Student v Leominster Public Schools – BSEA # 05-4944

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Student v. Leominster Public Schools

BSEA #05-4944

DECISION

This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq., 29 U.S.C. § 794, and the regulations promulgated under said statutes.

A hearing was held on August 24, August 25, and September 27, 2005 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 May 5, 2005 and a hearing was scheduled to occur on May 25, 2005. On May 17, 2005, Parent requested a postponement and a change of venue to Worcester. Parent’s postponement request was allowed and a pre-hearing conference was scheduled to occur on June 14, 2005. The case was reassigned from Hearing Officer, Sandra Sherwood to Hearing Officer, Catherine Putney-Yaceshyn on May 27, 2005. There was a pre-hearing conference on June 14, 2005. On June 16, 2005, the BSEA issued an order for a conference call to be held on August 10, 2005 and for a hearing to be held on August 24 and August 25, 2005¹ On August 23, 2005, Parent requested that the hearing officer issue a guarantee that her subpoenaed witnesses would appear or grant a continuance of the hearing date. The Parent’s requests were denied on August 23, 2005 and the hearing was held on August 24, August 25, and September 27, 2005. The Parties requested the opportunity to submit written closing briefs and requested a due date of October 18, 2005, which the hearing officer allowed. Both parties submitted their closing briefs on October 18, 2005, and the record closed at that time.

Those present for all or part of the Hearing were:

Student’s mother

Teri Bisbee Student’s “advocate”²

Susan Hitchcock Assistant Superintendent, Leominster Public Schools

William Hart Principal, Leominster High School

Danielle McAuliffe English teacher, Leominster Public Schools

Tiffany Floria Biology teacher, Leominster Public Schools

Alexis Curry Guidance counselor, Leominster Public Schools

Colby Despo Math teacher, Leominster Public Schools

Sarah E. Avery Social Studies teacher, Leominster Public Schools

Robert Gendron Biology teacher, Leominster Public Schools

Linda Noone Tutor, Leominster Public Schools

Regina W. Tate Attorney, Leominster Public Schools

Catherine M. Putney-Yaceshyn Hearing Officer

The official record of this hearing consists of Leominster Public Schools’ exhibits marked S-1 through S-9 and S-11-S-26 and Parent exhibits marked P-A(pgs. 1 and 3-11), P-B (pgs. 4-5, 7-8, 11), P-C (pgs.1, 5, 7-27), P-D (pgs. 1, 4-10), P-F (pgs. 1-7), P-H (pg. 1) and approximately 14 hours of recorded oral testimony.

ISSUES

1. Whether Leominster complied with Student’s section 504-accommodation plan during the 2004-2005 school year.

2. If not, whether Student’s grades in algebra and/or history should be adjusted.

SUMMARY OF THE EVIDENCE

1. The student (hereinafter, “Student”) is a 15-year-old ninth grade student residing in Leominster, Massachusetts, within the Leominster Public Schools (hereinafter, Leominster.) He attends the Leominster High School and has been on a section 504 Student Accommodation Plan since February 15, 2005. (P-B-11, S-1)

2. Student’s 504 Plan describes the “nature of the concern” leading to his eligibility as “absences due to chronic sinusitis and mold allergies.” It states the basis of the determination of disability as “medical disability as determined by his primary care physician, Dr. Debra Francis.” The plan indicates that Student is unable to attend school on a regular basis and therefore, his work is not completed. The following necessary reasonable accommodations are listed. “Teacher will write out homework and put any work in the main office homework file (teacher will include due date). Three days to make up work for every day out including projects. Incomplete will be awarded at end of quarter if absences over 2 weeks before end of quarter.” The plan is signed by Mother and Ms. Hitchcock (P-B-11, S-1).

