15-007041 Diane Andrew vs. Sarasota County School Board Status: Closed Recommended Order on Friday, April 8, 2016.

Summary: Petitioner failed to prove that she is a "classroom teacher" and therefore she is not eligible for the Best and Brightest Scholarship.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANE ANDREW,

Petitioner,

vs. Case No. 15 - 7041

SARASOTA COUNTY SCHOOL BOARD,

Respondent,

and

THE DEPARTMENT OF EDUCATION,

Intervenor.

_______________________________/

REC OMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

by video teleconference between sites in Sarasota and

Tallahassee, Florida, on February 16, 2016 , before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Ronald G. Meyer, Esquire

Lynn C. Hearn, Esquire

Meyer, Brooks, Demma and Blohm, P.A.

Post Office Box 1547

131 North Gadsden Street (32 301)

Tallahassee, Florida 32302

For Respondent: Margaret R. Good, Esquire

Matthews Eastmoore

1626 Ringling Boulevard , Suite 300

Sarasota, Florida 34236

For Interven or: David L. Jordan, Esquire

Daniel Terrence Gaffney, Esquire

Department of Education

Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 04 00

STATEMENT OF THE ISSUE

Whether Petitioner, who is employed as an occupational

therapist by a local school board, is considered a ÐteacherÑ

eligible for the 2015 State of Florida Best and Brightest

Scholarship P rogram.

PRELIMINARY STATEMENT

The 2015 s es sion of the Florida Legislature adopted proviso

language in the appropriations bill which created the ÐFlorida

Best and Brightest Scholarship Program ( S cholarship) .Ñ See c h .

2015 - 232, § 2, i tem 99A, at 27, Laws of Fla. The sum of

$ 44,022,483 was appropri ated to provide a financial award of

$10,000 to teachers who qualified for the Scholarship .

Petitioner, Diane Andrew, applied to her employer, the School

Board of Sarasota County (Respondent ), for a n award under the

S cholarship p rogram. By email dated Nov ember 11, 2015,

RespondentÓs r epresentative notified Petitioner that it had been

determined she was not eligible for the S cholarship.

Petitioner timely requested an administrative hearing to

contest the denial of the S cholarship. On December 14, 2015, th e

case was forwarded to the Division of Administrative Hearings

(DOAH) for a disputed - fact hearing.

At the hearing, Petitioner testified on her own behalf.

Respondent presented the testimony of Sonia Figaredo - Alberts, its

e xecutive d irector of p upil s up port s ervices, and Al Harayda, its

e mployee r elations and e quity a dministrator. Intervenor ,

Department of Education, presented the testimony of Brian

Dassler, D epartment of EducationÓs d eputy c hancellor of e ducator

q uality. Joint Exhibits A through Q wer e admitted into evidence.

A Transcript of the proceeding was filed with DOAH on

March 8, 2016. By Order dated March 10, 2016, the undersigned

granted PetitionerÓs Unopposed Motion for Extension of Time to

File Proposed Recommended Orders. Each party filed a Proposed

Recommended Order and the same were considered in the preparation

of this Recommended Order.

FINDING S OF FACT

1 . The 2015 Florida Legislature Appropriations Act created

the Best and Brightest Teacher Scholarship Program, chapter 2015 -

232, p. 27, Item 99A. The eligibility pre - requisites for

applying to and being awarded the S cholarship (up to $10,000)

were established in the S cholarship.

2 . The S cholarship provide s as follows :

Funds in Specific Appropriation 99A are

provided to implement Florida's Best and

Brightest Teacher Scholarship Program. The

funds shall be used to award a maximum of

4,402 teachers with a $10,000 scholarship

based on high academic achievement on the SAT

or ACT. To be eligible for a scholarship, a

teacher must have scored at or above the 80th

percentile on either the SAT or the ACT based

upon the percentile ranks in effect when the

teacher took the assessment and have been

evaluated as highly effective pursuant to

section 1012.34, Florida Statutes, or if the

teacher is a first - year teacher who has not

been evaluated pursuant to section 1012.34,

Florida Statutes, must have scored at or

above the 80th percentile on either the SAT

or the ACT based upon the percentile ranks in

effect when the teacher took the assessment.

