COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Hopkinton Public Schools
BSEA #05-4316
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (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 June 7, 2005 in Malden, MA before William Crane, Hearing Officer.
Those present for all or part of the proceedings were:
Student’s Mother
Student’s Father
Eileen Antalek
William Howard
Johanna Dross
Keith Verra
Kevin Lyons
Charles Vander Linden
Mary Joann Reedy
Psychologist, Educational Directions
Teacher, Hopkinton Public Schools
Teacher, Hopkinton Public Schools
Guidance Counselor, Hopkinton Public Schools
Assistant Superintendent, Hopkinton Public Schools
Attorney for Parents and Student
Attorney for Hopkinton Public Schools
The official record of the hearing consists of documents submitted by the Parents and marked
as exhibits P-1 through P-11; documents submitted by the Hopkinton Public Schools
(Hopkinton) and marked as exhibits S-1 through S-16; and one day of recorded oral
testimony and argument. As agreed by the parties and after two extensions jointly requested
by the parties, written closing arguments were due on July 8, 2005, and the record closed on
that date.
INTRODUCTION
This case requires resolution of whether Student falls within the protections of Section 504 of
the federal Rehabilitation Act of 1973.1
Section 504 prohibits a program receiving federal financial assistance from discriminating,
on the basis of handicap, against an otherwise qualified individual with a handicap. It is not
disputed that Hopkinton is a program that receives federal financial assistance and that
Student is “otherwise qualified”. The only issue in dispute is whether Student satisfies the
definition of “handicapped person”, a necessary prerequisite to a finding of eligibility and
protection under this statute. I therefore consider this issue in detail in this Decision.
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29 USC 794.
It also may be noted that this dispute is not about whether Student needs accommodations in
order to be successful in learning at school. Nor, is this a dispute as to what those
accommodations should be. Rather, the question presented is whether Hopkinton may
provide these accommodations voluntarily pursuant to a building accommodation plan or,
alternatively, whether Hopkinton must provide the accommodations pursuant to a Section
504 plan.
POSITIONS OF THE PARTIES
Parents’ Position.
Parents take the position that their daughter has impairments that significantly limit her
ability to learn, thus qualifying her for protection under Section 504. Parents seek a
continuation of their daughter’s Section 504 eligibility and a continuation of the
accommodations provided under her 504 plan because those accommodations have been
effective, helping with her grades and her anxiety regarding school. Parents noted a
particular concern regarding the loss of Section 504 accommodations for 7th grade (the next
school year); Student may fail without the benefit of a 504 plan. Parents appreciate that
Hopkinton has offered accommodations for their daughter through a building
accommodation plan, but are concerned that it is voluntary and does not ensure
accountability.
Hopkinton’s Position.
Hopkinton takes the position that Student is not a “handicapped person”, as that term is
defined under Section 504 of the Rehabilitation Act. Only persons who meet this definition
are entitled to protection from discrimination (and therefore may receive accommodations)
under Section 504.
Hopkinton agrees that Student has a requisite mental or physical impairment (in this case,
ADHD). However, Hopkinton argues that the impairment does not “substantially limit”
Student’s major life activity of learning, with the result that she is ineligible under Section
504. Hopkinton notes that Student has been offered accommodations under a building
accommodation plan pursuant to MGL c. 71, s. 38Q½.
FACTS
Except where specifically noted, the following facts are uncontested.
Student profile.
1. Student lives with her parents in Hopkinton, MA. She recently completed the 6th
grade. She is bright and hard-working. She participates successfully within
mainstream classes, attaining average to above-average grades. Since the 2001-2002
school year, Student has been provided with accommodations in the classroom to
address her Attention Deficit Hyperactivity Disorder (ADHD). Student has never
been eligible to receive special education services nor is this issue in dispute.
Testimony of Mother.
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Educational history.
2. During Student’s 3rd grade (the 2001-2002 school year), her teacher expressed
concern to Parents regarding Student’s attention and focusing skills, and suggested an
evaluation. Hopkinton evaluated Student in March 2002, but the evaluation did not
reveal any learning deficits. Testimony of Mother; Exhibit S-2.
3. Nevertheless, by the end of the 3rd grade school year, Hopkinton had begun providing
a number of accommodations including the use of a white board to reinforce basic
math facts and problem solving, the use of a number line on Student’s desk for a nearpoint reference model, continuing monitoring of Student’s spelling and listening
skills, and use of specific, structured time for Student to check with the teacher for
reinforcement and clarification. Student’s teacher reported that Student improved as a
result of these interventions and that no further action was needed. Testimony of
Mother; Exhibit S-1.
4. In October 2002 (Student’s 4th grade), Parents pursued their own, outside evaluation,
which revealed concerns regarding focusing and understanding/following directions.
Exhibits S-13, P-2. Parents did not provide this evaluation to Hopkinton until March
2005. Testimony of Mother, Lyons.
5. On March 24, 2003, Hopkinton’s Learning Support Team met and recommended the
following accommodations for Student:
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Frequent teacher monitoring;
Clarify directions by restating;
Assist self-starting;
Personal sequential checklist for assignment/organization provided by Parents
and monitored by school;
Teacher check-ins while working;
Extended time for tests/class work;
Preferential seating;
Present multi-page tasks one at a time;
Mathematics fact chart for concept development (multiplication).
Exhibits S-3, P-4.
6. The Summary Record of the Learning Support Team’s meeting on March 24, 2003
concluded that Student is able to access the curriculum despite attentional issues when
the above accommodations are provided. It was also noted in the Summary that
Student “has a difficult time completing work within given timeframes and turning
them in to the teacher. She doesn’t follow directions with care yet is a very hard
worker.” Exhibits S-3, P-4.
