of School Commissioners of Baltimore County and Eshawn
A due process hearing was conducted before the undersigned Hearing
Officer on April 4, 2006, at 200 E. North Avenue, Baltimore, Md. 21202.
The hearing was based upon a Complaint filed by Katrina Bell,
("Ms. Bell" or "Parent") on behalf of her son,
Eshawn Bell, dated
February 3, 2006. The Complaint alleged that BCPSS violated Eshawn's rights
under §504 of the Rehabilitation Act of 1973,
29 U.S.C.§ 794 ("§504").
Timothy Dixon, Esq. appeared as counsel for BCPSS.
Ms. Bell appeared on behalf of Eshawn.
During the course of the hearing all parties were given the right to
be represented by counsel, to present opening statements, to present oral
testimony of witnesses, to cross examine opposing witnesses, to present
documents as evidence and to present closing statements. All witnesses testified under oath, and an
audio recording was made of the hearing.
PERTINENT PROVISIONS OF §504
The Rehabilitation Act of
1973 is a federal law enacted by Congress to promote, among other things,
the inclusion and integration of persons with disabilities into mainstream
society. Section 504 of the Rehabilitation Act provides:
otherwise qualified individual with a disability in the United States . . .
shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance. . . .
qualified individual with a disability is defined as a person with a
physical or mental impairment that substantially limits one or more major
life activities such as learning.
regulations promulgated under §504 with respect to education provide:
A recipient that operates
a public elementary or secondary education program shall provide a free
appropriate public education to each qualified handicapped person who is in
the recipient's jurisdiction, regardless of the nature or severity of the
34 C.F.R. §§ 104.33(a). An
"appropriate education" within the meaning of §§ 504 means:
regular or special
education and related aids and services that (i) are designed to meet
individual educational needs of handicapped persons as adequately as
the needs of nonhandicapped persons are met and (ii) are based upon
adherence to procedures that satisfy the requirements of §§§§ 104.34,
104.35, and 104.36.
34 C.F.R. §§ 104.33(b)(1).
Section 504 regulations at 34 C.F.R. 104.35 provides for periodic
reevaluation of students who have been identified as disabled.
In interpreting evaluation data, the regulations require
school systems to "draw upon information from a variety of
sources, including aptitude and achievement tests, teacher recommendation,
physical condition, social or cultural background, and adaptive
behavior" and "insure that the placement decision is made by group
of persons, including persons knowledgeable about the child, the meaning of
data, and the placement options."
The §504 Regulations, unlike the
Individuals With Disabilities in Education Act ("IDEA"), do not
require that the parent of a §504 eligible student be a member of the §504
committee that determines whether and to what extent services are required
in order to provide the student with FAPE.
THE PARENT'S COMPLAINT
The Parent complained that (1) BCPSS failed to provide Eshawn with
the services required by the §504 plan that had been developed for him by
his school's §504 Committee for his 2004 - 2005 school year
("2005"), and (2) BCPSS violated Eshawn's rights under §504 when
his school's §504 Committee decided on January 26, 2006, to dismiss him
from continuing to receive §504 services.
With respect to the dismissal of
services, the Parent's Complaint is based upon her judgement, in
disagreement with the Committee's decision to dismiss Eshawn, that Eshawn
continued to need the occupational therapy ("OT") services that he
had been provided by BCPSS since elementary school
According to her handwritten Complaint,
Eshawn needs continued OT services citing science and math projects
which require certain equipment that he might not be able to use because of
his disability. In addition,
she raised the possibility that he might have difficulty using his locker
and carrying heavy books home as reasons why OT should not be discontinued.
The Parent also contended that
the Committee decision was improper because the Committee relied upon
Eshawn's high academic achievement level as a factor in its decision
to dismiss him from receiving §504 services. (Jt. Exhibit No. 2)
1. What remedy, if any,
should be imposed on BCPSS if the School failed to provide the services to
Eshawn required by his 2005 §504 Plan.
2. Whether a
decision by the school's §504 Committee decision to dismiss Eshawn from
receiving §504 services can be invalidated on the grounds that the
Committee (a) considered Eshawn's judgement that he no longer needed §504
services as a factor in reaching its decision to dismiss him from §504 and
disregarded the Parent's judgement of Eshawn's need for continued OT
services, (b) considered
Eshawn's high level of academic achievements as a factor in reaching its
decision to dismiss him from receiving §504 benefits.
