COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: New Bedford Public Schools
BSEA # 01-3505
DECISION
This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
A hearing was held on October 15 and 16, 2001 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Father
Lawrence Finnerty Administrator of Special Education, New Bedford Public Schools
Marlene Roderiques Adjustment Counselor, New Bedford Public Schools
John Dooley Guidance Counselor, New Bedford Public Schools
Joseph Carney New Bedford Public Schools
Michael McDavitt Psychologist, Louzan Associates
Dina Levitre Director of Education, Sylvan Learning Center
Luray Wallace Attorney for Parent
Cathryn O’Neill Attorney for Parent
Thomas Nuttall Attorney for New Bedford Public Schools
Catherine Lyons Attorney accompanying Mr. Nuttall
The official record of the hearing consists of documents submitted by the Parents and marked as exhibit 1 through 23 (hereafter, Exhibit P-1, etc.); documents submitted by the New Bedford Public Schools (hereafter, New Bedford) and marked as exhibits 1 through 10 (hereafter, Exhibit S-1, etc.); and approximately 7 hours of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due (and were received) on November 2, 2001, and the record closed on that date.
ISSUES PRESENTED
Issue 1 : Is Student currently eligible for services pursuant to either special education law or Section 504 of the federal Rehabilitation Act? If so, should New Bedford be required to pay for educational services to Student from the Sylvan Learning Center?
Issue 2 : Was Student eligible for services at any time from January 2001 to the present pursuant to either special education law or Section 504 of the federal Rehabilitation Act? If so, should New Bedford be required to reimburse Parent for expenses for educational services to Student from the Sylvan Learning Center?
STATEMENT OF THE EVIDENCE
Student is a fifteen-year-old boy, currently in the 10 th grade at the New Bedford High School. Since the 1 st grade, Student has struggled with his academics, typically receiving grades of C’s and D’s, although (as described below) his grades improved significantly for the second half of the 9 th grade (2000-2001) school year. Student often has experienced a “significant level of stress and anxiety” regarding his education, and has suffered low self-esteem. Student has also complained of headaches and stomachaches, although it is not apparent what has caused these difficulties. Testimony of Father; Exhibits P-18, S-1, S-10.
Father first requested that his son be found eligible for special education during Student’s 7 th grade year (1998-1999). In a determination dated 6/28/99, New Bedford concluded that Student was not eligible for special education services. However, New Bedford recognized that Student needed a structured setting, as well as assistance with organization, study habits and completing classwork and homework. New Bedford offered regular education tutoring three times per week, a concentrated competency program (hereafter, CCP) two times per week for vocabulary development, and weekly progress cards. Student was also offered extra help by teachers after school as needed and requested by Student. Father accepted these services. To address self-esteem issues, New Bedford also offered the opportunity to participate in the “SAP” program and to see the guidance counselor once each week. Testimony of Father, Dooley; Exhibits S-10, P-18.
Father requested an independent evaluation, and on July 17 and 31, 2000 (after 8 th grade), a psychoeducational evaluation was completed by Michael McDavitt, MEd, CAGS, of Louzan Associates. The IEP Team met to re-consider Student’s eligibility in light of the independent evaluation. By determination of September 25, 2000, New Bedford concluded that Student was not eligible for special education services. The determination explained that, in the opinion of the Team, Student does not have the requisite disability that is necessary to be eligible for special education. The Team, however, recommended a CCP class to assist Student with reading and math, weekly progress reports to monitor Student and a change in his algebra course from “concentrated algebra” (which Student was failing) to “standard algebra.” Student could also stay after school for extra help in any of his courses. Testimony of Father; Exhibit P-19, S-5.
During the first half of 9 th grade (2000-2001), Student often was absent for part or all of the school day. His school performance further deteriorated during this time period, and New Bedford initiated a Child in Need of Services (CHINS) petition in juvenile court. Student’s grades for the first half of 9 th grade were two D’s (algebra and history), an F (English) and a C (physical education). Student saw a private therapist for counseling six times during this time. The counseling was paid for by Father through insurance. Parents have declined to allow New Bedford to speak with the private therapist. Testimony of Father, Dooley; Exhibit S-1.
In January 2001, Father privately engaged the Sylvan Learning Center in Rhode Island to test his son and then to begin working with his son on Saturdays to address his learning deficits. The Saturday sessions typically were two hours long and utilized material prepared by Sylvan to address skill deficits identified by Sylvan through the standardized testing in January. Subsequent to beginning this instruction with Sylvan, Father noted an improvement in his son’s self-esteem and academic progress. Testimony of Father, Levitre; Exhibits P-21, S-1.
