for her eyes to adjust. She could see a little boy's legs kicking. She moved for a better look and could then see that Ms. Silver had her feet on the child's chest, as he kicked and flailed with his arms and legs. When D.G. asked what was going on, Ms. Silver immediately lifted her feet off the child. Ms. Silver said she was holding the boy, T.D., down because she didn't want him to "bulldoze" any of the other children. Ms. Silver told D.G. that T.D. was fond of rolling over the children who were sleeping, and she was acting to prevent him from engaging in that form of horseplay.38/ On another day, D.G. stated that she saw Ms. Cornell holding a child in a headlock. D.G. testified that she saw student G.J. alone in a small wooden chair outside of the classroom "many times." On one occasion, she saw G.J. sitting in the hallway, and saw him again when she returned two hours later. D.G. said that when she returned, she mentioned that G.J. was still sitting out in the hallway. She stated that Ms. Silver "kind of snickered" and said "we forgot he was out there." D.G. did not find the situation funny. D.G. testified that on another occasion, she came in at nap time to see G.J. lying still on one of the floor mats with one foot a few inches off the mat. Ms. Silver walked over and told him to get his foot on the mat immediately. She repeated her order, but G.J. did not move. Ms. Silver "went over, grabbed his foot, yanked it up, and threw it down on the mat." G.J. immediately started crying. Ms. Silver grabbed him up by the hand and yanked him off the mat. She held him up so that his toes barely touched the ground and dragged him on his tiptoes to go out the door. G.J. was saying, "Owie, owie." Ms. Silver was telling him not to wake up his friends. She opened the classroom door and threw G.J. into the wooden chair so hard that it tipped backwards. D.G. stated that if the chair hadn't been against the wall, it would have flipped over. G.J. was crying. Ms. Silver told him to sit there until he stopped crying, and went back into the classroom. On yet another day, D.G. saw G.J. standing over the sink, holding his hand under a slow drip from the faucet. Ms. Silver yelled at him to take his hand out of the water, but G.J. was not attending to her. Ms. Silver ran over to him and said, "You heard what I said." She grabbed him by the right side of his shirt and shoulder and yanked him backwards, and flipped a small chair around and threw him into it. G.J. just sat there whimpering. D.G. testified that she brought her concerns to school officials from the first day B.G. attended. She went to Ms. Flotkoetter on the first day, because she had been told that the site coach is the first person with whom to address any classroom problems. She told Ms. Flotkoetter that she understood the need to be stern with the children and to redirect them, but that Ms. Silver was screaming at them, which was inappropriate. Ms. Flotkoetter told D.G. that she was aware that there were "issues" in Ms. Silver's classroom, but that the school was taking care of the matter. Upon D.G.'s further inquiry, Ms. Flotkoetter declined to elaborate on the meaning of "issues." D.G. testified that after the first day, she told her husband that she wanted to pull B.G. out of the school, but they decided to give it another chance. On the second day, D.G. received the same treatment: she complained, and Ms. Flotkoetter supposedly checked on things. D.G. tried to see Ms. Turner, but was only able to leave messages. On the next day, Ms. Turner returned D.G.'s call. Ms. Turner told D.G. that the administration was fully aware of what was going on the Ms. Silver's class and was investigating the matter. Ms. Turner denied that child abuse was being committed in Ms. Silver's classroom. D.G. asked her about Mr. Gilmore, and why he was not returning her calls. Ms. Turner told D.G. that Mr. Gilmore was aware of the matter and had charged Ms. Turner with handling the situation. D.G. met Ms. Dowell on October 2, B.G.'s first day at Kernan Trail. D.G. testified that, towards the end of B.G.'s enrollment at the school, she asked Ms. Dowell to step out into the hall and speak with her. Ms. Dowell told D.G. that she could not give D.G. specifics about what was happening in the classroom because she did not want to jeopardize her internship. Ms. Dowell advised D.G. to go to Ms. Turner. D.G. responded that she had already spoken to Ms. Turner and Ms. Flotkoetter, to no avail. D.G. testified that she could tell Ms. Dowell wanted to say something, but felt that she could not. D.G. asked Ms. Dowell if she would answer "yes" or "no" questions, and Ms. Dowell agreed. D.G. asked if Ms. Silver constantly yells. Ms. Dowell said, "Yes." D.G. asked whether Ms. Silver and Ms. Cornell "manhandle" the children all the time. Ms. Dowell said, "Yes." D.G. asked about Ms. Cornell squeezing the children's hands, and Ms. Dowell said, "Yes." D.G. testified that she began to cry at the responses Ms. Dowell made. As Ms. Dowell attempted to calm her, Ms. Flotkoetter and Ms. Turner came out a door into the hallway. D.G. testified that she told Ms. Flotkoetter she was appalled that they were doing nothing and by their lack of concern. D.G. testified that she spoke with Ms. Turner four or five times on the telephone and talked to her at the school three times in early October. She left messages for Mr. Gilmore of increasing anger and intensity. On October 22, after she had pulled her son out of the school, D.G. left Mr. Gilmore a message "that I now was his worst nightmare.39/ You should have returned my phone calls. You should have helped me. You should have helped these children." On the next day, October 23, 2008, D.G. made the report to the JSO that precipitated Detective Arflin's investigation. Ms. Flotkoetter recalled that D.G. met her in the hallway and said that she had concerns about Ms. Silver's classroom. However, D.G.'s only complaint was that Ms. Silver was too loud. Ms. Flotkoetter stated that Ms. Turner was walking down the hall as she was talking to D.G., and that she told D.G. that Ms. Turner was the person to address complaints about Ms. Silver's class. D.G. did