01-000293RU Michael B. Harrison On Behalf Of Nolan Walter Harrison, A Minor vs. Charlie Crist, As Commissioner Of Education Status: Closed DOAH Final Order on Friday, May 18, 2001.

Summary: Petitioner alleged that a portion of a Department of Education pamphlet was an unpromulgated rule. Petitioner failed to meet his burden of proof.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL B. HARRISON ON BEHALF )

OF NOLAN WALTER HARRISON, A )

MINOR, )

)

Petitioner, )

)

vs. ) Case No. 01-0293RU

)

CHARLIE CRIST, AS COMMISSIONER )

OF EDUCATION, )

)

Respondent, )

)

and )

)

FLORIDA SCHOOL FOR THE DEAF AND )

THE BLIND, )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice, this cause was heard by William R.

Pfeiffer, the assigned Administrative Law Judge of the Division

of Administrative Hearings, on February 16, 2001, in

Tallahassee, Florida.

APPEARANCES

For Petitioner : Michael B. Harrison, pro se

870 Gerona Road

St. Augustine, Florida 32086

For Respondent : Ronald G. Stowers, Esquire

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

For Intervenor : Charles L. Weatherly, Esquire

The Weatherly Law Firm

3414 Peachtree Road, North

Monarch Plaza, Suite 450

Atlanta, Georgia 30326-1162

Sidney F. Ansbacher, Esquire

Upchurch, Bailey and Upchurch, P.A.

Post Office Drawer 3007

St. Augustine, Florida 32085-3007

STATEMENT OF THE ISSUES

This is a rule challenge proceeding pursuant to Section

120.56(4), Florida Statutes, in which Petitioner claims to be

substantially affected by an agency statement that allegedly

violates Section 120.54(1)(a), Florida Statutes. The subject

matter at issue here concerns two sentences at page 11 of a

pamphlet generated by Respondent, which is entitled "Florida's

Educational Opportunities for Students with Sensory Impairments

(2000)(the DOE Pamphlet)." The two sentences state that the

Florida School for the Deaf and the Blind (FSDB) is an available

educational option for sensory-impaired children in Florida.

PRELIMINARY STATEMENT

By Petition dated January 21, 2001, Michael B. Harrison, on

behalf of Nolan Walter Harrison, a minor child (Harrison),

challenged the validity of two sentences in the DOE Pamphlet as

an allegedly unpromulgated rule of the Department of Education

(Respondent).

By Order dated January 30, 2001, the Division of

Administrative Hearings (DOAH) assigned the matter to

Administrative Law Judge William R. Pfeiffer. By Notice of

Hearing dated February 1, 2001, the final hearing was scheduled

for February 16, 2001.

On February 5, 2001, FSDB filed a Motion to Intervene,

principally alleging that the pamphlet at issue offered a

meaningful explanation of FSDB as one of the educational

opportunities available to sensory-impaired children in Florida.

The Motion to Intervene was granted.

On February 14, 2001, Respondent, FSDB, and Respondent

filed Prehearing Statements.

At final hearing February 16, 2001, Petitioner offered two

exhibits, of which one was received in evidence. Petitioner

also presented testimony of two witnesses : Ms. Shan Goff, Chief

of Respondent's Bureau of Instructional Support and Community

Services, and Dr. Margot Palazesi, also of that Bureau. Neither

Petitioner nor his father testified. Respondent and FSDB

offered five exhibits, all of which were received in evidence.

Respondent also presented the testimony of Ms. Goff.

The parties waived the time period for filing their

Proposed Final Order and the entrance of the Final Order. There

was no transcript filed. Petitioner and Respondent each filed a

Proposed Final Order, which was duly considered in the

preparation of this Final Order.

