10-000845 Faces Private School vs. Dr. Eric J. Smith, As Commissioner Of Education Status: Closed Recommended Order on Thursday, September 23, 2010.

Summary: Petitioner did not timely enroll students for receiving McKay Scholarship payments.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FACES PRIVATE SCHOOL , )

)

Petitioner , )

)

vs. ) Case No. 10 - 0845

)

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION , )

)

Respondent . )

)

RECOMMEND ED ORDER

Pursuant to notice, a final hearing was conducted in this

case on May 5 and July 15, 2010, in Melbourne, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Lisa L. Hogreve, Esquire

Lisa L. Hogreve, L.C.

96 Willard Street, Suite 206

Cocoa, Florida 32922 - 7946

For Respondent: Jason Hand, Esquire

Robert Large, Esquire

Florida Department of Education

Turlington Building, Room 12 44

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner properly and

timely re - enrolled students from her private school so they

would be eligible for McKay Scholarship Pr ogram payments from

the Department of Education.

PRELIMINARY STATEMENT

Petitioner, FACES Private School (hereinafter "FACES" or

the "School"), received a N otice from the Department of

Education ("Department") dated January 13, 2010, denying the

request by FACES for payment of warrants for students attending

the School. FACES filed a P etition for A dministrative H earing

prior to the Department's notice, but also timely filed a

request for a formal hearing after the N otice. The P etition was

forwarded to the Division of Administrative Hearings and

assigned to the undersigned. The hearing was commenced on

May 5, 2010, but did not finish on that date. The hearing was

continued until July 15, 2010, and both parties were in

attendance.

At the final hearing, F ACES called ten witnesses: Tori

Wilson, co - owner of the School; Riley Hyle, regional manager for

the Department; Angela Simonton; Pamela London, scholarship

program manager; Laura Harrison, director of scholarships for

the Department; Dawn Banke; Toni Ran ier, co - owner of FACES;

Pamela Hansard, web application director for the Department;

Cathy Russell, program specialist for the Department; and Sophia

Patterson, choice officer for the Department. FACES' Exhibits 1

through 12, 14, 17, 18, and 21 through 23 were offered and

accepted into evidence.

Respondent called three witnesses: Pamela London; Kim

Reimer, senior database analyst for the Department; and Pamela

Hansard. Respondent's Exhibits 1 through 14 and 16 through 21

were offered and accepted into evidence. The parties advised

that a transcript of the final hearing would be ordered. The

Transcript was filed on August 17, 2010. Each party timely

submitted a Proposed Recommended Order, and each was duly

considered in the preparation of this Recomme nded Order.

FINDINGS OF FACT

1. FACES is a private school which has participated in the

McKay Scholarship P rogram since 2005. FACES is owned by Tori

Wilson and Toni Ranier, who are sisters. Wilson and Ranier are

both actively involved in the School as teachers and

administrators. FACES caters to children with autism or

autistic - related conditions.

2. It is the duty of the School to re - enroll its students

into the McKay Scholarship P rogram each year in order for them

to be eligible to receive McKay Sch olarship payments from the

Department. McKay Scholarships afford disabled students an

opportunity to receive funds to defray the costs of attending

private schools, such as FACES. The State of Florida,

Department of Education , administers the McKay Schol arship

P rogram through its Office of Independent Education and Parental

Choice.

3. For the 2009 - 2010 school year, there were 12 students

to be enrolled at the School. Due to certain disabilities, each

of the students was eligible to receive a McKay Schol arship.

FACES relie s upon the scholarships to fund the cost of operating

the School. In some instances, FACES accepts the McKay

Scholarship funds for a student as the sole payment for that

student's attendance, even though the scholarship i s not equal

to the cost of educating the student. In such instances, the

School w ill allow the student's parent to provide some sort of

alternative payment. That might be in the form of buying

provisions needed by the School, e.g., paper products, food, and

school sup plies, etc; or the School might allow the parent to

provide volunteer in - kind services, such as, cleaning, helping

with classroom activities, etc.

4. Each year Wilson would log on to the Department website

in order to re - enroll her students. (Each retur ning student

would have to be re - enrolled every year. At the same time, any

student who was not returning would be withdrawn using the same

process.) The process involved creating a Master Fee Schedule

and, then, plugging each student's scholarship infor mation into

the ir individual fee schedule. For example, some students may

be in need of tutoring services for which additional scholarship

funds are available. Others may need a summer program or some

technology assistance. Once the Master Fee Schedule was

completed, the school could then enter the individual students

into the system.

