COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Student v. Hampden-Wilbraham Regional School District
BSEA #07-5701
DECISION
This decision is issued pursuant to 29 U.S.C. § 794, and the regulations promulgated under said statute.
A hearing was held on November 27, 28, 29, December 17, 2007, and January 3, 2008, at the office of Catuogno Court Reporting, 446 Main Street, Worcester, Massachusetts, before Catherine M. Putney-Yaceshyn, Hearing Officer.
PROCEDURAL HISTORY
Parent requested a hearing on April 5, 2007 and a hearing was scheduled to occur on May 10, 2007. Hampden-Wilbraham Regional School District (hereinafter, “HWRSD”) filed a Motion to Dismiss on April 25, 2007, which was denied on May 14, 2007. There was a pre-hearing conference scheduled on August 23, 2007 which was postponed at the Parents’ request. There was a pre-hearing conference on September 21, 2007. The hearing was held on November 27, 28, 29, December 17, 2007, and January 3, 2008. The Parties requested a postponement to allow for the submission of closing arguments. The postponement was allowed and the written closing arguments were due on January 20, 2008. Requests for extension of the date for submission of closing arguments were allowed. Both parties submitted their closing briefs on February 25, 2008, and the record closed at that time.
Those present for all or part of the Hearing were:
Student
Student’s mother
Student’s father
Donna Scanlon Assistant Superintendent, HWRSD
Paul Gagliarducci Superintendent, HWRSD
Charles E. Vander Linden Attorney, Student and parents
E.L. Cenedelle Facilities Director, HWRSD
Rod LaBrecque Head of School, Wilbraham and Monson Academy
Brian Easler Assistant Head of School, Wilbraham and Monson Academy
Lief Nordstrom (via telephone) Physician, consultant to HWRSD
Margaret E. Reidy Band Teacher, Minnechaug Regional High School1
Martin O’Shea Principal, Minnechaug Regional High School
Carolyn Lewis Guidence Director, Minnechaug Regional High School
Chenda Raffaele Guidance counselor, Minnechaug Regional High School
Denise McFarland (via telephone) Nurse, Minnechaug Regional High School
Mahesh Bajaj (via telephone) Student’s allergist
Michael Feeney Indoor Air Quality Program, MA Department of Public Health
Paul Salva, M.D. (via telephone) Student’s pediatric pulmonologist
Regina W. Tate Attorney, HWRSD
Catherine M. Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of HWRSD’s exhibits marked S-1 through S-67 and S-69 through S-73 and Parent exhibits marked P-1 through P-60, approximately 24 hours of recorded oral testimony, and written transcriptions of the proceeding.
ISSUES2
1. Whether HWRSD complied with the requirements of section 504 with respect to Student and Parents from and after May 2005.
2. Whether HWRSD is obligated to provide Student with compensatory services pursuant to section 504 for any failure to provide reasonable accommodations from and after May 2005.
3. Whether HWRSD is liable to Student and her Parents pursuant to section 504 for the cost of her placement in an out of district placement from and after November 6, 2006.
SUMMARY OF THE EVIDENCE
1. The student (hereinafter, “Student”) is an 18-year-old twelfth grade student residing in Wilbraham, Massachusetts, within the Hampden-Wilbraham Regional School District (hereinafter, HWRSD.) Student began attending Minnechaug Regional High School, (hereinafter, “MHS”) in 2003 and attended without significant difficulty until early 20053 . She currently attends the Wilbraham and Monson Academy pursuant to a unilateral placement and previously attended Minnechaug Regional High School (hereinafter, “MHS.”) Student has had a section 504 accommodation plan due to asthma since August 2005. (S-1, P-19)
2. Paul Salva, M.D. is a board certified pediatric pulmonologist who sees approximately 750 new patients per year. He began treating Student on October 22, 2001 and has been treating her since. Student was already showing severe airway irritability in November 2001 when she was twelve years old. From 2001 until April 2003 Student’s medical records indicate that her asthma was becoming worse over time. Dr. Salva acknowledged that it is difficult to say what, if anything, contributed to its worsening over time. He described Student’s asthma as being in the top 5% in terms of severity of all of the patients he has seen. He diagnosed Student with severe persistent asthma. The severe persistent category is determined by how much medication it takes to get the asthma under control. Persons in the persistent category benefit from chronic daily therapy. (Salva)
3. Dr. Salva noted that Student often had difficulty with her asthma between December or January and the spring. He also explained that Student’s asthma was triggered by a number of cold air and hot air exposures in January 2004 which was typical of what occurs in January in Massachusetts. Dr. Salva’s May 11, 2004 treatment note indicated, “Student’s life has been up and down.” Her baseline medications included multiple inhaled steroids and she was still having difficulty. His May 18, 2004 treatment note indicated that the spring was historically a difficult time of year for Student. It also indicated that chlorine from the pool gives her chest tightness and he sent a note dated May 18, 2004, to the school asking that Student be excused from swimming. (P-12, Salva)
4. Chenda Raffaele has been Student’s guidance counselor since Student’s sophomore year (2004-2005) and is licensed in Massachusetts. She became concerned about Student during spring semester when Student began missing school and eventually stopped attending. On March 1, 2005, Ms. Raffaele sent a memoranda to Student’s teachers indicating that she had spoken to Mother regarding Student’s absences and asthma. Ms. Raffaele requested that teachers ensure that cleaners are not used in their classrooms because Parents reported that cleaners aggravated Student’s asthma. Ms. Raffaele also indicated that Student was having a very difficult time making up missed work and was feeling frustrated. She informed teachers that Student would be staying after school to complete missed work and asked teachers to assist her in any way they could. (S-5, pg. 42)
5. In April 2005, Student participated in a band trip to Atlanta, Georgia. After attending a laser and fireworks show she became ill and required treatment at an emergency room due to her asthma. (Student, Father, Reidy) She was able to return to the group and decided not to participate in the band performance. She remained in Georgia for the duration of the trip and traveled back to Massachusetts on the bus with the group. (Father, Reidy) Dr. Salva’s April 14, 2005 note stated that Student had “had a rough stretch.” It described Student’s band trip and her trip to the emergency room while on the trip. He described the treatment she received at the emergency room as standard therapy which included a Prednisone burst in addition to her regular medications. Dr. Salva ordered tests to determine whether there could be another cause for Student’s continued chest discomfort and the tests were negative. (P-12, Salva)
6. Dr. Salva’s January 31, 2005 note indicated that Student did well from May 2004 until January 2005. Student was seen in the emergency room in early January and again on January 27, 2005 due to asthma. Additional medications were added due to her deteriorating condition and Student was prescribed Prednisone. (Salva)
7. By May 2005, Dr. Salva determined that Student had exhausted therapeutic measures, meaning he had tried all of the recommended treatments and Student’s asthma was still not under control. He noted that Student seemed to have intrinsic airway irritability4 . Dr. Salva ordered Student to undergo a bronchoscopy and reported its results in his clinical note, dated May 16, 2005. The bronchoscopy showed that Student’s asthma was severe. Despite the fact that she was taking a high dose of inhaled steroids5 , it showed signs of active asthma and showed that she had had significant asthma for a long time. (P-12, Salva)