In order to demonstrate eligibility for an

award, an eligible teacher must submit to the

school district, no later than October 1,

2015, an official record of his or her SAT or

ACT score d emonstrating that the teacher

scored at or above the 80th percentil e based

upon the percentile ranks in effect when the

teacher took the assessment. By December 1,

2015, each school district, charter school

governing board, and the Florida School for

the Deaf and the Blind shall submit to the

department the number of eli gible teachers

who qualify for the scholarship. By

February 1, 2016, the department shall

disburse scholarship funds to each school

district for each eligible teacher to receive

a scholarship. By April 1, 2016, each school

district, charter school gover ning board, and

the Florida School for the Deaf and the Blind

shall provide payment of the scholarship to

each eligible teacher. If the number of

eligible teachers exceeds the total the

department shall prorate the per teacher

scholarship amount.

3. Th e S cholarship does not define the word Ðteacher.Ñ

Petitioner, who timely filed an application for the S cholarship,

contends that she is a ÐteacherÑ and is therefore eligible for

the award. Respondent and Intervenor contend that Petitioner is

an occupatio nal therapist , and , as such, she is not considered a

Ðclassroom teacher,Ñ which is the target group that the

Legislature intended for the teacher scholarship program to

cover. Petitioner contends that even if the S cholarship is

limited to Ðclassroom teach ers,Ñ she meets the statutory

definition of a Ðclassroom teacherÑ and is therefore eligible to

receive the S cholarship.

4. It is undisputed that the 2015 S cholarship language is

vague as to whether the S cholarship is limited to classroom

teachers. In 20 16, the Legislature made it clear that the award

is intended to only cover Ðclassroom teachers.Ñ Legislation

enacted in subsequent legislative sessions may be examined to

ascertain legislative intent. See Crews v. Fla . Pub . Emp Órs

Council 79, AFSCME , 113 So. 3d 1063, 1073 (Fla. 1st DCA

2013)(citing Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins.

Co. , 945 So. 2d 1216, 1230 (Fla. 2006)). Recently, the Governor

signed c hapter 2016 - 62, Laws of Florida. S ection 25 of c hapter

2016 - 62 enacts section 1012.7 31, Florida Statutes, t he Florida

Best and Brightest Teacher Scholarship Program. 1/ Section

1012.731(2) provides that the Ð scholarship program shall provide

categorical funding for scholarships to be awarded to classroom

teachers, as defined in s. 1012.01 (2)(a), who have demonstrated a

high level of academic success. Ñ The Legislature's amendment of

the language, just a year after the first appropriation, confirms

that the Legislature intended the award to go to "classroom

teachers," as defined in c hapter 1012.

5. Petitioner was hired by Respondent as an occupational

therapist. She has worked as an occupational therapist for

Respondent for approximately 17 years. Petitioner does not hold

a Florida teaching certificate and her position as an

occupational therapist does not require a Florida teaching

certificate. Instead, Petitioner is licensed by the Florida

Department of Health, which has jurisdiction over ethical

violations committed by occupational therapists licensed in

Florida .

6. In her positio n as an occupational therapist, Petitioner

reports to RespondentÓs d irector of Pupil Support Services, who

supervises all therapists within Sarasota County Public Schools.

7. PetitionerÓs stated job goal is Ð[t]o facilitate the

handicapped studentÓs in dependent functioning in the school

setting.Ñ PetitionerÓs performance responsibilities, as set

forth in her job description, are to:

1) Conduct appropriate evaluation of

students referred for possible exceptional

student education needs and prepare repo rts

of the evaluation and findings.

2) Plan intervention and service delivery

programs to meet studentÓs individual needs.

3) Implement and direct interventions

essential to meeting targeted studentsÓ

needs.

