Greater Lowell Technical High School – BSEA # 06-2895
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Greater Lowell Technical High School
BSEA # 06-2895
This decision is issued pursuant to the Individuals with Disabilities Education Act 2004 (IDEA) (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes.
A hearing was held on January 10, 2006 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Peggy Lombardi Guidance Counselor, Greater Lowell Technical High School
Keith Meliones School Psychologist, Greater Lowell Technical High School
Jill Davis Director of Special Education, Greater Lowell Technical High School
Mary Jo Santoro Principal, Greater Lowell Technical High School
Lawrence Aiello Attorney for Parents and Student
Arthur Sullivan Attorney for Greater Lowell Technical High School
The official record of the hearing consists of documents submitted by the Parents and Student and marked as exhibits P-1 through P-10; documents submitted by the Greater Lowell Technical High School (Lowell) and marked as exhibits S-1 through S-12; and approximately two hours of recorded oral testimony and argument.
Summary of the dispute . This case raises the question of whether Student, who has been suspended and then expelled from school for possession of illegal drugs, is entitled to protections under the Individuals with Disabilities Education Act (IDEA) and/or Section 504 of the Rehabilitation Act. Student has not been determined to be eligible under either the IDEA or Section 504.
Procedural history . On December 19, 2005, Parents’ attorney filed with the BSEA a request for an expedited hearing. The BSEA granted expedited status and assigned a hearing date of January 3, 2006. Parents’ attorney requested a postponement of the hearing date until the week of January 9, 2006. The postponement was granted and a new hearing date of January 10, 2006 was set. The case was re-assigned to the present Hearing Officer on January 6, 2006. The Hearing was completed on January 10, 2006. As agreed by the parties, written closing arguments were due on January 13, 2006, and the record closed on that date.
Position of Parents and Student . Parents and Student seek to establish that Lowell had sufficient knowledge that Student is a “child with a disability” (as that term is used within the IDEA) to bring Student within the protections of the IDEA. Pursuant to the IDEA, Parents seek a determination from the BSEA that their son has the right to “stay put”, that he has the right to a manifestation determination, and that he should have continued to receive educational services from Lowell. Ultimately, Parents seek reinstatement of their son into the general education curriculum at Lowell. Parents also seek protection under Section 504 of the Rehabilitation Act.
Position of Lowell . Lowell takes the position that it did not have sufficient knowledge when the incident of possession of illegal drugs occurred and that in any event, Student has been determined not to be eligible for special education, thereby terminating any rights under the IDEA. Lowell also notes that Student’s discipline involved possession of illegal drugs, with the result that Lowell may suspend Student without a manifestation determination even if he were to be determined eligible for special education services. Lowell further argues that Student has no additional rights under Section 504.
The issues to be decided in this case are the following:
1. Prior to the behavior that precipitated the disciplinary action, did Lowell have knowledge that Student was a “child with a disability” (as that term is used within the IDEA) with the result that Student is entitled to protections under the IDEA?
2. What protections, if any, is Student entitled to under the IDEA and Section 504 of the federal Rehabilitation Act?
3. If Student is entitled to protections under the IDEA or Section 504, did Lowell violate those protections when Lowell suspended and then expelled Student for possession of illegal drugs?
4. If Lowell violated Student’s procedural protections, what relief should be provided?
Profile of Student .
Student is a seventeen-year-old young man who lives with his Parents in Dracut, Massachusetts. Until he was recently expelled from school for possession of illegal drugs, Student had been attending the Greater Lowell Vocational High School as a regular education student in the 11 th grade. Student has never been determined to be eligible for special education or related services or to be eligible under Section 504. Testimony of Mother; exhibits P-5, S-7.
Student has been diagnosed with Attention Deficit Disorder (ADD). Student may have had this disability as far back as 1999. Testimony of Mother; exhibits P-2, P-4.
Chronology of events .
On April 13, 1999 when Student attended Dracut Middle School, a child study meeting took place with Mother and Dracut school staff. The written memorandum from that meeting indicates that Student had a “mild case of Attention Deficit Disorder that did not require medication”. The recommendations contained within the memorandum were that no evaluation was warranted at that time, and that Student should attend MCAS extra help sessions for language. Mother testified that at that time her son had difficulty staying focused in class. Testimony of Mother; exhibit P-2.