8. Dr. Salva’s July 8, 2005 office note refers to the letters that Parents requested him to write to the school to excuse Student from participation in physical education for the prior semester and coming semester. He noted that 2005 was an exceedingly bad year for Student from a pulmonary health standpoint. In his second note to the school, Dr. Salva reported that Student was “crippled by asthma and effectively homebound.” He explained that she continued to be in that condition in the spring and early summer of 2005. Ms. Raffaele worked with Parents to set up tutoring and made arrangements for Student to get credit for her music and physical education classes. Student was offered two Brigham Young University courses in history and English6 . (Raffaele) For the duration of the school year Student was having a great deal of difficulty breathing and sleeping. She was on high doses of steroids and was not even able to get out of bed on many days. Student was not able to do much school work due to her illness and consequently dropped most of her classes. She was able to finish her math course with the assistance of a tutor. (Father)
9. During the summer of 2005 Parents received a phone call from Student’s guidance counselor, Chenda Raffaele, scheduling a 504 meeting. Parents, Ms. Raffaele, and Carolyn Lewis attended the meeting during which a 504 plan was written. Severe persistent asthma was identified as Student’s disability and learning was identified as the major life activity impacted by it. The plan noted that Student is very sensitive to cold air and various scents7 and she frequently misses school due to asthma which impacts her learning and her ability to participate in some activities. The Team determined that Student required accommodations and listed the following: teachers were to be notified of Student’s condition; Student would be allowed to go to the nurse as needed; if necessitated by absences, a home tutor would be provided; Student would take on-line courses if necessary; Student was medically excused from participating in physical education class. Father accepted the 504 plan on August 23, 2005. (P-19) Ms. Raffaele did not recall Parents requesting any accommodations other than those that appeared on Student’s plan. The subject of smaller classes was not raised at the meeting. (Raffaele)
10. Student attempted to attend classes in September 2005. She was able to attend the entire first day of school. The second day she was dismissed at 7:52 a.m. The third day she was absent. She returned the following Tuesday and was dismissed at 7:47 a.m. She returned to school that day at 11:00 a.m. and was absent for the remainder of the school year. Dr. Salva faxed the physician’s form for home tutoring to MHS on September 9, 2005. The form indicated that Student has profoundly severe asthma and cannot “tolerate perfumes, smoke, etc.” It indicates that student’s health during this period will not affect the provision of full educational services. (P-12, Father) Ms. Raffaele provided Student with tutors to work on the four classes that she was to take that semester. She informed the tutors of Student’s difficulty with scents and one tutor was especially sensitive to Student’s needs because she suffered from a similar difficulty. (Raffaele)
11. Dr. Salva explained that Student was miserable in the fall of 2005. She could not function, was very tired and was showing side effects of steroid use. Minimal exertion gave her chest pain and she could not participate in her daily activities. Dr. Salva suggested to Father that Student leave the Pioneer Valley for some period of time8 . (Salva, P-12)
Student was not able to participate in much tutoring during the 2005-2006 school year. By the time she finished a tutoring session she was exhausted. It was difficult for her to complete the homework after the tutor left. None of the medications that Student was taking were effectively controlling her symptoms. She had difficulty getting up and down stairs and breathing. By November 2005, Student was too ill to continue with the home tutoring. She had only had approximately six or seven sessions by that time. On several occasions when the tutor came to her house she was unable to be tutored because she was sick, once because of a scent the tutor was wearing. Student did not reach a point that she was healthy enough to be engaged in schoolwork during the 2005-2006 school year. (Student, Father, Mother) Ms. Raffaele telephoned Father on many occasions regarding her concerns about Student not accessing the tutoring. Father told her that the tutoring was not helpful at the time because Student was not well enough to participate. Dr. Salva sent a second Physician’s Statement for Temporary Home or Hospital Education dated November 23, 2005. This form also indicated that Student’s health during this period will not affect the provision of full educational services. It did not contain any medical information for the district to consider when planning instructional services. (P-12) For the most part, Student never accessed the 504 plan during the 2005-2006 school year. (Raffaele, Father) Carolyn Lewis, the Director of Guidance and 504 coordinator at MHS, recalls that Parents’ main objective during the 2005-2006 school year was to get Student well. (Lewis)
12. Student sat for the PSAT in the Van West Gallery9 with Ms. Raffaele in November 2005. She felt unwell while taking the exam and although able to complete the exam went home and was very sick for the rest of day. (Student) Ms. Raffaele recalled that Student coughed a little bit during the exam, but not enough to cause Ms. Raffaelle concern. Student never told her either during or after the PSAT that she felt unwell. (Raffaelle)
13. Dr. Salva’s January 6, 2006 note indicates that Student remains homebound. His January 10, 2006 note states that Student is looking far worse. She had been given Percocet for the chest discomfort, but it was not helping. She was back on Prednisone and he explained that she was quite sick at that point. (Salva)
14. During the summer of 2006, Parents received a 504 Plan in the mail entitled, “Proposed for School Year 2006-2007.” The 504 plan contained the same description of Student’s disability, its impact upon her functioning, and accommodations as those on her prior 504 plan. It was signed by Ms. Raffaele and dated June 5, 2006. (S-4, P-22) Parents sent an e-mail to Ms. Raffaele indicating that they wanted to have a meeting to discuss the plan. (Father, S-8, P-34)
15. Mahesh Bajaj, M.D., first saw Student on June 22, 2006, when she was referred for allergy testing by Dr. Salva. Student told him that her asthma was triggered by smells like perfumes and markers and it was so severe that she required prednisone several times. She reported her asthma was not well controlled. She had been out of school for over a year as of that date. On a subsequent visit, Parents told him that they thought that the environment at MHS was contributing to the severity of Student’s asthma. Dr. Bajaj conducted extensive allergy testing and found that Student is allergic to dust mites. He explained that dust mites are found in all buildings, in carpets, upholstery, and bedding. Dr. Bajaj never agreed with Parents’ opinion that MHS presented a problem for Student in terms of her asthma control. (Bajaj)
16. During an August 2006 visit with Dr. Bajaj, Student reported that her asthma is not well controlled and she has an asthma attack practically every day. At that time she had not attended MHS for a year and six months. (Student)
17. Dr. Bajaj explained that there are two phases to an allergic reaction. There is an acute reaction which occurs within minutes and there is a late phase reaction which can take several hours and can last for several days. He explained that a person could remain sick a few days after exposure to an allergen because there are inflammatory changes that occur that can take time to subside. (Bajaj)