5. The Department established definite guidelines to be

followed by schools wishing to enroll students for scholarship

purposes. For the 2009 - 2010 school year, all st udents had to be

re - enrolled no later than August 2, 2009 (a Sunday) . The

re - enrollment process could have begun as early as April 10,

2009 , for that school year. That is, any school could have

re - enrolled its students as early as April 10, 2009, but not

later than August 2, 2009.

6. On July 13, 2009, Wilson accessed the Department

website to re - enroll her students. She had been through the

process each of the past four years and was generally familiar

with how it worked. However, on that date , when she logged in

using her school Code No. 4809 and password (FACES 5525), she

experienced problems. Wilson sent a request to the Department

website for a new password, which was sent to her via email

within a short time. Using the new password, FACES 101, Wilson

was able to log on to the website.

7. The first screen Wilson opened contained the normal

directive (accompanied by a red exclamation mark) to "Please

complete a Fee Schedule Update for the 2009 - 2010 School Year."

But when Wilson clicked on the Up date Fee Schedule link, she was

only given the option to update the 2008 - 2009 school year,

rather than the upcoming school year (2009 - 2010).

8. After encountering this problem, Wilson called an

undisclosed person at the Department to find out what was go ing

on with the system. She was presumably told that the system had

a glitch of some sort, that i f no changes to the fee schedule

were being made , she could use the previous year's schedule to

do re - enrollment or that she could try the process again later .

This statement was not corroborated, however. The Department

provided contrary evidence saying that other schools had done

their re - enrollments on the same day (July 13, 2009) and time

that Wilson was experiencing trouble. One school had

experienced s ome problems saving individual fee schedules for

four students, but had not experienced problems re - enrolling

students. Wilson does not have any records concerning her phone

call to the Department due to the fact that she changed

telephone providers, and records from the prior provider were

not available.

9. Wilson possesses a printout from her computer showing

her browser history for July 13, 2009. It is clear that Wilson

accessed the Department website on that date. There are a

number of references to the re - enrollment portion of the

Department's website, including the "student_enroll.asp" and the

"student_enroll1.asp," "student_enroll3.asp," and

"student_withdraw.asp" URL address segments. Each of those asps

is part of the enrollment process, but unl ess the entire process

is completed, those intermediate steps will not effectuate a

student enrollment. Wilson believes she was able to "submit"

each of her re - enrollments for students on that date, resulting

in a prompt saying , "the student has been succ essfully enrolled,

would you like to enroll another student." However, the

Department's IT experts opine that it is impossible to have

received that prompt without having gone through the entire

enrollment process. Department computer logs indicate that

Wilson did not click on the link required to save the Master Fee

Schedule, a prerequisite to enrolling students for the 2009 - 2010

school year. Thus, while Wilson may believe she was properly

enrolling her students, computer records indicate she did not

ac tually accomplish her goal on that date.

10. On July 20, 2009, Wilson logged on to the website

again to see if she could complete the Master Fee Schedule and

get her students re - enrolled. She attempted to log on using her

new password, FACES 101, but was not able to do so. She finally

logged on using her old password, FACES 5525, the same one she

had been using for four years. When she was logged on to the

website, she was able to update the Master Fee Schedule. She

did not attempt to re - enroll her stud ents at that time , because

she believed they had already been re - enrolled on July 13, 2009.

Unfortunately, she did not check to verify the enrollment on

July 20, 2009.

11. Wilson believes she completed the entire enrollment

process for her students on Jul y 13 and 20, 2009. Her testimony

is entirely credible as to that belief, but she has no

corroborating verification of the facts. The Department

computer logs indicate that the enrollment process had begun,

but had not been completed.

12. The Department s ent out an email on July 31, 2009, to

a number of schools who had McKay Scholarship students. The

email advised the schools that as of the date of the email, "Our

records indicate that one or more McKay Scholarship students

enrolled in your school during the 2008 - 2009 school year has not

been re - enrolled for the 2009 - 2010 school year. McKay students

must be re - enrolled by August 2, 2009, in order to be eligible

for a first period scholarship payment on September 1st." The

email was sent to HAPPYFACES@BEL LSOUTH.NET, which was FACES'

email address of record at the Department as of the date of the

email. FACES had actually stopped using that email address

regularly in April or May of 2009, but did not notify the

Department of that fact until some t ime later . However, as of

July 2009, when the email was sent out, FACES was still using

the address as a contact source for parents of potential new

students. It was, therefore, still being used for some purpose.

FACES' contention that it did not receive the Jul y 31, 2009,

email is not credible. Based upon the changes FACES was going

through with its communications systems at that time, however,

it is very possible the email was never accessed by Wilson.

