The Issue At issue is whether Sierra Matteini, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Michele Matteini and Russell Matteini, are the natural parents and guardians of Sierra Matteini, a minor. Sierra was born a live infant on December 28, 2001, at South Seminole Hospital, a hospital located in Longwood, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Sierra's birth was John F. Sweet, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by . . . mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1), Fla. Stat. In this case, it is undisputed that due to the natural forces associated with her vaginal delivery, Sierra suffered a mechanical injury to the brain, a subarachnoid hemorrhage, which precipitated an epidural hematoma, the compression of the left temporal lobe, and a left temporal contusion (bruise), that left an area of encephalomalacia. What is disputed, is whether Sierra's brain injury was the likely cause of her current impairments, and whether Sierra is permanently and substantially mentally and physically impaired. As to those issues, Petitioners are of the view that the brain injury Sierra sustained rendered her permanently and substantially mentally and physically impaired. In contrast, NICA is of the view that Sierra's impairments were not occasioned by the injury she sustained at birth and, regardless of the etiology of her impairments, Sierra is not permanently and substantially mentally and physically impaired. The etiology and significance of Sierra's impairments To address the etiology and significance of Sierra's impairments, the parties offered medical records related to Sierra's birth and subsequent development, and the testimony of Dr. Michael Duchowny, a pediatric neurologist; Dr. David Turell, a pediatrician; Dr. Eric Trumble, a pediatric neurosurgeon; Michelle Webster, an occupational therapist; Bonnie Bear, a speech language pathologist; and Michele Matteini, Sierra's mother.1 Dr. Duchowny, whose testimony was offered by Respondent, is board-certified in pediatrics, neurology with special competence in child neurology, and neurophysiology. (Respondent's Exhibit K.) It was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Sierra on January 19, 2005, and review of the medical records, that Sierra's impairments were most likely developmentally based, and unrelated to her brain injury. Dr. Duchowny was also of the opinion that Sierra did not have a substantial mental or physical impairment. Dr. Duchowny explained his findings and the basis for his opinions, as follows: Q. Could you tell us . . . about the neurological examination . . . ? A. At the time of the examination, Sierra was three years old. She exhibited behavior that was both impulsive and overactive. In fact, she was somewhat difficult to evaluate just because of her high activity level. I tried to have her sit in her mother's lap, but she even then would have trouble sitting there in a consistent fashion. She was able to speak to me, but the speech sounds were dysarthric, and her lexicon, meaning the number of words that she had in her vocabulary, were probably diminished with respect to age matched controls. Q. . . . Could you please tell us what dysarthric means in layman's terms? A. It means her speech was thick and difficult to understand. Q. What else did you observe during the neurological examination? A. Her understanding of information was clearly better. She knew colors and she knew body parts without difficulty. She tended to babble, but did not drool. I evaluated her cranial nerve[s] . . ., which means the nerves that serve her head and neck, and found those to be normal. There were eye movements that were quite fluid and well-developed. Her pupils reacted normally, and the back part of her eye was also entirely normal. With respect to motor functioning, there were no problems with her strength. She had good range of movement. There's no evidence of weakness or loss of muscle bulk, and her gait was quite stable and appropriate for age. There is no evidence of gait incoordination. I thought that Sierra's reflexes were symmetric and normal, and there were no pathological reflexes. Examination of the blood vessels supplying the neck and head disclosed no significant abnormalities, and there were no changes in the temperature or pulses of blood vessels supplying the neck and head. Sierra had good manual dexterity, in that she was able to construct a tower made of eight cubes, and she used both hands in a fluid manner and had very good dexterity with regard to individual finger movements. Her fine motor coordination was somewhat immature, but she was able to accomplish tasks without difficulty. Q. Based on the records you reviewed and the examination you conducted, were you able to form an opinion regarding whether or not Sierra has a substantial and permanent physical impairment? A. Yes. I believe the findings on examination indicate that Sierra does not have a substantial physical impairment. Q. And what was the basis for that specific opinion? A. She's functioning very close to age level with respect to her physical abilities. Q. With regard to your examination and the records that you reviewed, did you form an opinion regarding whether or not Sierra has a substantial and permanent mental impairment? A. Yes. I further do not believe that Sierra has a substantial mental impairment either. Q. Could you tell us what the basis of that opinion specifically is? A. Well, again, although she has an expressive language disorder, her receptive language skills were good, and I think that she'll continue to improve in the future. * * * Q. Have all of your opinions been rendered within a reasonable degree of medical certainty? A. Yes, they have. * * * CROSS EXAMINATION * * * Q. Would you agree that the left temporal area of the brain is the area that's related to speech? A. In 92 percent of individuals, yes. Q. Dr. Trumble's opinion is that her speech delay is a mental impairment with anatomical relationship to her area of encephalomalacia. Do you have any reason to differ with that opinion? A. Yes. I believe that Sierra's speech problems are developmentally based and unrelated to that anatomic defect. Q. Explain what you mean by developmental? A. That is based on brain maturation, not on brain damage. Q. And what's brain maturation? A. Meaning that individuals can have patterns of strength and weaknesses based on brain maturation, and it's different for different individuals. Q. And you're saying that's unrelated to trauma or anything that occurred at birth? A. That's correct. Q. And there is no way to determine if that is so, is it? There is no testing that could be performed which would definitely relate her speech delay to brain maturation? A. First of all, she has other developmental disorders, for example, hyperactivity and attention deficit, so we already know she has developmental problems. Secondly, her language problems mainly have to deal with expressive language, which is not located in the temporal lobe. Q. Expressive language? A. Yes. Q. What do you mean by that? A. Her ability to speak, as opposed to her ability to understand language. Q. Her ability to speak is not related to the left temporal lobe? A. That's correct. * * * Q. You said in your direct testimony that her fine motor coordination seems slightly immature for her age. Would you expand on that a little bit? What did you mean by that? A. This is another developmental finding. When she put out her hands, she would posture her fingers. Her ability to have rapid alternating movement sequences was slightly immature for her age. This is yet another developmental finding. In other words, it's related to brain immaturity, in this case, for fine motor movement. Q. . . . You commented in your report that she is not yet toilet trained. Would that be another developmental