HEARING OFFICER'S REPORT

I.   BACKGROUND

            A due process hearing was conducted before the undersigned Hearing Officer on April 4, 2006, at 200 E. North Avenue, Baltimore, Md. 21202.  The hearing was based upon a Complaint filed by Katrina Bell, ("Ms. Bell" or "Parent") on behalf of her son,  Eshawn Bell,  dated February 3, 2006. The Complaint alleged that BCPSS violated Eshawn's rights under §504 of the Rehabilitation Act of 1973, 29 U.S.C.§ 794 ("§504").

            Timothy Dixon, Esq. appeared as counsel for BCPSS.  Ms. Bell appeared on behalf of Eshawn.  During the course of the hearing all parties were given the right to be represented by counsel, to present opening statements, to present oral testimony of witnesses, to cross examine opposing witnesses, to present documents as evidence and to present closing statements.^[1] All witnesses testified under oath, and an audio recording was made of the hearing.  ^[2] 

   II.    PERTINENT PROVISIONS OF §504

            The Rehabilitation Act of 1973 is a federal law enacted by Congress to promote, among other things, the inclusion and integration of persons with disabilities into mainstream society. Section 504 of the Rehabilitation Act provides:

No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .

A qualified individual with a disability is defined as a person with a physical or mental impairment that substantially limits one or more major life activities such as learning.   The federal regulations promulgated under §504 with respect to education provide:

A recipient that operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap.^[3]

34 C.F.R. §§ 104.33(a). An "appropriate education" within the meaning of §§ 504 means:

regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§§§ 104.34, 104.35, and 104.36.

34 C.F.R. §§ 104.33(b)(1).

            Section 504 regulations at 34 C.F.R. 104.35 provides for periodic reevaluation of students who have been identified as disabled.  In interpreting evaluation data, the regulations require  school systems to "draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendation, physical condition, social or cultural background, and adaptive behavior" and "insure that the placement decision is made by group of persons, including persons knowledgeable about the child, the meaning of data, and the placement options." 

            The §504 Regulations, unlike the Individuals With Disabilities in Education Act ("IDEA"), do not require that the parent of a §504 eligible student be a member of the §504 committee that determines whether and to what extent services are required in order to provide the student with FAPE.

III.   THE PARENT'S COMPLAINT

            The Parent complained that (1) BCPSS failed to provide Eshawn with the services required by the §504 plan that had been developed for him by his school's §504 Committee for his 2004 - 2005 school year ("2005"), and (2) BCPSS violated Eshawn's rights under §504 when his school's §504 Committee decided on January 26, 2006, to dismiss him from continuing to receive §504 services. 

            With respect to the dismissal of services, the Parent's Complaint is based upon her judgement, in disagreement with the Committee's decision to dismiss Eshawn, that Eshawn continued to need the occupational therapy ("OT") services that he had been provided by BCPSS since elementary school   According to her handwritten Complaint,  Eshawn needs continued OT services citing science and math projects which require certain equipment that he might not be able to use because of his disability.  In addition, she raised the possibility that he might have difficulty using his locker and carrying heavy books home as reasons why OT should not be discontinued. 

            The Parent also contended that the Committee decision was improper because the Committee relied upon  Eshawn's high academic achievement level as a factor in its decision to dismiss him from receiving §504 services. (Jt. Exhibit No. 2)^[4]

IV.    THE ISSUES

            1.  What remedy, if any, should be imposed on BCPSS if the School failed to provide the services to Eshawn required by his 2005 §504 Plan.

            2.    Whether a decision by the school's §504 Committee decision to dismiss Eshawn from receiving §504 services can be invalidated on the grounds that the Committee (a) considered Eshawn's judgement that he no longer needed §504 services as a factor in reaching its decision to dismiss him from §504 and disregarded the Parent's judgement of Eshawn's need for continued OT services, (b)  considered Eshawn's high level of academic achievements as a factor in reaching its decision to dismiss him from receiving §504 benefits.                                                         

V.    FINDINGS OF FACTS

            1 .         Eshawn's History of §504 Plans

            Eshawn is a regular education 7^th grade student in the gifted and talented academic program at the BCPSS's Stadium School.  He was identified as a student eligible for §504 services as a result of a left brachia plexus injury suffered at birth and had a history of receiving OT services from BCPSS under §504 Plans since October 1998.  He has been an honor roll student since elementary school with a consistently high grade point average.