not speak to Ms. Turner at that time, and Ms. Flotkoetter did not know if they ever spoke to one another. Ms. Flotkoetter denied telling D.G. that she was aware of "issues" in Ms. Silver's room. The only "issue" Ms. Flotkoetter knew of prior to October 22 was the animals in Ms. Silver's classroom. Ms. Flotkoetter had no memory of an incident in which she and Ms. Turner came upon Ms. Dowell and D.G. in the hallway. Ms. Dowell confirmed the gist of her conversation in the hallway with D.G., but she did not confirm D.G.'s testimony regarding the subsequent meeting with Ms. Flotkoetter and Ms. Turner. Ms. Turner testified that she spoke with D.G. only one time in any detail. This conversation occurred on October 20, 2008, when B.G. was sick and out of school.40/ Ms. Turner recalled that D.G. complained her son was holding his ears when he came home. D.G. also stated that she had seen Ms. Silver "put a child down in a timeout chair outside of the room very hard." In response to Ms. Turner's counseling, D.G. confessed that she may be a little overprotective, and needed to give the school experience a little more time. Ms. Turner told D.G. that she was welcome to observe Ms. Silver's classroom at any time, without an appointment. Ms. Turner also promised to monitor the classroom more closely. Ms. Turner specifically promised to listen for yelling from inside the classroom. D.G. did not complain in so many words about Ms. Silver's yelling, but Ms. Turner inferred such a complaint from D.G.'s statement about B.G. holding his ears. Ms. Turner testified that she followed through on her promise to D.G., and started monitoring Ms. Silver's classroom more frequently. Ms. Turner heard or saw nothing to substantiate the complaint. Later that week, Ms. Turner had a brief telephone conversation with D.G. about making an appointment for D.G. to meet with Mr. Gilmore. D.G. demanded a meeting with Mr. Gilmore. She stated there were things going on in the classroom that she wanted to discuss with Mr. Gilmore. D.G. was upset. She refused to discuss the matter with Ms. Turner on the telephone. She stated that she would go to the police if she could not meet with Mr. Gilmore. On or about October 20, when D.G. made allegations that could be construed as child abuse, Ms. Turner immediately called the DCF hotline, in order to have an outside agency investigate the matter. Ms. Turner told Mr. Gilmore that she had made a report to the DCF hotline, but saw no need to tell anyone else about it at the preliminary stage. As to the substance of D.G.'s allegations, it is noted that D.G. contemporaneously made the same allegations regarding Ms. Silver41/ to another parent, S.G., the mother of Z.G.: Ms. Silver did nothing but "scream and yell" at the children; she placed a child in the hallway unsupervised; she roughly handled children and slammed them into chair and onto their nap mats; and she placed her feet on a child at nap time. Ms. Silver acknowledged that D.G. was frequently in her classroom, and stated that she was welcome to be there. Ms. Silver denied that D.G. ever confronted her about anything that was going on in the classroom. There was general agreement among the witnesses that Ms. Silver could be loud. However, Ms. Silver denied that she "yelled" or "screamed" at the children, because "yelling" or "screaming" implies that there is rage or anger underlying the high volume. Ms. Silver testified that she grew up in a loud family, that she had always been loud, and that she sometimes doesn't even realize that she is being loud. She stated that if she finds a need to be "dramatic" with the children, she makes every effort to convey the drama through her tone of voice rather than through volume. Ms. Kavanaugh testified that she constantly counseled Ms. Silver about her loudness when she taught at Lone Star, but that she never heard Ms. Silver "yelling" at the children or found her to be inappropriate with the children in any way. Neither Ms. Flotkoetter nor Ms. Turner ever heard anything they could describe as "yelling" or "screaming" emanating from Ms. Silver's classroom. Ms. Silver's attorney, Mr. Sheppard, has a deep, booming voice, and would ask the witnesses who accused Ms. Silver of "yelling" or "screaming" if they believed he was yelling or screaming. In one example, Ms. Tupper, the occupational therapist, agreed that Mr. Sheppard was "screaming" when the undersigned perceived only increased volume. The School Board presented as axiomatic the proposition that autistic children are extraordinarily sensitive to loud noises, and that this sensitivity caused children in Ms. Silver's class to cover their ears at her loudness. However, the evidence presented at hearing established that some autistic children, such as G.J., have a low sensory threshold. J.J. testified that G.J. required more sensory input than other children. When he was younger, G.J. would not respond to a normal speaking voice. J.J. had to raise her voice to a level that most people would consider inappropriate in order to get his attention. D.G. testified that her son's problem was sudden loud noises, not merely increased volume. According to Ms. Dowell, Z.G. and L.P. were "hypersensitive" to sound. However, S.G., Z.G.'s mother, testified that while he would cover his ears when he was startled or a noise was too loud, he would also cover his ears "when he didn't want to do something." S.G. agreed that Z.G.'s first IEP at Kernan Trail noted that "he will often cover his ears in response to commands he does not like." L.P.'s mother testified that he is not unusually sensitive to loud noises. In fact, L.P. will turn up the volume on things he likes and make them very loud. He covers his ears only when he doesn't want something to be loud. In summary, the School Board failed to demonstrate that the mere "loudness" of Ms. Silver's voice had any pervasive negative effect on the children in her classroom. The evidence failed to demonstrate that, by any objective standard, Ms. Silver engaged in "screaming" or "yelling" at the young children in her classroom. Ms. Silver denied ever placing her feet on a child. Ms. Cornell stated that she had never