Mother testified that during the current school year, she has been concerned about her son’s progress in school (particularly regarding her son’s progress in math as he is in his third year taking Algebra), her son’s not being able to stay focused in class and his not getting his school work done. Testimony of Mother.
On August 23, 2005, Student had his annual physical exam with his pediatrician, Dr. Kaplan. Mother consulted Dr. Kaplan at that time about her son’s possibly having ADD. Dr. Kaplan recommended that Mother have her son’s teachers fill out Vanderbilt forms which would indicate the teachers’ opinions of Student’s behavior – for example, regarding his attention to detail, ability to sustain attention, etc. – relative to a possible diagnosis of ADD. Testimony of Mother; exhibit P-1.
Near the end of September 2005, Mother called the Lowell guidance counselor (Ms. Lombardi) to inquire about having her son’s teachers fill out the Vanderbilt forms. Mother explained to Ms. Lombardi that Mother was concerned about her son’s ability to focus and was consulting with someone outside the public schools regarding her son’s possibly having ADD, and that the forms were for this purpose. Ms. Lombardi instructed Mother to send to Ms. Lombardi (through Student) a written request together with the forms, and that Ms. Lombardi would then take responsibility for having the forms completed by Student’s teachers and returned to Mother. In her discussion with Ms. Lombardi, Mother did not indicate any concern regarding school, nor did she ask that Lowell complete an evaluation of her son. Testimony of Mother, Lombardi.
In a note dated September 29, 2005 to Ms. Lombardi, Mother wrote that she was enclosing the Vanderbilt forms to be filled out by her son’s teachers and returned to Mother. In Mother’s note, no reference was made regarding Student’s having a disability or having academic or behavior difficulty in school. Exhibit S-4.
In a responsive note dated October 12, 2005 to Mother, Ms. Lombardi wrote that she was enclosing the completed forms. The forms, completed by Student’s teachers, provided a variety of responses, depending upon the particular teacher. Some of the teachers (for example, in plumbing and history) reported little or no significant difficulty; other teachers (for example, in English, architecture and math) reported that in certain areas Student often or very often had difficulty – for example, with respect to sustaining attention to tasks, giving attention to details, avoiding careless mistakes and organization skills. Exhibits P-1, S-4.
Ms. Lombardi testified that if any of Student’s teachers or other staff had had concerns regarding Student’s behavior or academic difficulties, they would have likely contacted her, but no one has done so. She explained that Mother’s contact with her regarding the Vanderbilt forms was the first time that Student had come to Ms. Lombardi’s attention. Testimony of Lombardi.
On October 21, 2005, Student was found to have marijuana and Adderall in his possession at school.1 At this time, he was using the Adderall to self-medicate without a prescription. Approximately two weeks later, Student was taking Adderall for his ADD pursuant to a prescription under the care of his neurologist (Dr. Peter Raffalli). Testimony of Mother; exhibit P-4.
On October 21, 2005, Lowell suspended Student for possession of illegal drugs. On this date, Lowell’s principal/assistant superintendent (Ms. Santoro) was notified. This was the first time that Student had come to her attention. Testimony of Lombardi.
By letter of October 25, 2005, Parents’ then attorney (Joseph Balliro) wrote to Lowell stating that “student requires special needs” and requesting an evaluation “to address his special needs”. This was the first time that Student had come to the attention of the Lowell Director of Special Education (Ms. Davis). Testimony of Davis; exhibit S-1.
By notice dated October 27, 2005, Lowell proposed to conduct psychological and achievement testing of Student. Mother gave her written consent on November 2, 2005. A psychological report from Keith Meliones (school psychologist), dated December 2, 2005, reflects this testing. The report noted Student’s diagnosis of ADD, recommended that Student receive risk management counseling to help eliminate “risk-taking and risky behavior”, and stated that Student would benefit from vocational counseling. The report further recommended fourteen different accommodations for Student from the District Curriculum Accommodation Plan (DCAP). An Educational Status Assessment, dated November 15, 2005, was also completed. Exhibits P-7, S-2, S-3, S-5.