3. Susan Hitchcock, Assistant Superintendent of the Leominster Public Schools, testified that she is the 504 Coordinator and chaired the February 15, 2005 section 504 meeting during which the plan was written. She explained that in addition to the accommodations delineated in the section 504 plan, Leominster agreed to provide Student with in-school tutoring as a way to “catch him up” in his missed school work. She testified that she later provided Student with an additional out-of-school tutor, Linda Noone. (Hitchcock)

4. Alexis Curry, Student’s guidance counselor, recalled Mother requesting that teachers provide weekly progress reports for Student at the 504 meeting. Ms. Curry testified that she recalled the teachers agreed that if Student brought a form to them they would fill it out weekly, but that it was not part of the 504 plan and it would be Student’s responsibility to get the form from Ms. Curry’s office. She testified that she reviewed the homework folder periodically between March and June. She recalled that Mother had called her shortly after the February 504 meeting and reported that she had been at the school every day and there had been no work in the homework folder. Ms. Curry then followed up with the teachers who showed her what they had left in the homework file to date. (Curry)

Ms. Curry testified that Mother sent Student to see her the day after the 504 meeting regarding the tutoring. Ms. Curry called the tutor, Ms. Adams, in Student’s presence and then walked Student to within ten feet of Ms. Adams’ door after introducing them over the telephone. She testified that Student was not comfortable with tutoring. She learned that he had not attended tutoring a week after the meeting and was concerned. Student told her that he had other things to do at the media center that he thought were more important. He then told her he did not think the other students with Ms. Adams were similar to him. Ms. Curry sought to find another tutoring site for him, but by the time she found one, Student reported he was comfortable. Ms. Curry testified that later in the semester she spoke to Mother regarding Student’s desire to go to another location such as the computer room or media room instead of tutoring and Mother consented. (Curry)

5. Ms. Hitchcock received a letter from Mother, dated March 14, 2005, raising concerns about the implementation of Student’s 504 plan. Mother’s letter indicated that no person at Leominster High School met with Student or helped him in any way after the plan was written. Mother raised concerns regarding a history paper relating back to January, before the plan was written. She indicated that Student’s 504 plan was not being followed by administration or staff. She requested that any zeros Student had received for work be removed and that his grades only reflect the work that he is able to complete. Mother indicated that requiring him to complete assignments without staff assistance was unreasonable and “punitive in nature.” She requested a meeting with Ms. Hitchcock and principal, William Hart. She requested that Student’s report card grades be changed and a comment, “poor effort” be removed. She requested that a “tutorial support person” be assigned to Student who would be the “responsible party” from whom Student would seek assistance. She stated that home-based tutoring might become necessary for Student. (P-C-8; S-6)

6. Ms. Hitchcock held a meeting with Student’s teachers, Dr. Hart, and other administrators on March 22, 2005 to determine whether staff was providing the accommodations required by Student’s 504 plan. Alexis Curry, the guidance counselor, testified that all of Mother’s allegations were reviewed during the meeting and Ms. Hitchcock asked all the teachers to provide documentation that they had complied with the 504 plan. The teachers brought their grade books and reported to Ms. Hitchcock what assignments were missing. Ms. Curry retrieved the homework file and reviewed it during the meeting. (Hitchcock, Curry) The teachers submitted copies of everything they had placed in Student’s homework folder to date. (See S-8, pgs. 4-33; Curry.)

7. Ms. Hitchcock responded to Mother’s March 14, 2005 letter with a letter dated March 23, 2005. She raised a concern regarding Mother’s failure to provide documentation to support any reference to mold allergies in Student’s 504 plan. She reviewed the accommodations discussed during the February 15, 2005 meeting. She explained that Alexis Curry, the guidance counselor, had accompanied Student to the tutor, Ms. Adams’, classroom and Student had not yet returned for assistance. She reported that Student’s teachers had informed her they were leaving a summary list of work to be completed in Student’s homework file and she attached copies of documentation that the teachers had provided to her. She discussed the disputed history project from the prior term. Ms. Hitchcock reiterated how important it is for Student to be in school and stated that Student needed to be willing to use the support of his teachers to complete his work. She reminded Mother of a number of assignments that had yet to be completed. Ms. Hitchcock reviewed the Team’s determination that erasing zeros was not a reasonable accommodation. She reminded Mother that Leominster required a doctor’s note for every day that Student is absent. She stated that Student had been absent 28 days to date and Leominster only had a doctor’s note for four days. She stated that Leominster remained committed to assisting Student, but the accommodations were meant to assist him in completing his work, not to excuse the work. (P-C-11, S-7)