seen Ms. Silver place her feet on a child or hold a child down on a mat. Ms. Cornell testified that Ms. Silver used a technique that she called "London Bridge" to calm a restless child at naptime. Ms. Silver would place her legs over the child, making a sort of tent over the child. This would restrict the child's movement but did not involve direct physical contact.42/ Ms. Dowell made no mention of the "London Bridge" technique in her testimony. While acknowledging that she could be too loud in the classroom, Ms. Silver denied ever being physically rough with any of the children. She testified that she would walk children to the timeout chair. She would hold their wrists, because some autistic children do not like having their hands held. Ms. Silver denied ever "grabbing" a child or throwing a child into a chair. She stated that G.J. would sometimes throw himself into the timeout chair, and that one time he threw himself with sufficient force to tip over the chair. Ms. Silver immediately phoned G.J.'s mother to tell her about the incident. Ms. Cornell testified that "redirection sometimes became very loud and would be hand on hand, and those things sometimes were more that I liked or-- or didn't want to happen." By "hand on hand," Ms. Cornell meant that Ms. Silver would take a child by the arm to the timeout chair. While conceding that Ms. Silver may have been acting for dramatic effect, Ms. Cornell believed that "it was a little too loud, a little too close, a little too firm possibly." Ms. Cornell remembered that Ms. Silver once placed a child in the timeout chair with enough force to tip over the chair. She later clarified that she did not see Ms. Silver push the child into the chair; rather, she heard the clatter of the chair tipping over and turned to see the child on the floor. The child was not injured. Ms. Dowell testified that she saw Ms. Silver roughly place children in the timeout chair. She made no mention of a chair tipping over. S.G., the mother of Z.G., testified that she was in the class one day and student T.D. was feeling her hair. He accidentally pulled hard on her hair and she said, "Ouch." Ms. Silver "grabbed him by his arm and yanked him away from me and, you know, forcefully put him in the timeout chair and told him, we don't pull hair. . . " As to the allegation that she placed G.J. in a chair outside the classroom, Ms. Silver herself admitted that she did this on a single occasion. G.J. had been in Ms. Silver's class for two years, and she knew him very well. G.J. was being loud during nap time, and Ms. Silver did not want him to wake up the other children. She asked G.J. to sit in the chair outside the classroom until he calmed down. Ms. Silver testified that G.J. was the only child she would have put outside the classroom because she knew G.J. would stay in the chair. Ms. Silver watched him from inside the classroom to make sure he stayed in the chair. See Finding of Fact 278, infra, regarding J.J.'s general approval and adoption of the timeout chair method employed by Ms. Silver. Ms. Dowell testified that during naptime one day, G.J. was moving around and not lying still. Ms. Silver "yanked him up off the mat, drug [sic] him outside, slammed him in a chair, and left him out there and forgot about him."43/ Ms. Dowell did not recall G.J. being put out of the classroom more than once. Ms. Cornell recalled one incident in which Ms. Silver placed a child in a chair outside the door of the classroom. D.G.'s overall credibility was impaired by the overwrought and emotionally labile presentation she made at the hearing. She exaggerated her efforts to work with school personnel in pursuing her complaints. D.G. testified that she made frequent, frantic efforts to get the attention of Ms. Flotkoetter and Ms. Turner. Ms. Flotkoetter recalled only that D.G. complained about Ms. Silver's being loud. Ms. Turner recalled only one conversation with D.G., after which Ms. Turner immediately phoned the DCF hotline. Ms. Bennett, the School Board's autism specialist, testified as to a strange telephone conversation with D.G., whom she had never met in person: "[D.G.] told me that Rhona told her that she had been artificially inseminated with a turkey baster." D.G. was clearly bent on getting Ms. Silver out of the school system at any cost. She told the police officer who took her report that she "want[ed] that woman on the five o'clock news." The evidence established that D.G. was not above inventing preposterous stories to achieve her aim. Nonetheless, some of D.G.'s allegations were corroborated in part by other credible testimony. Ms. Silver did not "yell and scream all the time," but she did have a loud voice and stern presentation that an overprotective parent could construe as "yelling." Ms. Silver was at times more physical with the children than some observers, even Ms. Cornell, found appropriate. Ms. Silver did once place G.J. in a chair in the hallway outside the classroom, which was very poor judgment even in light of Ms. Silver's attempt to explain and extenuate the circumstances. The evidence was not sufficient to establish that Ms. Silver placed her feet on a child to hold him in place, though even the "London Bridge" technique as described by Ms. Cornell might give rise to parental objections. John D. Williams, the director of professional standards for the School Board, testified that the School Board generally applies progressive discipline in four steps: verbal reprimand; written reprimand; written reprimand with suspension; and termination. In this case, the School Board decided to proceed straight to termination because Ms. Silver had been subject to a felony arrest for child abuse, in violation of section 827.03(1)(a), Florida Statutes, in relation to the allegation that she strapped L.P. to the Rifton chair. Mr. Williams testified that the Rifton chair allegation was the central charge against Ms. Silver, even under the School Board's theory of the case. The other behaviors included in the allegations against Ms. Silver happened over a period of time. Mr. Williams stated that these behaviors--yelling, grabbing and rough handling of children, and placing