            Following is a chronology of his §504 plans, all which were signed by the Parent: 

            1.                   For the 2000-01 school year  - 30 minutes per week of direct OT services and 30 minutes per month indirect OT services.

            2.                  For the 2001-02 school year  - 30 minutes per month of direct OT and 30 minutes per month of indirect OT.

            3.                  For the 2002-03 school year  -  30 minutes per month of direct OT and 30 minutes per month of indirect OT. 

            4.                  For the 2003-04 school year  -  30 minutes per month of direct OT and 30 minutes per month of indirect OT.

            5.                  For the 2004 - 05 school year (dated September 27, 2004)   -   30 minutes per week of direct OT and 30 minutes per month of indirect OT. (BCPSS Exhibit No. 8)

            6.                  For the 2005 -  06 school year (Dated August 3, 2005;  BCPSS Exhibit No. 2 at page 23)  -   4 hours per year of indirect OT services (BCPSS Exhibit No. 3)

            2 .         The 2005 School Year

            The Parent alleged and BCPSS acknowledged that Eshawn did not receive the 30 minutes per week of direct OT services written in his 2005 §504 Plan which had been adopted on September 27, 2004.  According to the Parent's Complaint to the Maryland State Department of Education ("MDSE"), she did not learn that Eshawn had not received these services until she "found out" in May 2005 that his name was not on a list for a review meeting.^[5] (BCPSS Exhibit No. 4)  Later, at a meeting of the school's §504 committee conducted on June 6, 2005, the Committee explained to her that a mistake had been made when the Plan for school year 2005 was finalized in writing and signed, that the Committee had intended to provide the same 30 minutes per month of direct services that Eshawn had received during the preceding three school years, not 30 minutes per week.  The Committee noted, as well that "no adverse impact was evidenced by the lack of services."^[6]  The Committee ordered an OT assessment "to determine the continued need of occupational therapy." The Parent signed the meeting notes. (BCPSS Exhibi8t No. 2, pages 26-27)

            Nonetheless, on June 21, 2005, the Parent filed the Complaint in writing with MSDE alleging that the school failed to provide the 2005 §504 OT services. On July 14, 2005, BCPSS offered Eshawn compensatory services of 7.5 hours of OT to be provided during the 2006 school year.  The 7.5 hours would have exceeded the 30 minutes per week specified in the §504 Plan.  The Parent declined the offer. 

            At the hearing, the Parent stated that the only remedy she was seeking for the failure of the school system to provide the 2005 services was for Eshawn to continue to receive OT services.  

            3.         The 2006 School Year

            The OT assessment ordered by the §504 Committee at the June 6, 2005 meeting was conducted on June 21, 2005,  to determine Eshawn's continued need for OT services.  The assessment, which was performed by a school occupational therapist, determined that Eshawn was  "functional" in each of the areas in which he was assessed.  The therapist recommended that "If the team" decides that Eshawn continues to have a disability, he should receive OT on an indirect basis to address/provide suggestions to Eshawn and educational staff to improve independence with bilateral hand skills."  (BCPSS Exhibit No.10)

            At an August 3, 2005, §504 Committee meeting to consider Eshawn's §504 plan for 2006, his related services for 2006 were set by the Committee at four hours of indirect OT per year.  The Parent attended the meeting and signed the Plan.  (BCPSS Exhibit No. 2 at page 23)

            On September 15, 2005 School Occupational Therapist, Carla Farringrton, initiated the four hours per year of  indirect OT services required by Eshawn's §504 Plan.  According to her anecdotal notes and her testimony, she met with Eshawn, his special educator and the School Principal and determined that he was "able to function within his educational environment."

            On October 11, 2005, Ms. Farrington conducted a further meeting to determine Eshawn's need to be able to function at his "optimal level in the areas addressed by occupational therapy within his educational setting."  Although not a member of the Committee,  the Parent attended the meeting.  Ms. Farrington's notes of that meeting and her testimony revealed that Eshawn's teachers did not identify any specific needs and agreed that "he was functioning well within his current academic placement."  Eshawn had told her that he would like to function independently within the school cafeteria.  Accommodations were made to provide him more independence with use of his locker and carrying his books.  (BCPSS Exhibit No. 11)   