13. On August 5, 2009, Wilson logged on to the website to

withdraw a student, only to find that none of her students'

re - enrollments (which she verily believed to have been

accomplished previously) appeared on the website. She

immediately sent an email to the Department regional manager

(Hyle) assigned to her geographic area. The email advised Hyle

about the students not showing up as re - enrolled and inquired

about receiving payments for those students. Hyle told her that

other schools were having problems as well (although that

statement was not true), 1 ask ed Wilson to send him information

concerning her students, and said he would speak to his

supervisor. Several exchanges between Wilson and Hyde ensued.

14. Thereafter, Wilson received an email from Laura

Harrison, director of the scholarship programs, say ing the

information submitted by Wilson was not sufficient to establish

re - enrollment of the students at FACES. Harrison reiterated

what Wilson had already heard from other persons within the

Department, i.e. , the evidence shows a visit to the website to

change her password on July 13, 2009, but no re - enrollment of

students was accomplished on that date.

15. Following notification to Wilson that the student

enrollment was deemed untimely by the Department, there were

three disturbing events: First, the De partment erroneously

advised Wilson that FACES did not have a current fire

inspection; in fact, FACES did. Second, the Department

erroneously advised FACES that it did not have a current health

certificate; in fact, FACES did. Third, the Department took

several months to issue its final agency action (despite

requests by FACES' attorney) so that FACES could challenge the

decision. These events reflect unfavorably on the Department,

but do not affect the outcome of this case. They are noted only

because they were raised by Wilson as part of her case - in - chief.

16. The Department's database analyst and web application

developer established the following facts:

Ʊ Wilson logged on to the Department website on

July 13, 2009, using IP address 70.152.251.108 wit h

school code 4809;

Ʊ On that same date, other schools logged into the

website and made student changes, including

re - enrollment and withdrawals;

Ʊ Wilson, on behalf of FACES, did attempt to engage

in the re - enrollment process on that date, starting

at 6:54 p.m ;

Ʊ There were a number of entries by FACES on that

date, but none of the entries went beyond

phase three of the enrollment process, identified

as reenroll3.asp by the server ;

Ʊ Wilson logged on to the Department website again on

July 20, 2009 , on behalf of FACES ;

Ʊ The server log shows that other schools logged in

on that same date and at the same time ;

Ʊ FACES completed its Master Fee Schedule on that

date beginning at 2:52 p.m. , but upon completing

the schedule, FACES logged out of the web site ;

Ʊ FACES logged on to the Department website on

August 5, 2009 , at 11:24 a.m., at 4:36 p.m., at

6:15 p.m., and at 7:40 p.m ;

Ʊ Other users logged on to the website at the same

time FACES was on - line ;

Ʊ FACES re - enrolled its students on that date,

a lthough it was three days after the deadline for

doing so ; and

Ʊ The re - enrollment of students by Wilson on

August 5, 2009, ultimately, resulted in a computer

code called "studentenroll=true" at 3:25 p.m .

17. Clearly, no matter what Wilson attempted to do on

July 13, 2009, regarding the enrollment of her students, she did

not fully accomplish that task. The computer records and

testimony of the Department's witnesses are clear and

unequivocal. The enrollment process was not completed prior to

the deadl ine of August 2, 2009.

18. FACES school does not generate a surplus of income

from which it might operate without the McKay Scholarships.

Loss of the scholarships would be a significant financial strain

on the School. Both Wilson and Ranier appear willin g to suffer

financial shortfalls in order to keep the School running, but

cannot do so without scholarship funds. However, due to the

technical failure to meet the enrollment deadline, FACES doe s

not appear to be entitled to the scholarships for the 2009 - 2010

school year.

19. Despite the findings herein, it is abundantly clear

that Wilson's testimony was honest and sincere. She was simply

mistaken concerning the completion of her enrollment process.

CONCLUSIONS OF LAW

20. The Division of Administrative He arings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Sections 120.57 and 120.569, Florida

Statutes (2009).

21. The burden of proof in this matter is on Petitioner to

prove, by a preponderance of the evidence, th at the students

from FACES were either timely enrolled or that the Department's

website prevented FACES from re - enrolling its students. See

D epartment of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d 932

(Fla. 1996).

22. Section 1002.39, Florida Statutes (2009), states in

pertinent part:

The John M. McKay Scholarships for

Students with Disabilities Program. -- There

is established a program that is separate

and distinct from the Opportunity

Sc holarship Program and is named the John M.

McKay Scholarships for Students with

Disabilities Program.

