13-000789PL Pam Stewart, As Commissioner Of Education vs. Erich Hamacher Status: Closed Recommended Order on Tuesday, July 9, 2013.

Summary: Petitioner proved that Respondent failed to protect child from conditions harmful to his physical health when he did not notify an administrator or parent of a non-verbal child's unusual behavior. Other charges not proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION ,

Petitioner ,

vs. Case No. 13 - 0789PL

ERICH HAMACHER ,

Respondent .

/

RECOMMENDED ORDER

On May 14, 2013, a hearing was conducted on the

Administrative Complaint issued by Petitioner, Pam Stewart as

Commissioner of Education, before Administrative Law Judge Lisa

Shearer Nelson in Lake City, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

387 Lakeside Drive

Defuniak Springs, Florida 32435

For Respondent: Joan Stewart, Esquire

FEA/United

213 South Adams Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent, Erich

Hamacher, violated section 1012.795(1)(j), Florida Statutes

(2010), and Florida Administrative Code Rule 6B - 1.006(3)(a) or

(5)(a), and if so, wha t penalty should be imposed.

PRELIMINARY STATEMENT

On November 30, 2012, Petitioner filed an Administrative

Complaint against Respondent, alleging that he violated section

1012.795(1)(j), and rule 6B - 1.006(3)(a) and (5)(a). The charges

against Respondent are based upon the factual allegation s that a

child in his classroom suffered a dislocated kneecap while in his

class and that Respondent directed another staff member to

rewrite a Daily Activities Form to omit any reference to the

child being in pain. On January 9, 2013, Respondent, through

counsel, filed an Election of Rights form with Petitioner ,

disputing the allega tions in the Administrative Complaint and

requested a hearing pursuant to section 120.57(1), Florida

Statutes. On March 5, 2013, the case was referred to the

Division of Administrative Hearings for assignment of an

administrative law judge.

On March 12, 2 013, a Notice of Hearing was issued scheduling

a hearing for May 14, 2013. The parties filed a Joint Prehearing

Stipulation on May 7, 2013, in which the parties identified facts

about which there are no dispute that, where relevant, have been

incorporated into the findings of fact below. The hearing

proceeded as scheduled, and Petitioner presented the testimony of

P.M., A.M. Ó s mother; Laura Hunter; Nikila Scippio; Jo Rowe; John

Crawford; Lakasia Portee - Jones; Serena Flowers; Robin Talley;

Jonathan Jordan; and Frank Moore. Petitioner Ó s Exhibits P 1 - 11

were accepted into evidence. Respondent testified on his own

behalf and presented the testimony of John Cole, John Brown, and

Beverly James. Respondent Ó s Exhibits R 1 - 6 were admitted into

evidence. Because R espondent Ó s Exhibits R 2 - 3 contain pictures of

students both in and outside of the classroom, those exhibits are

being transmitted by separate, sealed envelope. Petitioner

recalled Nakila Scippio in rebuttal.

The one - volume T ranscript of the proceedings was filed with

the Division on June 3, 2013. Both parties timely filed their

Proposed Recommended Orders on June 13, 2013, and they have be en

carefully considered in the p reparation of this Recommended

Order.

FINDING S OF FACT

1. Respondent holds Florida Educator Ó s Certificate number

749876, covering the areas of Emotionally Handicapped and

Specific Learning Disabilities, which is valid through June 30,

2012. He has been teaching in Florida since approximately 1995.

2. At all times relevant to the allegations in the

Administrative Complaint, Respondent was employed as an

Intellectual Disabilities Teacher at Richardson Middle School in

the Columbia County School District.

3. At that time, Respondent was teaching in a class room

that was identified as a classroom for students who were

profoundly mentally handicapped . There were approximately eight

students in his classroom, with four student - care attendants.

None of the students in the classroom were verbal, and at least

one did not walk.