At a meeting on April 2, 2001, Father advised New Bedford that his son did not like CCP as he wanted more interaction with teachers. New Bedford then offered Student individual tutoring in lieu of CCP. Father declined the tutoring because it would require Student to give up his class on technology fundamentals. At the April 2 nd meeting, Dr. Roderiques (New Bedford’s school adjustment counselor) also offered to help Student with organizational issues, time management and counseling through individual meetings to be arranged at Student’s request. Student met with Dr. Roderiques on April 3 rd and April 5 th , but Student did not attend the next two scheduled appointments, and he did not schedule any further appointments with Dr. Roderiques. Testimony of Roderiques, Dooley, Father.
In May 2001, with approximately six weeks remaining in the academic year, New Bedford offered to provide Student with tutoring three times per week to address reading and study skills. This tutoring would occur after school so as not to conflict with any of Student’s classes. Father did not accept this service, and it was therefore not provided. Testimony of Father, Levitre, Dooley; Exhibit P-22.
By the end of 9 th grade, Student’s attendance, completion of homework and school performance had improved, and the CHINS petition was dismissed. Student’s grades for the second semester of 9 th grade were an A (tech fundamentals), A- (English), C+ (CCP), C (science) and D (health). Sylvan Learning Center re-tested Student in July 2001; this testing (discussed in more detail below) indicated significant improvement, particularly in the area of reading comprehension. Testimony of Father, Dooley, Levitre; Exhibits S-1, P-22.
A Psychoeducational Assessment performed by New Bedford in June 1999 noted concerns in the social/emotional area. The report explained that Student expresses frustration in dealing with conflict in the school environment with a significant level of stress and anxiety. The evaluator recommended that Student would benefit from short-term counseling to teach him how to express his feelings as a means of lowering his stress level. Exhibit P-7.
As noted above, Michael McDavitt performed a psychoeducational assessment of Student on July 17 and 31, 2000 as an independent evaluation requested by Father. Mr. McDavitt is a certified school psychologist employed by the Foxborough Public Schools since 1997 and part-time by Louzan Associates. Mr. McDavitt has a masters degree in education and has worked within education since 1974. Mr. McDavitt has performed approximately 700 similar evaluations (including 108 psychoeducational evaluations during the past year) — 20 of these evaluations were through his employment with Louzan Associates and the remainder with Foxborough Public Schools. The independent evaluation of Student was performed through Mr. McDavitt’s employment with Louzan Associates. Testimony of McDavitt; Exhibit P-1 (resume of McDavitt).
Mr. McDavitt testified (and his written report explained) that he administered to Student the Wechsler Intelligence Scale for Children-Third Edition. Student’s performance yielded a Full Scale Intelligence Quotient of 104 (average, at the sixty-first percentile), a score of 97 on the verbal subtests (average at the forty-second percentile) and a score of 111 on the performance subtests (high average at the seventy-seventh percentile). The report noted that the discrepancy of fourteen points between the verbal and performance scores is technically not statistically significant since fifteen points equal one standard deviation; and on the basis of this and Student’s average verbal test scores, Mr. McDavitt concluded that Student is not language-disabled but nevertheless has “some language based learning inefficiencies.” Testimony of McDavitt; Exhibit P-2 (report of McDavitt).
Mr. McDavitt also administered to Student the Woodcock-Johnson Tests of Achievement-Revised (including a reading battery) and the Gray Oral Reading Tests-Third Edition to assess Student’s skills in academically-related areas. Mr. McDavitt testified that the only subtest scores from the reading battery that were below average were dictation which measures spelling, punctuation and grammar (score at the twenty-first percentile) and visual matching which measures visual discrimination using symbols essential in reading fluently (score at the ninth percentile). Mr. McDavitt’s testimony and report reflect average scores in Broad Reading (fifty-fourth percentile) and Reading Skills (fiftieth percentile); these tests measure Student’s overall reading abilities. Testimony of McDavitt; Exhibit P-2.
Mr. McDavitt testified that Student’s scores on the Gray Oral Reading test were second percentile for rate of reading, sixteenth percentile for accuracy and ninety-ninth percentile for comprehension. Mr. McDavitt explained that on this test, as Student read more and more difficult passages (including passages well above his grade level), he continued to have good comprehension, but his rate of reading slowed down. Testimony of McDavitt; Exhibit P-2.