4) Provide information and consultative

se rvices to appropriate personnel in support

of students with disabilities.

* * *

6) Establish schedules for meeting with

students, conferencing with parents and

assisting in rehabilitation techniques.

7) Provide resources to all stakeholders

involv ed in the evaluation, identification of

student needs and rehabilitation of students.

8 . Petitioner delivers therapeutic services individually or

in a small group setting, in a room assigned to her, or in a

classroom, usually at the same time a teacher is delivering

instruction to the entire class.

9 . Petitioner completes Ð lesson plans, Ñ which are referred

to in the therapy setting as Ð plans of care. Ñ Plans of care

differ in substance from lesson plans prepared by teachers

because lesson plans set out a teaching plan for the entire

class, whereas plans of care set out therapeutic goals and

activities directed to one student that complies with the goals

set forth in a student's Individualized Education Plan (IEP).

10 . As an occupational therapist, Pet itioner is responsible

for maintaining a Ð class roster, Ñ which is referred to in the

therapy setting as a Ð caseload. Ñ Occupational therapists

maintain a caseload for student accountability purposes and for

Medicaid billing purposes.

1 1 . PetitionerÓs the rapy sessions are assigned a Ð 700 Ñ

course code , which correlates in the Florida Department of

Education's course directory to Ð related services. Ñ

1 2 . Joint Exhibit O is an example of courses offered to

students by Respondent. The course list includes ma th, language

arts, physical education, science, social studies, art, Chinese,

music, and occupational therapy. Petitioner is listed as the

ÐteacherÑ for the occupational therapy course. Unlike the other

listed Ðteachers,Ñ Petitioner is not instructing st udents in a

subject area; she is delivering a service. See § 468.203(4)(b),

Fla. Stat. (201 5 ). Succinctly stated, the difference, in this

context, between Ðoccupational therapyÑ and the other listed

Ðcourses,Ñ is that occupational therapy is not a subjec t area

that a student learns about; it is a service that a student

receives to help them to achieve independent functioning.

Although listed as ÐcourseÑ by Respondent, occupational therapy,

as compared to the other listed Ðcourses,Ñ is not a ÐcourseÑ

with in the meaning of section 1012.01(2)(a).

CONCLUSIONS OF LAW

1 3 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2015) . 2/

1 4 . Petitioner bears the bur den of proving by a

preponderance of the evidence that s he i s entitled to the award .

Dep't of Transp. v. J. W. C. Co. , 396 So. 2d 778 (Fla. 1st DCA

1981); § 120.57(1)(j), Fla. Stat. A preponderance of the

evidence is defined as "the greater weight of the evidence," or

evidence that "more likely than not" tends to prove a certain

proposition. Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla.

2000).

1 5 . Section 468.203, Florida Statutes, provides, in part,

as follows:

(3) ÐOccupational therapistÑ means a pe rson

licensed to practice occupational therapy as

defined in this act and whose license is in

good standing.

(4) ÐOccupational therapyÑ means the use of

purposeful activity or interventions to

achieve functional outcomes.

(a) For the purposes of this s ubsection:

1. ÐAchieving functional outcomesÑ means to

maximize the independence and the maintenance

of health of any individual who is limited by

a physical injury or illness, a cognitive

impairment, a psychosocial dysfunction, a

mental illness, a devel opmental or a learning

disability, or an adverse environmental

condition.

2. ÐAssessmentÑ means the use of skilled

observation or the administration and

interpretation of standardized or

nonstandardized tests and measurements to

identify areas for occupa tional therapy

services.

(b) Occupational therapy services include,

but are not limited to:

1. The assessment, treatment, and education

of or consultation with the individual,

family, or other persons.

2. Interventions directed toward developing

dail y living skills, work readiness or work

performance, play skills or leisure

capacities, or enhancing educational

performance skills.

3. Providing for the development of:

sensory - motor, perceptual, or neuromuscular

functioning; range of motion; or emotion al,

motivational, cognitive, or psychosocial

components of performance.