4. The allegations in the Administrative Complaint stem

from an incident taking place on February 3, 2011, with respect

to one of Respondent Ó s students, A.M. At the ti me of the

incident, A.M. was 19 years old. For reasons that were not

explained in the record, A.M. lost his vision, speech, and

hearing at the age of six. He is non - verbal, but generally

regarded as a happy child. However, he does suffer from mood

swings that can make him difficult to control because of his

inability to communicate. When he has these mood swings,

according to his mother Ð he doesn Ó t want to be messed with Ñ and

Ð would push you away. Ñ A.M. is very strong, has a high tolerance

for pain, walks with a limp, and is stronger on his left side

than his right.

5. A.M. has attended Richardson Middle School for

approximately five years. For the 2010 - 2011 school year, he was

in Mr. Hamacher Ó s classroom.

6. Typically, A.M. Ó s mother would walk him to the school

bus, and he would use a tapping cane. She would assist the bus

driver, Serena Flowers, in putting him on the bus, and he would

sit directly behind Ms. Flowers on the way to school. Once they

arrived, Nakila Scippio, his personal care attendant, and

Ms. Flowers would help A.M. get off the bus and Ms. Scippio w ould

walk with him to his classroom.

7. Ms. Scippio was assigned exclusively to A.M., as he

required one - on - one supervision. This was he r first employment

as a student - care assistant, and she did not finish out the

school year in that position. Student - care assistants needed to

obtain permission from the assigned instructor to call parents or

other school officials, such as the school nurse. In this case,

Ms. Scippio would have been requi red to seek permission to make

any such calls from Mr. Hamacher.

8 . The evening of February 2, 2013, A.M. was agitated and

restless, and according to his mother, Ð did not want anybody to

mess with him. Ñ On February 3, 2011, A.M. walked to the bus as

usual, and walked to his classroom with Ms. Scippio. However,

from the beginning of the school day it was apparent that A.M.

was not having a good day. He was climbing all over the

classroom, throwing tantrums, scooting and sliding across the

floor, and trying to take his clothes off. He refused to eat

breakfast. Because of his vision loss, someone had to walk with

him around the classroom, and his behavior was not acceptable.

9 . Although A.M. did not usually cry at school, he was

crying tha t morning. At some point in the morning, Respondent

placed his hands on A.M. Ó s shoulders to place him on a mat on the

floor of the classroom. Although his actions were firm, the more

persuasive evidence is that he did not act in a way that would

injure t he child. A.M. Ó s immediate response was to jump up, and

then went to the therapy table/mat where he lay down. He

remained on the mat for the rest of the day, sometimes moaning

and crying.

10 . While it is unclear what caused A.M. Ó s behavior that

day, i t is clear that the behavior was unusual for him at school.

No one seemed to know why he was crying: while Ms. Scippio

testified that she thought he was in physical pain, Mr. Hamacher

thought the pain was emotional, and Mr. Crawford, his mobility

therapi st, thought he appeared to have a stomachache. However,

no one testified that A.M. was holding his leg or knee during the

day.

1 1 . While it was apparent that A.M. Ó s behavior was not

normal for him, Respondent did not call the principal and did not

call t he nurse. He explained at hearing that the principal was

not on campus that day, and that the nurse left early. Lakasia

Portee - Jones, the school nurse, confirmed that she left the

campus for the day at 12:45, but did not receive a call before

she left. At approximately 10:00 a.m., Respondent called P.M.,

A.M. Ó s mother, to discuss an upcoming I.E.P. meeting, but

mentioned no injury to her. Respondent did report to P.M. that

A.M. had been crying during the morning . S he reported that he

had had a bad night the night before, and said if it continued,

she would come and get him. Respondent assured her he would be

fine. However, A.M. continued to cry or moan for the rest of the

school day.

1 2 . Although it is unclear what was causing A.M. Ó s behavior

at that point, some effort should have been made to determine why

this non - verbal child was in such distress, regardless of whether

the pain was physical or emotional. While calling the principal

was not an option, and the scho ol nurse was only available for

part of the day, Respondent had no plausible explanation for not

contacting the nurse earlier in the day, or for not contacting an

assistant principal or other member of the administrative staff

for assistance.