18. Dr. Salva explained that it is important for people with asthma to avoid “triggers”, which “trigger” their asthmatic reaction. He explained that it is important to figure out what is “setting [one’s asthma] off” and decrease one’s exposures as much as possible. He noted that removal from an environment is a way to determine if a patient is responding badly to a particular environment. He stated, “When all else fails, get out of where you are and see if you get better.” (Salva)
19. The 504 Team met on August 15, 2006. Parents, Carolyn Lewis, Ms. Raffaele, Martin O’Shea, the building principal, and Denise McFarland, the school nurse, attended the meeting. The Team did not reach an agreement regarding what should be included in the plan during the meeting. Father sent an e-mail to the 504 Team summarizing his understanding after the meeting. (P-33) Mother acknowledged that by the August 2006 504 meeting Parents were talking about an alternative placement despite the fact that they did not have anything in hand from a physician, an industrial hygienist, or anyone else saying that Student could not attend MHS. (Mother) Martin O’Shea, the principal of MHS, was at the August 2006 Team and recalls discussing rearranging the times the tutor would come to Student and on-line options. The issue of smaller classes did not come up and the on-line option was not rejected at the meeting. He was surprised when he received Father’s e-mail to the Team (P-33) because it was not his impression of the meeting. He had thought that tutoring was acceptable to Parents and Student. Father referenced a diagnosis of multiple chemical sensitivity and Mr. O’Shea had not seen any diagnosis of that from any physician. (O’Shea)
20. Student remained at home and out of school from September 2005 through September 2006 and Dr. Salva did not see any significant improvement in her condition. (Salva)
21. Student went to see Darren Lynch, M.D., of Northampton Wellness Associates after Mother’s co-worker and dental hygienist recommended his practice to Mother. Neither Dr. Salva nor Dr. Bajaj referred Parents to Dr. Lynch. The record does not contain any treatment notes from Dr. Lynch and it is unclear what dates Student saw him. Mother was not sure of the exact dates on which Student went to Northampton Wellness Associates, but recalled that Dr. Lynch told them that it was important for Student to avoid known “triggers” to her asthma and referred Student for chiropractic care. (Mother)
22. After the August Team meeting Father contacted Dr. Lynch and requested that he write a letter to the Team regarding his recommendations for Student. Dr. Lynch and Michelle Goulet, FNP10 , wrote a letter to Martin O’Shea dated September 12, 2006. The letter stated that Student was a patient they were treating for asthma and multiple chemical sensitivity. It read,
It is our medical opinion that [Student] will not be able to attend Minnechaug Regional High School any longer, due to the building’s known environmental problems. At the school, [Student] is exposed daily to a wide range of triggers for her multiple chemical sensitivity, such as cleaning chemicals, fragrances, cigarette smoke, etc., which have a toxic effect on her health, especially her respiratory system. Because of the constant exposures to chemicals at the school, [Student] cannot function well as a student there.” (P-14)
Ms. Goulet and Dr. Lynch concluded that since the “necessary environmental accommodations” cannot be made to make MHS a safe place for Student, “it is medically necessary that she stop attending the school.” (Father, P-14) Dr. Gagliarducci testified that he is unaware of Dr. Lynch or Ms. Goulet even having visited MHS or having done any study or making any observations at the school. He does not know of any school building that does not use cleaning chemicals or where fragrances are not present. (Gagliarducci)
23. Dr. Salva did not refer Student to Northampton Wellness Associate or receive any reports from that office. He did not diagnose Student with multiple chemical sensitivity. He explained that medical literature questions the existence of such a diagnosis. (Salva) Dr. Bajaj testified that it is impossible to test for sensitivity to fragrances. Therefore, doctors rely on patient report to determine whether a patient is sensitive to a fragrance. (Bajaj)
24. Father filed a formal written complaint pursuant to the district’s internal grievance policy on September 13, 2006. (S-12) In response to Father’s complaint, Donna Scanlon11 , the Assistant Superintendent of HWRSD and District 504 Coordinator, held an informal hearing on September 22, 2006. Also in attendance were Mr. O’Shea and Ms. Lewis. During the hearing, participants talked about the prior drafts of the 504 plan, on-line options, home tutoring, and making adjustments to the building to accommodate Student. On September 29, 2007, Ms. Scanlon sent Parents a letter summarizing her findings. She indicated that pursuant to her investigation of Parents’ claims she did not find evidence that HWRSD and MHS discriminated against Student on the basis of her disability. Ms. Scanlon indicated that the district was able to accommodate Student’s needs and wanted to continue to discuss options for Student to progress toward graduation. (S-12)
25. Father responded to Ms. Scanlon’s September 29, 2007 letter with a letter dated October 4, 2006, in which he responds point by point to many items in Ms. Scanlon’s letter. Father closed his letter by stating
I propose that she be tutored at the high school for this fall semester. You state that you believe that the District can provide reasonable physical accommodations at the school. We’ve identified for you the known triggers of her asthma at school. This approach also addresses our concern regarding the impact of her involuntary isolation by being tutored at home. We are fully prepared to try this approach please contact us immediately so we can get started.” (S-13)
Ms. Scanlon was pleased that Father was requesting Student be tutored at school because she wanted to bring Student back to school and begin catching her up academically. She confirmed that Parents were seeking tutoring in a letter and received no reply. (See S-14) She then sent a letter Parents, dated October 16, 2008, indicating that the Van West Gallery with an air conditioner and air filtration was ready for Student and describing the tutors who had been hired to provide Student services. (S-15) (Scanlon)
26. Ms. Scanlon sent a letter dated September 25, 2006 to Dr. Lynch following up on his September 12, 2006 letter. Ms. Scanlon explained that Dr. Lynch’s letter did not appear to be supported by an evaluation. She requested that he provide her with additional information in order for the district to assess, understand, and credit the opinion he expressed. She requested copies of any and all test results, studies, and evaluations that indicate that MHS is the source of Student’s health difficulties. She asked for documents supporting Student’s diagnosis of multiple chemical sensitivity and the finding that she could not attend MHS. She requested copies of the credentials of all individuals who reached the conclusions cited in Dr. Lynch’s letter. Finally, she requested information that he had provided the Parents regarding other schools or educational programs that would not pose the same problems for Student that he alleged MHS did. (S-11)
27. Dr. Lynch responded to Dr. Scanlon via letter dated October 19, 2006. In his response he stated,
It is my understanding that the school has not been properly assessed to determine what environmental problems it may have and how to remediate them, to promote the best health for [Student] and all the students and staff. The best way to get this information would be to have an environmental indoor air quality assessment done by a qualified, independent expert.