8. Leominster High School has an attendance policy outlined in the student handbook received by each student that provides that “any student who exceeds the limit of nine absences per semester will fail for the semester and be assigned an “Administrative Failure.” (S-26, Hitchcock) Examples of exemptions to the maximum number of absences include “A. An absence of at least three (3) consecutive days, with medical documentation.; B. An observation of a religious holiday with a written note from a parent; C. Death in one’s family with a written note from a parent; D. Chronic illness, written verification from a doctor and daily written notes from a parent; E. Court appearance with documentation from court; F. College visited as a requirement; G. All out-of-school suspension days.” The policy requires that written verification for these absences must be given to the appropriate dean before the end of the semester. (S-26)

9. Ms. Hitchcock testified that although Student had excessive absences without medical documentation during the second semester and could have been given failing grades in accordance with the above policy, he was not penalized in that manner. She testified that she is aware of only four absences that were excused by a doctor during the entire school year. She is not aware of any daily notes written by Mother excusing his absences and explained that a doctor’s note is required if the absences are to be considered excused. She testified that she reviewed Student’s medical record, cumulative folder, nurse’s records, and Dr. Hart’s secretary’s records and found no such notes. (Hitchcock) She testified that Leominster did not receive the letter from Dr. Francis, dated June 15, 2005. The first time she saw the note was when she reviewed the hearing exhibit book. Dr. Francis’ note states, “[Student] is a 15 year old with a complicated medical history including asthma and allergies and recurrent sinus infections often poorly responsive to medical treatment. … Due to his medical issues he has missed multiple days of school, but every effort medically has been made to enable him to return to school.” (P-A, pg. 4)

Ms. Hitchcock testified, that although a tutor was not required by Student’s 504 plan, Leominster noted that Student was getting “deeper into the hole” during second semester and was not completing his work. She thought it may be helpful to find a tutor to assist him in getting organized and turning in his work. She asked Linda Noone, a special education certified high school teacher, to work with Student. Ms. Noone documented her work with Student (see exhibit S-13 containing 339 pages) and Ms. Hitchcock reviewed the documentation periodically. (Hitchcock)

10. Tiffany Floria testified that she taught Student in honors biology. She stated that honors classes require more individual assignments than non-honors classes and more assignments are given in general. Her expectations are higher for her honors classes. She recalls the discussion at the 504 meeting when teachers agreed they would fill out progress report forms if Student brought blank forms to them. She recalls speaking to Student the day after the February 15, 2005 504 meeting and giving him a list of due dates and missing work. That was the week before February vacation. She gave Student her home e-mail address in case he had any questions regarding the work and he never contacted her. (S-8, pg. 5) She testified that she provided accommodations to Student even before the 504 plan was written. She wrote a summary of his progress on March 8, 2005 which included the following. “[Student] often fails to make up work within appropriate time-frame.” Her summary notes that although she requires students to hand in a weekly writing assignment on Fridays, Student had yet to pass one in. Additionally, Student had not brought her any progress reports to complete as discussed during the February 15, 2005 504 meeting. She noted that when in class, Student is a pleasure and completes his classwork. She observed that he seems to struggle with completing work outside of school. She testified that even with the extra three days allowed for each absence there was work that Student failed to make up. (Floria, S-8, pg. 5)

Ms. Floria testified that she had to leave teaching at the end of March and Mr. Gendron took over her class. She reviewed Student’s binder with Mr. Gendron and transitioned him into the new class before she left. She also made a list of work, dated March 18, 2005, that she would allow Student to make up and hoped he would complete before she left. (S-14, pg. 10) She testified that she complied with the 504 plan from the day of the meeting until the day she left school. She recalled being concerned at one point when Student had been absent for a few days and the work she had already left there was still in the folder when she went to leave additional work. She testified that she was still willing to accept any work from Student until she left. She noted that Student did not seem to want additional help. (Floria)