deficiency? A. Yes. Q. That would have nothing to do with brain injury? A. That's correct. Q. You said that she does not demonstrate ataxia. Did I pronounce that correctly? A. Yes. Q. Ataxia, which means incoordination, correct? A. Correct. Notably, as will be seen from the testimony of Doctors Turell and Trumble, Ms. Webster, and Ms. Bear, who were called to offer testimony on behalf of Petitioners with regard to the likely etiology or significance of Sierra's impairments, Dr. Duchowny's opinions stand largely uncontroverted.2 Dr. Turell is board-certified in pediatrics, and practices general pediatrics at Altamonte Pediatric Associates, Sierra's primary care provider until March 2004, when the family transferred to another pediatric group. According to Dr. Turell, and the records of Altamonte Pediatric Associates, Sierra's development was age appropriate until approximately April 1, 2003, when Sierra's mother voiced concerns about her speech. Thereafter, on July 1, 2003, Dr. Turell diagnosed a speech delay, but noted good comprehension, and referred Sierra for speech therapy and audiology. Audiology reported normal hearing and, according to Dr. Turell and the records of Altamonte Pediatric Associates, apart from an expressive language delay, Sierra's development continued to be normal, including her receptive language functions. The records from Sierra's subsequent provider were not offered at hearing. Dr. Trumble is board-certified in adult and pediatric neurosurgery, and first saw Sierra on December 30, 2001, in the neonatal intensive care unit at Arnold Palmer Hospital, where she was transferred following delivery. There, Dr. Trumble was consulted to review Sierra's CT scan, and decide whether the epidural hemorrhage she suffered required evacuation. At the time, Dr. Trumble was of the opinion that evacuation was not required, and indeed the resulting hematoma and left temporal contusion resolved, but left an area of encephalomalacia. As for the etiology of Sierra's speech delay and the significance of her impairment, Dr. Trumble offered the following observations at hearing: Q. Is there a relationship between . . . a contusion to the left temporal area and the speech delay that Sierra has sustained -- has demonstrated? * * * A. Okay. . . . [A]natomically, speech is localized to the left temporal lobe in more than 95 percent of the population, and so if you were to pick an area of the brain to cause a speech delay, you'd roughly pick where Sierra's injury was. So a long answer to say yes. Q. Is it your opinion, Doctor, that the -- that this was a neurological injury? A. Yes. Q. Was it a physical injury? A. It was a brain injury, and the brain's part of the body. So yes, it was clearly physical. Q. Is there a mental injury, mental impairment resulting? A. Yes. Q. Is it substantial? * * * A. You know, "substantial" gets into the subjective realm that I would defer to . . . somebody else. If this were my child and she was having speech issues, it would be substantial to me. Q. All right. In your opinion, is this a permanent injury? A. Certainly the anatomical abnormalities seen on the MRI are permanent. She will probably always have some speech issues. The hope is with therapy she will learn to compensate with -- for it. Q. Do you have an opinion as to whether, therefore, she has suffered both mental and physical impairment from her epidural hematoma which she suffered at birth? A. Yeah, yes, she did. Q. And is that opinion based on a reasonable degree of medical certainty? A. Yes. * * * CROSS EXAMINATION Q. Doctor, what is the physical impairment? A. Speech delay. Q. Okay. So you consider that a physical impairment, not a mental impairment? A. I would consider it both, yeah. I mean, if you want to look at the physical impairment, then you -- it depends if we want to talk anatomical where she has -- you know, based on the MRI she had 1/21/04 she has a one centimeter left mid-temporal area of encephalomalacia . . . . [That] specific physical anomaly within the brain . . . would be . . . most likely related to her speech impairment. Q. Okay. I think the part where we're miscommunicating is I think you're talking about a physical injury where I’m talking about a physical impairment. Do you understand the distinction? A. I do -- no, I do not see any left-sided -- or it's a left lesion, so any right-sided weakness. I do not see any motor abnormalities, if that is what you mean by a physical impairment. Q. That's where I was going, okay. Dr. Duchowny who is a pediatric neurologist testified that the temporal lobe is associated with receptive language ability and the frontal lobe is associated with expressive language ability. Do you disagree with that or agree with that? A. . . . [T]he difference between the two areas . . . is not as hard wired in children as it is in adults. So . . . while I would say that in general that is true, in any individual patient there is overlap. Q. Okay. So what you're saying is that if it's an adult the temporal lobe deals with receptive language ability and the frontal lobe deals with expressive language ability, but because children's brains are more malleable, there's some overlap in the temporal lobe that could affect both? A. Correct. Notably, when called upon to describe the physical impairment caused by Sierra's brain injury, Dr. Trumble agreed that no physical impairment ensued, and he declined to offer an opinion, within a reasonable degree of medical certainty, whether Sierra's mental injury (an expressive language delay) was substantial.3 Ms. Webster is an occupational therapist, and has been working with Sierra for approximately one year. Currently, they are working on Sierra's fine motor skills, which Ms. Webster describes as "[b]elow-average skills for grasping for her age level," but their main focus is on sensory integration skills. According to Ms. Webster, Sierra's difficulties in sensory integration skills include auditory processing, vestibule processing (sense of balance), touch processing, multisensory processing, and oral sensory processing.4 Related issues include impulsive and overactive behavior (hyperactivity), and a low attention span (attention deficit). Ms. Webster offered no opinion as to the etiology of Sierra's fine motor impairment or of the etiology of Sierra's sensory integration skill deficits, and offered no opinion regarding the significance or permanence of those disorders. Ms. Bear is a speech language pathologist, and has worked with Sierra since December 2003. According to Ms. Bear, she last saw Sierra on August 10, 2005, at which time Sierra evidenced a "severe deficit in articulation" (an expressive language deficit), but her receptive language skills were within normal limits for her age. With regard to Sierra's expressive language deficit, Ms. Bear noted that Sierra currently had a lexicon of about 40 words, when a normal range would be "over 100 . . . maybe 125." However, Ms. Bear also observed that with an additional 18 to 24 months of therapy, it was likely Sierra's expressive language would be within 6 months of her chronological age. Ms. Bear offered no opinion regarding the etiology of, or any other opinion regarding the significance or permanence of, Sierra's expressive language disorder. In this case, there is no reason to credit Dr. Trumble's opinion regarding the etiology of Sierra's expressive language disorder, over the opinion of Dr. Duchowny. Indeed, as between the two, Dr. Duchowny's opinion was the more compelling. Moreover, there was a dearth of proof, apart from the opinion of Dr. Duchowny, as to the likely cause of Sierra's other deficits. Finally, regardless of the etiology of Sierra's deficits, she is not permanently and substantially mentally or physically impaired. See, e.g., Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.")