Dr. Lynch indicated that the documents Dr. Scanlon sought were part of Student’s medical chart and she would need to request Parents’ permission for him to release them to her. He indicated that if Dr. Scanlon was interested in learning more about Student’s condition she could contact his nurse, who had experience working with other sensitive patients and schools that had worked to accommodate children with that condition. Finally he stated that he had recommended that Parents could assess the safety of another school by having Student “try it out and see.” He reported that Student had toured Wilbraham & Monson Academy, (hereinafter, “WMA”) without experiencing “any chemical problems.” He suggested that MHS “consult with the Academy to find out what they are doing differently which makes this a safer place environmentally for Student.” (P-19)
28. There was a follow-up 504 meeting on October 20, 2006 and another 504 plan was drafted pursuant to the meeting12 . (P-23, S-18)) The 504 plan identified Student’s disability as “severe persistent asthma [that] substantially limits [Student]’s breathing.” The plan noted that “Chronic illness and breathing difficulties result in long-term absenteeism.” The plan indicated that Student required both accommodations and related services to participate in school. The services to be provided included the provision of tutoring for courses as scheduled by the counselor 2.5 hours per course per week beginning on October 24, 2006. Additionally, Student was to be provided with a general course syllabus within one week of the beginning of tutoring and a condensed course syllabus within three weeks of the beginning of tutoring. Student was to be provided with air conditioned space for tutoring (and lunch if needed). Student was to be provided a flexible semester schedule with time for completing course requirements beyond the stated school calendar as needed in response to symptoms of illness. The guidance counselor was to review the plan and accommodations with administrators, tutors, teachers, nurses, and counselors. The principal was to review sensitivity (scented cleaning fluids and room fresheners) and ventilation issues with custodians. The principal was also to post a sign requesting that users of the rest room located near the front entrance of MHS avoid fragrances and aerosol sprays within the rest room. The guidance counselor was to provide AP English preparation materials for the second semester. The principal was to provide student with a parking space near the main entrance. The school nurse was to provide medical accommodations as outlined in the asthma action plan and related materials as needed in response to symptoms of illness. The adjustment counselor was to provide counseling for up to thirty minutes per week to assist in Student’s transition back to school after an absence of more than one year. The plan was to run through January 21, 2007 with periodic review on or before November 22, 2006 and December 22, 2006 for possible refinement of needed accommodations13 . (P-23)
29. Ms. Scanlon explained that the Van West Gallery was chosen as the site where Student would receive tutoring because Student had successfully completed the PSATs there and had appeared to be comfortable in that room. The room was located close to the main entrance so that Student would not have to pass through crowds to reach the room. The room is located off of a large entryway where there is plenty of air. The room is also close to the nurse’s office. Ms. Scanlon recruited retired teachers to tutor Student. Her schedule also provided the opportunity to take a guitar class with other students in the nearby band room. Ms. Scanlon planned to address Student’s isolation by allowing other students to eat lunch with Student in the Van West Gallery or allowing Student to go to the cafeteria if she could tolerate that. (Scanlon, Raffaelle) The Team did not reject any recommendations made by Father for accommodations. (Raffaelle, Lewis)
Ms. Lewis recalled a discussion of using an interactive web cam in Student’s classes. The option was ruled out because it would isolate Student14 . Additionally, the Team was concerned that Student would not be able to access it because she had not been able to access the home tutors. (Lewis) Ms. Raffaele recalled that Father may have mentioned seeking an outside placement during the meeting, but the Team did not agree to it and by the end of the meeting he seemed satisfied with the accommodations discussed and proposed by the Team. (Raffaele, Scanlon) Father indicated that he would have to discuss the plan with Student and Mother. Ms. Raffaelle began contacting tutors and drafted a schedule for Student. (Raffaelle, S-19) After the October 2006 Team meeting there was a directive for the custodial staff to seek out alternative cleaning fluids. Parents did not request a fragrance ban and there was not one proposed. (O’Shea)
30. There was a final meeting on November 2, 2006 which was scheduled to get all the necessary signatures and get Student’s transition back to school going. During the meeting both Father and Student indicated that the proposed plan was not acceptable to them. (Father) Father informed the Team that Parents were rejecting the 504 plan (S-18) because they believed that Student would be too isolated and an alternate placement was necessary. (Scanlon)
31. On November 13, 2006, Father hand delivered a Section 504/ADA Grievance Filing Form to HWRSD. (S-28) Dr. Gagliarducci held a 504 appeal hearing on November 15, 2006 which Parents attended with their counsel. (S-31) He issued his decision on December 6, 2006. (S-32) On December 20, 2006, Father requested a level four hearing. (S-34) Dr. Gagliarducci began seeking an impartial hearing officer and was in the process of selecting dates when Parents requested a hearing before the Bureau of Special Education Appeals. (Gagliarducci, S-38)
32. Neither Dr. Salva nor Dr. Bajaj ever submitted anything to MHS indicating that student could not attend MHS. Ms. Scanlon reviewed all of the reports in the record which referenced air quality and did not understand anything to mean that there was anything harmful in the air for students. She never received any communication from staff regarding concerns about air quality. (Scanlon)
33. At no time during the 504 process did anybody other than Dr. Lynch produce a document stating that Student could not attend MHS. Ms. Lewis is not aware of any report regarding the air quality in the Van West Gallery. MHS did not have any information indicating that MHS was the source of Student’s health difficulties. She doe not believe she explored the option of having other teachers or small groups of students join Student in the Van West Gallery. (Lewis)
34. The Parents never expressed any interest in charter schools or school choice communities and never requested information about either from HWRSD. WMA was the only school the Parents ever mentioned. (Scanlon)
35. Martin O’Shea has been the principal of MHS since July 2005. He first met Father in July 2005 when Father told him Student had been out of school since the spring because of asthma. Mr. O’Shea reported that he had only received one other complaint about the air quality at MHS during his tenure. That complaint came from the president of the teachers’ union in October 2006 and was in response to an order that doors could not be opened throughout the building during the day. (O’Shea)
36. Paul Gagliarducci has been the superintendent of the HWRSD since August 2001. He explained that he had contracted with Dore and Whittier to do a Feasibility Study to identify all the issues of the MHS building as a first step in submitting a request for funding to build a new high school. The document has been posted on the MHS website as a public document for at least the past two years. (P-3, S-53) He writes a document called a “Superintendent’s Report” each time the school committee meets and it becomes public immediately after the meeting. (P-2)
37. Since being hired in 2001, besides Parents’ and Student’s concerns about the air quality at MHS, Dr. Gagliarducci has received only one letter complaining of air quality issues from the teachers’ association and one letter from a staff member that was a pre-cursor to the union’s letter. (P-30) As a result of some security research done by the school, Dr. Gagliarducci determined that all teachers who taught in rooms with exterior doors had to keep their doors closed and locked during the day. One teacher’s doctor wrote a note stating that she required a room with proper ventilation. Mr. Cenedelle and Mr. O’Shea worked with her to rectify the problem. They removed books that were blocking the heating vent unit and repaired some windows so that she could open them. They also brought a temporary air cleaning unit to the classroom. They never heard another complaint. (Gagliarducci)
38. Dr. Gagliarducci and Dr. Salva were neighbors and occasionally spoke about accommodations that could be made in schools in HWRSD. Dr. Salva never asked him to make any accommodations for Student. Dr. Salva never told him that MHS posed a health problem for Student. (Gagliarducci)
39. Parents sent a letter, dated November 6, 2006, to Dr. Gagliarducci indicating that they had previously rejected the proposed 504 plan for Student because they believed that it did not provide her with sufficient accommodations. Parents indicated that Student required a placement where the air quality was not compromised. They informed the district of their intention to enroll Student in a private school at public expense, namely WMA. (P-42, S-8) Dr. Gagliarducci had not yet held the level 3 grievance appeal. He did not have any information indicating that WMA has an environment without chemical cleaning products or fragrances. (Gagliarducci)
40. Parents did not make any inquiries to WMA to determine whether any air quality studies had been done there or whether any review had been done of the HVAC system. They did not request that WMA institute a ban on the use of colognes or scented products. (Father) Father never requested that Student be placed in smaller classes at MHS and is not aware of Mother or Student ever making such a request. (Father)
41. In a letter dated December 11, 2006, Student was notified that she had been accepted to WMA. The letter, written by Robyn Boyer, Associate Director of Admissions, outlines the accommodations that WMA agreed to make on Student’s behalf (per Parents’ discussion with Brian Easler, Assistant Head of School, on December 7, 2006) as follows.
The Academy will slowly increase [Student]’s involvement with physical activities.
[Student] will not be required to participate in activities in or around the immediate pool area.
[Student] will not be required to enroll in a chemistry class while attending Wilbraham & Monson Academy.