11. Danielle McCauliffe testified that she taught Student’s honors English class during the 2004-2005 school year. She testified that she consistently put homework in Student’s homework folder along with notes reminding him to complete his assignments. (S-8, pg. 25-26) She gave Student more than three days to complete work on a number of occasions. She sometimes gave him extra copies of work. The record contains many pages that Ms. McCauliffe identified as lists of missing assignments she wrote for Student. She could not think of any way that she failed to comply with Student’s 504 plan. (McCauliffe)

12. Colby Despo taught Student’s honors algebra class. She testified that she made the accommodations required by Student’s 504 plan at all times after the plan was written. She explained that she often gave him extra time to complete assignments and accepted work from him until the end of the term. She often allowed him up to four weeks to complete work. She testified that Student did receive some zeros for work that he failed to complete even after being allowed extensions. She testified that she allowed Student additional time to complete two assignments for credit that had been due prior to the 504 meeting, but Student did not complete them and received zeros. She described a factoring quiz that Student missed due to absence on March 14, 2005. Student did not take the quiz until the last week of the term, the week of April 4, 2005. Ms. Despo’s documentation shows that she placed work in the binder regularly. (S-17)

She explained that she often put homework in the homework folder for Student and pointed to many pages she had provided to Student including lists of missing assignments, examples and explanations of problems done in class, and progress reports. She testified regarding examples of times when Student was absent and still received full credit for class work that he completed and handed in afterward. From April 14 until May 6 Student received full credit for all homework and classwork assigned despite the fact that he had some absences. Ms. Despo followed the terms of the 504 plan and allowed Student to submit work within three days of his return. Student received full credit for any classwork or homework he completed upon returning to school for the remainder of the year. (S-17, Despo)

Student received a zero on one of the quizzes that he never came to take. The two papers that were missing in February were also given zeros because he never completed them. On March 16, 2005 he got a 0/4 for a practice sheet addressing solving quadratics. Ms. Despo testified that she did not give Student a zero for that worksheet until the end of the quarter. (Despo)

13. Sarah Avery was Student’s history teacher. She testified that she attended the 504 meeting, participated in the discussion, and was familiar with the plan. She recalled allowing Student more than three days to submit missed work on a number of occasions and could not recall a time that she did not allow Student three days before giving him a grade of zero for an assignment. She explained that after the 504 meeting she gave Student a list of assignments he was missing and told him she would allow him additional time over vacation week to turn in the work without receiving zeros. Student did not complete the work. She wrote a progress report on March 8, 2005, that showed the work that remained incomplete. (S-18, pg. 8) On March 11, 2005, Ms. Avery wrote a note regarding his current status and indicated, “Student needs to make up the work when he is absent.” His average at that time was 37%. (S-18, pg.14) She explained that she had assessed his overall effort as poor, not based upon his absences, but based upon his very minimal completion of missing assignments.

Ms. Avery testified that she regularly put work and notes regarding assignments in Student’s homework folder throughout the third and fourth terms. She kept copies of her notes for her own records. (S-18, pg. 16) She estimated that she left work in his folder once or twice each week. On April 5, 2005, she wrote a note to Linda Noone to update her as to Student’s missing assignments. She listed an outline that had been due on March 11 that she was still willing to accept for credit. She also listed a test that had been due on March 28. (S-18, pg. 15) She completed progress reports on May 6, May 20, and May 26, 2005 which listed all assignments that still had to be completed. (S-18, pgs. 28-32)

Ms. Avery testified that Student had not passed in a history paper that was due on January 18, 2005. She stated that she was still willing to accept the paper as of March 18, 2005, but Student still did not give it to her. Ms. Avery testified that she never received Student’s third quarter history paper. She testified that he handed in his fourth quarter history project, but not on the day it was due. She stated that the paper was due on the same day for Student as it was for the rest of the class. (Avery)