FINDINGS OF FACT

Background

1. Congress enacted the Individuals with Disabilities

Education Act (IDEA) "to ensure that all children with

disabilities have available to them a free appropriate public

education that emphasizes special education and related services

designed to meet their unique needs and prepare them for

employment and independent living." 20 U.S.C. Section 1400

(d)(1)(A). As a condition to IDEA funding, each state must have

a policy in effect that executes the principal goal of the Act,

which is to assure "all children with disabilities [have] the

right to a free appropriate public education." 20 U.S.C.

Section 1412(1). In 1997, Congress substantially amended IDEA.

On March 12, 1999, regulations were published at Part B of Part

34 of the Code of Federal Regulations (CFR), implementing the

1997 IDEA amendments. The IDEA, as amended, is implemented in

Florida at Section 230.23(4)(m), Florida Statutes, and Chapter

6A-6, Florida Administrative Code .

2. IDEA’s centerpiece is the "individualized education

program" (IEP), which is a detailed statement "summarizing the

child’s abilities, outlining the goals for the child’s education

and specifying the services the child will receive." Polk v.

Central Susquehanna Intermediate Unit , 853 F.2d 171, 173 (3d

Cir. 1988). The IEP provides special education and related

services tailored to the child’s unique needs and designed to

provide the child with a "free appropriate public education."

20 U.S.C. Sections 1401(8), 1414(d); 34 CFR Sections 300.13,

300.15, 300.344-300.347; Section 230.23(4)(m )5, Florida

Statutes; Rule 6A-6.03028, Florida Administrative Code. A team

including the child’s teachers, local education agency

representatives and the child’s parents creates the IEP;

20 U.S.C. Section 1414(d)(1)(B); 34 CFR Section 300.344; Rule

6A-6.03028, Florida Administrative Code.

3. Both IDEA and the parallel Florida Statute state that

special education students should be educated with non-disabled

peers "to the maximum extent appropriate," and that separate

classes or schooling should be used if "the nature or severity

of the disability is such that education in regular classes with

the use of supplementary aids and services cannot be achieved

satisfactorily." See 34 CFR Section 300.550 and Section

230.23(4)(m )6, Florida Statutes. Placement must be determined

on a child-by-child basis.

4. Section 230.23(4)(m), Florida Statutes, generally

identifies the educational options available for sensory-

impaired children in Florida, including FSDB. That statute is

implemented in pertinent part by Respondent at Rules 6A-6.03014,

and 6A-6.03022, Florida Administrative Code, which set school

district admissions criteria for visually impaired and dual-

sensory impaired children, respectively. One of the options

listed in the statute is FSDB. Section 230.23(4)(m )3, Florida

Statutes.

5. Section 242.3305, Florida Statutes, states the

"responsibilities and mission" for FSDB. In pertinent part, it

provides that FSDB educates "hearing-impaired and visually

impaired students in the state who meet enrollment criteria."

Rule 6D-3.002, Florida Administrative Code, implements that

statute by setting forth the "Admission and Enrollment

Requirements" for FSDB.

6. The DOE Pamphlet was generated in 1997, and amended in

2000, to explain the special education options available to

parents of sensory-impaired school-age children in Florida.

The Parties

7. Petitioner is a nine-year-old student who is legally

blind and otherwise developmentally impaired. He resides in St.

Johns County, Florida, and attends classes for the sensory-

impaired offered by the St. Johns County School District. His

parents moved from Belize in September, 1999, for the express

purpose of enrolling Petitioner at FSDB.

8. Respondent is the head of the state agency that

published the DOE Pamphlet.

9. FSDB is a state school that, pursuant to Section

242.3305, Florida Statutes, maintains a residential program for

educating sensory-impaired children in Florida.