Mr. McDavitt’s report indicates that when listening to Student read aloud, it is clear that he has not mastered all of the basic phonics rules and that his decoding skills are below grade level. Mr. McDavitt testified that Student appears to be struggling with the mechanics of reading (for example, sometimes making mistakes regarding visual tracking and pausing to decode words) with the result that reading is very “labor intensive”, a “struggle” and a “daunting” task for Student. Mr. McDavitt explained that Student’s difficulties with reading lead to frustration and slow reading (perhaps taking twice as long as a typical peer to read an assignment). Because of Student’s reading difficulties, Mr. McDavitt concluded that Student would benefit from academic assistance, including a structured reading program, such as the Wilson Reading Program, Orton-Gillingham or Project Read, that would give Student compensatory reading strategies. Testimony of McDavitt; Exhibit P-2.
Mr. McDavitt testified that, based on Student’s scores on the verbal intelligence test, he does not have a disorder in one or more of the basic psychological processes involved in understanding or using spoken or written language. Mr. McDavitt further opined that Student’s intellectual ability is commensurate with his achievement regarding basic reading skills, with no significant discrepancy between them. Mr. McDavitt explained that although Student has significant reading weaknesses or difficulties in particular areas (for example, reading mechanics), they are compensated by his comprehension skills, with the result that his overall reading abilities are in the average range. Testimony of McDavitt; Exhibit P-2.
In order to gain insight into Student’s socio-emotional functioning, Mr. McDavitt conducted a diagnostic interview of Student, had Parents complete Behavior Rating forms, and had Student complete Incomplete Sentence Blanks and the Piers Children’s Self-Concept Scale. Mr. McDavitt testified that Student’s “sense of self” is well below average. However, Mr. McDavitt testified that his evaluation of Student did not indicate that Student has psychiatric abnormalities or an emotional disturbance. Mr. McDavitt further noted that his evaluation did not include any projective testing which would be helpful in determining whether Student has an emotional disability and which would be necessary to make a diagnosis. Testimony of McDavitt; Exhibit P-2.
On the basis of Mr. McDavitt’s observations and evaluation results, Mr. McDavitt recommended in his report that the IEP Team find Student eligible for special education services. Testimony of McDavitt; Exhibit P-2.
Dina Levitre testified that she has been the Director of Education of the Sylvan Learning Center for the past five years. She explained that she has a masters of arts degree in teaching and is certified to teach elementary education in Rhode Island. She has also been trained by Sylvan Learning Center to administer the tests used by the Center to evaluate children. She explained that she knows Student through his enrollment conference and occasionally working with him as his teacher on Saturdays. Testimony of Levitre, Father; Exhibit P-20 (resume of Levitre).
Ms. Levitre testified that another Sylvan staff person (with essentially the same credentials as Ms. Levitre) administered a series of tests to Student in January 2001. She explained that one of the tests was the Gray Oral Reading test, on which Student scored at the sixteenth percentile for rate, twenty-fifth percentile for accuracy, sixteenth percentile for passage and thirty-seventh percentile for comprehension. Ms. Levitre further explained that the California Achievement Test was also administered, and then re-administered by Ms. Levitre in July 2001, with Student’s scores increasing in vocabulary by 0.2 grade equivalency (from 8.1 to 8.3), increasing in comprehension by 3.1 grade equivalency (from 6.4 to 9.5) and increasing in total reading by 1.3 grade equivalency (from 7.4 to 8.7). Testimony of Levitre; Exhibits P-21, P-22 (test scores).
Ms. Levitre testified that Sylvan seeks to address academic skill gaps and does not diagnose or treat learning disabilities. She explained (and the written materials from Sylvan confirm) that Sylvan administers standardized tests for purposes of placement within a Sylvan program, and test results reported as grade equivalent are not expected to equal a child’s classroom grade level. She concluded that it is not possible to determine from the tests administered by Sylvan whether Student has a reading or other learning disability. Testimony of Levitre; Exhibit P-21 (see bottom of the first two pages of exhibit).
FINDINGS AND CONCLUSIONS
Parents seek to establish eligibility for special education from January 2001 through the present, or alternatively eligibility under Section 504 of the federal Rehabilitation Act. Through this eligibility, Parents seek to obtain reimbursement for services provided their son at Sylvan Learning Center during this time period. Parents also seek an order requiring New Bedford to pay for those services prospectively.