14. Linda Noone testified that she has been a special education teacher for over 24 years (5 years at Leominster High School). She testified that Ms. Hitchcock asked her to tutor Student because he had been absent for many days and she had extensive experience tutoring students who had been absent from school and helping them catch up with their work. She kept a detailed record of all she did with Student in an agenda book and plan book. On March 23, 2005 she sent a notice to all of his teachers stating she would be tutoring Student and requesting that they provide her with all of his missing assignments. She knew most of his teachers and they were very cooperative. On April 4 she met with Student and showed him all his work from his teachers and a due date for each assignment. She would check all of his work when they met and write, “not done yet” on the assignments he had not completed. (Noone)

Ms. Noone testified that on April 26 Betty Raymond, the computer teacher, informed her that Student had not passed in his notebook. Student had told Ms. Noone he had handed it in. On April 29 Ms. Noone met with Mother to discuss some frustration she was having trying to keep track of Student’s work. Student was telling some teachers he had given his work to Ms. Noone when he had not passed it in. She told Mother and Student that if he was not honest with her she could not follow up on everything and could not work with him. Student was honest with her most of the time after that. (Noone)

Ms. Noone testified that for the most part all of Student’s teachers accepted work that was very late. She spent more time organizing him than actually tutoring him when she worked with him. Ms. Noone did some tutoring in algebra and copied some examples from the internet to assist Student with factoring. Student preferred working on-line to try to figure out problems on his own. Ms. Despo was always willing to help Student with work. (Noone)

Ms. Noone testified that she never saw the final draft of Student’s fourth quarter history project. Ms. Avery told her that Student left early on the morning the paper was due and she did not receive it on the correct date and took eighty points off his grade. Student had been dismissed on June 2 and Ms. Avery had said there was no reason for his not passing in his paper. (Noone)

Ms. Noone testified that Student had strep throat at the end of the year and she worked on helping him arrange to take his exams. Ms. Despo said she would work with Student after school and all of his teachers were willing to help him. Student was ready to take his exams. He worked with Ms. Despo after school to review. (Noone)

Ms. Noone testified that she believed Student was capable of doing the work that he had missed, but he “was weaving a tangled web trying to cover his tracks” when he did not complete work. She did not view him as “totally stressed out.” She reported he was always smiling and was great to work with. She provided him with structure and he responded well. By the end of the school year she thought he could “tow the line well.” She testified that the teachers did not require him to make-up all the work he missed such as the classwork. (Noone)

15. Ms. Curry testified that she spoke to Dr. Hart about Student receiving incompletes as grades for the fourth quarter and he asked teachers if they were willing to give them to Student. Dr. Hart stated that he would need to be provided with doctor’s notes for Student to receive incompletes. She spoke to Ms. Noone before the exams to find out if Student was ready for them. (Curry)

16. Teri Bisbee testified that she is Student’s advocate and she accompanied Mother to school to check Student’s homework file every time Student was absent. She once saw nothing in Student’s homework folder. She testified that Student had strep throat at the end of the year and he handed in the project that was due on June 2, 2005 a few days late. She never spoke to Student’s teachers. She testified that she recognized the document marked as P-D-7 as being Student’s history project. She testified that she was at Student’s house and saw Student print it out and put it in his backpack. She then stated that she was at his house when he returned from school and it was no longer in his backpack. (Bisbee)

17. Mother testified that she thought she was asking for Student’s 504 plan to be “re-visited” in her March 14, 2005 letter. She testified that Student brought his history project in on March 21, 2005 and handed it in. She saw the completed project and had made sure he completed it. Fourth quarter Student was absent on June 2, 2005 when his history paper was due. He handed it in on June 6, 2005. Student told Mother that Ms. Avery had said she was going to take 80 points off the paper for being late. Mother believed said deduction of points did not comply with Student’s 504 plan. (Mother)

18. Ms. Curry testified Mother was satisfied with the services being provided to Student when Ms. Noone began working with him. She explained that at that time she was no longer talking to Mother about non-compliance with the 504, but that Mother remained dissatisfied with what had happened prior to the 504 plan. (Curry)

FINDINGS AND CONCLUSIONS:

There is no dispute regarding Student’s eligibility for a 504 plan nor is there a dispute as to the appropriateness of the 504 plan drafted for Student. The dispute arises over whether the Leominster Public Schools complied with the 504 plan that was drafted for Student. Mother believes that the plan was not complied with and asks that Student’s grades in algebra and history be amended because of non-compliance with the 504 plan.