The Issue The issue is whether Petitioner is eligible for services from the developmental disabilities program (DDP) due to mental retardation as defined in Section 393.063(42), Florida Statutes.
Findings Of Fact Petitioner was born on March 20, 1951. Dr. C. Joel, a neuropsychiatrist, evaluated Petitioner on September 8, 1969. Petitioner was 18 years and 5 months old at that time. According to Dr. Joel's report, the Kent Simplified IQ Test indicated that Petitioner's mental age was between 8 and 9 years, with an IQ between 55 and 65. In May 1974, the Georgia Department of Human Resources, Division of Vocational Rehabilitation, determined that Petitioner could not function in a manner conducive to continued substantial, gainful employment. In August 1974, a federal Administrative Law Judge determined that Petitioner was entitled to receive disability benefits from the U.S. Department of Health, Education, and Welfare, Social Security Administration. In the written hearing decision, the Administrative Law Judge referred to a Weschler Adult Intelligence Scale (WAIS) administered to Petitioner on October 23, 1967, when she was 16 years old. According to the written decision, Petitioner's full-scale IQ was 74 at age 16. On or about February 5, 1979, a clinical psychologist administered the WAIS to Petitioner. On that test, Petitioner had an overall score of 83. In March 1991, Respondent denied Petitioner's previous application for services. Respondent determined at that time that Petitioner was not eligible for services because she was not disabled. Petitioner was evaluated most recently on January 24, 2002, by Robert E. Napier, Ph.D. According to his report, Petitioner had a full-scale IQ score of 72 on the WAIS III. In making eligibility determinations under the mental retardation category, Respondent adheres to its non-rule policy as set forth in its July 1996 Support Coordination Guidebook, which states as follows in pertinent part: CRITERIA FOR MENTAL RETARDATION All the following criteria are to be met to be eligible under the category of mental retardation: Performance is two or more standard deviations below the mean on an individually administered intelligence assessment instrument. The instrument should be selected from the following list: Stanford-Binet Applicable Weschler Intelligence Scales, depending on the applicant's age Columbia Mental Maturity Scale Leiter International Performance Scale Hiskey-Nebraska Test of Learning Aptitude Bayley Scales of Infant Development Cattell Infant Intelligence Scale If an instrument other than the Stanford- Binet or Wechsler series is used as an intellectual assessment, the psychologist's report should state the reason these instruments were inappropriate for the particular applicant. The applicant has significant deficits in adaptive behavior. . . . Manifested prior to the person's eighteenth (18) birthday . . . . Respondent also makes eligibility decisions based on its non-rule policy regarding the diagnostic features of mental retardation as set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, which states as follows in relevant part: Diagnostic Features The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion 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). . . . * * * . . . Significantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean). . . . With the exception of one evaluation in 1969 (after she was 18 years old), Petitioner consistently achieved an overall IQ score of at least 72 or higher. During the hearing, Petitioner presented no expert witness testimony to support her arguments that she is entitled to services from DDP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order affirming its decision that Petitioner is not eligible for services from the developmental disabilities program. DONE AND ENTERED this 7th day of February, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 7th day of February, 2003. COPIES FURNISHED: Mary Collins c/o Ruth Server 3811 Sand Dune Court Destin, Florida 32541 Katie George, Esquire Department of Children and Family Services 160 Governmental Center, Bin 410 Pensacola, Florida 32501-5734 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issues are whether Respondent is guilty of misconduct in office, as alleged in the Petition for Termination dated May 19, 2014, and if so, whether termination of her employment is an appropriate sanction.