New Bedford agrees that Student has had educational difficulties and has offered a variety of services and accommodations within regular education which, New Bedford, believes address those difficulties. See STATEMENT OF THE EVIDENCE above. But, New Bedford argues that Student does not meet eligibility standards under either special education or Section 504.1
A. Eligibility for Special Education and Related Services
I begin the analysis of these issues by first considering the question of whether Student is currently, or has been at any time since January 2001, eligible for special education and related services pursuant to either the federal Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq . or the state special education law, MGL c. 71B, and their implementing regulations.
The state special education regulations (603 CMR 28.02(9)) define an eligible special education student as follows:
Eligible student shall mean a person aged three through twenty-one (3-21) who has not attained a high school diploma or its equivalent, who has been determined by a Team to have a disability(ies) , and as a consequence is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service . An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum. In determining eligibility, the school district must thoroughly evaluate and provide a narrative description of the student’s educational and developmental potential.2
The federal special education regulations use a similar two part test, requiring that in order to be eligible, a child have one of the enumerated disabilities (which are similar to the state definitions of disability) and that by reason of the disability, the child needs special education and related services. 34 CFR 300.7(a)(1).
In other words, both the state and federal eligibility standards require, as the first prong of the test, that Student meet one or more of the enumerated disabilities. Parents argue that Student has a disability by virtue of meeting the definition of “specific learning disability”, “emotional impairment” and/or a “combination thereof”.3
1. Specific Learning Disability .
The state special education regulations’ definition of “specific learning disability” provides:
Specific Learning Disability – The term means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think speak, read, write, spell, or to do mathematical calculations. Use of the term shall meet all federal requirements given in federal law at 34 C.F.R. §§ 300.7(c)(10) and 300.541 .4
The federal regulation at 34 CFR 300.7(c)(10), which has been incorporated by reference into to the above state definition, further provides:
Specific learning disability is defined as follows:
(i) General. The term means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written , that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.
(ii) Disorders not included. The term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. [Emphasis supplied.]
The federal regulation at 34 CFR 300.541, which has also been incorporated by reference into to the state definition of “specific learning disability”, further provides:
Criteria for determining the existence of a specific learning disability.
(a) A team may determine that a child has a specific learning disability if—
(1) The child does not achieve commensurate with his or her age and ability levels in one or more of the areas listed in paragraph (a)(2) of this section, if provided with learning experiences appropriate for the child’s age and ability levels; and
(2) The team finds that a child has a severe discrepancy between achievement and intellectual ability in one or more of the following areas :
(i) Oral expression.
(ii) Listening comprehension.
(iii) Written expression.
(iv) Basic reading skill.
(v) Reading comprehension.
(vi) Mathematics calculation.
(vii) Mathematics reasoning.
(b) The team may not identify a child as having a specific learning disability if the severe discrepancy between ability and achievement is primarily the result of—
(1) A visual, hearing, or motor impairment;
(2) Mental retardation;
(3) Emotional disturbance; or
(4) Environmental, cultural or economic disadvantage.
As is apparent from the above discussion, the state and federal definitions of “specific learning disability” are substantively identical.
The evaluations of Student by Mr. McDavitt in July 2000 and the standardized testing by Sylvan Learning Center in January 2001 indicate that Student has suffered from substantial reading deficits which have likely impacted significantly on his ability to read in general and do school work in particular. Mr. McDavitt was persuasive that when tested in July 2000, Student had significant weaknesses regarding the mechanics of reading, which contributed to a significantly reduced rate of reading as well as making reading a “struggle” and a “daunting” task. Mr. McDavitt was also persuasive that because of these difficulties, Student would benefit from special education in the form of a specialized reading program such as Orton-Gillingham. Apparently as a result of these findings, Mr. McDavitt recommended that Student be found eligible for special education. When Student was further tested by Sylvan Learning Center six months later, he continued to evidence reading skill deficits. Based on Student’s subsequent improvements as measured by Sylvan, it is reasonable to conclude that the reading services received from Sylvan to address these deficits were of significant benefit to Student. Testimony of McDavitt, Levitre, Father; Exhibits P-2, P-21, P-22.