These services may require assessment of the

need for use of interventions such as the

design, development, adaptation, application,

or training in the use of assistive

technology dev ices; the design, fabrication,

or application of rehabilitative technology

such as selected orthotic devices; training

in the use of assistive technology; orthotic

or prosthetic devices; the application of

physical agent modalities as an adjunct to or

in p reparation for purposeful activity; the

use of ergonomic principles; the adaptation

of environments and processes to enhance

functional performance; or the promotion of

health and wellness.

1 6 . Section 1002.66, Florida Statutes, which is part of the

K - 2 0 Education Code, is titled ÐSpecialized instructional

services for children with disabilities.Ñ Subsection (2) of

section 1002.66 provides as follows:

(2) The parent of a child who is eligible

for the prekindergarten program for children

with disabiliti es may select one or more

specialized instructional services that are

consistent with the childÓs individual

educational plan. These specialized

instructional services may include, but are

not limited to:

(a) Applied behavior analysis as defined in

ss. 627.6686 and 641.31098.

(b) Speech - language pathology as defined in

s. 468.1125.

(c) Occupational therapy as defined in

s. 468.203.

(d) Physical therapy as defined is

s. 486.021.

(e) Listening and spoken language

specialists and an appropriate ac oustical

environment for a child who is deaf or hard

of hearing who has received an implant or

assistive hearing device.

1 7 . Section 1002.66 makes it clear that occupational

therapy provided in the K - 20 setting falls within the category of

Ðspecialized instructional services.Ñ Consequently, occupational

therapists providing occupational therapy in the K - 20 setting are

instructional personnel who are providing specialty services.

Such individuals are, without question, ÐspecialistsÑ with

respect to the job duties that they perform.

1 8 . Section 1003.01(3)(b), Florida Statutes, defines

services provided by occupational therapists as Ðrelated

services.Ñ Florida Administrative Code Rule

6A - 6.03411(1)(dd)3.f. provides that occupational therapy services

ar e related services Ðthat include improving, developing or

restoring functions impaired or lost through illness, injury, or

deprivation; improving ability to perform tasks for independent

functioning if functions are impaired or lost; and preventing,

throug h early intervention, initial or further impairment or loss

of function.Ñ

1 9 . Section 1012.01(2), of the K - 20 Education Code,

provides as follows:

(2) Instructional personnel. Ï

ÐInstructional personnelÑ means any K - 12

staff member whose function includ es the

provision of direct instructional services to

students. Instructional personnel also

includes K - 12 personnel whose functions

provide direct support in the learning

process of students. Included in the

classification of instructional personnel are

the following K - 12 personnel:

(a) Classroom teachers. Ï Classroom

teachers are staff members assigned the

professional activity of instructing students

in courses in classroom situations, including

basic instruction, exceptional student

education, caree r education, and adult

education, including substitute teachers.

(b) Student personnel services. Ï Student

personnel services include staff members

responsible for: advising students with

regard to their abilities and aptitudes,

educational and occupat ional opportunities,

and personal and social adjustments;

providing placement services; performing

educational evaluations; and similar

functions. Included in this classification

are certified school counselors, social

workers, career specialists, and sch ool

psychologists.

(c) Librarians/media specialists. Ï

Librarians/media specialists are staff

members responsible for providing school

library media services. These employees are

responsible for evaluating, selecting,

organizing, and managing media and technology

resources, equipment, and related systems;

facilitating access to information resources

beyond the school; working with teachers to

make resources available in the instructional

programs; assisting teachers and students in

media productions; an d instructing students

in the location and use of information

resources.

(d) Other instructional staff. Ï Other

instructional staff are staff members who are

part of the instructional staff but are not

classified in one of the categories specified

in par agraphs (a) - (c) . Included in this

classification are primary specialists,

learning resource specialists, instructional

trainers, adjunct educators certified

pursuant to s. 1012.57, and similar

positions.