Findings Of Fact The Parties and the Charges Petitioner is responsible for hiring, overseeing, and terminating employees in the school district. Respondent is an instructional employee who received a bachelor's degree in special education in 2007 from Florida Gulf Coast University. She is certified to teach (a) special education kindergarten (K) through grade 12; (b) pre-K through grade three; (c) English to speakers of other languages; and (d) general education K through grade six. Also, she has completed three of four masters level courses in autism required to obtain her Autism Endorsement. On October 1, 2010, Respondent acquired her professional services contract. As an instructional employee, Respondent's employment is governed by the Collective Bargaining Agreement between the Board and the Teacher's Association for Lee County (TALC). In order to terminate an employee under the TALC contract, just cause is required. The incident which gave rise to this proceeding took place on December 12, 2013, at which time the Board alleges Respondent improperly restrained a special education student in her classroom. Several months later, after the parents of two other students in her classroom learned about the incident, they came forward and, for the first time, expressed concerns about behavioral issues with their children and physical injuries (bruises on the legs and a scratch mark) that they attributed to Respondent. (A third parent also telephoned the school but did not wish to file a complaint.) The parents' complaints triggered the Board's proposed action. In a Petition for Termination dated May 19, 2014, the Board alleged that just cause exists for terminating Respondent for the following acts of misconduct while teaching a special education class at Caloosa during school year 2012-2013 and the fall of school year 2013-2014: She improperly restrained a student in her classroom on December 12, 2013; She exhibited "a pattern of inadequate classroom supervision and academic focus prior to that incident"; She yelled at students and was relentless when a student refused to perform a task; She was observed by a colleague attempting to force feed a student; She told a student, "I'm bigger than you, I will win"; The school received complaints from the parents of two children that they noticed an escalation of negative behavior in their children while they were students in her classroom; One of the two parents alleged that her child's behavior immediately improved after the child was withdrawn from the school in February 2014; and The second parent alleged that her child would come home from school with bruises on his legs; that his speech and behavior immediately improved after Respondent left school; and that the child had significant diaper rash and full diapers on several occasions when he arrived at his after-school provider. Respondent does not dispute the allegation that she told a student "I'm bigger than you, I will win." Even so, the undersigned has assigned that statement little, if any, weight in resolving this dispute. Respondent's Employment Prior to School Year 2012-2013 In the spring of 2007 Respondent completed her paid internship with the Board as a student teacher. In August 2007 she was hired by Caloosa on an annual contract teaching intensive academics to students with learning disabilities in grades K through two. At the end of her first year of teaching, Respondent received a performance assessment of high performing and/or satisfactory in all categories. Shelley Markgraf, her evaluator and then the assistant principal of Caloosa, noted that Respondent had a "rough start" but ended the year "with a strong finish" and that Markgraf was "very proud" of her accomplishments. Pet'r Ex. 7, p. 73. Respondent's contract at Caloosa was not renewed at the end of the year. There is no evidence, however, that the non- renewal was due to poor performance. In school year 2008-2009, she was hired by Veterans Park Academy for the Arts (VPA), another District school, where she continued teaching for the next four years. During that four-year period, she taught K, first, and second grade special education students with autism. All were low-functioning students who were not capable of receiving a regular diploma when they finished high school. She was rated as satisfactory or effective for each of those years. School Year 2012-2013 Respondent elected to return to Caloosa for the 2012- 2013 school year, primarily because Caloosa was located closer to her home. By then, Markgraf was principal, and even though Markgraf had misgivings about hiring Respondent, she was hired because of a lack of applicants qualified to teach ESE students. Respondent was assigned to teach a small pre-K social communications class with less than ten autism students. The students were three to five years of age, on the autism spectrum, and many were behaviorally challenged, easily frustrated, and had social communication deficiencies. During most of the year, Respondent's paraprofessional (helping teacher) was Sara Catalano. It is fair to say that the working relationship between the two was not good. Catalano eventually left Respondent's classroom before the end of the school year because she felt she could not continue to work with Respondent. According to Catalano, Respondent did not prepare for class, her continual "scrambling" at the last minute to get activities prepared created a very "stressful" environment, and Catalano felt her efforts could be better served in another classroom. Respondent attributes her preparation deficiencies to the fact that Caloosa used a set teaching curriculum for exceptional students, which had not been used at VPA, and it took time and effort to adapt to the new requirements. On October 10, 2012, Caloosa's Behavioral Specialist, Crystal Dormer, wrote a memorandum to the administration regarding various things she had observed when she visited Respondent's classroom four or five times a week. See Pet'r Ex. 11. As further explained by Dormer at hearing, many times she found Respondent in the bathroom and not supervising the students. She estimated that Respondent went to the bathroom approximately ten to 15 times per day and spent up to 12 minutes in there each time. She characterized Respondent as having controlling behavior, relentless in forcing a student to complete a task, and lacking in patience, as evidenced by her yelling at the students. On one occasion, Dormer observed Respondent attempting to force feed a student who brought his own lunch from home and refused to try the school food. Finally, she was concerned with Respondent's "sporadic mood swings" when she would be calm and pleasant with the students and then suddenly begin yelling at them. On October 12, 2012, Respondent was issued a Letter of Concern by Markgraf regarding "the many concerns various people have had that have come in and out of [her] room." Pet'r Ex. These concerns included "screaming" at students (which was heard by teachers and other personnel passing by the classroom), failing to supervise her students, using her cellphone "all the time" during class for personal calls (most of which were made to her husband in a loud and argumentative tone), being easily frustrated with other teachers, and having a lack of patience with the students. School policy is for teachers to have their cell phones turned off during the day and used only for emergencies. Finally, two teacher aides asked to be removed from her classroom because "they were uncomfortable with the way things were going." In the Letter of Concern, which addressed only some of the complaints received by Markgraf, Respondent was specifically instructed to not have her cell phone out when supervising students; supervise her classroom at all times; treat students with respect; not attempt to force students to try the school lunch if they brought a lunch from home; and focus on school issues rather than personal issues at home. Pet'r Ex. 16. Respondent did not deny the allegations or protest receiving the Letter of Concern. On April 8, 2013, Respondent received a Letter of Reprimand for Unsatisfactory Performance for sleeping during "naptime" at her desk. Pet'r Ex. 17. The incident was first reported by Catalano