V. FINDINGS OF FACTS
Eshawn's History of §504 Plans
Eshawn is a regular education 7th grade student in the
gifted and talented academic program at the BCPSS's Stadium School.
He was identified as a student eligible for §504 services as a
result of a left brachia plexus injury suffered at birth and had a history
of receiving OT services from BCPSS under §504 Plans since October 1998.
He has been an honor roll student since elementary school with a
consistently high grade point average.
Following is a chronology of his §504 plans, all which were signed
by the Parent:
For the 2000-01 school
year - 30 minutes per week of
direct OT services and 30 minutes per month indirect OT services.
For the 2001-02 school year -
30 minutes per month of direct OT and 30 minutes per month of indirect OT.
For the 2002-03 school year - 30 minutes per month of direct OT and 30 minutes per month of
For the 2003-04 school year - 30 minutes per month of direct OT and 30 minutes per month of
For the 2004 - 05 school year (dated September 27, 2004)
- 30 minutes per
week of direct OT and 30 minutes per month of indirect OT. (BCPSS
Exhibit No. 8)
For the 2005 - 06 school
year (Dated August 3, 2005; BCPSS
Exhibit No. 2 at page 23) -
4 hours per year of indirect OT services (BCPSS Exhibit No. 3)
The 2005 School Year
The Parent alleged and BCPSS acknowledged that Eshawn did not receive
the 30 minutes per week of direct OT services written in his 2005 §504 Plan
which had been adopted on September 27, 2004.
According to the Parent's Complaint to the Maryland State Department
of Education ("MDSE"), she did not learn that Eshawn had not
received these services until she "found out" in May 2005 that his
name was not on a list for a review meeting.
(BCPSS Exhibit No. 4) Later, at
a meeting of the school's §504 committee conducted on June 6, 2005, the
Committee explained to her that a mistake had been made when the Plan for
school year 2005 was finalized in writing and signed, that the Committee had
intended to provide the same 30 minutes per month of direct services
that Eshawn had received during the preceding three school years, not 30
minutes per week. The
Committee noted, as well that "no adverse impact was evidenced by the
lack of services."
The Committee ordered an OT assessment "to determine the
continued need of occupational therapy." The Parent signed the meeting
notes. (BCPSS Exhibi8t No. 2, pages 26-27)
Nonetheless, on June 21, 2005, the Parent filed the Complaint in
writing with MSDE alleging that the school failed to provide the 2005 §504
OT services. On July 14, 2005, BCPSS offered Eshawn compensatory services of
7.5 hours of OT to be provided during the 2006 school year.
The 7.5 hours would have exceeded the 30 minutes per week specified
in the §504 Plan. The Parent declined the offer.
At the hearing, the Parent stated
that the only remedy she was seeking for the failure of the school system to
provide the 2005 services was for Eshawn to continue to receive OT services.
The 2006 School Year
The OT assessment ordered by the §504 Committee at the June 6, 2005
meeting was conducted on June 21, 2005,
to determine Eshawn's continued need for OT services.
The assessment, which was performed by a school occupational
therapist, determined that Eshawn was "functional"
in each of the areas in which he was assessed.
The therapist recommended that "If the team" decides that
Eshawn continues to have a disability, he should receive OT on an indirect
basis to address/provide suggestions to Eshawn and educational staff to
improve independence with bilateral hand skills."
(BCPSS Exhibit No.10)
At an August 3, 2005, §504 Committee meeting to consider Eshawn's §504
plan for 2006, his related services for 2006 were set by the Committee at
four hours of indirect OT per year.
The Parent attended the meeting and signed the Plan.
(BCPSS Exhibit No. 2 at page 23)
On September 15, 2005 School Occupational Therapist, Carla
Farringrton, initiated the four hours per year of
indirect OT services required by Eshawn's §504 Plan.
According to her anecdotal notes and her testimony, she met with
Eshawn, his special educator and the School Principal and determined that he
was "able to function within his educational environment."
On October 11, 2005, Ms. Farrington conducted a further meeting to
determine Eshawn's need to be able to function at his "optimal level in
the areas addressed by occupational therapy within his educational
setting." Although not a
member of the Committee, the
Parent attended the meeting. Ms.
Farrington's notes of that meeting and her testimony revealed that Eshawn's
teachers did not identify any specific needs and agreed that "he was
functioning well within his current academic placement."
