COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Hopkinton Public Schools BSEA #05-4316

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes.

A hearing was held on June 7, 2005 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Mother

Student’s Father

Eileen Antalek Psychologist, Educational Directions

William Howard Teacher, Hopkinton Public Schools

Johanna Dross Teacher, Hopkinton Public Schools

Keith Verra Guidance Counselor, Hopkinton Public Schools

Kevin Lyons Assistant Superintendent, Hopkinton Public Schools

Charles Vander Linden Attorney for Parents and Student

Mary Joann Reedy Attorney for Hopkinton Public Schools

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-11; documents submitted by the Hopkinton Public Schools (Hopkinton) and marked as exhibits S-1 through S-16; and one day of recorded oral testimony and argument. As agreed by the parties and after two extensions jointly requested by the parties, written closing arguments were due on July 8, 2005, and the record closed on that date.

INTRODUCTION

This case requires resolution of whether Student falls within the protections of Section 504 of the federal Rehabilitation Act of 1973.[1]

Section 504 prohibits a program receiving federal financial assistance from discriminating, on the basis of handicap, against an otherwise qualified individual with a handicap. It is not disputed that Hopkinton is a program that receives federal financial assistance and that Student is “otherwise qualified”. The only issue in dispute is whether Student satisfies the definition of “handicapped person”, a necessary prerequisite to a finding of eligibility and protection under this statute. I therefore consider this issue in detail in this Decision.

It also may be noted that this dispute is not about whether Student needs accommodations in order to be successful in learning at school. Nor, is this a dispute as to what those accommodations should be. Rather, the question presented is whether Hopkinton may provide these accommodations voluntarily pursuant to a building accommodation plan or, alternatively, whether Hopkinton must provide the accommodations pursuant to a Section 504 plan.

POSITIONS OF THE PARTIES

Parents’ Position.

Parents take the position that their daughter has impairments that significantly limit her ability to learn, thus qualifying her for protection under Section 504. Parents seek a continuation of their daughter’s Section 504 eligibility and a continuation of the accommodations provided under her 504 plan because those accommodations have been effective, helping with her grades and her anxiety regarding school. Parents noted a particular concern regarding the loss of Section 504 accommodations for 7th grade (the next school year); Student may fail without the benefit of a 504 plan. Parents appreciate that Hopkinton has offered accommodations for their daughter through a building accommodation plan, but are concerned that it is voluntary and does not ensure accountability.

Hopkinton’s Position.

Hopkinton takes the position that Student is not a “handicapped person”, as that term is defined under Section 504 of the Rehabilitation Act. Only persons who meet this definition are entitled to protection from discrimination (and therefore may receive accommodations) under Section 504.

Hopkinton agrees that Student has a requisite mental or physical impairment (in this case, ADHD). However, Hopkinton argues that the impairment does not “substantially limit” Student’s major life activity of learning, with the result that she is ineligible under Section 504. Hopkinton notes that Student has been offered accommodations under a building accommodation plan pursuant to MGL c. 71, s. 38Q½.

FACTS

Except where specifically noted, the following facts are uncontested.

Student profile.

  1. Student lives with her parents in Hopkinton, MA. She recently completed the 6th grade. She is bright and hard-working. She participates successfully within mainstream classes, attaining average to above-average grades. Since the 2001-2002 school year, Student has been provided with accommodations in the classroom to address her Attention Deficit Hyperactivity Disorder (ADHD). Student has never been eligible to receive special education services nor is this issue in dispute. Testimony of Mother.

Educational history.

  1. During Student’s 3rd grade (the 2001-2002 school year), her teacher expressed concern to Parents regarding Student’s attention and focusing skills, and suggested an evaluation. Hopkinton evaluated Student in March 2002, but the evaluation did not reveal any learning deficits. Testimony of Mother; Exhibit S-2.
  1. Nevertheless, by the end of the 3rd grade school year, Hopkinton had begun providing a number of accommodations including the use of a white board to reinforce basic math facts and problem solving, the use of a number line on Student’s desk for a near-point reference model, continuing monitoring of Student’s spelling and listening skills, and use of specific, structured time for Student to check with the teacher for reinforcement and clarification. Student’s teacher reported that Student improved as a result of these interventions and that no further action was needed. Testimony of Mother; Exhibit S-1.
  1. In October 2002 (Student’s 4th grade), Parents pursued their own, outside evaluation, which revealed concerns regarding focusing and understanding/following directions. Exhibits S-13, P-2. Parents did not provide this evaluation to Hopkinton until March 2005. Testimony of Mother, Lyons.
  1. On March 24, 2003, Hopkinton’s Learning Support Team met and recommended the following accommodations for Student:

·  Frequent teacher monitoring;

·  Clarify directions by restating;

·  Assist self-starting;

·  Personal sequential checklist for assignment/organization provided by Parents and monitored by school;

·  Teacher check-ins while working;

·  Extended time for tests/class work;

·  Preferential seating;

·  Present multi-page tasks one at a time;

·  Mathematics fact chart for concept development (multiplication).

Exhibits S-3, P-4.

  1. The Summary Record of the Learning Support Team’s meeting on March 24, 2003 concluded that Student is able to access the curriculum despite attentional issues when the above accommodations are provided. It was also noted in the Summary that Student “has a difficult time completing work within given timeframes and turning them in to the teacher. She doesn’t follow directions with care yet is a very hard worker.” Exhibits S-3, P-4.
  1. The Summary Record of the Learning Support Team’s meeting also indicated that the Learning Support Team was aware that Parents had obtained an outside neuropsychological evaluation in October 2002, and that Parents were concerned about ADHD, executive functioning and “memory characteristics” regarding their daughter. Exhibits S-3, P-4.
  1. Around the middle of May 2003 as a result of their outside evaluation, Parents initiated a course of medication for their daughter in order to help her focus her attention. Testimony of Mother.

Section 504 eligibility and accommodations.

  1. On June 3, 2003 (near the end of Student’s 4th grade), Hopkinton determined that Student had an impairment of ADD (attention deficit disorder), which “substantially” limited her major life activity of “learning”, and that she was therefore eligible under Section 504 of the federal Rehabilitation Act of 1973. Testimony of Mother; Exhibits S-5, P-6.
  1. Hopkinton initiated a Section 504 plan to provide accommodations similar to those that had been recommended by Student’s Learning Support Team (described in par. 5, above). Exhibit P-6.
  1. On January 30, 2004 (mid-way through Student’s 5th grade), Student’s 504 Team met and determined that Student’s ADD continued to substantially limit her major life activity of learning, and therefore concluded that Student continued to be eligible under Section 504. The 504 Team recommended the following accommodations:

·  Preferential seating;

·  Frequent teacher monitoring and check-ins while working;

·  Clarify directions by re-stating;

·  Extended time for tests/class work;

·  Present multi-page tasks one at a time;

·  Personal sequential checklist for assignment/organization provided by parents and monitored at school;

·  Graphic organizer for written assignments;

·  MCAS accommodation # 11 – Test administrator reads/clarifies general administration instructions and test directions only;

·  MCAS accommodation # 20 – Use of graphic organizer to generate an open response.

Exhibit S-6.

  1. On December 7, 2004 (mid-way through Student’s 6th grade), Hopkinton determined that Student was no longer eligible for Section 504 (see separate discussion, below, of ineligibility determination). Exhibits S-7, P-8.

Educational progress in 5th Grade.

  1. Mother testified that prior to her daughter taking medication for her attention and prior to the initiation of the 504 plan, her daughter had a significant amount of anxiety regarding school, she took hours to complete her homework, and she needed to be in the front of the classroom in order to focus her attention. Mother explained that her daughter was nervous about school, was crying a lot, and had no interest in school. Testimony of Mother.
  1. In 5th grade (the 2003-2004 school year), Mother noticed that her daughter’s anxiety about school decreased and she was able to do her homework in a “more rational way” although it still took one to two hours per night. Mother described 5th grade as a “nice” year. She explained that her daughter’s 5th grade teacher was excellent, that her daughter was calm without any significant anxiety, and that her daughter “blossomed” that year in school. Testimony of Mother.
  1. Father testified that he has helped his daughter with her math homework, both before and after his daughter received 504 accommodations. He noted that she has always had difficulty with math. He explained that prior to the initiation of medications and the 504 plan, she cried at home and seemed “out of control” regarding her math homework as well as her homework for other subjects; but that with the accommodations and medication, she is more focused, although she continues to need re-direction at times. Testimony of Father.