who, after knocking on the door, entered the classroom to obtain supplies (pencils) and noticed that for around four minutes, Respondent sat at her desk with her head lowered and did not raise her head or otherwise acknowledge her presence. The assistant principal, Diana Lowrey, then went to the classroom and observed Respondent with her head down and appearing to be asleep. Although Respondent contended that she was not sleeping but was holding her head down while waiting for a pain reliever to start relieving a migraine headache, this explanation was not accepted. The Letter of Reprimand directed Respondent to remain awake and alert during all supervisory time periods or call somebody to cover her classroom. The Letter indicated that she had violated School Board Policy 4.01 regarding student safety. The performance evaluation for school year 2012-2013 had a rating scale that included, from best to worst, Exemplary, Accomplished, Basic, and Requires Action. Basic means you need improvement, while Requires Action means something is drastically not right. In the 20 areas evaluated for Respondent that school year, Respondent received one Exemplary (Communicating With Families). According to Markgraf, "parents loved her" because she was "very good at communicating" with them. She also received nine Accomplished, nine Basics, and one Requires Action. See Pet'r Ex. 7. The Requires Action was in the area of Establishes and Manages Classroom Procedures. Id. Markgraf testified that she wanted Respondent to "improve on classroom supervision" and "to improve on the way she spoke to and treated kids, and her peers." In her written comments, Markgraf noted that "[w]hile she had done some great things in her classroom and with her peers, there are some things I would like to see improved for next year." Pet'r Ex. 7, p. 51. Markgraf went on to say that there "have been a couple of instances where supervision has not been optimal in the classroom, this needs to improve to 100%. On days when Shawna is not 100%, she has frustration problems with students and is not always respectful to them, and is not always prepared." Id. The evaluation concluded that "Shawna has done everything I've asked of her this year and I look forward to a very successful next year." Id. School Year 2013-2014 Respondent returned to Caloosa for school year 2013- 2014. Although she was still one course short of obtaining her Autism Endorsement, she was again assigned to teach pre-K autistic students. The class began with four students but by October 2013 had increased to eight. Most of the students were new to a school environment, their academic levels were much lower than the students she had the year before, and they were either nonverbal or had very limited verbal communication. In short, they were a far more challenging group to manage than the students she taught the previous year. Respondent's paraprofessional was Andrea Schafer. A second paraprofessional, Deborah Wagner, spent approximately 90 minutes per day in the classroom after the classroom size reached eight students. At the beginning of the school year, Markgraf instructed Schafer to immediately inform her of any concerns regarding Respondent's conduct or classroom management. Until December 2013, Schafer did not report any concerns to Markgraf. Undoubtedly, as Markgraf suggested, this was because "teachers and staff don't like to tell on each other," but wait until "things have spiraled out of control." When Schafer concluded that things were going "downhill," she spoke with Markgraf on December 6, 2013. She reported that Respondent was engaged in "troubling behavior," and that she was spending "more and more time in the bathroom" and "more time on her phone" texting messages, mainly to her husband. Also, Schafer reported that Respondent would allow the students to just sit in front of the "You Tube videos" for academic lessons, rather than presenting live instruction. While this took place, Respondent would go to the restroom, presumably to use her cell phone, leaving Schafer to manage the classroom. With Markgraf's approval, Schafer began keeping detailed notes on index cards regarding Respondent's performance. See Pet'r Ex. 9. As it turned out, Respondent was suspended a few days later so notes were only recorded for Respondent's activities on December 9, 10, and 11, 2013. They reflect, among other things, that Respondent continued to remain in the bathroom for long periods of time (up to 19 minutes), and she was using her cell phone for personal calls. The notes also reflect that student D.M. was very non-compliant and disruptive, that Respondent had difficulty managing him, and that D.M.'s father met with Respondent in the classroom on December 10, 2013. The other paraprofessional, Wagner, confirmed that after she was assigned to the classroom in October, she observed Respondent spending "a lot" of time in the bathroom, especially when the children were eating, and that she would put her cell phone away when leaving the bathroom. This led Wagner to conclude that Respondent was using her cell phone while in the bathroom. The December 12, 2013 Incident One of Respondent's students was D.M., then four years old, who had transferred to Caloosa in October 2013 from a school in New York City. According to Markgraf, D.M. "was a big kid, and he was violent when he went off, and it wasn't a secret in school." Dormer described him as "aggressive, noncompliant, and disruptive," and that he would "hit, throw things, scream, pinch, [and] bite on occasion." She testified that D.M. was one of two out of 35 autistic students that year that caused her the most problems. Wagner testified that D.M. "had more frequent temper tantrums" than other students and that if you asked D.M. to do anything, he would start crying. Schafer agreed with Wagner's assessment and noted that Dormer had to be called a number of times to remove him from class. At hearing, D.M.'s mother testified (through an interpreter) that as a disciplinary measure at home, her husband would take off his belt and show it to D.M. whenever he misbehaved, but she denied that he ever used it when punishing the child. However, on a visit to Respondent's classroom on December 10, 2013, the father took off his belt and offered to give it to Respondent to use on his son if a disciplinary problem arose. In sum, the evidence shows that D.M. was probably the most difficult autistic child in the school to manage and teach. The incident in question began on the morning of December 12, 2013, after Respondent attempted to have D.M. perform a counting exercise from one to 100. Completing the exercise was necessary before the Christmas break in order for a new Individualized Education Program (IEP) to be prepared for D.M. His current IEP had been prepared in New York and needed to be revised to conform to Florida requirements. Rather than count, D.M. wanted to play on the computer, his favorite activity. At that point he became combative and disruptive. While changing the diapers of a student in the bathroom that adjoins the classroom, Schafer heard yelling in the classroom. When she entered the classroom, she observed D.M. sitting in a chair in front of a table in the back of the room with Respondent standing behind him. D.M. was "very upset and very aggressive" and swinging his arms in an effort to free himself. Schafer stated that Respondent had her hand on the back of D.M.'s neck and was attempting to push his head onto the table in front of him. Respondent says she was simply trying to keep the child seated until the counting exercise was completed. Schafer also observed Respondent holding D.M.'s fingers and pushing them into his wrist in an effort to restrain him from hitting her. When D.M. attempted to bite Respondent, she raised his arm towards his mouth to prevent this. While this was occurring, D.M. was complaining that it hurt and was crying. At one point, Respondent held D.M.'s arms behind his back. Schafer asked Respondent if the behavioral specialist should be called to the classroom. She asked because on prior occasions when D.M. was having a "temper tantrum" or refusing to comply with instructions, Dormer, who "helps out when a student is in crisis," had been called to the