            An OT re-assessment was completed by Ms. Farringrton on January 12, 2006. (BCPSS Exhibit No. 12) She found that "He demonstrates excellent and age appropriate skills on right." On his left, "he presents below minimal functional skills due to injury, but has done extremely well in utilizing compensatory techniques and strategies to complete tasks within his environment . . . by carrying out a variety of bilateral integration/hand skills necessary to complete academic assignments and activities of daily living within his school (and by input of parent) home environments," that he "clearly understood all information presented to him regarding the need for therapy to continue and feels that he is doing well."  The assessment concluded:  "OT is dismissed." (BCPSS Exhibit No. 12)  ³

            At a §504 Committee meeting on January 26, 2006, Ms. Farrington explained the findings of her OT assessment.  At the time, Eshawn's report card grade average was 85. (BCPSS Exhibit No. 1 at page 49) ⁴  In addition, his comprehensive assessments which include standardized test scores, work habits, attendance, math tutorials, book talks, social indicators and non-referenced academic standing were "Excellent," and indicated that he was able to access the curriculum without additional services.  The OT explained that in her professional judgment Eshawn no longer needs the related service of OT and the Committee agreed to dismiss him from receiving services.  The Parent disagreed.  (BCPSS Exhibit No. 3).   

            Ms. Farrington's testimony confirmed the substance of her assessment and explained the basis for her judgement that he no longer needed §504 services.  Specifically, she testified that based on observing him in and out of the classroom, speaking to his teachers, reviewing previous OT assessments, discussing his needs with him and from other information she gathered during her consultative services, she found that Eshawn's range of motion allowed him to function "very well" in his educational setting (opening his locker, closing the zipper on his book bag, using classroom" utensils" and materials), that his goals were being met, and that he no longer needed OT services to access the curriculum,

            On February 3, 2006, the Parent filed a Request For Mediation/Due Process Hearing with the Office of Administrative Hearings for the State of Maryland (Jt. Exhibit No. 1) and a Written Complaint with BCPSS appealing the decision to dismiss Eshawn from §504 services.  (Jt. Exhibit No. 2) ⁵  Her Complaint acknowledged that while Eshawn had excellent grades and made the honor roll, his good grades should not be a reason for dismissing his OT.  She also questioned the Committee's reliance on Eshawn's judgement that he no longer needed OT services rather than hers. (Jt. Exhibit No. 2)   

            The Parent repeatedly articulated the same objection on the record at the Hearing claiming that Eshawn should not be denied OT services because of his academic progress.  She also complained that  she was not present during Ms. Farrington's meetings with Eshawn and his teachers and that Ms. Farrington should have spoken to her, not Eshawn about his needs. ⁶

             Eshawn did not attend the hearing.

VI.    CONCLUSIONS OF LAW

            1.  Burden of Proof Under §504

            Section 504 protects qualified students with a disability.   The proof required to establish a violation of §504 is rooted in two parts of the statute's text - eligible students must prove that they have either been "subjected to discrimination" or excluded from a program or denied benefits "solely by reason of" their disability. While the Rehabilitation Act of 1973 is silent as to which party bears the burden of persuasion in a due process hearing,  that burden is properly placed upon the party seeking relief.  In Schaffer, et al v. Weast, 546  U. S. ___   (2005), for example,  the Supreme Court ruled that in cases under the Individuals with Disabilities in Education Act ("IDEA"), the burden of proof lies with the party seeking relief - in that case the parent.  The Court cited other federal laws where the burden of proof is on the party who makes the complaint that a statute has been violated including the Americans With Disabilities Act.  Alexander v. Policy Management Systems, 526 U.S. 795, 806(1999)  In this case, that would be the Parent.  

            Therefore, to establish a violation of §504,  Eshawn's parent had the burden of proving that he was dismissed from receiving services under §504 due to discrimination "solely on the basis of the disability."  See:  Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995) ⁷

            2.  The Proof that Must be Shown under §504

            To satisfy this burden in the education context, "something more than a mere failure to provide FAPE  must be shown."  Sellers v. School Board of Manassas, Virginia,  141 F.3d 524 (4th Cir. 1998)   In Sellers the parents contended that their son's test scores from as early as fourth grade "should have alerted" the school system of his disability and the need to provide him services to accommodate his disability.  The parents, similar to Eshawn's parent, argued that the school made a mistake; that their son should have received §504 services.  But the Court recognized that even experts may disagree on the special needs of a disabled child, and that the educational placement of such students is often an arguable matter.  Therefore,  an incorrect evaluation would not necessarily establish that a disabled student has been discriminated against solely by reason of his or her disability.