children unsupervised in the hallway--would have lent themselves to progressive discipline. Ms. Dowell's departure At the October 15, 2008 meeting with Ms. Dowell, Ms. Turner became aware for the first time that there were serious problems between Ms. Silver and Ms. Dowell. On October 20, Ms. Turner spoke to D.G. and then reported D.G.'s allegations to the DCF hotline. As of the morning of October 22, Ms. Turner had decided that it would be appropriate to remove Ms. Dowell from Ms. Silver's classroom.44/ At approximately 8:30 a.m., Ms. Turner spoke with Stephanie Smith, who taught a self-contained class for students with autism, grades four and five, to ask whether Ms. Dowell could complete her internship in Ms. Smith's room. Ms. Smith agreed that Ms. Dowell could come into her classroom. Ms. Smith testified that Ms. Turner only told her that Ms. Dowell was having "problems" in Ms. Silver's class that necessitated the move. Sometime between 8:30 and 9:00 a.m., Ms. Flotkoetter came down to Ms. Silver's classroom to bring Ms. Dowell to Ms. Turner's office. As it happened, however, Ms. Silver had chosen the same morning to have a discussion with Ms. Dowell about the precariousness of her internship. At about 8:00 a.m., Ms. Silver asked Ms. Dowell to walk with her down to the media center, which Ms. Silver knew would be quiet and deserted at that early hour. Ms. Silver wanted to point out to Ms. Dowell that she had less than a month and a half left in her internship, and that she had a lot left to do if she intended to complete the requirements set forth in the FSU Handbook. Ms. Silver began to talk about these matters when Ms. Dowell blurted out that Ms. Cornell was abusing L.P. Ms. Dowell then started crying. Ms. Silver was dumbfounded. She had worked with Ms. Cornell for several years and knew her to be "very gentle" with the children. Ms. Silver asked, "How can that be?" Ms. Dowell answered that Ms. Cornell would squeeze L.P.'s arms when Ms. Silver was not looking. Before Ms. Silver could respond, several people walked into the media center. Because she felt this conversation should be private, Ms. Silver said to Ms. Dowell that they should walk back toward the classroom. It was now time for children to start arriving, and the room was full of people. Before there was any opportunity to resume the conversation, Ms. Flotkoetter came into the classroom for Ms. Dowell. Ms. Dowell agreed that she and Ms. Silver had a private conversation in the media center early on October 22, but she disagreed as to all the other particulars. According to Ms. Dowell, Ms. Silver wanted to talk about the previous day, when Ms. Cornell "got caught using the children's lunch cards and taking their food or something like that." Ms Dowell could not imagine why Ms. Silver wanted to talk to her about it.45/ She denied crying or accusing Ms. Cornell of abusing L.P. Ms. Dowell did acknowledge that Ms. Flotkoetter came to the classroom for her at around 8:30 and took her to Ms. Turner's office, where Ms. Turner informed Ms. Dowell that she was being transferred to Ms. Smith's class for the remainder of her internship. According to Ms. Flotkoetter, Ms. Turner did not reference Ms. Dowell's allegations or the conflict between Ms. Dowell and Ms. Silver. Ms. Turner simply stated that Ms. Dowell should go and have a new experience in a different classroom. Ms. Flotkoetter testified that it was clear Ms. Dowell did not want to change classrooms and seemed concerned about why she was being transferred. Ms. Dowell testified that she was upset because she did not want to leave the children in Ms. Silver's classroom. Ms. Smith testified that Ms. Dowell came to her class during morning rotations, which began at 9:30 a.m. Ms. Smith estimated that Ms. Dowell arrived between 10:15 and 10:30. Ms. Dowell stayed for no more than 30 minutes. She told Ms. Smith that she had to go meet with her professor. Ms. Smith told her that she could go, and Ms. Dowell left the classroom. Ms. Smith never spoke to Ms. Dowell again. Ms. Smith was an immensely credible witness, matter of fact and thoughtful in her recollection of events. She testified that she had only encountered Ms. Dowell a handful of times. Ms. Smith welcomed Ms. Dowell to her class and told her she was welcome to finish her internship there. Ms. Dowell's response was "very blah." She did not say "thank you" or "that would be nice." She only responded that she needed to speak with her professor. Ms. Smith stated that it was apparent from the moment Ms. Dowell entered her classroom that Ms. Dowell did not want to be there. Ms. Smith got the sense that "she was done . . . She was there because she was told that she could complete her internship in my room but she didn't in any way want to be in there . . . My impression was that she had other things on her mind and she did not want to be in my room at that time." At about 11:15 a.m., Ms. Dowell left a note for Ms. Flotkoetter stating that she was going to have a phone conference with her Florida State supervisor and dean of education, and that "I will call you and let you know what they want me to do." Ms. Dowell testified that she left Kernan Trail because she did not want to move permanently to Ms. Smith's class. She believed that her internship required her to stay in one classroom throughout, though she could not point to a provision of the FSU Handbook setting forth such a requirement. She wanted to consult with someone from Florida State before consenting to the move to Ms. Smith's class. Ms. Silver testified that she was very concerned that Ms. Dowell had been removed from her classroom without explanation. Such a thing had never happened in her many years of having interns in her class. Ms. Silver was confused and upset over the entire situation. Ms. Silver telephoned Dr. Patterson, reasoning that the school would not have moved Ms. Dowell without consulting Ms. Dowell's supervising professor. However, Dr. Patterson had no idea what was happening with Ms. Dowell. On the morning of October 21, 2008, she had received an e-mail from Ms. Dowell stating as follows: "I just wanted to check in and let you know everything is