On November 2, 2005, there was an expulsion hearing with the Lowell principal (Ms. Santoro). Ms. Santoro’s letter to Student of November 3, 2005 stated that the hearing record would remain open until the special education evaluation and IEP Team meeting process had been completed. Ms. Santoro’s letter indicated that in the meantime Student was suspended and was to be provided home tutoring for an interim period, not to exceed 45 school days. Tutoring for approximately three hours per week began approximately October 27, 2005 and was discontinued approximately December 12, 2005. Testimony of Davis, Mother; exhibit P-3.
Student’s pediatrician (Dr. Kaplan) referred Student to a neurologist (Dr. Raffalli) who, by letter to whom it may concern dated November 30, 2005, wrote that Student is a patient under his care, that Student carries a diagnosis of ADD and that Student is taking Adderall to “manage his ADD”. Testimony of Mother; exhibit P-4.
On December 7, 2005, an IEP Team met to review the psychological and educational assessments, and to consider Student’s eligibility to receive special education and related services. Mother attended this meeting. Through this meeting, as reflected within a notice of December 13, 2005, Lowell determined that Student has ADD but denied eligibility on the basis that Student was making effective progress in school. Testimony of Lombardi, Meliones, Davis; exhibits P-6, S-9.
The December 13 th notice of ineligibility for special education also stated that Team members “recommended that a Section 504 plan be developed” for Student, and then included the recommendations from Mr. Meliones’ report, including the fourteen DCAP accommodations. The recommended accommodations included, for example, providing a set of textbooks for use at home, assess writing assignment on the basis of quality not quantity, preferential seating, and minimize classroom distractions. Exhibits P-6, S-9.
Ms. Davis testified that the above-stated Section 504 recommendation was intended to result in a referral to the Lowell Section 504 coordinator for the purpose of the 504 Team’s considering whether Student is eligible under Section 504, pursuant to the Lowell 504 Policy and Procedure Manual. Ms. Davis testified that this referral was never made and therefore Lowell made no formal determination of Section 504 eligibility. Ms. Davis and Mr. Meliones testified that once Student was expelled and was no longer a Lowell student, a referral was no longer appropriate. Testimony of Davis, Meliones; exhibits P-6, S-9, S-10.
By letter of December 15, 2005 from the Lowell Principal (Santoro), Student was expelled effective immediately, with the right to appeal to the Superintendent. Student appealed, and the expulsion was sustained by the Superintendent as a result of a January 5, 2006 Superintendent hearing. Consequently, Student was then (and remains) expelled indefinitely from school without any educational services. Testimony of Santoro; exhibit P-8.
1. The Individuals with Disabilities Education Act .
The Student in the instant appeal has not been determined to be eligible to receive special education and related services under the IDEA.
Pursuant to the IDEA, a student who has not been determined eligible for special education and related services may assert any of the protections within the IDEA
if the local educational agency had knowledge (as determined in accordance with this paragraph) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.2
Through the 2004 amendments that took effect on July 1, 2005, the IDEA requirements changed regarding when the local education agency (LEA) is deemed to have such knowledge. IDEA now provides:
A local educational agency shall be deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred– (i) the parent of the child has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services; (ii) the parent of the child has requested an evaluation of the child pursuant to section 614(a)(1)(B) [20 USCS § 1414(a)(1)(B)]; or (iii) the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency.3
I note that the term “child with a disability”, as used in the above-quoted language, is the term of art used to refer to a student who is eligible to receive special education and related services.4
I now consider each of the three, above-quoted conditions under which the local educational agency is deemed to have knowledge that Student is a “child with a disability”.
The first condition is that “the parent of the child has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services”.
It is self-evident that this standard has not been met. The only written statement prior to October 21, 2005 (the date of the behavior that precipitated the disciplinary action) was Mother’s note to Ms. Lombardi, which did not express concern that Student was in need of special education and related services. All other written statements (that are in evidence) from Parents or their representatives were dated subsequent to the behavior that precipitated the discipline (October 21, 2005) and therefore irrelevant for these purposes.
In their written closing argument, Parents and Student point to the 1999 child study statement indicating that Student has a mild case of ADD. However, there was no evidence that this information was shared with Lowell (or that Lowell was otherwise aware of this information) at any time prior to the filing of exhibits for the hearing in this appeal.