However, in order to be eligible under either the state or federal special education standards, it may not be enough to have certain reading deficits which can be addressed through special education services. The requisite disability standard of “specific learning disability” (as quoted above) requires that Student have “a severe discrepancy between achievement and intellectual ability” in one or more of several particular academic areas. The academic area relevant to Student is basic reading skill.5
The Woodcock-Johnson Tests of Achievement-Revised indicated that Student’s general reading abilities were average. This is reflected in the tests described as Broad Reading (fifty-fourth percentile) and Reading Skills (fiftieth percentile) which measure Student’s overall reading abilities. In addition, on the Gray Oral Reading tests, where Student’s reading deficits were most clearly revealed, Student nevertheless tested, on the whole, to be in the average range. Mr. McDavitt testified persuasively that Student’s deficits (in rate of reading) are compensated by his reading strengths (in comprehension), with the result that Student, on the whole, must be considered to be of average reading ability. Consequently, Student’s intellectual ability (which is also in the average range) is commensurate with his achievement regarding basic reading skill, with no significant discrepancy between them. Testimony of McDavitt; Exhibit P-2. Student therefore does not meet the eligibility standard of a severe discrepancy between achievement and intellectual ability in basic reading skill.
The only evidence which might arguably rebut these conclusions is the testing of Sylvan Learning Center in January 2001 which found Student to be at the thirty-seventh percentile in reading comprehension on the Gray Oral Reading test, as compared to the ninety-ninth percentile when tested by Mr. McDavitt six months earlier. No evidence was presented to explain this disparity. I discount the testing of Sylvan for purposes of my analysis for the following reasons.
Through its literature and the testimony of its Director of Education (Levitre), Sylvan Learning Center makes clear that the standardized testing that it administers is for the purpose of determining placement within a Sylvan program. The testing of Student was done by a certified teacher who is trained by Sylvan to administer its standardized testing for a particular purpose. The Sylvan Director of Education made clear in her testimony that the testing by Sylvan is not for the purpose of nor should it be used to determine whether a student has a learning or reading disability. Testimony of Levitre; Exhibits P-21, P-22 (test scores).
In contrast, Mr. McDavitt by training and experience is well-equipped to administer and interpret standardized testing for the purpose of determining whether a student has a learning or reading disability and if so, how such a disability might be remedied. I find that Mr. McDavitt’s psychoeducational evaluation of Student was thorough and professional. For these reasons, it would not be appropriate to rebut his findings relevant to Student’s possible disabilities solely on the basis of inconsistent testing performed by Sylvan.
In addition, the state and federal definitions provide that a specific learning disability is “a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written . . . .”6 Mr. McDavitt’s unrebutted testimony was that based on Student’s scores on the verbal intelligence test, Student does not have a disorder in one or more of the basic psychological processes involved in understanding or using spoken or written language.
2. Emotional Impairment .
Alternatively, Parents argue that Student meets the disability requirement of the eligibility standards because he has an “emotional impairment” as defined by federal and state standards.
The state special education regulations’ definition of “emotional impairment” provides:
(f) Emotional Impairment – As defined under federal law at 34 CFR §300.7, the student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance : an inability to learn that cannot be explained by intellectual, sensory, or health factors; an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; inappropriate types of behavior or feelings under normal circumstances; a general pervasive mood of unhappiness or depression; or a tendency to develop physical symptoms or fears associated with personal or school problems. The determination of disability shall not be made solely because the student’s behavior violates the school’s discipline code, because the student is involved with a state court or social service agency, or because the student is socially maladjusted, unless the Team determines that the student has a serious emotional disturbance.7
On the basis of (i) a diagnostic interview of Student, (ii) Parents’ completion of Behavior Rating forms, and (iii) Student’s completion of Incomplete Sentence Blanks and the Piers Children’s Self-Concept Scale, Mr. McDavitt testified that Student’s “sense of self” is well below average. His report also notes that Parents’ and Student’s self-reporting indicates poor control of anger and excessive resistance, and that he is not well-liked by others. However, Mr. McDavitt testified that his evaluation of Student did not indicate that Student has psychiatric abnormalities or an emotional disturbance. Mr. McDavitt further noted that his evaluation did not include any projective testing which would be helpful in determining whether Student has an emotional disability and which would be necessary to make a diagnosis. Testimony of McDavitt; Exhibit P-2.