The letter reiterates that the above accommodations are the only accommodations WMA agrees to make pertaining to Student’s physical health. (P-47, S-57, Easler)
42. Student next attended school in January 2007 when she began attending WMA. WMA did not make any accommodations regarding the use of cleaning products in the school buildings. It did not implement any rule banning the use of fragrances or colognes. Many of the buildings at WMA were built in the 1800s and early 1900s and have not had any HVAC renovations in at least the past twenty years. Student has had some asthma attacks while at school, and has asked her teacher to be excused to go to health services to use her inhaler. When she has had asthma attacks they have not resulted in excessive absences. (Easler)
43. Dr. Salva’s January 24, 2007 note indicates that Student was having respiratory issues secondary to classmates wearing fragrances. The note also indicates it was cold outside and Student spent a fair amount of time walking outside between classes. (Salva)
44. Since attending WMA, Student has been a full participant in the school. She sits with her peers at lunch and during classes. She has made friends and was elected to the student senate. She played softball last year, did yoga and tai chi in the winter and played soccer in the fall. Student felt as though she had been isolated while at MHS. Although she had been named captain of the mock law team, she was unable to participate because she could not attend school in the building. She had to drop all of her classes and was not able to interact with her peers. She believes that the new environment is helpful in managing her asthma because there is a smaller number of students resulting in less cologne and there is more space for her to move away from people whose colognes make her sick. While she was at MHS she was unable to move away from scents because it was too crowded. She was not able to always sit by the window. She explained that in her current school when she was sensitive to white board markers that were routinely used in her classes, she was able to speak to her teachers about minimizing her exposure to the scent of the markers. She noted that she had never asked teachers at MHS to refrain from using markers. She tried to manage it as best she could on her own. From September 2003 until May 2005, Student never asked a teacher at MHS to make an accommodation for her in class that he or she would not provide. (Student)
45. Michael Feeney is the Director of the Indoor Air Quality Program at the Massachusetts Department of Public Health. He has conducted air quality assessments on approximately five hundred buildings since beginning his employment in 1996. As part of the testing procedure, he examines the building structure, conducts air testing, evaluates the adequacy of the ventilation system, asseses the building for water damage, and looks at different types of material that can cause respiratory irritation. To assess how well a ventilation system works, he looks at carbon dioxide levels, which tell him how well the system exchanges air. He also looks at how well the ventilation system provides for heat or cooling. Additionally he tests the relative humidity of the building, as too little humidity can cause irritant effects. (Feeney)
Mr. Feeney received a request to do an air quality assessment at MHS from Father. He made two visits to the building on November 21 and 22, 2006. His assistant, Sharon Lee, made a third visit on January 12, 2007. He wrote a report of his findings, dated February 2007. (S-55) Prior to his visit to MHS, Mr. Feeney was unaware of any prior complaints about the air quality at MHS. Mr. Feeney explained that in Massachusetts, the recommended levels of carbon dioxide in buildings is 800 ppm. In schools it is 600 ppm. All of the measurements that he takes as part of an indoor air quality assessment, the humidity, the temperature, the carbon dioxide ppm, can change from day to day. The measurements recorded in his report were valid for the day he did the testing. He could not tell based on his testing what the measurements would have been in the past. He makes a number of recommendations in the report which are typical of recommendations he makes with respect to other buildings. They look at the building for general safety, and if there is an issue they’ll identify it.
Mr. Feeney has worked with Westwood High School to deal with an air quality issue for a highly sensitive student. That student, like Student, was highly sensitive to scents such as soaps, cleaners and perfumes. That student had difficulties regardless of where in the building he/she went. Westwood assigned that student to one room and installed a separate HVAC system for the room. All of the student’s classes were held in that room and the other students were asked not to wear scented products.
Measuring carbon dioxide is an indirect way of measuring air quality because you look at the amount of air exchange going on. Most of the measured rooms at MHS had carbon dioxide levels over 800 ppm and several were over 2000ppms. From his sampling of rooms and from examination of the building he concluded that the ventilation system was not functioning adequately to provide fresh air. Therefore, he recommended that the ventilation system be examined by an engineer. His report also mentioned some pool odors outside the pool area and wood odors outside the wood shop. Mr. Feeney did not measure indoor air pollutants as part of his assessment. (Feeney)
46. Dr. Gagliarducci spoke to Mr. Feeney regarding the testing results in February or
March 2007. Mr. Feeney assured him that he did not need to take any drastic emergency action due to the building posing a health problem. Mr. Feeney explained that the only issues that needed to be addressed were those outlined in his recommendations and accompanied by suggested remedies. (Gagliarducci)
47. Suzanne Condon, Associate Commissioner and Director of the Center for Environmental Health of the Massachusetts Department of Public Health sent a letter dated April 5, 2007, to Father in response to a letter he had written to her. She clarified that the conditions noted in Mr. Feeney’s report dealt primarily with conditions that relate to comfort issues for the average, healthy individual. She wrote, “If individuals have a pre-existing condition, (e.g., asthma, allergy or other chronic respiratory illness), some of the issues observed at the MHS may exacerbate such conditions.” (emphasis added). She did not provide any opinion as to whether or not MHS was the cause of Student’s health difficulties at any time. (P-8, S-56) Dr. Gagliarducci received a copy of the letter and interpreted it as saying that there could be problems for someone with allergies, respiratory illness, or asthma at MHS. He noted that the letter did not say that MHS had caused Student’s health problems. The report indicted that there were issues that may play a role in exacerbation in sensitive individuals. (P-7, Gagliarducci)
48. Dr. Salva testified that Student has been doing much better between January 2007 and January 2008 and he has not seen her nearly as much as he has in the past. His July 23, 2007 note indicates Student has severe persistent asthma under good control. She was taking considerably less medication than she was back in 2005. (Salva)
49. Dr. Salva explained that Student has proven to be incredibly sensitive to environmental triggers. Those triggers are more likely to be present if there is poor air exchange. He acknowledged that Student had a particularly difficult time in 2005 and 2006. He noted it is not really unusual that it took her so long to recover. In severe situations, he testified, it can take twelve to eighteen months to completely “turn around.” Inhaled medications can take a long time to have a definitive effect. If the patient is being continually compromised and she is waiting for the medication to have an effect and the environment in which she is living is an active deterrent to the medications working, it can take a long time to recover. (Salva)
50. Dr. Salva explained that Student’s asthma can be triggered inside or outside. Cold air is a significant trigger for Student’s asthma. He has nothing in his possession that indicates that the air exchange is poor at MHS. He also has nothing in his possession that says that the air quality at MHS is good. He did not ask anyone at MHS to make any changes to MHS to accommodate Student although he had made a request to Dr. Gagliarducci regarding an accommodation for an elementary student in the district. There was nothing that he could identify at MHS that could be changed to make it better for Student. (Salva)
51. Dr. Salva stated that given that Student left MHS in September 2005, if MHS had been making her feel sick she would have been expected to feel better within a few weeks. The fact that she did not get better when she got away from MHS would tell him that MHS was not where the problem was. He also noted that given the severity of Student’s condition he would expect her to have a longer recovery from a severe episode. (Salva)
FINDINGS AND CONCLUSIONS:
Jurisdiction
HWRSD argued at the outset of the hearing that the BSEA does not have jurisdiction over this dispute.15 OCR has addressed this issue in a 1991 opinion letter. See Letter to Anonymous , 18 IDELRL 230 (OCR 1991). In this letter, OCR indicated that IDEA hearing officers may decide section 504 issues so long as there is no state law that precludes them from doing so. Massachusetts, in its special education regulations, specifically authorizes hearing officers to hear section 504 cases16 . I am also not persuaded that it was improper for Parents to file for a hearing with the BSEA before proceeding through every step in HWRSD’s internal 504 hearing process. As I stated in the Ruling on HWRSD’s Motion to Dismiss nothing in section 504 or its implementing regulations requires Parents to utilize the school’s internal procedures or to complete the process once they have filed a complaint. They are not precluded from opting to file a hearing request with the BSEA at any time during that process. I am not aware of any legal authority, and the School has not cited to any, that would support the school’s contention that Parents must first exhaust its internal grievance procedures before proceeding to the BSEA .