The second condition is “the parent of the child has requested an evaluation of the child pursuant to section 614(a)(1)(B) [20 USCS § 1414(a)(1)(B)]”. No representations have been made that this condition was satisfied. The only request for evaluation occurred subsequent to October 21, 2005 and is therefore irrelevant for these purposes.
The third condition is that “the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency.” There is no evidence that supports or otherwise satisfies this standard.
The only evidence that might arguably be relevant is the Vanderbilt questionnaires that were completed by Student’s teachers. The questionnaires reflect that some of Student’s teachers often or very often found that Student had difficulty in certain areas – for example, with respect to sustaining attention to tasks, giving attention to details, avoiding careless mistakes and organization skills. It is unclear whether these forms reflect the requisite “pattern of behavior”. In any event, however, Parents have produced no evidence to indicate that the forms themselves or the information contained within the forms was ever communicated “directly to the director of special education of such agency or to other supervisory personnel”. Rather, the evidence was that the forms were communicated only to Ms. Lombardi who is a guidance counselor and would not be considered “supervisory personnel”. Therefore, the Vanderbilt questionnaires as completed by the teachers do not satisfy this third condition.
This is not to say that Lowell personnel were unaware that Student may have had ADD (for example, as a result of Mother’s conversation with Ms. Lombardi at the end of September 2005) or that Student had certain academic difficulties (for example, in math) that were known by Lowell. Also, clearly, some of Student’s teachers had concerns related to Student’s attention deficits. However, the IDEA is explicit regarding what may (and therefore what may not) be considered to be deemed knowledge for purposes of Student’s obtaining protections under the IDEA, and none of what Parents have established as being known by Lowell would satisfy the statutory standard.
Equally important, even were I to find in favor of Student with respect to one or more of the three standards for deemed knowledge, any IDEA protections for Student would have continued only until the completion of the evaluation and Team process that determined Student not to be eligible.5 This is because the IDEA provides that once Lowell evaluated Student and made a determination of ineligibility through the IEP Team process, any deemed knowledge that Student was a “child with a disability” ends.6
For these reasons, I find that Lowell did not have deemed knowledge that Student was a “child with a disability” for purposes of protection under the IDEA.
With respect to a student for whom the LEA is not deemed to have knowledge, the IDEA provides as follows:
(D) Conditions that apply if no basis of knowledge. (i) In general. If a local educational agency does not have knowledge that a child is a child with a disability (in accordance with subparagraph (B) or (C)) prior to taking disciplinary measures against the child, the child may be subjected to disciplinary measures applied to children without disabilities who engaged in comparable behaviors consistent with clause (ii). (ii) Limitations. If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under this subsection, the evaluation shall be conducted in an expedited manner . If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with this part [20 USCS §§ 1411 et seq.], except that, pending the results of the evaluation, the child shall remain in the educational placement determined by school authorities.7
The evidence indicates that upon receipt of Parents’ request for an evaluation (by letter of October 25, 2005), Lowell completed an evaluation on an expedited basis and that pending the results of the evaluation, Student remained in the “educational placement determined by school authorities”, as required by the above-quoted statutory language.
Until such time as Lowell’s determination of ineligibility is appealed and reversed, resulting in Student’s being eligible for special education and related services, Student is entitled to no other protection under the IDEA, including any right to a manifestation or “stay put” that are sought by Parents and Student.8
For these reasons, I conclude that Lowell is in compliance with the IDEA.
2. Section 504 of the Rehabilitation Act .
I now consider whether Student is entitled to any protections under Section 504 of the Rehabilitation Act.9
Student is eligible under Section 504 if he falls within the following statutory definition of “individual with a disability”:
any person who– (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment.10
The question of Student’s eligibility under Section 504 is not before me, and I make no comment regarding the merits of this issue.11 However, because Lowell will need to consider Student’s 504 eligibility (for reasons discussed below) and because the parties have not referenced (and therefore may not be aware of) a federal statutory provision that may be relevant to a determination of Student’s rights (if any) under Section 504, I point it out to them.
The federal statute (describing those persons eligible under Section 504) provides that with respect to a student otherwise protected under Section 504 “who currently is engaging in the illegal use of drugs”, an LEA may take disciplinary action pertaining to the use or possession of illegal drugs to the same extent that disciplinary action is taken against students who are not protected under Section 504.12 I note that the statute appears to make a distinction between the current use of illegal drugs and the possession of illegal drugs. The evidence in the current dispute related only to Student’s possession of illegal drugs on October 21, 2005.