Father testified generally (and there is support within New Bedford’s determination of no special needs) that Student often has experienced a “significant level of stress and anxiety” regarding his education. Student has suffered low self-esteem. A 1999 Psychoeducational Evaluation by New Bedford further supports these general conclusions. Student has also complained of headaches and stomachaches. Testimony of Father; Exhibits P-7, P-18, S-10.
This evidence, while credible, is not persuasive. It does not explain in any detail or with any precision either the severity or the implications of Student’s symptoms. It is noteworthy that no professional with expertise in this area and no professional who has worked with Student regarding these issues (for example a counselor) testified or provided other evidence relevant to Student’s emotional difficulties, not to mention how any emotional difficulties have been impacting Student’s education. With this in mind, I now turn to the regulatory standard which Student must meet.
The above-quoted regulatory definition of emotional impairment requires that the student have certain specified emotional difficulties.8 For the reasons explained above, there is insufficient evidence from which any conclusions may be drawn regarding the characteristics necessary to meet the regulatory definition.
In addition, the regulatory standard quoted above requires that the emotional difficulties “to a marked degree . . . adversely affects educational performance”.9 No doubt Student has experienced significant academic difficulties. It seems likely that Student’s academic performance has been substantially impacted by his absences from school, failure to complete homework and frustrations with reading. Testimony of Father, Dooley. However, there is no evidence explaining what impact, if any, any emotional difficulties have had upon Student’s educational performance. Failure to establish a causal connection between Student’s emotional difficulties and his educational difficulties is fatal to Parents’ claim of eligibility under the category of emotional impairment.10
3. Conclusions .
For the above-stated reasons, I find that Student does not meet the requisite definition of a specific learning disability.
For the above-stated reasons, I find that there is insufficient evidence to establish that Student meets the requisite definition of emotional impairment.11
Accordingly, I conclude that Student has not been eligible since January 2001 and is not currently eligible for special education and related services.12
B. Eligibility under Section 504 of the Federal Rehabilitation Act
Protection against discrimination pursuant to Section 504 of the federal Rehabilitation Act extends only to persons who fit within the definition of a “qualified handicapped person”. The federal regulations define “handicapped person” as follows:
(1) Handicapped persons means any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.
(2) As used in paragraph (j)(1) of this section, the phrase:
(i) Physical or mental impairment means (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder , such as mental retardation, organic brain syndrome, emotional or mental illness , and specific learning disabilities .
(ii) Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning , and working.13
This language makes clear that to be considered a “handicapped person”, the student must meet two criteria – first, he must have one or more of the requisite mental or physical impairments (or have a record of such an impairment or be regarded as having such an impairment) and second, the impairment(s) must substantially limit one or more of his major life activities.
It is also clear from the above-quoted definition language that, in making a determination of who is protected, Section 504 differs from special education law in that Section 504 does not limit the definition of handicapped person to a list of specific conditions, but provides a broader definition of physical or mental impairment.14 Nevertheless, Parents’ only arguable claim for protection under Section 504 is that Student meets the requirement of “specific learning disabilities” or an “emotional . . . illness” – that is, impairments which are either identical or substantially similar to the two specific disabilities discussed above in the context of special education eligibility.
I begin with an analysis of the question whether Student meets the impairment described in the Section 504 regulations as “specific learning disabilities”. Although Section 504 does not define the term “specific learning disabilities”, I see no justification (nor has any been suggested by Parents) for interpreting this phase differently than the phrase “specific learning disability” is defined in special education regulations. As discussed above in part A1 of this Decision, Student does not fall within the category of a “specific learning disability” as that term is defined in special education regulations. Accordingly, I find that Student does not fit within this Section 504 impairment.
Alternatively, Parents argue that Student fits within the impairment described by Section 504 regulations as an “emotional illness”. For the same reasons that I concluded in part A2 of this Decision, that there is not sufficient evidence supporting the conclusion that Student has an “emotional impairment” for purposes of special education eligibility, I conclude that Parents have not provided sufficient evidence that could lead me to conclude that Student has an “emotional illness” for purposes of protection under Section 504.
In addition, even if I were to conclude that Student has such an impairment under Section 504, the impairment would have to substantially limit a major life activity, such as learning, in order for Student to be protected. As explained near the end of part A2 of this Decision above, there is nothing in the record that indicates that Student’s apparent emotional difficulties have negatively impacted his learning or other major life activity. Accordingly, Parents have failed to establish that Student fits within the protections of Section 504.