The Factual Background

10. The Petition asserts that Petitioner’s parents moved

to St. Johns County in 1999, where they "chose to enroll the

Petitioner in the . . . FSDB . . . as described in the DOE

Pamphlet." The Petition notes that FSDB declined to accept

Petitioner. The Petition further states Petitioner then filed

multiple due process petitions pursuant to Section 232.23(4)(m),

Florida Statutes, which "yielded an offer by FSDB that the

Petitioner be evaluated over an extended period in a temporary

assignment at FSDB." Thereafter, "As the parents’ choice of

enrollment was denied by FSDB, Petitioner’s parents enrolled the

Petitioner in the local St. Johns County School District." The

Petitioner further states that he later sought County support

for placement at FSDB, which was rejected because the County

believed it could adequately educate Petitioner.

11. The records of DOAH adequately set forth the factual

background. Petitioner was denied admission to FSDB when he

applied in 1999. Thereafter, his parents filed a due process

petition to contest the FSDB denial (DOAH Case No. 99-493OE).

Petitioner and FSDB entered into a Settlement Agreement, which

allowed Petitioner to enroll at FSDB on a "temporary assignment

basis for extended evaluation [in] accordance with Rule 6D-

3.002(4) . . ., for a period of 90 school days within which time

[Petitioner] will participate in the educational program as

established by the IEP team." The Petitioner dismissed his

case, however, for reasons not apparent in this record, the

child’s parents opted not to enroll their son in the school.

12. On January 19, 2000, Petitioner’s parents again filed

a request for a due process hearing, alleging that they made a

"unilateral mistake" in entering into the first Settlement

Agreement. (DOAH Case No. 00-0348E). On March 1, 2000,

Petitioner and FSDB entered into another Settlement Agreement

(the Second Settlement Agreement). The Second Settlement

Agreement provided for the same 90-day temporary assignment,

which would commence on the first day of the 2000-2001 school

year. That agreement also provided that Petitioner could

contest any decision made by FSDB after the temporary

assignment. The Petitioner then dismissed his petition.

13. On Ju ly 9, 2000, Petitioner filed a third request for

due process hearing against FSDB (DOAH Case No. 00-2871E). It

alleged that both settlement agreements denied rights under the

IDEA, violated FSDB’s admissions rules, and the Second

Settlement Agreement was an attempt by FSDB to "circumvent the

requirements of law." Petitioner requested a hearing to

determine "their conformity to both IDEA and FSDB Rule 6D."

14. On August 8, 2000, DOAH dismissed the case on two

grounds. First, Petitioner failed to allege a dispute subject

to DOAH review, because Petitioner "clearly stated his intent to

continue his enrollment in the public schools of St. Johns

County . . .," and further stated his satisfaction with that

school system. Final Order in N.H. v. F.S.D.B. , Case No. 00-

2871E at p. 3. Second, it was dismissed because the Second

Settlement Agreement barred the action. Id. at p.3, et seq .

That order was not appealed, and became final.

15. Petitioner filed a fourth due process petition on

August 1, 2000 (DOAH Case No. 00-3129E), opposing FSDB’s IEP

meeting set for August 8, 2000, which was set by FSDB to

implement the Second Settlement Agreement. Petitioner later

withdrew that request.

16. FSDB has repeatedly stated, and continues to maintain,

that it will excuse the terms of the Second Settlement Agreement

to allow Petitioner to remain in the St. Johns County School

District. Alternatively, FSDB continues to state Petitioner may

temporarily enroll at FSDB pursuant to the Second Settlement

Agreement.

The Current Case

17. Petitioner filed the instant rule challenge on

January 21, 2001. His father received a copy of the predecessor

1997 version of the DOE Pamphlet in August 2000, from a

representative of the Dade County School District. He asserts

the following two sentences constitute an unpromulgated rule in

violation of Section 120.56(4), Florida Statutes:

Parents in Florida have the right to choose

the educational setting they consider most

appropriate for their child who has a

hearing or visual impairment. FSDB is an

option in the continuum of placement for the

education of students with sensory

impairments.

18. The Petition claims Petitioner is adversely affected

by the two sentences due to the following three injuries:

(1) his "parents were denied the right to choose the educational

setting they feel most appropriate for their child"; (2) his

sensory-impaired peers attend FSDB; and (3) the St. Johns County

School District loses funding for special education of sensory-

impaired children because most local parents of sensory-impaired

children choose FSDB over the District.