still going well. I have started taking over direct instruction and I also do circle time--I am pretty much running the classroom--as per my internship schedule. Hope all is well on your end." Early on the morning of October 22, Dr. Patterson responded with an e-mail informing Ms. Dowell that she intended to come to Kernan Trail on October 23 to observe Ms. Dowell in the classroom. Also on the morning of October 22, Dr. Patterson received the telephone call from Ms. Silver, who told her that the Kernan Trail administration had removed Ms. Dowell from her class. Ms. Silver was crying, and told Dr. Patterson she didn’t know what was going on. Dr. Patterson told Ms. Silver to have Ms. Dowell phone her. As far as Dr. Patterson knew, Ms. Dowell was still at Kernan Trail but in another teacher's classroom. After speaking with Dr. Patterson, Ms. Silver called the school office and requested a meeting with Mr. Gilmore. A meeting was scheduled for 1:00 p.m. At this meeting, which was also attended by Ms. Turner, Ms. Silver learned for the first time of the allegations that were being made against her. Ms. Turner testified that Ms. Silver answered Mr. Gilmore's questions forthrightly and without hesitation. Ms. Silver was shocked at the allegations. She denied ever yelling at a child or hitting a child. She denied ever strapping a child to a chair. Ms. Silver stated that she would hurt herself before she would hurt a child. She could not imagine what D.G. thought she saw, but Ms. Silver denied grabbing G.J. or harming him in any way. She stated that she had had a dozen interns before, and never been accused of harming a child. Ms. Silver stated, "I have lost control of my class and I don't know how to get it back." Ms. Turner testified that this statement was in reference to the number of adults in the classroom. Ms. Silver asked if she could get Ms. Dowell and Ms. Gale out of the classroom, and work with Ms. Cornell alone. At the hearing, Ms. Silver testified that four adults in a room with only six or seven students was unwieldy and made for poor dynamics in the class. Ms. Silver said that she "can't handle this anymore." She stated that she had a friend who worked at Quantum Leap Tutoring, and that she might try to go to work there. She asked whether she could stay until December, and what she needed to do to resign her position. Ms. Silver testified that these statements were reflections of her distress at the outrageousness of the allegations that had just been sprung upon her, not an admission that she had done anything wrong. Ms. Turner declined to speculate as to what Ms. Silver was thinking, but testified that Ms. Silver was crying and upset with everything that was going on. At 1:41 p.m. on October 22, Ms. Dowell responded to Dr. Patterson's e-mail. She wrote, "There has been so much drama going on in my classroom. [Tomorrow] is probably not a good day to come and observe. Please call me so I can explain the situation to you!" Ms. Dowell testified that she had already decided not to come back to Kernan Trail at the time she wrote this e-mail. She also testified that she was sending e-mails about the situation to one of her professors at Florida State, but made no mention of her intention not to return to Kernan Trail. At 2:10 p.m. on October 22, Ms. Dowell phoned-in for a teleconference with Mr. Gilmore, Ms. Mackey, and Ms. Turner. Ms. Dowell asserted that Ms. Silver was friends with Dr. Patterson, which she believed created an inappropriate situation regarding her internship. Ms. Dowell stated that she was "being punished for being an advocate." She stated that she had spoken with D.G. on the phone and answered questions about Ms. Silver's classroom. Ms. Dowell alleged that the "situation" in Ms. Silver's classroom had existed in previous years and was known to the administration. Ms. Dowell stated that Ms. Smith told her, "I think that it's gotten worse this year." Ms. Turner testified that she subsequently talked to Ms. Smith about this statement. Ms. Smith denied ever making such a statement.46/ Ms. Dowell alleged that Ms. Silver used physical force against the children and screamed in their faces. According to Ms. Turner's notes of the meeting, Ms. Dowell asserted that Ms. Silver was "strapping in kids." Ms. Turner testified that Ms. Dowell was alleging that Ms. Silver had strapped more than one child to the toilet. With unintended irony, Ms. Dowell stated, "I'm not going to get into some huge drama." Mr. Gilmore told her that he did not want to put Ms. Dowell back in Ms. Silver's classroom. He advised her to "talk to us in the morning," presumably when she reported for work as scheduled. The conference was adjourned. Ms. Dowell phoned Dr. Patterson at around 4:30 or 5:00 p.m. on October 22. Ms. Dowell said that things were happening in the classroom. Ms. Silver had left a child on the potty for a long time. Ms. Dowell gave few details. Ms. Dowell stated that she was not comfortable with things that were going on in Ms. Silver's classroom and that she had reported them to the principal. Dr. Patterson was surprised. Based on what Ms. Dowell said, it appeared these things had been happening over a period of time, but Ms. Dowell had said nothing to her until now. Dr. Patterson testified that she had never before had an intern who did not come to her when something was wrong. She told Ms. Dowell that she still intended to come to Kernan Trail the next day to observe Ms. Dowell's class.47/ On the morning of October 23, 2008, Ms. Dowell returned to Kernan Trail to collect her belongings, having decided not to return to her internship position at the school. She told Ms. Turner that her Florida State professors had pulled her from the school. This statement by Ms. Dowell was not true. Ms. Dowell testified that Ms. Turner told her to leave, without saying why. Ms. Turner said, "Here are your things and we wish you the best of luck." Ms. Turner may well have wished Ms. Dowell good luck, but only after Ms. Dowell made it clear that she had decided to abandon her position at Kernan Trail. Ms. Turner did not eject Ms. Dowell from the Kernan Trail campus. Ms. Dowell then telephoned Dr. Patterson