The only question before me is whether Lowell should have determined whether Student is eligible under Section 504 prior to expelling him from school, thereby leaving him with no educational services. I now consider this issue.
In the event that an LEA has reason to believe that a student is eligible under Section 504, an eligibility determination should be made prior to disciplinary action, particularly where that disciplinary action terminates a student’s right to receive educational services. This is because a student who is eligible under Section 504 may have certain procedural and substantive protections that may be violated if the LEA proceeds to discipline the student and terminate all educational services without regard to his or her status under Section 504.13
In the present dispute, on October 25, 2005, Student through his attorney requested an evaluation “to address [Student’s] special needs.” Lowell conducted this evaluation in a timely manner, and then considered and denied Student’s eligibility under the IDEA. At the same time that Lowell determined Student not to be eligible for special education, Lowell noted medical documentation verifying Student’s diagnosis of Attention Deficit Disorder, recommended that Student be provided with fourteen accommodations, and “recommended that a 504 plan be developed” for Student.
Notwithstanding its own recommendation that Student be covered under a Section 504 plan, Lowell proceeded to expel Student (thereby ending his enrollment and all educational services) without regard to Student’s potential eligibility (and possible protections) under Section 504. Final determination of Section 504 eligibility by Lowell would have occurred through the convening of a separate Section 504 Team, which did not occur.
For these reasons, I find that prior to expelling Student so as to leave him with no educational services, Lowell had an obligation to complete its determination of whether Student is eligible under Section 504. If Student is determined to be eligible, Lowell will then need to determine whether any modifications should be made with respect to its discipline of Student.
Lowell is in compliance with the Individuals with Disabilities Education Act.
Because Lowell expelled Student and terminated all educational services without first completing its determination of whether Student is eligible under Section 504 of the Rehabilitation Act, Lowell shall immediately determine whether Student is eligible under Section 504 for purpose of determining what modifications, if any, should be made with respect to Lowell’s disciplinary actions.
By the Hearing Officer,
Date: January 19, 2006
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
Parents’/Student’s attorney stipulated during the hearing that Student was in possession of marijuana and Adderall. Marijuana and Adderall are considered controlled substances under the IDEA. 20 USC 1415 (k)(7)(A). See Shire US Inc. v. Barr Lab. Inc ., 329 F.3d 348 (3rd Cir. 2003) (Adderall is composed of the mixed salts of a single-entity amphetamine and is a controlled substance); United States v. Tillett , 763 F.2d 628 (4 th Cir. 1985) (marijuana is a Schedule I controlled substance). During the time that Student did not have a prescription for Adderall, it would be considered an illegal drug under the IDEA. Marijuana is considered an illegal drug under the IDEA. 20 USC 1415 (k)(7)(B).
20 USC 1415(k)(5)(A).
20 USC 1415(k)(5)(B).
20 USC 1401(3) defines the term as follows: (A) In general. The term “child with a disability” means a child– (i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this title [20 USCS §§ 1400 et seq.] as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.
If I were to assume that Lowell had deemed knowledge and the IDEA protections therefore applied during this time period, I would conclude that Lowell appropriately suspended Student for possession of illegal drugs pursuant to 20 USC 1415 (k)(1)(G)(ii). Student/Parents do not contest the appropriateness of the alternative services (in this case, tutoring) that were provided during this time period.
20 USC 1415(k)(5)(C) provides:
Exception. A local educational agency shall not be deemed to have knowledge that the child is a child with a disability if the parent of the child has not allowed an evaluation of the child pursuant to section 614 [20 USCS § 1414] or has refused services under this part [20 USCS §§ 1411 et seq.] or the child has been evaluated and it was determined that the child was not a child with a disability under this part [20 USCS §§ 1411 et seq.]. [Emphasis supplied.]
20 USC 1415(k)(5)(D).
Student and his Parents may appeal to the BSEA the determination by Lowell that Student is not eligible. This has not yet occurred. Neither within the Hearing Request , nor during a conference call prior to the Hearing, nor during the Hearing itself have Student and Parents sought to have the BSEA consider Lowell’s determination of ineligibility for special education. For guidance regarding the standards relevant to eligibility for special education, see, e.g., In Re: Norwood , BSEA # 03-0391, 10 MSER 375 (MA SEA 2004).