(e) Education paraprofessionals. Ï

Education par aprofessionals are individuals

who are under the direct supervision of an

instructional staff member, aiding the

instructional process. Included in this

classification are classroom

paraprofessionals in regular instruction,

exceptional education paraprofe ssionals,

career education paraprofessionals, adult

education paraprofessionals, library

paraprofessionals, physical education and

playground paraprofessionals, and other

school - level paraprofessionals.

20 . In looking at PetitionerÓs job description, he r only

ÐJOB GOALÑ is to Ðfacilitate the handicapped studentÓs

independent functioning in the school setting.Ñ In meeting her

job goal, PetitionerÓs first stated performance responsibility is

to Ðconduct appropriate evaluation of students referred for

poss ible exceptional student education needs and prepare reports

of the evaluation and findings.Ñ

2 1 . Section 1012.01(2)(b) provides that staff members

designated as Ðstudent personnel servicesÑ are included, like

classroom teachers, librarians and others, in the general

classification of instructional personnel. Student personnel

services staff members, among other things, are responsible for

Ðperforming educational evaluations.Ñ Given that a considerable

portion of PetitionerÓs job involves the Ðappropr iate evaluation

of students for possible exception student education , Ñ it seems

that the classification of Ðstudent personnel servicesÑ is a

classification that could reasonably include occupational

therapists.

2 2 . Similarly, section 1012.01(2)(d) includ es Ðother

instructional staffÑ within the general classification of

instructional personnel. Included within this classification are

Ðprimary specialists, learning resource specialists . . . and

similar positions.Ñ Given that section 10 0 2.66 provides tha t

occupational therapists, who work in the K - 20 setting, provide

specialty services, it is likewise plausible that Ðother

instructional staffÑ is a classification that could also include

occupational therapists.

2 3 . Section 1012.01(2)(a) includes Ðclassr oom teachersÑ

within the general classification of Instructional personnel.

Classroom teachers Ðare staff members assigned the professional

activity of instructing students in courses in classroom

situations.Ñ

2 4 . Because Petitioner was not assigned the Ðprofessional

activity of instructing students in a course,Ñ but was instead

hired to deliver a service to students, she is not a Ðclassroom

teacherÑ as defined by section 1012.01(2)(a). Petitioner has

therefore, not met her burden of proving that her po sition as an

occupational therapist is included within the definition of

Ðclassroom teachersÑ and, therefore, she is ineligible for the

Best and Brightest Teacher Scholarship Program.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions o f

Law, it is RECOMMENDED that the School Board of Sarasota County

enter a final order finding Petitioner in eligible for the Best

and Brightest Teacher Scholarship Program .

DONE AND ENTERED this 8th day of April , 2016 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

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

Fi led with the Clerk of the

Division of Administrative Hearings

this 8th day of April , 2016 .

ENDNOTE S

1/ The effective date of section 1012.731 is July 1, 2016.

2 / All subsequent references to Florida Statutes will be to 201 5 ,

unless otherwise indicate d.

COPIES FURNISHED:

Arthur S. Hardy, Esquire

Matthews Eastmoore

1626 Ringling Boulevard , Suite 300

Sarasota, Florida 34236 - 6815

(eServed)

Margaret R. Good, Esquire

Matthews Eastmoore

1626 Ringling Boulevard , Suite 300

Sarasota, Florida 34236

(eServe d)

Ronald G. Meyer, Esquire

Meyer, Brooks, Demma and Blohm, P.A.

Post Office Box 1547

131 North Gadsden Street (32301)

Tallahassee, Florida 32302

(eServed)

Lynn C. Hearn, Esquire

Meyer, Brooks, Demma, and Blohm, P.A.

Post Office Box 1547

131 North G adsden Street

Tallahassee, Florida 32302

(eServed)

David L. Jordan, Esquire

Department of Education

Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Daniel Terrence Gaffney, Esquire

Florida Department of Education

Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Florida Department of Education

Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Lori White, Superintendent

Sarasota County Scho ol Board

1960 Landings Boulevard

Sarasota, Florida 34231 - 3365

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.