and told her not to bother coming to Kernan Trail to observe her. Ms. Dowell told Dr. Patterson that when she went into the office to sign in that morning, she was told to leave the campus and not come back. This statement by Ms. Dowell was not true.48/ Believing that Ms. Dowell had been ejected from Kernan Trail, Dr. Patterson brainstormed with some colleagues at UNF as to a placement in which she could save her internship. A private tutorial school, the Jacksonville School for Autism ("JSA"), was suggested. The JSA was contacted and agreed to take Ms. Dowell. Her professors at Florida State okayed the reassignment. Ms. Dowell commenced work at the JSA during the first week of November, completed her internship in December, and graduated from Florida State on December 13, 2008. At the hearing, Ms. Dowell testified that Kernan Trail told her that she could not come back to the school. Ms. Turner denied unequivocally that Kernan Trail terminated Ms. Dowell's internship. Mr. Gilmore testified that he understood Ms. Dowell voluntarily resigned after her professors pulled her from the school. D.G. testified that Ms. Dowell phoned her on October 23. Ms. Dowell was crying. She told D.G. that Mr. Gilmore had fired her and therefore she would not be there for B.G. D.G. responded that Ms. Dowell should not be concerned because she was not sending B.G. back to the school. Investigation and charges filed On October 23, 2008, after she had learned that Ms. Dowell was leaving Kernan Trail, apparently against her will, D.G. filed the police report that commenced the criminal investigation of Ms. Silver. D.G. testified that she later phoned Ms. Dowell to tell her that she had filed a police report against Ms. Silver. On or about October 23, 2008, Mr. Gilmore referred the allegations against Ms. Silver to the School Board's Office of Professional Standards for an investigation. However, once the School Board's investigator learned that a criminal investigation by JSO was underway, the Office of Professional Standards suspended its investigation pending the outcome of the JSO investigation. Ms. Silver was removed from her classroom assignment at Kernan Trail and assigned to the School Board's Consolidated Services Center on November 5, 2008, pending the outcome of the JSO investigation, as well as an investigation by DCF based on the hotline call by Ms. Turner. At the hearing, it was established that the JSO investigation was conducted solely by Detective Arflin, who made the decision to arrest Ms. Silver and charge her with child abuse on his own. The investigation lasted for over five months. Detective Arflin did not consult the state attorney before making the "probable cause" arrest. Michael Sanders, a JSO detective whose autistic son was tutored by Ms. Silver, testified that in an investigation of this length, he would never make a probable cause arrest. He would have the state attorney "by my side" when he went to the courthouse to secure an arrest warrant, particularly in a high profile case such as this one. Ms. Silver was arrested and charged with a violation of section 827.03(1)(a), Florida Statutes, simple child abuse, a third-degree felony. On March 20, 2009, the Professional Standards Office issued a memorandum indicating that Ms. Silver's case had been "cleared by arrest." The term "cleared by arrest" means that the School Board's preliminary agency action in terminating Ms. Silver's employment was based entirely on the JSO investigation conducted by JSO Detective Bransom Arflin. The School Board conducted no independent investigation of the facts of this case, aside from the discovery forced upon it by Ms. Silver's defense. The School Board proceeded against her as described in the Preliminary Statement above. Ms. Silver waived her right to a speedy trial on the criminal charges. The state attorney for the Fourth Judicial Circuit has deferred any decision on whether to proceed on the criminal allegations pending the completion of this administrative matter. Character witnesses Ms. Silver presented the testimony of several witnesses regarding her history, character and reputation as a teacher. Ms. Kavanaugh, who was Ms. Silver's principal at Lone Star for several years, observed Ms. Silver's classroom on several occasions and found that Ms. Silver did a good job with difficult children who would kick, scream, hit or try to run away if something seemed unfair or they didn't understand a rule. Ms. Kavanaugh found Ms. Silver to be a professional in the classroom. Ms. Silver was knowledgeable about her students and about their disabling conditions. She cared deeply about the students and would not do anything inappropriate to them. Ms. Silver would not hesitate to approach Ms. Kavanaugh regarding problems in the classroom. Ms. Kavanaugh noted that Ms. Silver's normal speaking voice is loud, and she would frequently ask Ms. Silver to work on controlling her voice level. Ms. Kavanaugh stated that Ms. Silver's loudness bothered her, but was not necessarily inappropriate for the children in her classroom. Dr. Diane Gillespie, now retired, was a teacher, administrator and Professor of Special Education for 42 years. She worked as a professor at Virginia Tech, UNF, and Jacksonville University. On two occasions, she served as the School Board's director of ESE. She also served as principal of two schools in Jacksonville, including Justina Elementary School ("Justina"). For approximately four or five years, Dr. Gillespie was the state director of ESE. Dr. Gillespie testified that she first observed Ms. Silver teaching EH students at Lone Star, when Dr. Gillespie was the principal at Justina. Dr. Gillespie was so impressed that she sent one of her teachers to Ms. Silver for coaching in teaching disabled children of early elementary age. According to Dr. Gillespie, Ms. Silver's program was "exemplary." The classroom was well structured. The children were given a clear idea of what was expected and of the consequences if they had difficulty following the classroom rules or had inappropriate interactions. Dr. Gillespie observed: A teacher who can sort out the reason the child is having difficulty