Section 504 (29 USC 794) provides in relevant part:
No otherwise qualified individual with a disability in the United States, as defined in section 7(20) [29 USCS § 705(20)], shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
It is not disputed that Lowell receives federal financial assistance and is therefore subject to Section 504.
29 USC § 705(20). For a general discussion of eligibility under Section 504, see Calero-Cerezo v. U.S. Dept. of Justice , 355 F.3d 6, 20 (1st Cir. 2004); In Re: Hopkinton , BSEA # 05-4316, 11 MSER 127 (MA SEA 2005). Eligibility standards under Section 504 are generally considered to be broader (thereby including more students) than under the IDEA.
Student and his Parents may request that the BSEA determine that Student is eligible under Section 504. Neither within the Hearing Request , nor during a conference call prior to the Hearing, nor during the Hearing itself did Student and Parents seek to have the BSEA determine Student’s eligibility under Section 504. In their written closing argument, Student and Parents asked the BSEA to order a Section 504 plan for Student, but this request comes far too late in the proceedings for me to consider it.
29 USCS § 705(20)(c)(iv) provides as follows:
Disciplinary action. For purposes of programs and activities providing educational services, local educational agencies may take disciplinary action pertaining to the use or possession of illegal drugs or alcohol against any student who is an individual with a disability and who currently is engaging in the illegal use of drugs or in the use of alcohol to the same extent that such disciplinary action is taken against students who are not individuals with disabilities. Furthermore, the due process procedures at section 104.36 of title 34, Code of Federal Regulations (or any corresponding similar regulation or ruling) shall not apply to such disciplinary actions.
Office for Civil Rights (OCR) of DOE has concluded that prior to a suspension or expulsion for more than 10 consecutive school days, the LEA must satisfy a number of change of placement procedures, including but not limited to a determination of whether the misconduct in question was a manifestation of the student’s disability. Morton (WA) School District No 214 , 43 IDELR 92 (OCR 2004); Pomeroy (WA) School District No 110 , 42 IDELR 145 (OCR 2004); Cleburne County Board of Education , 36 IDELR 213 (OCR 2002). Although Section 504 regulations include no explicit “stay put” requirement, OCR has also concluded that a “fair due process system would encompass the school district waiting for the results of the process before making the change [of placement].” Letter to Zirkel , 22 IDELR 667 (OCR 1995). In addition, a student who is eligible under Section 504 is entitled to receive a free appropriate public education pursuant to Department of Education (DOE) regulations under Section (34 CFR 104.33). Missouri Dept., Elem. v. Springfield R-12 Sch ., 358 F.3d 992 , 998 (8th Cir. 2004) (“IDEA requires states that accept federal funding to provide a disabled student with a free and appropriate education. Section 504 of the Rehabilitation Act requires the same”) (internal citations omitted) (citing 34 CFR 104.33); Nieves-Marquez v. Commonwealth of Puerto Rico, 353 F.3d 108, 125 n.17 (1st Cir. 2003) (“ regulations implementing § 504 parallel IDEA’s language regarding substantive claims, requiring public schools receiving federal funding to ‘provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction’”); W.B. v. Matula , 67 F.3d 484, 492-493 (3 rd Cir. 1995) (noting that federal regulations require that each person protected under Section 504 receive a free appropriate public education, and concluding that there appear to be “few differences, if any, between IDEA’s affirmative duty and Section(s) 504’s negative prohibition”); Brougham ex rel. Brougham v. Town of Yarmouth, 823 F. Supp. 9, 13 n. 4 (D.Me. 1993) (“Because both the IDEA and section 504 of the Rehabilitation Act are built around fundamental notions of equal access to state programs and facilities, their substantive requirements, as applied to the rights of a handicapped child to a public education, have been interpreted to be strikingly similar. In regulations promulgated pursuant to section 504, the Secretary of Education has interpreted section 504 as requiring a recipient of federal funds that operates a public elementary or secondary education program to provide a free, appropriate public education to each qualified handicapped person in the recipient’s jurisdiction.”) (internal punctuation omitted) (citing 34 CFR 104.33(a)).