A 504 accommodation plan is utilized when a Student requires a reasonable accommodation to enable him or her to learn. Student’s 504 plan was drafted to assist him in catching up on assignments when his disability made it necessary for him to be absent from school. The accommodation plan was not intended to provide Student with extra time to do his work when he was absent for reasons other than his disability. Leominster had a policy, as noted in its student handbook, of requiring students to provide a note from a medical provider when an absence was necessitated. Of the forty absences recorded for Student, only four were excused by a doctor’s note (P-A, pg. 6). Of the four excused absences, only one occurred after the 504 plan was drafted on February 15, 2005. Therefore, Leominster Public Schools was only required to provide the accommodations listed on Student’s 504 plan for one excused absence on March 10, 2005. However, the evidence overwhelmingly supports Leominster’s position that it provided Student with supports above and beyond what was required by the 504 plan for both excused and unexcused absences.

Ms. Despo, Ms. McCauliffe, and Ms. Floria were all credible in their testimony that they always provided accommodations to Student consistent with what was written in his plan. They each were able to demonstrate through their testimony and documentation provided in the record that they consistently left homework for Student, along with notes regarding assignments missing and their due dates, in his homework folder. Ms. Despo was also able to show sample problems and explanations she had provided to Student in response to his questions regarding particular problems. Ms. Despo was the only one of the three aforementioned witnesses whom Mother questioned regarding grades given to Student. With respect to the zeros that she gave to Student, she was able to demonstrate that each zero was given only after Student failed to complete an assignment by the end of the relevant marking period. Ms. Despo was credible in her testimony that she often gave Student several weeks to make-up missing work, well beyond the time period required by his 504 plan.

Ms. Hitchcock demonstrated that she responded promptly to Mother’s March 14, 2005 letter alleging that the 504 was not being implemented. She gathered Student’s teachers and required them to provide documentation of their compliance with the plan. She spoke with the teachers and reviewed their documentation and concluded that they were implementing the 504 plan. She then responded to each of Mother’s concerns in her March 23, 2005 letter. (Hitchcock)

Ms. Curry was a candid and credible witness who gave thoughtful responses. She was persuasive that she did what her position required to ensure compliance with the 504 plan. She confirmed that all Student’s teachers provided a progress note after the February 15, 2005 504 meeting to ensure that Mother and Student knew where he stood with respect to each class. She met with Student immediately after the 504 meeting to ensure that he knew where the tutoring services were to be provided and that he was comfortable going. She also met with Student’s teachers and Ms. Noone to review Student’s final exam schedule prior to the end of the year. (Curry)

Ms. Avery was the teacher with whom Mother found the most fault. (Mother) Ms. Avery was somewhat confused about dates upon which Student handed in work and was somewhat defensive in some of her responses. However, I found her to be generally credible and relied upon her testimony regarding history papers that were and were not passed in by Student. She was familiar with the requirements of the 504 plan and was able to point to many pages of work, progress notes, and notes about missing assignments she had written for Student to show that she had complied with it. (S-8, S-11, S-12, S-18) She was also able to point to several examples of times that she allowed Student more than three days to complete missed work. (Avery, S-18, pgs. 3-8) She was credible in her testimony that her assessment of Student’s effort was not based upon his absences, but upon what she described as “very minimal effort” in completing missing assignments. (Avery)

