S.M. v. Hendry County School Board

Filing 58

ORDER adopting 48 REPORT AND RECOMMENDATIONS re 20 Amended Complaint filed by S.M. Plaintiffs S.M. individually and on behalf of L.C.'s Objections to the Report and Recommendation are OVERRULED. United States Magistrate Judge Carol Mirando's Report and Recommendation 48 is ADOPTED and ACCEPTED and the findings incorporated herein. The parties shall have up to and including October 19, 2017, to meet and confer in person or telephonically to discuss the remaining claims and file a Joint Case Management Report containing realistic scheduling deadlines to govern the remaining claims. Signed by Judge Sheri Polster Chappell on 10/5/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
S.M. and L.C., individually and on behalf
of L.C. a minor
Plaintiffs,
v.

Case No: 2:14-cv-237-FtM-38CM

HENDRY COUNTY SCHOOL
BOARD,
Defendant.
/
OPINION AND ORDER1
This matter comes before the Court on United States Magistrate Judge Carol
Mirando’s Report & Recommendation (“R&R”). (Doc. 48). Judge Mirando recommends
that the Administrative Law Judge’s (“ALJ”) final order regarding Plaintiffs’ claim for relief
under the Individuals with Disabilities Education Act (“IDEA”) be affirmed and judgment
entered on behalf of Defendant Hendry County School Board (“HCSB”). Plaintiffs S.M.,
individually and on behalf of her minor child, L.C. object to the R&R (Doc. 55), and HCSB
responded to the objections. (Doc. 57). The matter is ripe for review.

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BACKGROUND
The Court adopts the extensive facts detailed in the R&R. For brevity’s sake, the
Court will briefly outline the procedural posture. On September 3, 2013, S.M. requested
a due process hearing to determine whether HCSB denied her child’s right to free
appropriate public education (“FAPE”) under the IDEA.

An ALJ of the Division of

Administrative Hearings (“DOAH”) held a five-day hearing on the issue, where both
parties presented evidence and witnesses. (Doc. 17-8). Before issuing an order, the ALJ
granted Plaintiffs’ motion to supplement the record to consider additional evidence not
presented at the hearing. (Doc. 56). The ALJ then issued a forty-five page final order
finding that Plaintiffs failed to prove that HCSB violated the IDEA. (Doc. 17-8).
Afterward, Plaintiffs sued requesting the Court overturn the ALJ’s final order and
find a violation of the IDEA. (Doc. 20). In addition, Plaintiffs’ Amended Complaint
contains claims for discrimination and retaliation.2 (Doc. 20). To expedite the disposition
of the IDEA claim, the Court bifurcated the case and issued a scheduling order. (Docs.
34; 35; 37). The scheduling order required the parties to file the DOAH hearing transcript,
exhibits, and briefs in support of their position. (Doc. 37)

Further, the parties were

instructed to brief the impact of a recent Supreme Court opinion, Endrew F. ex. Rel.
Joseph F. v. Douglas Cty. Sch. Dist. Re-1, 137 S. Ct. 988 (2017). (Doc. 44). After
reviewing the record, briefing, and applicable law, Judge Mirando issued an R&R
recommending the ALJ’s final order be affirmed and judgment be entered on behalf of
HCSB. (Doc. 48). Now, Plaintiffs object to the R&R and have filed additional evidence