with behavior in a classroom after a period of time that they have been in a structured appropriate environment, sort out the child that needs a more intensive program versus the child who's ready to go into a regular classroom . . . is a teacher who knows the individual child, who knows how to direct an IEP, who knows how to appropriately work with parents. That's the kind of teacher you want, who is well-rounded, to work with any children who have difficulties and behavior. And Rhona had those skills and was very structured and very loving but firm and specific and worked with parents so that parents knew how to follow through. That's the kind of teacher I want. Ms. Silver helped Ms. Gillespie's teacher set up her own classroom with zones and a more definite structure. Dr. Gillespie subsequently took other teachers from Justina to observe the structure and functioning of Ms. Silver's classroom. Dr. Gillespie testified that that she and Ms. Silver "became a team and I had a great deal of respect for her skills." Ms. Silver "absolutely" worked well with her professional colleagues. Dr. Gillespie hired Ms. Silver to work at Justina's summer school for children with disabilities. T.T. is the mother of an autistic child whom Ms. Silver taught during the 2005-2006 and 2006-2007 school years in the pre-K autistic classroom at Kernan Trail. At the time of the hearing, the child was in the second grade. T.T. testified that when her daughter started in Ms. Silver's class, her vocabulary was about 5 words. The child would scream or “get physical” in order to indicate her wants. After two years in Ms. Silver's class, T.T.'s daughter was speaking in three and four word sentences. T.T. testified that before her daughter entered Ms. Silver's class, the child was constantly aggravated and would get physical over almost any provocation, biting and scratching T.T. Within four or five months of being in Ms. Silver's class, the child's speech was clearer and her behaviors were beginning to subside. After being in Ms. Silver's class, the child expressed her wants and needs verbally and was much more affectionate. T.T. also testified that, prior to entering Ms. Silver's class, her daughter paid no attention to other children around her. She made several good friends in Ms. Silver's class with whom she now interacts quite well. T.T. would spend a half hour or so in the classroom in the mornings when she dropped off her daughter. Ms. Silver would take time out to explain to T.T. what they were doing and what was working. Ms. Silver was always very open about the parents coming into the classroom, more so than any other teacher T.T. has encountered. T.T. observed that Ms. Silver was affectionate to the students. She treated the children as if they were her own. T.T. knew that Ms. Silver would go out of her way to do anything for her students. T.T. heard Ms. Silver raise her voice a few times to keep the children in line, but heard nothing that could be called "yelling." T.T. testified that Ms. Silver was very knowledgeable in her field.49/ J.J., the mother of G.J., testified that when her son G.J started in Ms. Silver's classroom in November 2006, he had no verbal skills and was not potty trained. G.J.'s primary means of communication were screaming and sitting down. When he was frustrated, G.J. would sweep every object from any surface in front of him. G.J. would not acknowledge people around him, had poor fine motor skills, and could not focus. J.J. joked that she called him "my bump on a log" because of his complete lack of responsiveness. In Ms. Silver's class, between November 2006 and May 2007, G.J. went from a word set of zero to a vocabulary of 50 to 100 words. G.J. was trying to articulate his wants through words rather than screaming. He was developing social skills, learning to take turns and to listen to what he was being told. Ms. Silver used blocks to work with G.J. on his motor skills. J.J. noted that G.J. began playing with toys at home, and even pretending in his play, unusual for an autistic child. Ms. Silver would use a timeout or "break" chair with G.J. She would have him sit in the chair when he was "overloaded." A few minutes in the break chair would calm him down. He caught on quickly to the pattern: I sit, I relax, I'm ready to get up. As a result, G.J. never had to be in the break chair for long. J.J. wholly approved of Ms. Silver's use of the break chair, and testified that she began using it successfully at home. J.J. would consult Ms. Silver as to problems she was having with G.J. at home. Ms. Silver made suggestions that worked. For example, Ms. Silver told J.J. that her son responded well to positive feedback. Even when G.J. was doing something wrong, it was better to couch the instruction in positive terms. J.J. testified that she would frequently watch the classroom from outside, without letting G.J. or the teachers know she was there, because she liked to watch G.J. do his class work. J.J. never saw anything inappropriate occurring in the classroom. J.J. testified that she saw no negative impact on G.J. from his time in Ms. Silver's classroom. She believed that some of the parents of children in the 2008-2009 class were "pretty stressed" about leaving their children in the classroom. J.J. observed that these parents babied their children too much and that they seemed to expect the teacher to be "warm and fuzzy and cooing and calm and quiet."50/ J.J. opined that such a technique would be fine in a normal classroom, but that Ms. Silver's stricter technique seemed more appropriate to autistic children, and was certainly more appropriate for G.J. Kimberly Bloor, a first grade teacher at Kernan Trail, testified that as a teacher, Ms. Silver was "fantastic, outstanding, very dedicated. . . [E]very day that she would come in, she was always like she was ready to get in there, excited." Ms. Bloor believed that Ms. Silver saw teaching as her vocation, not a job. Ms. Bloor has recommended Kernan Trail to parents entirely because of Ms. Silver. Ms. Bloor even attempted to place her own daughter, a regular education student, in Ms. Silver's class because she believed it would be a