19. At the hearing, Petitioner presented the testimony of

two employees of the Respondent, Shan Goff and Margot Palazesi.

Both testified that the Respondent promulgated the DOE Pamphlet

as an informational document for parents and others dealing with

sensory-impaired children in Florida.

20. Ms. Goff testified that DOE generates a multitude of

similar brochures and pamphlets. She further stated that there

is no relation between funding of FSDB and funding of local

school districts’ special education programs.

21. The DOE Pamphlet is clear. At page 3, the DOE

Pamphlet distinguishes between mandatory education of sensory-

impaired children in school districts and discretionary

admissions at FSDB:

School districts must provide educational

programs to each eligible student who has a

sensory impairment, beginning on the

student’s third birthday and continuing

until the student’s 22nd birthday or until

the student graduates with a standard

diploma, whichever comes first.

* * *

For students between the ages of 5 and 22

who have sensory impairments and who meet

enrollment requirements, the FSDB provides

educational and co-curricular programs,

support services, day school and residential

programs.

22. Immediately following the two challenged sentences,

the DOE Pamphlet advises:

Interested parents may contact the School’s

Parent Information Office for information

regarding admission . . .

23. There is no evidence that the DOE Pamphle t, read in

pari materia , is inconsistent with the laws, regulations, or

policies of the federal government.

CONCLUSIONS OF LAW

Jurisdiction

24. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.56, Florida Statutes.

Standing

25. Pursuant to Section 120.56(4), Florida Statutes, any

substantially affected person may challenge an agency statement

as an allegedly unpromulgated rule that violates Section

120.54(1)(a), Florida Statutes. In order to meet the

substantially affected test, the Petitioner must establish that,

as a consequence of the agency statement, the Petitioner will

suffer injury in fact and that the injury is within the zone of

interest that is regulated or protected. See generally F.A.C.S.

v. Dept. of Health , 2000 W.L. 1763541 (Fla. DOAH

Nov. 16, 2000). The Petitioner bears the burden of proof to

establish standing by a preponderance of the evidence. The

Continental Ins. Co. v. Dept. of Insurance , 1998 W.L. 866219

(Fla. DOAH May 12, 1998).

26. Petitioner has demonstrated sufficient proof to

establish standing in this case. While Respondent argues that

the Second Settlement Agreement between Petitioner and FSDB bars

this action, Petitioner's rule challenge addresses Respondent's

alleged unpromulgated rule providing for FSDB as a guaranteed

educational option.

27. Specifically, in the Second Settlement Agreement, FSDB

in fact agreed to temporarily admit Petitioner. Petitioner,

however, has challenged the Respondent's pamphlet as agency

policy which allegedly constitute a rule which provides

unconditional admission to FSDB. Notwithstanding his agreement

with FSDB, Petitioner has standing to challenge the alleged

rule.

28. While Petitioner asserts that he also has standing

because local students enrolled at FSDB result in a loss of

legislative funding from the St. Johns School District, there

was no reliable evidence presented to support his claim and it

is rejected.

Alleged Rule

29. For the purposes of C hapter 120, Florida Statutes, the

term "rule" is defined, in pertinent part, as follows at Section

120.52(15), Florida Statutes:

(15) "Rule" means each agency statement of

general applicability that implements,

interprets or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing

rule . . .

30. Section 120.56(4), Florida Statutes, in pert inent

part, states:

(4) CHALLENGING AGENCY STATEMENT DEFINED AS

RULES; SPECIAL PROVISIONS. -

(a) Any person substantially affected by an

agency statement may seek an administrative

determination that the statement violates

Section 120.54(1)(a). The petition shall

include the text of the statement or a

description of the statement and shall state

with particularity facts sufficient to show

that the statement constitutes a rule under

Section 120.52 and that the agency has not

adopted the statement by the rulemaking

procedure provided by Section 120.54.