Educational progress in 6th Grade.

  1. The testimony of Mother and two of Student’s teachers (Johanna Dross for English and homeroom, and William Howard for science), Student’s grades and her progress reports all indicate that she has been an excellent student during the 6th grade school year (2004-2005). Testimony of Mother, Dross, Howard; Exhibits S-7, S-10, S-12.
  1. Mother reported that her daughter has done well in school during the 6th grade, enjoying school, working very hard and having little anxiety. She notes that she continues to help her daughter with her homework. Testimony of Mother.
  1. The two teachers explained that Student is very hard working, often participates in class, and follows directions well. They noted that she completes her work on time, beginning her homework during the class period and completing it at home. The teachers noted that Student is generally able to keep up with her peers and follow what is being taught in the classroom, asking questions as necessary. Although she is one of the last students to complete her reading quizzes, no special time accommodations have been needed for her. Neither teacher reported any difficulties regarding Student’s academic performance other than an occasional missed homework assignment. Testimony of Dross, Howard; Exhibit S-7 (memo from Ms. Dross).
  1. Similarly, Student’s grades and progress reports, including the memo of December 7, 2004 from Ms. Dross, reflect a conscientious and successful student. Exhibits S-7, S-10, S-12.
  1. The two 6th grade teachers (Ms. Dross and Mr. Howard) testified that within their classes nothing is required to be done by a student within a particular period of time within school – that is, everything can be completed at home without time constraints if a project, test or quiz cannot be completed within the class time at school. The teachers also stated that they both routinely provide all of the accommodations listed on Student’s Section 504 plan (Exhibit S-6, page 2) to all of the students in their classes, other than preferential seating and the MCAS accommodations. Testimony of Howard, Dross; Exhibit S-7 (memo from Ms. Dross).
  1. At home, Student continues to have difficulty attending and following through with multi-step tasks, and even with something which she very much enjoys (for example, horseback riding), she typically cannot complete the multi-step process of getting ready to leave the house without prompts or reminders. Father noted that on timed events (including homework), she becomes nervous and anxiety-ridden. He explained that when there is a time limit for completing a homework assignment, she typically gets off task or does not do what is expected of her. Testimony of Father.

Determination of ineligibility.

  1. The Hopkinton 6th grade Section 504 coordinator (Keith Verra[2]) chaired the meeting on December 7, 2004 that resulted in a determination that Student is no longer eligible for Section 504. During the meeting, Mr. Verra asked Student’s three 6th grade teachers who attended (Elizabeth Hickey who teaches social studies, Sandy Stymiest who teaches math, and Bill Howard who teaches science) to describe how Student is doing in class. A fourth teacher (Johanna Dross who teaches English) submitted a written memo dated December 7, 2004, giving her input. Parents also attended the meeting and were invited to share their concerns. Exhibit S-7; testimony of Mother, Verra.
  1. Mr. Verra testified that the three teachers explained at the meeting that Student is a hard worker, participated regularly in class, did everything that was asked of her, was organized with her materials, earned good grades, completed most of her tests and quizzes on time, and performed at a “very nice level” on a daily basis. He noted that the teachers reported very few concerns, even with respect to her attention. Testimony of Verra.
  1. However, Mr. Verra and Mother agreed in their testimony that Ms. Stymiest (Student’s math teacher) took a position different than the other two teachers. Ms. Stymiest stated during the meeting that Student should continue on her 504 plan. Ms. Stymiest made clear that she believed Student required many accommodations in her math class which, presumably, would not be made available to Student absent a requirement that they be provided. Testimony of Verra, Mother.
  1. Mr. Verra testified that after considering the input from Parents and the teachers during the meeting and having considered Student’s grades and progress reports, he concluded during the meeting that Student has an impairment (ADD) for purposes of Section 504, that as a result of this impairment, Student needs accommodations to be successful in school, but that Student’s impairment only moderately (rather than substantially) impacts her learning and therefore Student was not eligible under Section 504.