Although Parents’ request for hearing included both IDEA and 504 claims, Parents chose to proceed only on the 504 claims. Parents’ counsel explicitly began his Opening Statement by stating, “…this is a claim under Section 504 where [Student] is seeking to enforce her right to a free appropriate public education or what that means in the context of this case.” (See Transcript, Vol. 1, pg. 27.)
Section 504 of the Rehabilitation Act of 1973, 29 USC Sec. 794, prohibits discrimination on the basis of disability in programs or activities that receive federal funding, including public elementary and secondary educational programs. In pertinent part, the statute states:
[N]o otherwise qualified individual with a disability… shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….
29 USC Sec. 794(a); 34 CFR Sec. 104.4(a)
To establish a Section 504 violation, a plaintiff must show:
(1) that the student is disabled;
(2) that the student is “otherwise qualified” to participate in school activities;
(3) the school or the board receives federal financial assistance; and
(4) the student was excluded from participation in, denied the benefits of, or subject to discrimination at, the school.
A.S. and W.S. v. Trumbull Board of Education , 414 F.Supp.2d 152 (D.C. Conn. 2006) ( citing Gabel ex rel. L.G. v. Board of Educ. of Hyde Park Central School Dist., 368 F. Supp. 2d 313, 334 (S.D.N.Y. 2005) (citing D’Amico v. City of New York, 132 F.3d 145 (2d Cir. 1998)). Whereas the IDEA focuses on the content of a student’s educational program, Section 504 combats discrimination and safeguards “equal access to the school’s programs.” J.D. ex rel. J.D., 224 F.3d at 70; see Gabel ex rel. L.G., 368 F. Supp. 2d at 333-34. .
The Parties have stipulated to the first three prongs outlined above. Their dispute centers upon whether Student was excluded from participation in, denied the benefits of, or subject to discrimination at the school from or after May 2005. To determine whether Student’s 504 rights were violated, the actions of HWRSD and the Parents and Student must be analyzed during each relevant time period.
May 2005- June 2006
It is undisputed that Student was first assessed for 504 eligibility during the summer of 2005. Although Student had begun to have some absences during the spring of 2005, the district had not received any medical information that would have alerted them to the fact that Student had a disability that would qualify her for a 504 plan. Despite not having received such information, the district provided Student with tutoring, an alternative means to meet her physical education and music requirements, and the opportunity to take on-line courses. Additionally, Ms. Raffaele contacted Student’s teachers and asked them to refrain from using cleaning products in their classrooms and to assist Student in any way that they could to complete her work. (See paragraph 3 above.) HWRSD had not received any medical information from Dr. Salva at that time other then the May 18, 2004 letter excusing Student from swimming. Although Student had not yet been considered for section 504 eligibility, HWRSD provided her with accommodations to allow her to complete her course requirements.
During the summer of 2005 Ms. Raffaele scheduled a section 504 meeting with Parents. HWRSD had received Dr. Salva’s letters excusing Student from physical education for the 2004-2005 and 2005-2006 school years with the notation that Student was “crippled by asthma and effectively homebound.” The Parents attended the 504 meeting, but did not provide HWRSD with any additional medical information regarding Student’s asthma. The Team drafted a 504 accommodation plan for Student and Parents signed their consent for the plan. They did not request any accommodations other than those that were written into the plan and to which they agreed. (P-19)
Student attended school for a few days in September. Dr. Salva faxed the physician’s form for home tutoring to MHS on September 9, 2005. The form did not indicate how long Student would remain out of school and did not indicate that Student’s health would impact her ability to receive educational services. HWRSD arranged for tutors to go to Student’s home. Parents and Student testified that Student was too sick to access the tutoring for most of the school year. Parents also testified that during that school year their focus was on improving Student’s health and they believed that tutoring was not useful to her at the time due to the severity of her illness. Ms. Raffaelle contacted the parents from time to time to ascertain whether Student could resume tutoring. Each time she spoke to Parents they indicated that Student was not able to resume tutoring. At no time during the school year did either Parents or Dr. Salva suggest any accommodation that would allow Student to access an education. Tutoring continued to remain available to Student during the entire 2005-2006 school year, but Student did not access it. Although Dr. Salva submitted additional Physician’s Statements for Temporary Home or Hospital Education forms, he continued to check the box indicating that Student’s health would not affect the provision of full educational services. Student continued not to access the tutoring. Dr. Salva did not make any recommendations for accommodations for Student. (P-12) Additionally, Parents neither indicated that they were dissatisfied nor rejected the 504 plan while it was in effect.
Based upon the foregoing, Parents allege that HWRSD failed to provide Student with a reasonable accommodation to enable her to participate effectively in a high school educational program. HWRSD countered that Student was not denied benefits or subject to discrimination under the program solely because of her disability. Instead, it claimed HWRSD acted in a manner to facilitate Student’s full participation in MHS’ program and to allow Student to graduate with her class. Student stopped attending school on her own accord and did not access the section 504 plan developed by HWRSD.
Section 504 requires the District to provide the Student with FAPE, that is, regular and/or special education and related aids and services that are designed to meet his/her needs as adequately as it meets the needs of students without disabilities. During the 2005-2006 school year Student remained at home with a physician’s note indicating that her health would not affect the provision of full educational services. HWRSD continued to offer tutoring as an accommodation for Student’s inability to come to school. Student continued not to access those services. Parents did not argue that there was any other way that Student could have been accommodated during the 2005-2006 school year17 . I find no violation of section 504 for the 2005-2006 school year.
2006-2007 school year
Parents received a proposed 504 plan in the mail during the summer of 2006. Although Parents objected that the plan was the same plan that had been utilized the prior year and that Student had been unable to access it, I find that there was no violation of 504 in sending the same plan as a starting point for Parents’ consideration. There is no requirement under section 504 that the team convene annually to consider the 504 plan nor is there a prohibition against sending a draft proposal without obtaining parental input. Upon receipt of the proposed plan, Parents requested a meeting and MHS scheduled one. The Team convened on August 15, 2006. Although Student had seen both Dr. Bajaj and Dr. Lynch by this time, they did not share any medical information with the Team. They also did not share any medical information from Dr. Salva with the Team. Although Mother testified that Parents were interested in an outside placement by that time, she acknowledged that Parents had not received any recommendation from a physician that Student required a placement outside of MHS. In fact, Parents did not have any written document from anybody indicating that Student could not attend MHS.