Plaintiffs’ Amended Complaint also contained a claim for relief under the Civil Rights Act
that was dismissed without prejudice. (Doc. 23).
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that was provided to the ALJ after the hearing in a supplemental motion but not filed with
this Court until after Judge Mirando issued the R&R. (Docs. 55; 56).
STANDARD
The IDEA offers federal funds to individual states to assist in the education of
children with disabilities provided that a state comply with a number of statutory
requirements. Endrew F., 137 S. Ct. at 993. One of those conditions is that a state
provide FAPE to all eligible children. See 20 U.S.C. § 1412(a)(1). The “primary vehicle”
for doing so is the individualized educational program (“IEP”). Honig v. Doe, 484 U.S.
305, 311 (1988). An IEP must be “reasonably calculated to enable a child to make
progress in light of the child’s circumstances.” See Endrew F., 137 S. Ct. at 1001. In an
IDEA action challenging the findings and decision of an ALJ, the burden of proof lies with
the party challenging the decision. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49,
62 (2005); Loren F. ex rel. Fisher v. Atlanta Indep. Sch. System, 349 F.3d 1309, 1313
(11th Cir. 2003). And the level of deference given to an ALJ’s decision is within the district
court’s sound discretion. See Walker County Sch. Dist. v. Bennett ex rel. Bennett, 203
F.3d 1293, 1297 (11th Cir. 2000). Yet a court must be careful not to substitute its
judgement for that of the state educational authorities. See id. “Whether an IEP provided
FAPE is a mixed question of law and fact subject to de novo review.” CP v. Leon County
Sch. Bd. Florida, 483 F.3d 1151, 1155 (11th Cir. 2007).
Where a magistrate judge issues a report and recommendation, a district judge
“may accept, reject, or modify in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1). In doing so, the district judge “shall
make a de novo determination of those portions of the report or specified proposed

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findings or recommendations to which objection is made.” Id. And “[t]he judge may also
receive further evidence or recommit the matter to the magistrate judge with instructions.”
Id.
DISCUSSION
Judge Mirando recommends that HCSB provided FAPE to L.C. for the 2011-2012
to 2013-2014 school years, and that judgment be entered on behalf of HCSB and against
the Plaintiffs. Plaintiffs take issue with several conclusions and findings in the R&R, and
their objections can be classified into three main groups: (1) Judge Mirando gave too
much deference to the ALJ’s findings; (2) the ALJ and Judge Mirando incorrectly applied
the statute of limitations; and (3) the ALJ and Judge Mirando incorrectly found that HCSB
provided FAPE for the 2011-2012 and 2013-2014 school years. Mostly, the objections
mirror arguments previously addressed by Judge Mirando. Based on an independent
review of the record and law, these objections are overruled. With that in mind, this Court
will address two points of contention not previously addressed: (1) the amount of
deference paid to the ALJ; and (2) Plaintiffs’ contention that Kristina Puletti was not
qualified to provide speech therapy, which resulted in the denial of FAPE for the 20132014 school year.
A. The Court’s Deference to the ALJ’s findings.
Plaintiffs argue the ALJ’s findings should be given “little or no deference” because
the ALJ failed to cite to the record, did not address the testimony of each witness, and
used the wrong standard. (Doc. 55 1-4). Plaintiffs contend these issues coupled together
require a lower level of deference. This argument is unpersuasive.

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Plaintiffs first argue the ALJ failed to cite to the record or address all witness’
testimony. In the past, this Court has found similar circumstances problematic where an
ALJ’s findings were not supported by underlying facts. Unlike those cases, the ALJ’s
decision is fully supported by the underlying record. Further, this Court is in agreement
with Judge Mirando that despite the ALJ not addressing all testimony, the ALJ’s final order
“show[ed] careful consideration of the evidence and firm grasp of the facts and issues at
hand.” (Doc. 48 at 32). As such, those arguments are unconvincing.
Next, Plaintiffs correctly state the ALJ used a now outdated standard to determine
whether HCSB provided FAPE to L.C. Nonetheless, the Court does not agree with
Plaintiffs’ conclusion regarding the impact of the changed standard. For context, the ALJ
issued his final order almost three years before the Supreme Court clarified the standard
of review in IDEA cases. See Endrew F., 137 S. Ct. at 1001. The Endrew F. court held
that the IDEA requires “an educational program reasonably calculated to enable a child
to make progress appropriate in light of the child’s circumstances.” Id. In contrast, the
prior standard, relied on by the ALJ, required that education programs provide more than
trivial or de minimis progress. (Doc. 17-8 at 31). There is little doubt these standards are
markedly different, and the change occurred after the ALJ issued his final order but before
the R&R was issued.
Still, a change in law does not bar a court from giving deference to an ALJ’s
findings. Rather, it requires the claim be evaluated under the new standard, and Judge
Mirando did exactly that. Judge Mirando evaluated the record under the Endrew F.
standard and determined the ALJ’s findings were still entitled to great deference. Even
Plaintiffs’ arguments coupled together do not persuade this Court the ALJ’s findings are