31. Section 230.23(4)(m), Florida Statutes, in pertinent

part, states:

(m ) Exceptional students - [The School

District shall p]rovide for an appropriate

program of special instruction, facilities,

and services for exceptional students as

prescribed by the state board as acceptable,

including provisions that:

* * *

3. The school board annually provide

information describing the Florida School

for the Deaf and Blind and all other

programs and methods of instruction

available to the parent or guardian of a

sensory impaired student.

32. Section 242.3305, Florida Statutes, in pertinent part,

states:

242.3305. Florida School for the Deaf and

the Blind; responsibilities and mission.

(1) The Florida Sch ool for the Deaf and the

Blind is a state supported residential

school for hearing-impaired and visually

impaired students in preschool through 12th

grade. The school is part of the state

system and shall be funded through the

Division of Public Schools and Community

Education of the Department of Education.

The school shall provide educational

programs and support services appropriate to

meet the education and related evaluation

and counseling needs of hearing-impaired and

visually impaired students in the state who

meet enrollment criteria . . . .

(2) The mission of the Florida School for

the Deaf and the Blind is to utilize all

available talent, energy, and resources to

provide free appropriate public education

for all eligible sensory-impaired students

of Florida . . . .

33. Rule 6D-3.002, Florida Administrative Code, contains

several "Admission and Enrollment Requirements" for FSDB. The

Rule requires applicants to be "deaf," "visually impaired" or

"deaf-blind," and meet specific admissions standards. See ,

e.g. , Rule 6D-3.002(1)( i) ,(j) and (2), Florida Administrative

Code.

34. The DOE Pamphlet at page 3 clearly states that

applicants to FSDB must "meet enrollment requirements." It is

consistent with Sections 230.23(4)(m )3, and 242.3305, Florida

Statutes, and Rule 6D-3.002, Florida Administrative Code, which

provide that a student must meet certain criteria to be admitted

to FSDB. The DOE Pamphlet does not reasonably limit or alter

the statutorily authorized admissions criteria, as set forth by

Rule 6D-3.002, Florida Administrative Code.

35. Furthermore, it is unreasonable to read the two

sentences at issue out of context. It is a fundamental tenet of

statutory and contractual construction that one must read all

parts of a document in pari materia . See , e.g. , The Continental

Insurance Co. v. Dept. of Insurance , 1998 WL 866219 (Fla. DOAH

May 12, 1998)(stating "[s ]tatutes governing the [regulated

parties] must be read in pari materia, not in isolation," in

dismissing a rule challenge to an agency statement). Upon

reading the DOE Pamphlet as a whole, the two sentences cannot be

reasonably interpreted to unconditionally offer admissions to

FSDB. They merely identify an option available to parents of

sensory-impaired children in Florida.

36. The DOE Pamphlet, including the challenged sentences

is not a "rule" as defined by Section 120.52(15), Florida

Statutes.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Petitioner’s challenge be dismissed.

DONE AND ORDERED this 18th day of May, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. PFEIFFER

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of May, 2001.

COPIES FURNISHED :

Michael B. Harrison

870 Gerona Road

St. Augustine, Florida 32086

Ronald G. Stowers, Esquire

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

Charles L. Weatherly, Esquire

The Weatherly Law Firm

3414 Peachtree Road, North

Monarch Plaza, Suite 450

Atlanta, Georgia 30326-1162

Sidney F. Ansbacher, Esquire

Upchurch, Bailey and Upchurch, P.A.

Post Office Drawer 3007

St. Augustine, Florida 32085-3007

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a notice of appeal with the Clerk of the

Division of Administrative Hearings and a second copy,

accompanied by filing fees prescribed by law, with the District

Court of Appeal, First District, or with the District Court of

Appeal in the Appellate District where the party resides. The

notice of appeal must be filed within 30 days of rendition of

the order to be reviewed.