(1) THE JOHN M. MCKAY SCHOLARSHIPS FOR

STUDENTS WITH DISABILITIES PROGRAM. -- The

John M. McKay Scholarships for Students with

Disabilities Program is established to

provide the option to attend a public school

other than the one to which assigned, or to

provide a scholarship to a private school of

choice, for students with disabilities for

whom an individual educational plan has been

written in accordan ce with rules of the

State Board of Education. Students with

disabilities include K - 12 students who are

documented as having an intellectual

disability; a speech impairment; a language

impairment; a hearing impairment, including

deafness; a visual impairm ent, including

blindness; a dual sensory impairment; an

orthopedic impairment; another health

impairment; an emotional or behavioral

disability; a specific learning disability,

including, but not limited to, dyslexia,

dyscalculia, or developmental aphasia; a

traumatic brain injury; a developmental

delay; or autism spectrum disorder.

* * *

(8) PRIVATE SCHOOL ELIGIBILITY AND

OBLIGATIONS. -- To be eligible to participate

in the John M. McKay Scholarships for

Students with Disabilities Program, a

priv ate school may be sectarian or

nonsectarian and must:

* * *

(b) Provide to the department all

documentation required for a student's

participation, including the private

school's and student's fee schedules, at

least 30 days before the first qu arterly

scholarship payment is made for the student.

* * *

(10) JOHN M. MCKAY SCHOLARSHIP FUNDING

AND PAYMENT. --

* * *

(d) Following notification on July 1,

September 1, December 1, or February 1 of

the number of program participants, the

department shall transfer, from General

Revenue funds only, the amount calculated

under paragraph (b) from the school

district's total funding entitlement under

the Florida Education Finance Program and

from authorized categorical accounts to a

separate ac count for the scholarship program

for quarterly disbursement to the parents of

participating students. Funds may not be

transferred from any funding provided to the

Florida School for the Deaf and the Blind

for program participants who are eligible

under subparagraph (2)(a)2. For a student

exiting a Department of Juvenile Justice

commitment program who chooses to

participate in the scholarship program, the

amount of the John M. McKay Scholarship

calculated pursuant to paragraph (b) shall

be transferred fr om the school district in

which the student last attended a public

school prior to commitment to the Department

of Juvenile Justice. When a student enters

the scholarship program, the department must

receive all documentation required for the

student's pa rticipation, including the

private school's and student's fee

schedules, at least 30 days before the first

quarterly scholarship payment is made for

the student.

23. Florida Administrative Code Rule 6A - 6.097 0 addresses

the procedure for applying for a Mc Kay Scholarship. Subpart

(5)(c)2. of that R ule states:

A student must have an enrollment date

thirty (30) days before the first

scholarship payment is made. The submission

of the school and student fee schedules are

required to establish the enrollment date

and are completed using the DepartmentÓs

website. A student that changes private

schools after meeting the enrollment date

requirement may still qualify for payment

for that payment period.

24. It is clear from the evidence and from the credible

te stimony of Wilson that FACES attempted to re - enroll its

students on July 13, 2009. The evidence does not show that the

attempted re - enrollment process was completed on that date or on

July 20, 2009. There is no evidence that the system had

"glitches" or was, otherwise, the cause of FACES' failure to

complete the attempted re - enrollment. When FACES became aware

that its efforts to re - enroll students had failed, the

re - enrollment process was completed on August 5, 2009, just

three days after the enrollment deadline . This fact is a clear

indication that Wilson acted at all times with an understanding

of what was required. However, the re - enrollment was

accomplished only after the deadline, and the Department has the

right to deny the claim by FACES for the September 2009 , McKay

Scholarship warrants.

25. Although the Department's actions against FACES after

the enrollment d ifficulties are suspect, those actions do not

cure the failure to timely enroll students. (Whether the

Department has any discretion t o grant the scholarships despite

Wilson's failures is unknown. Whatever action the Department

may take as recompense for its erroneous behavior is outside the

purview of this Recommended Order.)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Respondent,

Dr. Eric Smith, as Commissioner of Education, denying the claim

by Petitioner, FACES Private School, for the September 2009

McKay Scholarship Program awards.

DONE AND ENT ER ED this 23rd day of September , 2010 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 23rd day of September , 2010 .

ENDNOTE

1/ Hyle testified that he was trying to comfort Wilson in some

way, s o he erroneously told Wilson that other schools were

having the same problem. Had Hyle's statement been made prior

to the enrollment deadline, it may serve as a basis for an

estoppel a ction against the Department. But since the

enrollment deadline had already passed, Wilson could not rely on

the statement as a reason for not timely complying with the

enrollment requirements.

COPIES FURNISHED :

Dr. Eric J. Smith

Commissioner of Educat ion

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1 244

325 West Gaines Street

Tallahassee, Florida 32 399 - 0400

Lynn Abbott, Agency Clerk

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lisa L. Hogreve, Esquire

Lisa L. Hogreve, L.C.

96 Willard Street, Suite 206

Cocoa, Florida 32922 - 7946

Jas on Hand, Esquire

Robert C. Large, Esquire

Florida Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptio ns within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.