Eshawn had told her that he would like to function independently
within the school cafeteria. Accommodations
were made to provide him more independence with use of his locker and
carrying his books. (BCPSS
Exhibit No. 11)
An OT re-assessment was completed
by Ms. Farringrton on January 12, 2006. (BCPSS Exhibit No. 12) She found
that "He demonstrates excellent and age appropriate skills on
right." On his left, "he presents below minimal functional skills
due to injury, but has done extremely well in utilizing compensatory
techniques and strategies to complete tasks within his environment . . . by
carrying out a variety of bilateral integration/hand skills necessary to
complete academic assignments and activities of daily living within his
school (and by input of parent) home environments," that he
"clearly understood all information presented to him regarding the need
for therapy to continue and feels that he is doing well."
The assessment concluded: "OT
is dismissed." (BCPSS Exhibit No. 12)
At a §504 Committee meeting on January 26, 2006, Ms. Farrington
explained the findings of her OT assessment.
At the time, Eshawn's report card grade average was 85. (BCPSS
Exhibit No. 1 at page 49) 4
In addition, his comprehensive assessments which include standardized
test scores, work habits, attendance, math tutorials, book talks, social
indicators and non-referenced academic standing were "Excellent,"
and indicated that he was able to access the curriculum without additional
services. The OT explained that
in her professional judgment Eshawn no longer needs the related service of
OT and the Committee agreed to dismiss him from receiving services.
The Parent disagreed. (BCPSS
Exhibit No. 3).
Ms. Farrington's testimony
confirmed the substance of her assessment and explained the basis for her
judgement that he no longer needed §504 services.
Specifically, she testified that based on observing him in and out of
the classroom, speaking to his teachers, reviewing previous OT assessments,
discussing his needs with him and from other information she gathered during
her consultative services, she found that Eshawn's range of motion allowed
him to function "very well" in his educational setting (opening
his locker, closing the zipper on his book bag, using classroom"
utensils" and materials), that his goals were being met, and that he no
longer needed OT services to access the curriculum,
On February 3, 2006, the Parent filed a Request For Mediation/Due
Process Hearing with the Office of Administrative Hearings for the State of
Maryland (Jt. Exhibit No. 1) and a Written Complaint with BCPSS appealing
the decision to dismiss Eshawn from §504 services.
(Jt. Exhibit No. 2) 5
Her Complaint acknowledged that while Eshawn had excellent grades and
made the honor roll, his good grades should not be a reason for dismissing
his OT. She also questioned the
Committee's reliance on Eshawn's judgement that he no longer needed OT
services rather than hers. (Jt. Exhibit No. 2)
The Parent repeatedly articulated
the same objection on the record at the Hearing claiming that Eshawn should
not be denied OT services because of his academic progress. She
also complained that she was
not present during Ms. Farrington's meetings with Eshawn and his teachers
and that Ms. Farrington should have spoken to her, not Eshawn about his
Eshawn did not attend
VI. CONCLUSIONS OF
1. Burden of Proof
Section 504 protects qualified students with a disability. The proof required to establish a violation of §504 is rooted
in two parts of the statute's text - eligible students must prove that they
have either been "subjected to discrimination" or excluded from a
program or denied benefits "solely by reason of" their disability.
While the Rehabilitation Act of 1973 is silent as to which party bears the
burden of persuasion in a due process hearing, that
burden is properly placed upon the party seeking relief. In
Schaffer, et al v. Weast, 546 U.
S. ___ (2005), for example, the
Supreme Court ruled that in cases under the Individuals with Disabilities in
Education Act ("IDEA"), the burden of proof lies with the party
seeking relief - in that case the parent. The
Court cited other federal laws where the burden of proof is on the party who
makes the complaint that a statute has been violated including the Americans
With Disabilities Act. Alexander
v. Policy Management Systems, 526 U.S. 795, 806(1999) In
this case, that would be the Parent.
Therefore, to establish a
violation of §504, Eshawn's
parent had the burden of proving that he was dismissed from receiving
services under §504 due to discrimination "solely on the basis of the
disability." See: Doe
v. University of Md. Med. Sys. Corp.,
50 F.3d 1261, 1265 (4th Cir. 1995) 7
2. The Proof that Must be Shown under §504
To satisfy this burden in the education context, "something more
than a mere failure to provide FAPE must
be shown." Sellers v.