I conclude that Student has not since January 2001 and does not currently meet the requisite standards of being a “handicapped person” as that term is defined in Section 504 of the federal Rehabilitation Act and therefore is not entitled to protection against discrimination pursuant to this federal statute.
ORDER
New Bedford Public Schools’ denial of eligibility under special education law and Section 504 of the federal Rehabilitation Act, relevant to the time period of January 2001 through the present, is AFFIRMED.
By the Hearing Officer,
William Crane
Dated: November 15, 2001
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
EFFECT OF DECISION AND RIGHTS OF APPEAL
The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the 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). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Under 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 seek 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,” 20 U.S.C. s. 1415(j). 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. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).
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 M.G.L. c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.
COMPLIANCE
A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 C.M.R. s. 28.00, par. 407.0.
In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.
CONFIDENTIALITY
In order to preserve the confidentiality of the child 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.
NOTICE OF REVISED BUREAU PROCEDURES
ON RECONSIDERATION/REHEARING
The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.
In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A. See, Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
1
State law (MGL c. 71B, s. 2) provides that prior to a referral for an evaluation for special education, efforts must be made to meet a child’s needs through regular education services:
Prior to referral of a school age child for evaluation under the provisions of this chapter, the principal of the child’s school shall ensure that all efforts have been made to meet such child’s needs within the regular education program. Such efforts may include, but not be limited to: modifying the regular education program, the curriculum, teaching strategies, reading instruction, environments or materials, the use of support services, the use of consultative services and building-based student and teacher support and assistance teams to meet the child’s needs in the regular education classroom.
2
603 CMR 28.02(7)(j). The state special education statute (MGL c. 71B, s. 1) uses similar but slightly different wording to define an eligible special education student:
“ School age child with a disability”, a school age child in a public or non-public school setting who, because of a disability consisting of a developmental delay or any intellectual, sensory, neurological, emotional, communication, physical, specific learning or health impairment or combination thereof, is unable to progress effectively in regular education and requires special education services in order to successfully develop the child’s individual educational potential, including a school age child who requires only a related service or services if said related service or services are required in order to ensure access of the child with a disability to the general education curriculum.
3
The phrase “combination thereof” is found in the statutory definition described above in footnote 2.
4
603 CMR 28.02(7)(j) (emphasis supplied).
5
34 CFR 300.541, incorporated by reference into 603 CMR 28.02(7)(j).
6
34 CFR 300.7(c)(10), incorporated by reference into 603 CMR 28.02(7)(j).
7
603 CMR 28.02(7)(f). (Emphasis supplied.) This definition is substantially the same as the federal special definition of “emotional disturbance”. 34 CFR 300.7(c)(4).
8
603 CMR 28.02(7)(f).
9
Id.
10
Springer by Springer v. Fairfax County Sch. Bd., 27 IDELR 367 (4 th Cir. 1998) (parents must establish “critical causal connection between this condition [of emotional disturbance] and the educational difficulties [student] experienced”).
11
Parents argue that rather than applying the law in effect when reimbursement is being requested (i.e., January 2001 through the present) or when the re-determination of ineligibility was made by the Team (September 25, 2000), the Hearing Officer should apply the legal standards for eligibility in effect when New Bedford first determined Student to be ineligible – that is, in June 1999. Although I disagree with this argument, the application of eligibility standards in effect in 1999 would lead to the same result. In order to meet the impairment of “specific learning disability”, as that term was then defined, Student would be required to have a “significant discrepancy” between achievement and intellectual ability regarding reading. The evidence does not support this conclusion. Alternatively, Student would have to meet the disability of “emotional impairment” which is defined in a somewhat different manner than the current definition. For reasons described above in part A2 of this Decision, there is insufficient evidence (and no professional opinion) that Student meets this definition. Moreover, even if this definition were met, there is no evidence that this impairment has precluded Student from progressing effectively in regular education, as would be required under the second prong of the eligibility standard. 603 CMR 28.104.0a.
12
Because Student does not meet the first prong of the eligibility standard (that is, he must have one of the enumerated disabilities), I need not address whether Student meets the second prong of the state and federal standards discussed above at the beginning of section A of this Decision.
13
34 CFR 104.3(j) (emphasis supplied).
14
OCR Ruling Puyallup (WA) Sch. Dist. No. 3, 17 EHLR 1136 (May 23, 1991) (in contrast to special education law, “Section 504 . . . does not limit the definition of handicap to a list of specific conditions”).