1 3 . A.M. usu ally wore pull - ups and needed assistance with

toileting. On the day in question, he wet himself not once but

twice, soaking though his clothes. This was also unusual. The

student - care attendant normally deals with changing a student,

but Mr. Hamacher wa s helping her because A.M. was being

combative. The second time he was changed was immediately before

the time to board the bus to go home. At that time, Mr. Hamacher

noticed A.M. Ó s knee Ð go out Ñ and then it appeared to him that it

slipped back in. He w as not overly concerned at the time because

A.M. Ó s mother had reported (and she confirmed in her testimony at

hearing) that his knee has slipped out on occasion in the past,

a nd that she did not know how it happened.

1 4 . Mr. Hamacher determined that the b est thing for A.M.

was for him to go home. He did not call A.M. Ó s mother again. He

helped Ms. Scippio place A.M. in a wheelchair, because he would

not stand on his leg, so that he could be transported to the

school bus to go home. Ms. Scippio escorted h im to the bus in

the wheelchair.

1 5 . Serena Flowers has transported A.M. for several years.

When she saw Ms. Scippio wheeling him to the bus, she asked what

was wrong. Ms. Scippio told her that she did not know, but

something was wrong with his leg. Ms. Flowers could see that

something was out of place, so she picked up A.M. and carried him

up the stairs of the bus and placed him in his seat. Ms. Flowers

then called A.M. Ó s mother and told her something was wrong with

his leg, and asked P.M. to meet h er at the school bo ard building.

When P.M. met Ms. Flowers , P.M. could tell immediately that

A.M. Ó s knee was out of place. The two adults transferred A.M.

from the bus to P.M. Ó s car, and she took him to the emergency

room at Lake City Medical Center.

1 6 . In the emergency room , medical staff popped A.M. Ó s knee

back into place and he was given a knee brace to wear in order to

stabilize it. No prescription was given, and A.M. was walking

around on his leg by the evening. He stayed home for a few days,

a nd then returned to school. A.M. wore the brace for a couple of

weeks and then would not wear it any longer.

1 7 . The children in Mr. Hamacher Ó s class had Daily Activity

Reports (DAR) that went home each day to notify the parent s of

the type of activities conducted , behaviors noted, and any needed

supplies to send from home. It is uncle ar what time of day the

note s were usually completed. Ms. Scippio would prepare the DAR

for Mr. Hamacher Ó s review, and then h e would sign them .

1 8 . For February 3, 2013 , Ms. Scippio prepared a note that

A.M. had urinated twice in his clothes, and that extra clothes

needed to be sent in. She circled the preprinted items as

follows: problem behavior; kicking staff; and pulling on staff.

She also wrote under comments, Ð [ A.M.] cried this a.m. and

climbed on top of furniture seemed to be in pain. Ñ Mr. Hamacher

told her to re - write the note, stating only the facts. The note

as re - written included the same information as the first, except

the written comment s about A.M. cli mbing on the furniture and

seeming to be in pain were omitted, and the behavior Ð had

tantrums Ñ was also circled. The note signed by Mr. Hamacher

still indicated that A.M. cried in the a.m. Mr. Hamacher

explained that he believed the crying stemmed from emotional, as

opposed to physical, pain and that a factual statement was more

appropriate. 1/

1 9 . The note that went home was not falsified. As

Ms. Scippio stated at hearing, she was told to include Ð just the

facts Ñ as opposed to opinion. While the note was not falsified,

Respondent should have called A.M. Ó s mother once he knew that

there was any type of injury to A.M.

20 . The following day, P.M. called the school and spoke to

the principal. She was upset that no one had called her about

A.M. Ó s injury. As she stated at hearing, Ð I Ó m not here for his

job. All I Ó m wanting to know is why nobody c alled me. Nobody

called and let me know that he had hurt his leg. They took him

to the bathroom. Somebody should have noticed that his leg was

out of socket. That Ó s all I was mad about. Nobody notified me.

I Ó m not after anybody Ó s job. I just want an answer why nobody

called me. Ñ

2 1 . School officials met with Mr. Hamacher and with P.M. to

determine what happened. Mr. Hamacher was notified that

Principal Whitfield was recommending that he be suspended for a

period of three days without pay. The four bas e s listed for the

discipline were that he did not fill out an accident report; did

not send the child to the nurse; did not communicate to A.M. Ó s

parent that an injury may have occurred; and did not report

injuries to an administrator.