classroom to assist Respondent. Respondent replied that this was not necessary. Wagner was present for a part of the incident. She walked into the classroom and observed Respondent standing behind D.M., who was crying and seated in a chair in front of a table. Respondent's hand was on D.M.'s neck pushing his head toward the table. Respondent asked Wagner to stand behind D.M. and hold him while she temporarily left the area to pick up items needed for the other students. Although she did not see Respondent take D.M.'s hands and push his wrists down, she stated that Respondent had done this on a few other occasions whenever a student attempted to bite her. Schafer says the incident was over "pretty quick," and after continual prompting by Respondent, D.M. completed most or all of the counting exercise and was allowed to go to a computer. The student did not suffer any physical injuries during the incident. Schafer did not immediately report the incident, as she was unsure if the techniques being used by Respondent were appropriate, and she did not want to get Respondent in trouble if they were allowed. During lunch hour, she checked with Wagner to see if Respondent's actions may have been authorized. Wagner was not trained in that area and was unsure. After lunch, Schafer discussed the incident with Dormer, who then reported the matter to Markgraf. Respondent testified that her method of restraining D.M. was a safe and effective way to restrain him while he was out of control and was consistent with her training at VPA. She explained that when a special education student resorted to bad behavior as a tactic for not completing a task, she was trained to complete a "work through," which essentially requires the student to finish the task regardless of their behavior. However, this assertion was not corroborated by any personnel from VPA. She also stated that the restraint was consistent with training she had received for her Techniques for Effective Adolescent and Child Handling (TEACH) certification. However, her certification had lapsed, she had not received current training in order to become recertified, and her understanding differed from Dormer's interpretation of TEACH. According to Dormer, who instructs the TEACH certification program at Caloosa, it is never appropriate to bend a student's hands behind his back, push a student's head down towards a table, or bend a child's fingers into his wrist. See Pet'r Ex. 15. She also testified that a teacher should never use physical force in making a child comply with a task. She explained that if an autistic student has a temper tantrum or engages in other non-compliant behavior, the proper protocol is to call her and have the child temporarily removed from the classroom. Dormer's testimony is accepted as being the most persuasive on this issue. Therefore, while Respondent believed that her method of restraining the child was permissible and necessary under school policy, it was contrary to TEACH and constituted improper restraint of a student. After receiving Dormer's report, Markgraf treated the incident as "improperly restraining a student" and contacted the Professional Standards and Equity Office (PSEO). She also collected statements from the witnesses and Dormer. At the end of the school day, Markgraf advised Respondent that she was suspended with pay, effective immediately, while the matter was further investigated. Markgraf also reported the incident to the Department of Children and Families (DCF) as possible child abuse. Although DCF took the report and investigated the matter, no charge of child abuse was ever lodged against Respondent. Finally, D.M.'s parents were notified. Based on the above incident, and "a possible pattern of inadequate classroom supervision and academic focus" prior to the incident, a pre-determination hearing was conducted by the PSEO on January 21, 2014. Notwithstanding these charges, after the hearing, Respondent was notified that she could return to the classroom for the remaining school year. Respondent was told that she would be taking the place of a K teacher who was going on maternity leave. As discussed below, it is fair to say that had D.M.'s father not conducted a one-man vendetta against Respondent in an effort to have her terminated from Caloosa, Respondent would have continued teaching at the school, at least for the remainder of the school year. The Parents When D.M.'s father learned that Respondent's employment with Caloosa would not be terminated, he was obviously very unhappy. Even though his child was not physically injured, he reported the incident to the Cape Coral Police Department and asked that criminal charges be filed against Respondent. A police report was prepared, but no charges were ever filed by the State Attorney's Office. See Pet'r Ex. 18. He also engaged the services of an attorney and put the Board on notice that a civil lawsuit may be filed. After D.M.'s father obtained a copy of the police report, he made additional copies, stood outside the school grounds, and distributed the police report to any "parents [of students] that would take it," or anyone else who was interested, along with a cover sheet stating in pertinent part: Please read the following police report provided by the Cape Coral Police Dept. Regarding: Abuse to my Son by his Special Needs Teacher, Shawna Driggers For Further Information, please contact: [D.M.'s Father] [telephone number omitted] Although the father did not testify at the final hearing, it can be inferred that his intentions were to disseminate information about the incident to as many people as possible in an effort to bring pressure on the Board to terminate Respondent. As a result of the distribution of the hand-out and the police report, the parents of two other children in Respondent's classroom, E.P. and G.D., contacted one another and spoke with D.M.'s father. After speaking with D.M.'s father, they decided that any perceived problems experienced by their children during the fall school year should be reported to the school and blamed on Respondent. After verifying that the police report was accurate, the parents contacted the PSEO and complained that Respondent was responsible for bruises on the legs of one child (G.D.) and a scratch mark on the neck of the other (E.P.). They also attributed certain negative behavioral issues and lack of progress in the classroom to Respondent's actions or neglect. Throughout the fall that school year, the parents received daily planners from Respondent setting forth the activities and progress of their children, and Respondent was always available to speak with them by text, email, or cell phone. They also met with Respondent on several occasions. Notably, before reading the police report given to them by D.M.'s father, and conferring with one another, they had never complained about behavior issues or progress in school to either Respondent or school officials. Ironically, the year before Respondent had been given a high rating for communications with parents, and according to Markgraf, the parents "loved her." The mother of E.P., a three-year-old student with very limited communication skills, testified that her son started to become more aggressive during the first week of school, had trouble sleeping, and began screaming words that he did not hear at daycare or at home. She acknowledged, however, that his limited communication skills may have contributed to his aggressive behavior with others; that Respondent was always "brainstorming" with her throughout the fall on how to improve her son's behavior; and that Respondent was always accessible to discuss any issues about her son. She also admitted that her negative opinions regarding Respondent may have been influenced by the police report. According to E.P.'s mother, the child's behavior improved after Respondent was suspended. However, even after Respondent was replaced with a new teacher in January 2014, the mother was still dissatisfied with her child's progress, and she withdrew him from Caloosa the next month and placed him in daycare. She testified that after he enrolled in daycare, the child experienced a huge improvement in his behavior. The mother of student G.D., a three-year-old who was totally