            Rather, according to the Court in Sellers v. School Board of Manassas, Virginia,  proof of "discrimination" under the Rehabilitation Act requires evidence of something more than an incorrect evaluation.  In the context of the education of disabled students, proof of a violation of §504 requires a showing of "either bad faith or gross misjudgment," citing  Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982); and Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1580 (D.C. Cir. 1984). In the view of the Fourth Circuit,  however, the parents' complaint in Sellers v. School Board of Manassas, Virginia presented, at best, a negligence claim that the school system failed to recognize their son's disability.

            The parent's claim in Sellers  that the school system failed to notice signs of disability is virtually indistinguishable from a complaint that a student has been incorrectly evaluated.  Therefore, absent a showing of bad faith or gross misconduct, once a §504 Committee determines that a student no longer meets eligibility requirements; i.e., the student no longer needs extra help from the school system to access learning,  that student is no longer eligible for §504 services, and the §504 committee can dismiss him from receiving services.

            3 .         The Parent's Support for Her Complaint

a.  The Committee Should Have Relied Upon Her Judgement of Eshawn's Needs                     

While parents and the public schools are often referred to as partners in education, the ultimate legal responsibility for FAPE under §504 rests with the school's §504 Committee. 34 C.F.R. Section 104.33(a).  However, unlike the IDEA, §504 does not dictate the titles or people who must be members of the Committee. Instead, the Regulations require that the §504 Committee be a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options. §§104.35(c)(3). Parents are not required members of the Committee.

The Office of Civil Rights ("OCR") which enforces §504 recognized this distinction in a case filed by the parent of a §504 eligible student.  The parent complained that he had not been invited to the introductory §504 committee meeting for his son. He claimed that this was a violation of §504.  OCR found no violation, largely because §504 does not require the attendance of parents at §504 meetings, stating that  "There is no requirement under Section 504 that parents physically participate in all placement procedures, only that placement decisions are made by a group of knowledgeable persons who may include the parent." (emphasis added.) Edmonds (OK) Public School, 31 IDELR 242 (OCR 1999).

Thus, while parents are free to present their views on what type of therapy they believe would best serve their child, they are not empowered to make a decision about the program or to override a §504 committee's decision on this use of public funds. Gill v. Columbia 93 Sch. Dist., 217 F.3d 1027 (8th Cir. 2000).   Here, the Parent expressed her opinion regarding Eshawn's need for OT services but the School Committee disagreed.

b.         The Committee Imporperly Considered Eshawn's Level of Achievement                                     as a Factor in Dismissing §504 Services

While a parent may sincerely believe that her child requires §504 services in order to receive FAPE,  as is the case of Ms. Bell, according to OCR,  school systems have no duty to qualify a child §504 despite the child's having a recognized disability when the child has exemplary behavior and is making A's and B's in all of his classes as is the case with Eshawn.  Jefferson Parish (La.) Public Schools, 16 EHLR 755 (OCR 1990).  Indeed, as the  Supreme Court explained in Hendrik Hudson District Bd. of Education v. Rowley, 458 U.S. 176, 207 fn. 28 (1982)  "When the handicapped child is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit."  The same should apply to claims under§504 and is clearly the case with Eshawn. Thus, despite his disability, he has demonstrated exceptional academic performance in a regular education environment and there is no evidence that BCPSS's decision to dismiss his §504 services will either deny him access to the educational curriculum or that the decision to terminate his services discriminated against him in violation of §504 of the Rehabilitation Act of 1973.

VII.    RECOMMENDATION

            1.                  The 2005 School Year

BCPSS and the Stadium School failed to provide Eshawn with  the services he required for the 2005 school year. The School acknowledged that it failed to implement his 2005 Plan and despite evidence that Eshawn sustained no adverse impact as a result, offered 7.5 hours of compensatory services, which would have been equivalent to the services he was to receive in 2005 under his September 27, 2004 §504 Plan, as compensation for the deficit in the services provided to him in 2005.  Although the Parent declined the offer and gave no valid reason for doing so, in light of BCPSS's violation of an important federal law that protects disabled students and considering her sincerity and vigorous commitment to Eshawn's education,  I  recommend that the School's §504 Committee convene a meeting with the Parent and re-offer the 7.5 hours proposed by the BCPSS §504 Coordinator on July 14, 2005 or some variation acceptable to the Parent. Provided, however, that an offer made to the Parent, whether accepted or rejected by her, shall satisfy the School's duty to remedy the failure to provide 2005 services.