During the fall of 2006 Student remained at home despite the fact that Dr. Salva had not submitted a form for home tutoring. The district had no reason to believe that Student was too ill to return to school. Therefore, the Team met to consider accommodations that would assist Student in transitioning back to MHS.
At Father’s request, Dr. Lynch submitted a letter dated September 12, 2006 opining that Student could no longer attend MHS due to the building’s “known environmental problems.” Additionally, Dr. Lynch’s letter alleged that Student could not function well as a student at MHS due to her constant exposure to chemicals and triggers to her multiple chemical sensitivity, such as cleaning chemicals, fragrances and cigarette smoke. He concluded that it was necessary for Student to stop attending MHS because “necessary environmental accommodations” cannot be made. Dr. Lynch’s letter and his “medical opinion” lack credibility for numerous reasons. First, there is no evidence to support any basis for his conclusions that MHS has “known environmental problems.” School witnesses testified that Dr. Lynch had never been to MHS nor conducted any studies regarding the environment at MHS. Secondly, he indicated that the reason Student could not attend MHS was due to constant exposure to cleaning chemicals, fragrances and cigarette smoke. School staff testified that MHS is a smoke-free campus. Furthermore, they testified that they were not aware of any school building anywhere there are not any fragrances or cleaning chemicals present. Thus if Dr. Lynch’s recommendations were to be credited, Student would also be precluded from attending HWA due to the presence of fragrances, and cleaning chemicals and the potential for exposure to cigarette smoking. Additionally, in response to Ms. Scanlon’s letter on behalf of the 504 Team seeking additional information regarding Student’s diagnosis of multiple chemical sensitivity which Dr. Lynch had referenced for the first time in his September 12, 2006 letter, Dr. Lynch refused to supply the same and instead informed Ms. Scanlon that the information she sought was part of Student’s medical record and Parents would have to provide consent for their release. Apparently, said release was not provided, because the hearing record did not contain any records from Dr. Lynch nor any documents that would support or explain Student’s diagnosis of multiple chemical sensitivity. Dr. Lynch wrote that he understood that the district’s air quality had not been “properly assessed.” Additionally he informed Ms. Scanlon that Student had toured WMA without experiencing any “chemical problems” and suggested that MHS consult with WMA to determine what they are doing to make WMA a safer place environmentally for Student. Finally, Dr. Lynch did not testify at the hearing18 . Therefore, his “medical opinion” was not subject to cross- examination or examination by the hearing officer.
The reliability of Dr. Lynch’s “medical opinion” is further called into question when one considers that neither of Student’s treating physicians, Dr. Salva and Dr. Bajaj, agreed that MHS had made Student ill or that Student was unable to attend MHS. Dr. Lynch, who has treated Student since 2001, candidly admitted that he did not know why Student remained so ill for so long. He explained that Student was a puzzle to him and that typical therapies had not been effective in relieving her symptoms. Additionally, Dr. Bajaj never agreed with Parents’ opinion that MHS caused Student to become and remain ill. Neither Dr. Salva nor Dr. Bajaj ever recommended that Student stop attending MHS or recommended that she attend an out of district placement. In fact, they did not make any recommendations for any accommodations to the Team.
On September 13, 2006, Father filed a formal written complaint with the district alleging that HWRSD had violated Student’s rights under section 504. HWRSD complied with the requirements of § 104.36 by following their internal grievance procedure (S-10). Section 104.36 requires that
A recipient that operates a public elementary or secondary education program or activity shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person’s parents or guardian and representation by counsel, and a review procedure.
During the October 2006 Team meeting it was clear that Parents were concerned about Student being isolated from her peers if she remained on home tutoring. For that reason, the Team began proposing a 504 plan that would allow Student to transition back to school, receive tutoring in the school building where she would be able to attend a music class and eat lunch with her peers. The plan was intended to be used for a short duration and Student’s needs would be continuously assessed. Although Parents objected to Student being isolated, the district complied with § 104.34 in proposing the accommodations. Section 104.34 requires
A recipient to which this subpart applies shall educate, or shall provide for the education of, each qualified handicapped person in its jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person . (emphasis supplied)
At the time that the Team proposed that Student be educated in her classroom the Parents were alleging that there was something in the environment at MHS that was making Student ill and they had reported that Student is extremely sensitive to scents, fragrances, and cleaning chemicals. The district was aware that Student had been able to complete the three-hour long PSATs in the Van West Gallery. In an effort to begin bringing Student back from home tutoring and reengage her in the mainstream in a manner that would enable her to interact with peers to the maximum extent appropriate to her needs, the Team suggested that Student receive tutoring in the Van West Gallery which would be equipped with an air conditioner and air purifier to address the family’s air quality concerns. Peers would be allowed to join Student for lunch or Student would be allowed to go to the cafeteria if she felt well enough.
The Team continued to meet during the time that the parties were engaged in the internal complaint process. Parents argued that the HWRSD did not engage in good faith in an interactive process with Student/Parents to attempt to design an appropriate accommodation as required by § 504. (See Beck v. University of Wisc. Bd. Of Regents , 75 F.3d 1130, 1135 (7 th Cir. 1996.) However, the evidence does not support their contention. Although Parents allege that it was a violation for HWRSD not to share copies of documents including the Dore and Whittier Feasibility Study, the Superintendent’s Report, and information regarding the shortcomings of the HVAC system, the Parents did not present any evidence to show that any of the information contained in said reports had any bearing on Student’s ability to attend MHS. Most of the documents that discussed the state of the HVAC system were prepared by HWRSD as part of a process to obtain funding for a new high school. The reports did not comment on the impact that the age of the HVAC system or its efficiency would have on Student. Although there was a great deal of testimony regarding the carbon dioxide levels in certain classrooms on particular days, none of the medical experts testified that said levels caused any harm to Student. Although Dr. Salva had seen copies of the reports, he did not raise any concerns with respect to the building and did not recommend any modifications to the building for Student. Therefore, I do not find that HWRSD violated § 504 by not providing copies of the reports to the Parents and I placed little weight upon the reports in rendering this decision.
A New Hampshire hearing officer found that a school district offered a free appropriate public education to a student with a latex allergy even though there were latex tires present on the playground because the district offered accommodations that would prevent Student’s exposure to the latex. In that case, the court found no FAPE violation because the district “[H]as been and is prepared to take all necessary steps to ensure a healthy environment for the Student taking into consideration the Student’s latex allergies….” Middleton School District , 46 IDELR 298 (SEA NH 2006) In the current case, HWRSD has taken Student’s allergies into consideration in determining which accommodations would provide Student with a “healthy environment.” Despite receiving minimal and questionable documentation of Student’s multiple chemical sensitivity, the Team took that and Student’s known dust allergy and asthma into account when proposing the October 2006 504 plan. The Team proposed tutoring in an air conditioned space equipped with an air filter to minimize the risk that Student would be exposed to fragrances or irritants to her asthma. The Team proposed allowing Student additional time to complete work in order to accommodate any disability-related absences. The Team proposed reviewing the use of cleaning products with the janitorial staff. Additionally, the Team proposed posting a sign prohibiting the use of products with fragrances in the rest room that Student would use. The Team recommended that Student take a music class with her peers and have the option of inviting peers to the Van West Gallery for lunch to minimize her social isolation. Additionally, and importantly, the plan was to run for only three months and was to be reviewed every month to assess how well it was working. The plan was to be modified in the event that Student could tolerate more exposure to peers or if she required less.
