                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

PAULA DREW,                           NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Petitioner,                     DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-2363

FLORIDA DEPARTMENT OF
EDUCATION,

     Respondent.
___________________________/

Opinion filed November 2, 2016.

Petition for Writ of Mandamus -- Original Jurisdiction.

Andrea Flynn Mogensen of the Law Office of Andrea Flynn Mogensen, P.A.,
Sarasota, for Petitioner.

Matthew H. Mears, General Counsel, and David L. Jordan, Assistant General Counsel,
Department of Education, Tallahassee, for Respondent.


PER CURIAM.

      Paula Drew sought a permanent exemption from statewide standardized testing

for her daughter who has a number of serious medical conditions, but the Department

of Education denied her request and then refused to hold a hearing to allow Drew to

challenge its denial. Drew’s mandamus petition, which we grant, seeks to compel such
a hearing. 1

        In January 2016, Drew filed a request for an exemption from standardized

testing, attaching a letter from her daughter’s physician listing at least six critical

medical conditions, any one of which could be considered so serious as to warrant

consideration for a temporary or permanent exemption. A month later, the Department

in a form letter denied the request for exemption without comment or explanation,

citing to section 1008.22(10), Florida Statutes, which states:

       (10) Child with medical complexity.--In addition to the exemption
       option provided for under s. 1008.212, effective July 1, 2014, a child with
       a medical complexity may be exempt from participating in statewide,
       standardized assessments, including the Florida Alternate Assessment
       (FAA), pursuant to the provisions of this subsection.

§ 1008.22(10), Fla. Stat. (2016) (emphasis added). As the highlighted language shows,

section 1008.22(10) is a companion to the main exemption statute, section 1008.212,

that allows exemptions for students with disabilities, 2 the latter including the


1
  During the pendency of this matter, the Department agreed to grant a permanent
exemption to Drew’s daughter based on her medical complexity, and Drew has asked
that this case be closed. Because the issue presented is one of importance and for which
a published decision would be helpful, we decline to do so. See State v. Schopp, 653
So. 2d 1016, 1018 (Fla. 1995) (“Even where a notice of voluntary dismissal is timely
filed, a reviewing court has discretion to retain jurisdiction and proceed with the
appeal.”).
2
    Subsection 1008.212(2) provides:

         (2) A student with a disability for whom the individual education plan
        (IEP) team determines is prevented by a circumstance or condition from
        physically demonstrating the mastery of skills that have been acquired
        and are measured by the statewide standardized assessment, a statewide

                                            2
requirement that an expedited hearing be given, stating that the “parent of a student

with a disability who disagrees with the commissioner's denial of an extraordinary

exemption may request an expedited hearing.” Id. § 1008.212(5), Fla. Stat. (emphasis

added). The Department must arrange for the hearing to be conducted by the Division

of Administrative Hearings to be “commenced within 20 school days after the parent's

request for the expedited hearing.” Review is de novo (meaning the administrative

law judge is not required to defer to the Department’s view of the matter) and the

Department has the burden of proof in the proceeding. After the expedited hearing, the

administrative law judge must issue a ruling within ten school days. Id.

   Four days after the Department’s denial, Drew specifically requested via e-mail an

expedited hearing under subsection 1008.212(5), but received no response so she

submitted a written request a few days later. Two weeks passed before the Department

sent Drew a letter stating that it was not required to conduct a hearing to review its

exemption denial, saying the medical exemption statute, section 1008.22, doesn’t

provide for such a process and essentially concluding that its denial was “final” and

unreviewable.

      Undeterred, Drew hired an attorney, who wrote the Department a letter stating


      standardized end-of-course assessment, or an alternate assessment
      pursuant to s. 1008.22(3)(c) shall be granted an extraordinary exemption
      from the administration of the assessment.

§ 1008.212, Fla. Stat. (2016). Drew’s request for an exemption was supported by
the school district’s IEP team.

                                          3
that Drew’s request for exemption and hearing was based on sections 1008.22(10) and

1008.212, Florida Statutes, the latter explicitly providing for an expedited hearing;

further, the Department failed to provide Drew with notice and an opportunity to be

heard under rule 6A-6.03311 of the Florida Administrative Code, which provides that

when the Department denies a request for an exemption from statewide standardized

testing, an expedited hearing is available. The Department again rejected Drew’s

request, prompting Drew’s mandamus petition in this Court.

       In what amounts to a confession of error, the Department’s position is that Drew

is barking up the wrong tree: rather than an expedited hearing under the exemption

statutes, Drew is entitled to an administrative hearing pursuant to section 120.569(1) of

the Florida Administrative Procedure Act, which the Department did not mention in its

determination letters. § 120.569(1), Fla. Stat. (2015) (a hearing under section 120.57 is

required when an agency’s decision affects or determines “the substantial interests of a

party.”); Simmons v. State, Ag. for Health Care Admin., 950 So. 2d 431, 432 (Fla. 1st

DCA 2007) (“An agency is not entitled to ignore a properly filed request for hearing,

and if it determines that the petitioner is not entitled to a hearing, it is obligated to issue

an order to that effect.”) (citations omitted). Though other disability exemption denials

are entitled to expedited consideration, the Department reads its statutory authority as

not extending to expedited hearings for denials where medical complexity is the

claimed disability (what would happen if both medical and non-medical disabilities



                                              4
were at issue is not clear); instead, the affected party’s resort is directly to an

administrative hearing via section 120.569, Florida Statutes.

       Because administrative review via sections 120.569(1) and 120.57, Florida

Statutes, is available (and Drew accedes to such review), we need not determine

whether denials based on “medical complexity” are entitled statutorily to an expedited

hearing, but note that little differentiates the need of a student with a medical disability

for such review from other disabilities for which expedited review is required. As

such, we grant the petition for writ of mandamus and direct that the Department afford

Drew’s request for a hearing forthwith.

       PETITION GRANTED.

MAKAR, JAY, and M.K. THOMAS, JJ., CONCUR.




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