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entitled to less deference. And after a de novo review of the record evidence and relevant
authority, the Court finds that Judge Mirando’s discretionary decision is well founded.
Plaintiffs’ objection is overruled.
B. 2013-2014 FAPE
Next, Plaintiffs argue L.C. did not receive speech therapy in the 2013-2014 school
year. Specifically, Plaintiffs argue the R&R improperly referred to Kristina Puletti as a
“speech-language pathologist,” and that she could not provide speech therapy because
HCSB did not submit a plan to the Florida Department of Education (“FDOE”) as required
by Florida law. (Doc. 55 at 23). The Court notes this same argument was previously put
before both the ALJ and Judge Mirando. But the crux of the argument rests on emails
not filed with this Court until after the R&R was issued. (Doc. 56). Because of this failure,
Judge Mirando could not consider the late arriving evidence in conjunction with the
argument. (Doc. 48 at 48).
In response, HCSB argues the emails are inadmissible hearsay and speculative,
and the testimony at the DOAH hearing remains the most persuasive evidence. Further,
HCSB argues that even if the Court accepts Plaintiffs’ position, the argument only results
in a mere technical defect that did not affect L.C.’s education. The Court agrees.
In Florida, school districts that qualify for a “sparsity supplement” may utilize
speech-language associates (“SLA”), as opposed to a certified or licensed speechlanguage pathologist, to provide speech or language services provided that several
requirements are met. See Fla. Stat. § 1012.44; Fla. Admin. Code 6A-4.0176; 6A4.01761; 6A-6.03012. One requirement is that an SLA must have a bachelor degree with
an undergraduate major in speech-language pathology or speech-language impaired. An

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SLA must also be under the direction of a certified or licensed speech-language
pathologist with a master’s degree or higher in speech-language pathology. See Fla.
Admin. Code 6A-6.03012(7).

In addition, school districts are required to submit plans to

the FDOE for approval regarding the utilization of a SLA. See Id.
The issue here is not whether Ms. Puletti had the requisite degree or was properly
supervised. Rather, the issue is whether the school district submitted the plan to the
FDOE. To support their contention that Ms. Puletti is not a qualified SLA, Plaintiffs filed
emails from two FDOE employees. (Doc. 56). The emails indicate that no SLA plan was
submitted by HCSB to the FDOE. (Doc. 56). While these emails may establish a failure
to submit an SLA plan, they do not conclusively establish that no plan exists, and the
Court is not persuaded to that effect in light of testimony to the contrary. Even if that the
plan was never submitted to the FDOE, the records supports that Ms. Puletti had a
bachelor’s degree and was properly supervised by Judy Lapp, who had a master’s
degree. Plaintiffs have not persuasively tied HCSB’s failure to file this plan with a denial
of FAPE. Plaintiffs’ objection is overruled.
CONCLUSION
Based on a de novo review of the record and independent consideration of the
parties’ arguments and the controlling law, the Court adopts and incorporates the R&R
over Plaintiffs’ objections.
Accordingly, it is now
ORDERED:
(1) Plaintiffs S.M. individually and on behalf of L.C.’s Objections to the Report and
Recommendation are OVERRULED.

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(2) United States Magistrate Judge Carol Mirando’s Report and Recommendation
(Doc. 48) is ADOPTED and ACCEPTED and the findings incorporated herein.
(3) The parties shall have up to and including October 19, 2017, to meet and
confer in person or telephonically to discuss the remaining claims and file a
Joint Case Management Report containing realistic scheduling deadlines to
govern the remaining claims.
DONE and ORDERED in Fort Myers, Florida this 5th day of October, 2017.

Copies: All Parties of Record

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