There was a dispute about almost every term project in history class. Second quarter Student was required to complete a project about the Constitution. Mother alleged that Ms. Avery refused to accept it initially and Ms. Avery testified that she was willing to accept it as late as March 18, 2005 despite its being due on January 18, 2005. Ms. Avery testified that she did not receive the paper as of March 18, 2005. As she is the only witness who had direct knowledge of whether or not Student handed in the project, I credit her testimony. Student’s third quarter history paper was also a disputed issue. Ms. Avery testified that she never received the paper from Student. Mother testified that Student told her he passed the report in to Ms. Avery’s basket. Ms Bisbee testified that she was present while Student printed the document and placed it in his backpack as well as when he returned to school without it in his backpack. She also testified that she was familiar with parent exhibit P-D, pg. 7-10 and could identify it as Student’s history paper. Ms. Avery reviewed P-D, pg. 7-10 and stated she had never seen said document. In assessing the weight to place on each witnesses testimony, I must determine who has actual first hand knowledge of said document. Certainly Student would have been able to testify as to whether he authored the document and when he handed it in. However, he did not testify at the hearing. Ms. Avery would be the next most reliable witness because she is the only other witness who would have actually seen Student hand in the project. Ms. Avery testified that Student did not give her a project and that she had never seen P-D, pg. 8-10. Mother and Ms. Bisbee rely upon each other’s testimony and the first page of the document which they believe shows that the document was printed on April 11, 2005 at 9:19 p.m. Even if I was persuaded that Student did print his history paper on April 11, 2005 at 9:19 p.m., neither Mother nor Ms. Bisbee are able to establish that Student handed the paper in to Ms. Avery. Only Student or Ms. Avery could testify persuasively as to that point. Since Student did not testify and Mother did not credibly rebut Ms. Avery’s testimony, I credit Ms. Avery’s testimony regarding the third quarter history project.

The final history project was the subject of yet another dispute. Mother believed Student’s 504 plan was not followed because Student was required to hand in the paper on the same date as the rest of the class, June 2, 2005 despite having been absent. (Mother) Student did not in fact hand in the paper until on or around June 6, 2005. (Noone) However, Student was absent due to strep throat, not because of his identified disability of sinusitis or mold allergies. Therefore, there was no requirement that Student be provided with any accommodations due to his absence. Additionally, Ms. Avery had been reminding Student for weeks of the due date of the assignment. If Student or Mother had a concern that the date was not being calculated correctly they could have addressed it prior to the due date instead of after the fact.

Another way in which the Leominster Public Schools provided Student with more than what was required by the 504 plan is the provision of tutors. The 504 plan did not require the provision of either an in-school or an out-of-school tutor. However, Student was provided with both. He had in-school tutors available to him although he did not utilize them very much. (Curry) Additionally, Ms. Noone worked extensively with Student. Leominster staff and Mother were both pleased with the services provided by Ms. Noone. There is no dispute that her services were not required under the 504 plan, but Ms. Hitchcock testified that she was provided to assist Student in catching up on work. (Hitchcock)

Although Mother raised concerns regarding the process that was followed in drafting the 504 plan, this decision does not address those because they were not raised in the hearing request or at the pre-hearing conference.

Based on the totality of the credible evidence before me I am persuaded that Leominster Public Schools followed Student’s 504 plan and further, provided him with additional supports not required by the 504 plan.

ORDER

Based upon the foregoing, Leominster complied with Student’s 504 accommodation plan. As such, there is no basis for ordering an adjustment to either his algebra or history grades or for ordering any other relief.

By the Hearing Officer,

____________________________________

Catherine M. Putney-Yaceshyn

Dated: November 14, 2005

1

The hearing officer offered the parties earlier dates, but Parent requested that the hearing not be scheduled until August because she wished to serve discovery upon the school district and required time to prepare her case. (See June 16, 2005 Order of the hearing officer.)

2

Ms. Bisbee identified herself as Student’s advocate. However, she did not file an appearance in this matter and she did not represent Student at the hearing. She advised Mother during the hearing, but Mother represented Student during the entire hearing.