2 2 . On or about February 10, 2011, the Columbia County

School Board suspended Respondent without pa y for three days as a

result of his conduct on February 3, 2011, regarding student A.M.

2 3 . After his suspension, Respondent returned to the same

classroom and A.M. r emained in his classroom for the remainder of

the school year.

2 4 . Mr. Hamacher Ó s evaluation for the 2010 - 2011 school year

was completed March 23, 2011, some five to six weeks after the

three - day suspension. He received a satisfactory evaluation,

with very effective marks for planning and preparation,

technology, and collaboration. The comments section of the

evaluation stated: Ð Mr. Hamacher is well organized compassionate

and able to work collaboratively with his team of care attendants

while accepti ng responsibility for everything in this challenging

area of student education. Ñ His prior evaluations were also

satisfactory or very effective, and contain positive comments

regarding his performance.

2 5 . The evidence presented at hearing indicates that

Respondent is a good teach er and is dedicated to the well - being

of hi s students. He strives to e nsure that his students reach

their full potential and to be able to contribute to society

despite their limitations.

2 6 . With the exception of the suspension imposed for this

incident, there is no evidence that Respondent has ever been

disciplined by the School District. Likewise, there is no

evidence that Respondent Ó s certification has been disciplined by

the Education Practices Commission. When h e received his

original certification, it was issued subject to a two - year

probationary period as a result of prior conduct disclosed on his

application. However, that conduct was considered in the initial

licensure process and bears no relationship to th e conduct at

issue in this case.

CONCLUSIONS OF LAW

2 7 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 1 20.57(1), Florida Statutes

(2012 ).

2 8 . This is a proceeding in which Petitioner seeks to

revoke Respondent Ó s educator certification. Because disciplinary

proceedings are considered penal in nature, Petitioner is

re quired to prove the allegations in the Administrative Complaint

by clear and convincing ev idence. Dep Ó t of Banking and Fin. v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

2 9 . As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence mu st be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

v. Walke r , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

30 . The Administrative Complaint alleges the following

facts as a basis for imposing discipline

3. On or about February 3, 2011, the

Respondent was present in his classroom for

the purpose of supervising appr oximately

seven students with the assistance of a

student care attendant. During the school

day one of Respondent Ó s students, A.M., a

nineteen year old ESE student, suffered a

dislocated right knee cap. Despite

indications that the student was in pain an d

discomfort, the Respondent failed to seek

medical assistance, did not send the student

to the school nurse, did not fill out an

accident report, and did not report to an

administrator or to the child Ó s parent that

an injury may have occurred.

4. At the end of the school day the student

care attendant prepared a Daily Activities

Report for A.M. which indicated that A.M.

seemed to be in pain. Upon reviewing the

form the Respondent instructed the attendant

to throw away the form and complete another

one w hich omitted any information about the

student being in pain. After complying with

the Respondent Ó s directive to prepare another

report, student A.M. was taken to his bus in

a wheelchair and lifted into a seat.

5. The student was subsequently taken to a

hospital by his parent where he was diagnosed

with a right patellar dislocation.

6. On or about February 10, 2011, the

Columbia County School Board suspended the

Respondent without pay for three days as a

result of the conduct described herein.

3 1 . Based on these factual allegations, Petitioner has

charged Respondent with violating section 1012.795(1)(j), as well

as Florida Administrative Code Rules 6B - 1.006(3)(a) and 6B -

1.006(5)(a).

3 2 . Rule 6B - 1.006, which delineates the Principles of

Conduct for the Education Profession in Florida, provides in

pertinent part:

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student Ó s mental

and/o r physical health and/or safety.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

33. Count 1 of the Administrative Complaint alleges that

Respondent violated section 1012.795(1)(j), which makes it a

disciplinary offense to violate the Principles of Conduct for the

Education Profession in Florida. Determination of whether

Respondent has violated section 1012.795(1)(j) necessarily rests

on a determination of Co unts 2 and 3.