non-communicative when he began the school year, testified that before enrolling in Respondent's class, her child was not violent, did not throw tantrums, and except for being "hyper," did not act out in any way. She noted that while her son made significant progress with sign language, he did not make any progress with his speech, and he consistently came home with "clusters of bruises" on his shins, which she believes were caused by Respondent striking or kicking her son. She further testified that the child's speech improved significantly and he had "a complete turnaround" after a new teacher was assigned to his class. But almost a year later in October 2014, when she testified, she admitted he still had only a "little bit" of speech. Finally, she testified that the child had issues with a diaper rash while in Respondent's care and arrived at daycare two or three times with full diapers. Changing diapers was the responsibility of the paraprofessional, not Respondent, and these concerns were never brought to the attention of Respondent so that the problem, if generated at Caloosa, could be rectified. The allegation that Respondent was responsible for physical injuries to the two students is not credited for several reasons. First, there is no credible evidence that the scratch mark on E.P.'s neck, or the bruises on G.D.'s shins, were caused by Respondent. Moreover, Wagner, who monitored the children in October and December, never observed the alleged injuries. Third, there is no record of any medical treatment at the school clinic for either student. Fourth, except for the scratch mark, the injuries were never reported to school officials at the time they were observed by the parents. As to the allegations regarding behavioral issues or lack of progress in school, they were not corroborated by any other evidence, and it is reasonable to infer that the parents were unduly influenced by the police report and conversations with D.M.'s father. The April Board Action Although it was previously determined that the charges against Respondent did not warrant termination, the PSEO decided to reconsider the matter after the parents came forward with their complaints. A second investigation was conducted, and another pre-determination conference was held on April 22, 2014. After the conference, a recommendation was made to the Board to terminate Respondent, obviously due in large part to pressure from the parents and the notoriety now surrounding the December 12, 2013 incident. This resulted in the issuance of the Petition for Termination. Even though Respondent taught only a portion of school year 2013-2014, Markgraf was required to prepare an evaluation for the school year. Markgraf characterized it as a "very poor evaluation compared to everyone else."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order determining that Respondent is guilty of misconduct, as defined in rule 6A-5.056(2)(b), (d), and (e), terminating her suspension, and reinstating her as a special education teacher at a different school. All other charges in the Petition for Termination should be dismissed. DONE AND ENTERED this 12th day of January, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 12th day of January, 2015. COPIES FURNISHED: Dr. Nancy J. Graham, Superintendent School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Robert J. Coleman, Esquire Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether the Petitioner is eligible for services offered by Respondent to the developmentally disabled under Chapter 393, Florida Statutes (1995).
Findings Of Fact James Champion is a nineteen year old male, born January 22, 1978, who is a permanent resident of the State of Florida. Petitioner currently lives with his natural mother, Susan Champion, who provides him food, shelter and assistance. Petitioner had a normal developmental history until the onset of seizures at the age of four, coinciding with a DPT inoculation. Since then he has had several types of seizures, and has been treated with multiple anti-epileptic medications without success. Currently, Petitioner experiences seizures on an almost daily basis. Petitioner has been oppositional, defiant, and at times volatile in his moods, and can be verbally aggressive. Due to his epilepsy and behavioral difficulties, while in school, Petitioner was placed in a special needs program with small class size and a one-on-one aide. Petitioner graduated from MacArthur North High School in Hollywood, Florida in 1996, with a special diploma. As a child, Petitioner had been given IQ tests. When he was twelve years old, a psychological assessment was performed, yielding a verbal IQ of 100, performance IQ of 88, and full scale IQ of 93. At the age of fourteen, he was tested again, using the Wechsler Intelligence Scale for Children-Third Edition (WISC- III). Intelligence testing yielded a verbal IQ of 71, performance IQ of 74, and a full scale IQ of 70. This testing revealed functioning in the Borderline range (second percentile rank) with a six point margin of error. This level of intellectual functioning reflected a 23 IQ point loss from previous testing. A few months past his eighteenth birthday, Petitioner was tested using the Wechsler Adult Intelligence Scale, Revised (WAIS-R) and other tests. On the WAIS-R, Petitioner yielded a Verbal IQ of 74, performance IQ of 70, and a full scale IQ of 71. Petitioner was diagnosed as having [Axis I] Dysthymic Disorder (300.4); [Axis II] Borderline Intellectual Functioning (V62.89) and Personality Disorder Due to Medical Condition (310.1); and [Axis III] Epilepsy. This test confirmed that Petitioner was functioning in the Borderline range of intellectual functioning. This drop in test results is accounted for as a result of brain damage caused by Petitioner’s continuing episodes of epilepsy. Applying the margin of error to the lower spectrum, the 70 and 71 test results become 67 and 68, respectively. Taking the totality of the circumstances, it is persuasive that Petitioner has shown that he has tested at an IQ level of approximately 70 or below The accepted criteria used for determining mental retardation and used by Respondent to determine eligibility for its Developmental Services Program is significantly subaverage intellectual functioning (an IQ approximately 70 or below on an individually administered IQ test); concurrent deficits or impairments in present adaptive functioning in at least two of the following areas: communication, self- care, home living, social/interpersonal skills, use of community resources, self- direction, functional academic skills, work, leisure, health, and safety; and the onset is before 18 years. 12 In determining an individual’s eligibility for its Developmental Services Program, Respondent has a two-step process. First, it determines whether the individual meets the IQ requirement for mental retardation. If, and only if, the individual satisfies this first step, does Respondent proceed to the second step which is determining whether the individual meets the adaptive functioning requirements. Respondent’s evaluator determined that Petitioner failed to satisfy the IQ requirements and, therefore, it was not necessary to examine Petitioner’s adaptive functioning. Petitioner’s IQ results in his teens should be evaluated from the lower tested result, i.e., at 70, and the margin of error should be placed at the lower, not the higher, spectrum (-3). The lower tested result becomes 67, placing Petitioner in the mild mental retardation category. There was some evidence that Petitioner has deficits in adaptive functioning in communication, home living, social/interpersonal skills, self-direction, work, and safety. However, Respondent’s evaluator did not evaluate Petitioner in this area and the testimony of Petitioner’s mother is insufficient to meet the burden of proof necessary in this forum. The onset of Petitioner’s condition occurred prior to his eighteen birthday.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent issue an order determining that prior to his eighteenth birthday, Petitioner has suffered from “significantly subaverage general intellectual functioning.” However, the evidence is insufficient to presently establish if it exists concurrently with deficits in adaptive behavior. It is further RECOMMENDED that this matter be remanded to Petitioner’s evaluator to determine if Petitioner has deficits in adaptive behavior in two or more areas and would therefore, be eligible for developmental services offered by Respondent. DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1997. COPIES FURNISHED: Susan C. Champion, Parent 104 Lake Gem Drive Longwood, Florida 32750 Eric Dunlap, Esquire District 7 Legal Office Department of Children and Families 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Children and Families 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