OCR reviewed a case involving a student with chemical sensitivities using a reasonable accommodation standard. See Litchfield Public Schools , 39 IDELR 244 (OCR 2003). In that case, OCR stated that due to the absence of guidelines for people with environmental disabilities, in these cases OCR considers whether the school district has reasonably attempted to address the needs of such persons. ( Id .) As outlined above, I find that HWRSD attempted to address Student’s needs. Despite that fact that neither Dr. Salva nor Dr. Bajaj offered any recommendations to accommodate Student, the Team worked cooperatively with Parents to identify and offer accommodations for Student. Even though the Team did not agree with Dr. Lynch’s recommendation that Student required an out of district placement, the Team offered recommendations which took into account Student’s sensitivity to fragrances and cleaning chemicals.
Compensatory Services
Compensatory services are available under § 504 when a district has not provided a Student with a free appropriate public education. 34 CFR § 104.33(b) defines the provision of an appropriate education as follows:
[T]he provision of 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.
For the reasons delineated above, I do not find that the district failed to offer Student a free appropriate public education. During the 2005-2006 school year Parents made it clear that they were not seeking that Student continue to receive educational services. They agreed with the 504 plan that required Student to receive tutoring and they informed MHS staff that Student was unable to be tutored. They did not, however, suggest or request alternative services. It is unclear what other services could have been provided to Student during a time that she was too ill to receive home tutoring.
Reimbursement for Placement at HWA
Section 504 allows for the reimbursement of Parents for unilateral placements when a school district has not made a free appropriate public education available to a student as outlined in 34 CFR § 104.33.
If a recipient has made available, in conformance with the requirements of this section and § 104.34, a free appropriate public education to a handicapped person and the person’s parents or guardian choose to place the person in a private school, the recipient is not required to pay for the person’s education in the private school. Disagreements between a parent or guardian and a recipient regarding whether the recipient has made a free appropriate public education available or otherwise regarding the question of financial responsibility are subject to the due process procedures of § 104.36.
I have already determined that HWRSD offered Student a FAPE during the 2006-2007 school year which ends the analysis under §104.33. However, it is important to highlight additional evidence. There is no objective evidence in the record that WMA was a healthier environment for Student than MHS. In fact, WMA was willing to provide Student with only minimal accommodations in contrast to the many accommodations proposed by HWRSD for the 2006-2007 school year. The evidence shows that Student continued to have episodes of difficulty with her asthma even while she was placed at WMA. However, instead of remaining at home and not returning to school, Student returned to school after each absence from WMA. Parents did not provide any evidence that the air quality at WMA was any different than the air quality at MHS.
Band Trip
Finally, one of the issues contained in Parents’ request for hearing was whether HWRSD failed to provide Student with a reasonable accommodation to protect her from excessive exposure to smoke during a school sponsored band trip in April 2005, which led Student to require emergency medical services. Although contained in the hearing request, it was unclear from Parents’ presentation of the issues whether they sought a specific ruling on this issue. To ensure that all of the issues are addressed, I will discuss the band trip. The evidence shows that Student had not yet been determined to be a student with a disability pursuant to section 504 and did not have a 504 plan as of the date of the band trip. Although the evidence shows that Student became ill during a laser and fireworks display that the trip participants attended, Parents did not show how this was a violation of § 504. Among the chaperones on the trip were a nurse and an E.M.T. When Student became ill, both the nurse and E.M.T. accompanied her to the hospital where she received treatment. Parents were kept informed regarding Student’s medical condition by the chaperones. There was no medical evidence to support Parents’ claim that Student’s illness was caused by excessive exposure to smoke at the fireworks and laser display. The medical records from the emergency room and from Dr. Salva indicate that Student became ill while on the band trip, but neither indicate that the illness was caused by the smoke. There is no evidence to suggest that HWRSD failed to accommodate Student’s asthma during the band trip.
Based on the totality of the credible evidence before me I am not persuaded that Student’s § 504 rights were violated by HWRSD. Therefore, Parents and Student are not entitled to any relief.
ORDER
I find in favor of HWRSD on all the issues before me. Parents are not entitled to any relief.
By the Hearing Officer,
____________________________________
Catherine M. Putney-Yaceshyn
Dated: May 15, 2008
1
Minnechaug Regional High School is the regional high school for Hampden and Wilbraham.
2
HWRSD objected to the Parents’ framing of the issues. The hearing officer has determined that Parents incorrectly framed the standard upon which their claims are to be assessed. Therefore, I have framed the issues in a manner that all of the asserted claims can be assessed without using the specific language suggested by Parents.
3
During Student’s ninth grade year at MHS (2003-2004) she was absent nine days and was dismissed on five days. (S-44)
4
He explained that intrinsic airway irritability is a term used when a patient’s lungs are irritable for some inherent reason and the doctor cannot find an explanation. (Salva)
5
Student was taking approximately 2600 mcgs of inhaled steroids per day. Dr. Salva explained that any dose over 1000 mcgs of inhaled steroid is considered high. (Salva)
6
Students at MHS sometimes use on-line courses to complete courses. They could do so if MHS does not have a course they want to take, if they require additional credits or due to illness. This option is available to both non-disabled and disabled students as are options for independent study. (Raffaele, O’Shea)
7
The section of Student’s Asthma Action Plan for the 2005-2006 school year completed by Father also identifies Student’s asthma triggers as exercise, school supplies, household and industrial cleaners, swimming pool fumes, air pollution, perfumes, cologne, colds and viruses, and mold. (P-20)
8
Dr. Salva had discussed Student leaving the Pioneer Valley and spending some time in another environment several times and continued to discuss that option until 2007.
9
The Van West Gallery is a room in the high school that is located close to the main entrance of the building.
10
FNP appears to stand for family nurse practitioner.
11
Ms. Scanlon ensures that the building coordinators are trained and that HWRSD’s procedures comply with the section 504 regulations. She is also part of the complaint resolution process.
12
In attendance at the meeting were: Father, Martin O’Shea, Carolyn Lewis, Denise McFarland (school nurse), Chenda Raffaelle, Donna Scanlon. (P-23, S-18)
13
Ms. Raffaelle described the plan as being temporary based on Student’s condition. The Team would meet again if Student’s condition improved and if it did not improve they would meet to try to figure out another plan. (Raffaelle, Scanlon)
14
Parents expressed concern regarding Student’s social isolation on a number of occasions . (O’Shea)
15
This issue was the subject of a Motion to Dismiss which was filed by HWRSD and Denied by the hearing officer. Said motion and ruling are part of the administrative record.
16
A parent or a school district…may request mediation and/or a hearing at any time on any matter concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for students with disabilities. A parent of a student with a disability may also request a hearing on any issue involving the denial of the free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973 , as set forth in 34 CFR §§ 104.31-104.39. 603 CMR 28.08(3)(a). (Emphasis supplied.)
17
The only recommendation that Dr. Salva made during this time was for Student to consider leaving the Pioneer Valley for a while to see if her symptoms improved. The evidence does not show that Student tried this.
18
In fact, Dr. Lynch failed to comply with a subpoena requiring him to produce medical records.