34. Count 2 of the Administrative Complaint asserts that

Respondent violated rule 6B - 1.006(3)(a), by failing to protect

A.M. from conditions harmful to learning and/or to the student Ó s

mental and/or physical health and/or safety. In suppor t of this

charge, Petitioner asserts that Respondent actually caused the

injury to A.M. by forcefully placing A.M. on the floor mat.

However, no such allegation was made in the Administrative

Complaint.

35. Respondent can be disciplined only for matte rs alleged

in the charging document. Trevisani v. Dep Ó t of Health , 908 So.

2d 1108 (Fla. 1st DCA 2005); Ghani v. Dep Ó t of Health , 714 So. 2d

1113 (Fla. 1st DCA 1998); and Willner v. Dep Ó t of Prof. Reg. , 563

So. 2d 805 (Fla. 1st DCA 1990). Thus, the inquiry is limited to

those factual matters actually alleged in the Administrative

Complaint: that an injury occurred while in Respondent Ó s

classroom; that Respondent failed to seek medical assistance ; did

not send A.M. to the school nurse ; did not fill out an accident

report; and did not report to an administrator or to the child Ó s

parent that an injury may have occurred.

36. Because Petitioner did not allege that Respondent Ó s

actions caused A.M. Ó s injury, such a claim cannot be used as a

bas is for imposing discipline against Respondent. Moreover, the

evidence does not support such a finding. The more persuasive

evidence is that A.M. was crying before he lay down on the mat,

and before Respondent placed him there. Ms. Scippio testified

that his initial reaction to Mr. Hamacher Ó s placing him on the

mat was to jump up, which is inconsistent with his dislocating

his knee at that time. While undoubtedly A.M. dislocated his

knee at some time during the school day, there was no clear and

convinci ng evidence to indicate when the injury occurred.

37. However, the evidence is clear and convincing that

while the cause for his actions was unknown, A.M. was acting in a

way that was inconsistent with his normal behavior. A.M. is a

child who by all a ccounts rarely , if ever , cries at school. He

was described as being a happy child, although subject to mood

swings . Most importantly, he is a child who cannot tell anyone

whether he is in pain or if he has hurt himself. While the

opinions regarding the cause for his behavior differed , all of

the witnesses seemed to agree that A.M. was not feeling well on

February 3, 2011. Given A.M. Ó s inability to convey the cause for

his behavior, it was incumbent upon Respondent to seek assistance

from administration, and when the behavior continued, to notify

A.M. Ó s parent.

38. Respondent testified that he first noticed A.M. Ó s knee

Ð slip Ñ at the very end of the day, while he was being changed.

He testified that he did not realize the extent of the injury,

although he does now. Regardless, once he knew that there was an

injury, it was incumbent upon him to notify A.M. Ó s parent. In

this limited e xtent, Petitioner has proven by clear and

convincing evidence that Respondent violated rule 6B - 1.006(3)(a).

39. The same cannot be said for the alleged violation of

rule 6B - 1.006(5)(a) , which requires a teacher to maintain honesty

in all professional dealings . Respondent was the person

responsible for signing Daily Activity Forms that were sent home

with the students in his class. The first form prepared by

Ms. Scippio, contained a statement with which Respondent did not

agree. He maintained consist ently throughout the proceeding that

he felt A.M. was suffering from emotional, as opposed to

physical , pain. As stated by Ms. Scippio, the primary witness

with respect to this issue, Respondent told her to prepare a DAR

with Ð just the facts, Ñ which inclu ded the notation that A.M. had

cried in the morning , but omitted Ms. Scippio Ó s original notation

that A.M. seemed to be in pain. The fact that Respondent did not

share Ms. Scippio Ó s view does not make the statement dishonest . 2/

This behavior is in stark contrast to that described in Smith v.

Ivanyi , DOAH Case No. 09 - 6693 (DOAH July 15, 2010; EPC Mar. 7,

2011), where Ms. Ivanyi directed an aide to cut out a parent Ó s

signature from a document and affix it to a consent form in order

to make it appear the parents had consented to a form of

punishment for which they, in fact, had withheld permission.