School Board of Manassas, Virginia, 141
F.3d 524 (4th Cir. 1998) In
Sellers the parents contended that their son's test scores from as
early as fourth grade "should have alerted" the school system of
his disability and the need to provide him services to accommodate his
disability. The parents,
similar to Eshawn's parent, argued that the school made a mistake; that
their son should have received §504 services. But
the Court recognized that even experts may disagree on the special needs of
a disabled child, and that the educational placement of such students is
often an arguable matter. Therefore,
an incorrect evaluation would not necessarily establish that a
disabled student has been discriminated against solely by reason of his or
Rather, according to the Court in Sellers v. School Board of
Manassas, Virginia, proof of "discrimination" under the Rehabilitation
Act requires evidence of something more than an incorrect evaluation. In
the context of the education of disabled students, proof of a violation of
§504 requires a showing of "either bad faith or gross
misjudgment," citing Monahan
v. Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982); and Lunceford v.
District of Columbia Bd. of Educ., 745 F.2d 1577, 1580 (D.C. Cir. 1984).
In the view of the Fourth Circuit, however,
the parents' complaint in Sellers v. School Board of Manassas, Virginia
presented, at best, a negligence claim that the school system failed to
recognize their son's disability.
The parent's claim in Sellers
that the school system
failed to notice signs of disability is virtually indistinguishable from a
complaint that a student has been incorrectly evaluated. Therefore,
absent a showing of bad faith or gross misconduct, once a §504 Committee
determines that a student no longer meets eligibility requirements; i.e.,
the student no longer needs extra help from the school system to access
learning, that student is no
longer eligible for §504 services, and the §504 committee can dismiss him
from receiving services.
The Parent's Support for Her Complaint
The Committee Should Have
Relied Upon Her Judgement of Eshawn's Needs
parents and the public schools are often referred to as partners in
education, the ultimate legal responsibility for FAPE under §504 rests with
the school's §504 Committee. 34 C.F.R. Section 104.33(a). However,
unlike the IDEA, §504 does not dictate the titles or people who must be
members of the Committee. Instead, the Regulations require that the §504
Committee be a group of persons, including persons knowledgeable about the
child, the meaning of the evaluation data, and the placement options. §§104.35(c)(3).
Parents are not required members of the Committee.
Office of Civil Rights ("OCR") which enforces §504 recognized
this distinction in a case filed by the parent of a §504 eligible student. The
parent complained that he had not been invited to the introductory §504
committee meeting for his son. He claimed that this was a violation of §504.
OCR found no violation, largely because §504 does not require
the attendance of parents at §504 meetings, stating that "There is no requirement under Section 504 that parents
physically participate in all placement procedures, only that placement
decisions are made by a group of knowledgeable persons who may include
the parent." (emphasis added.) Edmonds (OK) Public School, 31 IDELR
242 (OCR 1999).
Thus, while parents are free to present their views on what type of therapy they believe would best serve their child, they are not empowered to make a decision about the program or to override a §504 committee's decision on this use of public funds. Gill v. Columbia 93 Sch. Dist., 217 F.3d 1027 (8th Cir. 2000). Here, the Parent expressed her opinion regarding Eshawn's need for OT services but the School Committee disagreed.
The Committee Imporperly Considered Eshawn's Level of
a Factor in Dismissing §504 Services
a parent may sincerely believe that her child requires §504 services in
order to receive FAPE, as is
the case of Ms. Bell, according to OCR, school
systems have no duty to qualify a child §504 despite the child's having a
recognized disability when the child has exemplary behavior and is making
A's and B's in all of his classes as is the case with Eshawn. Jefferson
Parish (La.) Public Schools, 16 EHLR 755 (OCR 1990). Indeed,
as the Supreme Court explained
in Hendrik Hudson District Bd. of Education v. Rowley, 458 U.S. 176, 207
fn. 28 (1982) "When
the handicapped child is being educated in the regular classrooms of a
public school system, the achievement of passing marks and advancement from
grade to grade will be one important factor in determining educational
benefit." The same should apply to claims under§504 and is clearly the
case with Eshawn. Thus, despite his disability, he has demonstrated
exceptional academic performance in a regular education environment and
there is no evidence that BCPSS's decision to dismiss his §504 services
will either deny him access to the educational curriculum or that the
decision to terminate his services discriminated against him in violation of
§504 of the Rehabilitation Act of 1973.