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
Findings Of Fact Steven Frank (Petitioner) is legally incompetent and his adoptive father, Edward Frank, is his guardian. At the time of the hearing, Petitioner, a 37-year-old male, was a patient at South Florida State Hospital 1/ in West Palm Beach, Florida, on a unit for persons who have been dually diagnosed with developmental disabilities and mental illness. At the facility he is receiving treatment for his mental illness. He has not been given an IQ test since being admitted. As a child, Petitioner was determined to be mentally retarded. Before he was eight years old, Petitioner had been given IQ tests on several occasions, and his IQ ranged from 52 (moderate mental retardation) to 58 (mild mental retardation). At age eight, he tested at 68 (mild mental retardation). As a teenager, Petitioner began to receive psychiatric treatment. Around the age of seventeen, he began to have violent outbursts. Throughout his adult life, Petitioner has received psychiatric treatment at a number of facilities. At some of the facilities, his IQ was tested. In 1983, around the age of twenty-seven, Petitioner was a psychiatric patient at Sharon General Hospital. He was given an IQ test and tested at 72, which equated to general intellectual functioning in the borderline range. In late 1986, Petitioner was admitted to Jackson Memorial Hospital in Miami, Florida, for diagnosis purposes to determine if alternative treatment would be beneficial. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning. In 1987, around the age of thirty-one, Petitioner was a psychiatric patient at Montanari Residential Treatment Center, a residential treatment facility in Hialeah, Florida. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning. Petitioner was diagnosed, among other things, as being a chronic, residual schizophrenic and as having borderline intellectual functioning and pervasive developmental disorder. He also showed signs of organic brain damage. In 1989, Petitioner was discharged from Montanari, even though there was no improvement in his condition, because of the decision by Developmental Services of the Department of Health and Rehabilitative Services (Respondent) to place Petitioner in a group home setting. In 1987, Petitioner was determined eligible for the Developmental Services Program by Respondent's District XI, the Dade County area, even though he tested 75 on the IQ test. Petitioner has not been given an IQ test since 1987. The accepted criteria used for determining mental retardation and used by Respondent to determine eligibility for its Developmental Services Program is as follows: Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants, a clinical judgment of significantly subaverage intellectual functioning). Concurrent deficits or impairments in present adaptive functioning (i.e., the person's effective- ness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. The onset is before age 18 years. Code based on degree of severity reflecting level of intellectual impairment: 317 Mild Mental Retardation: IQ level 50-55 to approximately 70 Moderate Mental Retardation: IQ level 35-40 to 50-55 Severe Mental Retardation: IQ level 20-25 to 35-40 Profound Mental Retardation: IQ level below 20 or 25 319 Mental retardation, Severity Unspecified: when there is strong presumption of Mental Retardation but the person's intelligence is untestable by standard tests On the IQ tests there is a three-point margin of error. In determining an individual's eligibility for its Developmental Services Program, Respondent has a two-step process. First, it determines whether the individual meets the IQ requirement for mental retardation. If, and only if, the individual satisfies this first step, does Respondent proceed to the second step which is determining whether the individual meets the adaptive functioning requirements. In making determinations regarding mental retardation, Respondent does not consider IQ test results prior to age nine because such tests results are not considered reliable for placing a child. Environmental factors may interfere with test results and labeling children as mentally retarded may interfere with the child receiving an appropriate education. The basis for placement is clinical judgment. At the request of Respondent's District IX, the Palm Beach County area, in October 1993, while a patient in the psychiatric unit at the University Medical Center in Jacksonville, Florida, a psychological evaluation of Petitioner was performed. The purpose of the evaluation was to assist District IX in determining Petitioner's eligibility for its Developmental Services Program. The evaluation was completed in one day with no intelligence testing being performed due to Petitioner's mental condition at that time. 2/ The psychologist reviewed Petitioner's past records, observed Petitioner, and interviewed staff. She determined that Petitioner was not mentally retarded based upon him testing at 72 and 75 on the IQ tests previously administered as an adult, which was beyond his developmental years, and that he was, therefore, not eligible for Respondent's Developmental Services Program. Respondent's evaluator determined that Petitioner failed to satisfy the IQ requirements and, therefore, it was not necessary to examine Petitioner's adaptive functioning. At the request of Petitioner's parents, in January 1994, a psychological examination was performed on Petitioner, while he was a patient at South Florida State Hospital, by a psychologist. The examination occurred over several occasions, on different days and at different times of the day. Additionally, Petitioner's records were examined and interviews of the hospital staff on Petitioner's unit and his parents were conducted. Again, no IQ test was administered. The psychologist's diagnosis was consistent with that expressed by South Florida State Hospital: Petitioner suffered from both developmental disabilities and mental illness. The psychologist determined that Petitioner was eligible for Respondent's Developmental Services Program and for psychiatric services. Petitioner's IQ results in his late twenties and early thirties should be evaluated from the lower tested result, i.e., at 72, and the margin of error should be placed at the lower, not the higher, spectrum. The lower tested result now becomes 69. Petitioner has a significant delay in social/adaptive skills and has deficits or impairments in adaptive functioning in the following areas: communication, self-care, home living, social/interpersonal skills, self- direction, work, leisure, health, and safety. His strong area is functional academic skills. Petitioner has both developmental and psychiatric needs. One need is not more important than the other; Petitioner requires assistance in both. An intermediate care facility for the mentally retarded is best suited to address Petitioner's dual needs. Respondent's Developmental Services Program is not an entitlement program. Even though an individual may be eligible for the Program, the individual may not be admitted to the program if funds are not available. There is no dispute regarding the onset of Petitioner's condition before eighteen years of age.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order declaring Steven Frank eligible for the Developmental Services Program and placement in the intermediate care facility for the mentally retarded. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of October 1994. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October 1994.
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.