Telling an aide to write a note that cont ains Ð just the facts Ñ is

not a failure to maintain honesty in all professional dealings.

Petitioner did not prove the violation in Count 3 by clear and

convincing evidence.

40. Rule 6B - 11.007 contains the Disciplinary Guidelines for

establishing the appropriate penalties to be imp osed for

violations of section 1012.795 and rule 6B - 1.006. For the

failure to protect or supervise students in violation of rule 6B -

1.006(3)(a), the penalty range is probation to revocation. Fla.

Admin. Code R. 6B - 11.007(2)(i)16.

41. The rule also co ntains aggravating and mitigating

factors to consider in determining any deviation in penalty.

Those factors include the severity of the offense; the number of

repetitions of offenses; the length of time since the violation;

any previous discipline by the Commission; the length of time the

educator has practiced ; the effect of the penalty on the

educator Ó s livelihood; any effort at rehabilitation by the

educator; penalties imposed for related offenses; the degree of

physical and mental harm to the student; and any other mitigating

or aggravating factors under the circumstances. Fla. Admin. Code

R. 6B - 11.007(3).

42. This case dealt with a single child on one day. There

are no allegations that Respondent has ever acted inappropriately

on other occasions. To the contrary, Respondent has maintained

positive evaluations both before and after this incident. The

incident too k place over two years ago, Respondent served the

discipline imposed by the school district immediately after the

incident , and A.M. rema ined in his class for rest of the school

year and into the following year . There was no evidence

presented to indicate whether A.M. suffered any additional injury

due to Respondent Ó s failure to notify administrative staff or

A.M. Ó s parent, although the la ck of such evidence does not excuse

the failure. Respondent has taught for over 15 years and has not

been discipline d by the Commission previously, and has sought

additional training since the incident to know how to handle

these situations more effective ly. Finally, the school district

continues to employ him and has continue d to rate him as an

effective educator.

43. The undersigned has also considered the challenging

nature of the particular teaching assignment Respondent held at

the time, as well as the assignment he has now. When speaking

about his students, Respondent Ó s face lights up with a genuine

love for them (including A.M., the child at issue) and an

enthusiasm for his work that cannot be taught. To extinguish

that enthusiasm would be a loss for the teaching profession.

However, a dditional training would assist him in dealing with the

issues that are unique to the population that he serves.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a Final Order finding Respondent guilty of Counts 1 and 2

of the Administrative Complaint and not guilty of Count 3. It is

further recommended that Respondent be placed on probation for a

period of two years, a condition of which shall include an

additional 20 hours of continuing education, in areas to be

determined by the Commission.

DONE AND ENT ERED this 9th day of July , 2013 , in Tallahassee,

Leon County, Florida.

S

LISA SHEARER NELSON

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 9th day of July, 2013.

ENDNOTE S

1/ Petitioner Ó s assertion that Respondent directed Ms. Scippio to

re - write the Daily Activities Report and omit reference to pain,

and that this direction was given to hid e from A.M. Ó s mother the

fact that he had injured her son in his classroom and did nothing

to help him is specifically rejected. The testimony shows that

he told Ms. Scippio to include only the facts. The more credible

evidence is that, while Respondent should have investigated what

was actually wrong with A.M., he did not believe that A.M. was in

physical pain.

2/ Neither does the statement attributed to Respondent that

A.M. Ó s mother would over - react to a comment that her son was in

pain. Most parents have a nega tive reaction to a statement that

their child might be in pain, much less the parent of a child who

cannot communicate. If Respondent truly did not believe that

A.M. was in pain, and his testimony to that effect is credited,

it is understandable that he w ould not want to distress A.M. Ó s

parent unnecessarily and would want to keep A.M. in a positive

environment.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

Defuniak Springs, Florida 32435

Joan Stewart, Esquire

FEA/United

213 South Adams Street

Tallahassee, Florida 32301

Matthew Carso n, General Counsel

Department of Education

Turlington Building, Suite 124 4

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Bureau Chief

Bureau of Professional

Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions 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.