The 2005 School
and the Stadium School failed to provide Eshawn with the
services he required for the 2005 school year. The School acknowledged that
it failed to implement his 2005 Plan and despite evidence that Eshawn
sustained no adverse impact as a result, offered 7.5 hours of compensatory
services, which would have been equivalent to the services he was to receive
in 2005 under his September 27, 2004 §504 Plan, as compensation for the
deficit in the services provided to him in 2005. Although
the Parent declined the offer and gave no valid reason for doing so, in
light of BCPSS's violation of an important federal law that protects
disabled students and considering her sincerity and vigorous commitment to
Eshawn's education, I recommend
that the School's §504 Committee convene a meeting with the Parent and
re-offer the 7.5 hours proposed by the BCPSS §504 Coordinator on July 14,
2005 or some variation acceptable to the Parent. Provided,
however, that an offer made to the Parent, whether accepted or rejected by
her, shall satisfy the School's duty to remedy the failure to provide 2005
The 2006 School
it was clearly shown by Ms. Bell's ardent and zealous advocacy for Eshawn that
his success as a student and beyond is an outcome for him that she quite
rightly wants to assure, the same must be said for the School's professionals
who based their judgement on comprehensive skillful assessments of his needs
and his outstanding academic progress at this stage of his education. Therefore,
having carefully considered the testimony of the witnesses, the
exhibits, closing arguments of the parties and the case law governing §504, for
the reasons discussed above, the
Hearing Officer finds that Ms. Bell did not clear the hurdle of showing that
the Committee's decision on January 26, 2006, to dismiss Eshawn from §504 for
the 2006 school year was made in bad faith or based upon the gross misjudgment
required to prove a violation of §504. Accordingly,
I recommend that Ms. Bell's Complaint that BCPSS and the Stadium School
violated Eshawn's rights under §504 by discontinuing his services for the
2006 school be dismissed.
April 25, 2006
the closing statements did not address the burden of proof or the legal
framework for assessing alleged violations of §504, a decision on the
Parent's Complaint must examine both issues and will be discussed herein.
Bell appeared pro se at the hearing. Although,
as explained herein, the burden was on her to prove that BCPSS violated
Eshawn's §504 rights, BCPSS
went forward with its evidence in response to Ms. Bell's Complaint that
Eshawn was illegally denied §504 services, following which she was given
wide latitude in responding to BCPSS witnesses and making oral argument to
meet her burden of proof in support of her Complaint.
provide a free and appropriate public education ("FAPE")
to a disabled student may require a school district to furnish related
aids and services designed to meet the individual educational needs of the
student as adequately as the needs of students without disabilities are
met. In such an instance, the school district is mandated to provide the accommodations
and modifications to ensure that the disabled student receives equal
access to an education. Section 504 does not require a public school
district to provide students with disabilities with potential-maximizing
education, only reasonable accommodations that give those students the
same access to the benefits of a public education as all other students."
J.D. v. Pawlet School
District, 224 F.3d.60 , 33 IDELR 34 (2d Cir. 2000).
claim was not in the Parent's written Complaint but was raised by her at
was no testimony to explain why the Parent did not learn of BCPSS's
failure to provide the services under Eshawn's 2005 §504 Plan which was
adopted on September 27, 2004, until May 2005.
the failure of BCPSS to provide the services in 2005, Eshawn's academic
record for the year was superior in all aspects. (BCPSS
Exhibit No. 1 at pages 63-65)
to her anecdotal notes, Eshawn's §504 goals had been met. (BCPSS Exhibit
No. 11 at page 48)
to the School's Director, Eshawn ranked among the school's top 10%
acknowledged receipt of the Written Complaint by letter dated February 15,
2006. (BCPSS Exhibit No. 9)
Farrington's notes of her consultations beginning September 15, 2005,
reveal that a meeting originally scheduled for October 3, 2005, was
canceled because the Parent was unable to attend and was rescheduled for
October 11, 2005 and was attended by the Parent. (BCPSS Exhibit No. 12)
504 does not require the school to help the child "be all that
he or she can be." On a §504 claim, the Second Circuit
provided this great language. "The heart of J.D.''s opposition
to the proposed accommodation is that it was not optimal. However, Section
504 does not require a public school district to provide students with
disabilities with potential-maximizing education, only reasonable
accommodations that give those students the same access to the benefits of
a public education as all other students." J.D. v. Pawlet School
District, 224 F.3d.60, 33 IDELR 34 (2d Cir. 2000)