positive experience for her daughter and the autistic children in the class. Ultimate findings As to the single allegation set forth in the Notice, the School Board has failed to prove by a preponderance of the evidence that Ms. Silver "put autistic student, L.P. on a Rifton chair and used straps that are attached to the chair to hold him on the chair from approximately 9:15 a.m. until 2:00 p.m. releasing him only for lunch" on September 8, 9, 10, and 11, 2008. The Notice asserts that there were "three adult witnesses" to this alleged strapping. These adult witnesses were Ms. Cornell, Ms. Gale, and Ms. Dowell. At the hearing in this case, only Ms. Dowell continued to claim, without equivocation, that she witnessed Ms. Silver strap L.P. to the Rifton chair. Ms. Cornell denied that she saw Ms. Silver strap L.P. to the Rifton chair, and denied that L.P. ever spent hours at a time on the chair. Ms. Gale's testimony on the question changed so often as to be worthless. Ms. Silver denied strapping L.P. to the potty chair. The evidence at the hearing established that Ms. Silver is a special education teacher with more than 30 years' experience with the School Board, that she had never been subject to disciplinary action by the School Board prior to this incident, and that she was patient and forbearing enough to endure a black eye from a student and to advocate that the student receive lenient disciplinary treatment. The evidence at the hearing established that Ms. Dowell was a seriously underperforming intern in Ms. Silver's class. She became friendly with Ms. Gale, an extremely unsatisfactory paraprofessional in the same classroom. Ms. Silver was actively trying to move Ms. Gale out of her classroom, at a time when Ms. Turner had said there was nowhere else to put her. Ms. Silver was also voicing concerns to Ms. Dowell regarding her poor performance as an intern in Ms. Silver's classroom. Ms. Dowell and Ms. Gale each had ample motive to discredit Ms. Silver in the eyes of the Kernan Trail administration. Ms. Gale was a thoroughly untrustworthy witness. Ms. Dowell malingered on the job, was openly insubordinate, and failed to progress to the point of running the classroom as an intern teacher should. She did not report the abuse she claims to have witnessed until October 15 at the earliest, some five weeks after Ms. Silver allegedly began strapping L.P. to the Rifton chair. Ms. Dowell's testimony was riddled with exaggerations and outright misstatements. As to the four adults who were in the classroom when this abuse is alleged to have occurred, Ms. Silver and Ms. Cornell were far more credible than Ms. Dowell and Ms. Gale. The evidence established that L.P. was not even at the school on two of the days when the School Board alleged the strapping occurred. Ms. Flotkoetter and Ms. Turner were more believable than Ms. Dowell and Ms. Gale as to the chronology of events, including when and what was reported to the Kernan Trail administration regarding the alleged incidents in Ms. Silver's classroom. There was no evidence, beyond the bare assertions of Ms. Dowell and Ms. Gale, that the Kernan Trail administration engaged in a cover-up of Ms. Silver's alleged misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that dismisses the Notice of Termination of Employment Contract and Immediate Suspension Without Pay and reinstates the Respondent, Rhona Silver, to her position as a contract employee of the Duval County School Board, with back pay and benefits. DONE AND ENTERED this 10th day of January, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 2011.
The Issue Whether the application of Petitioner to participate in the Developmental Services Program offered by Respondent to benefit mentally retarded individuals should be granted.
Findings Of Fact An application filed on behalf of 20-year-old Janette Stone, Petitioner, to receive services of Respondent’s Developmental Services Program was denied by Respondent’s representative as documented in a letter dated January 16, 1997. Following submittal of Petitioner’s application, her eligibility for admission to the program was reviewed by Respondent’s staff psychologist, Filipinas Ripka. In order to determine Petitioner’s eligibility, Ripka reviewed psychological evaluations of Petitioner, three of which had been completed prior to Petitioner’s 18th birthday. One of the reviewed evaluations was made when Petitioner was 12 years of age. Another evaluation of Petitioner was completed when she was 15 years and eleven months of age. A third evaluation occurred when Petitioner was 17 years old. Petitioner received full-scale intelligence quotient (IQ) scores of 73, 72 and 73 respectively on the evaluations reviewed by Ripka. The evaluations were made on the revised Weschler Intelligence Scale For Children. The final evaluation, where Petitioner obtained a full-scale IQ score of 73, was made on the revised Weschler Adult Intelligence Scale. The IQ scores received by Petitioner were all within what is termed the borderline range of intellectual functioning, as opposed to test results indicative of significant cognitive or intellectual functioning impairment reflective of retardation. Petitioner would have had to score 69 or lower to be considered retarded and eligible for Respondent’s developmental program. Further, manifestation of such impairments must be documented prior to age 18 in order to demonstrate eligibility for participation in Respondent’s program. Accordingly, Ripka determined that Petitioner was ineligible to participate in the Developmental Services Program offered by Respondent because Petitioner exhibited only borderline intelligence prior to age 18, instead of cognitive or intellectual function impairment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That Respondent enter a final order denying Petitioner’s application. DONE AND ENTERED this 12th day of January, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1998. COPIES FURNISHED: Robin H. Conner, Esquire 1750 Highway A1A South, Suite B St. Augustine, Florida 32084 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32217 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