7. The Summary Record of the Learning Support Team’s meeting also indicated that the
Learning Support Team was aware that Parents had obtained an outside
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neuropsychological evaluation in October 2002, and that Parents were concerned
about ADHD, executive functioning and “memory characteristics” regarding their
daughter. Exhibits S-3, P-4.
8. Around the middle of May 2003 as a result of their outside evaluation, Parents
initiated a course of medication for their daughter in order to help her focus her
attention. Testimony of Mother.
Section 504 eligibility and accommodations.
9. On June 3, 2003 (near the end of Student’s 4th grade), Hopkinton determined that
Student had an impairment of ADD (attention deficit disorder), which “substantially”
limited her major life activity of “learning”, and that she was therefore eligible under
Section 504 of the federal Rehabilitation Act of 1973. Testimony of Mother; Exhibits
S-5, P-6.
10. Hopkinton initiated a Section 504 plan to provide accommodations similar to those
that had been recommended by Student’s Learning Support Team (described in par. 5,
above). Exhibit P-6.
11. On January 30, 2004 (mid-way through Student’s 5th grade), Student’s 504 Team met
and determined that Student’s ADD continued to substantially limit her major life
activity of learning, and therefore concluded that Student continued to be eligible
under Section 504. The 504 Team recommended the following accommodations:
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Preferential seating;
Frequent teacher monitoring and check-ins while working;
Clarify directions by re-stating;
Extended time for tests/class work;
Present multi-page tasks one at a time;
Personal sequential checklist for assignment/organization provided by parents
and monitored at school;
 Graphic organizer for written assignments;
 MCAS accommodation # 11 – Test administrator reads/clarifies general
administration instructions and test directions only;
 MCAS accommodation # 20 – Use of graphic organizer to generate an open
response.
Exhibit S-6.
12. On December 7, 2004 (mid-way through Student’s 6th grade), Hopkinton determined
that Student was no longer eligible for Section 504 (see separate discussion, below, of
ineligibility determination). Exhibits S-7, P-8.
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Educational progress in 5th Grade.
13. Mother testified that prior to her daughter taking medication for her attention and
prior to the initiation of the 504 plan, her daughter had a significant amount of anxiety
regarding school, she took hours to complete her homework, and she needed to be in
the front of the classroom in order to focus her attention. Mother explained that her
daughter was nervous about school, was crying a lot, and had no interest in school.
Testimony of Mother.
14. In 5th grade (the 2003-2004 school year), Mother noticed that her daughter’s anxiety
about school decreased and she was able to do her homework in a “more rational
way” although it still took one to two hours per night. Mother described 5th grade as a
“nice” year. She explained that her daughter’s 5th grade teacher was excellent, that
her daughter was calm without any significant anxiety, and that her daughter
“blossomed” that year in school. Testimony of Mother.
15. Father testified that he has helped his daughter with her math homework, both before
and after his daughter received 504 accommodations. He noted that she has always
had difficulty with math. He explained that prior to the initiation of medications and
the 504 plan, she cried at home and seemed “out of control” regarding her math
homework as well as her homework for other subjects; but that with the
accommodations and medication, she is more focused, although she continues to need
re-direction at times. Testimony of Father.
Educational progress in 6th Grade.
16. The testimony of Mother and two of Student’s teachers (Johanna Dross for English
and homeroom, and William Howard for science), Student’s grades and her progress
reports all indicate that she has been an excellent student during the 6th grade school
year (2004-2005). Testimony of Mother, Dross, Howard; Exhibits S-7, S-10, S-12.
17. Mother reported that her daughter has done well in school during the 6th grade,
enjoying school, working very hard and having little anxiety. She notes that she
continues to help her daughter with her homework. Testimony of Mother.
18. The two teachers explained that Student is very hard working, often participates in
class, and follows directions well. They noted that she completes her work on time,
beginning her homework during the class period and completing it at home. The
teachers noted that Student is generally able to keep up with her peers and follow
what is being taught in the classroom, asking questions as necessary. Although she is
one of the last students to complete her reading quizzes, no special time
accommodations have been needed for her. Neither teacher reported any difficulties
regarding Student’s academic performance other than an occasional missed
homework assignment. Testimony of Dross, Howard; Exhibit S-7 (memo from Ms.
Dross).
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19. Similarly, Student’s grades and progress reports, including the memo of December 7,
2004 from Ms. Dross, reflect a conscientious and successful student. Exhibits S-7, S10, S-12.
20. The two 6th grade teachers (Ms. Dross and Mr. Howard) testified that within their
classes nothing is required to be done by a student within a particular period of time
within school – that is, everything can be completed at home without time constraints
if a project, test or quiz cannot be completed within the class time at school. The
teachers also stated that they both routinely provide all of the accommodations listed
on Student’s Section 504 plan (Exhibit S-6, page 2) to all of the students in their
classes, other than preferential seating and the MCAS accommodations. Testimony
of Howard, Dross; Exhibit S-7 (memo from Ms. Dross).
21. At home, Student continues to have difficulty attending and following through with
multi-step tasks, and even with something which she very much enjoys (for example,
horseback riding), she typically cannot complete the multi-step process of getting
ready to leave the house without prompts or reminders. Father noted that on timed
events (including homework), she becomes nervous and anxiety-ridden. He
explained that when there is a time limit for completing a homework assignment, she
typically gets off task or does not do what is expected of her. Testimony of Father.
Determination of ineligibility.
22. The Hopkinton 6th grade Section 504 coordinator (Keith Verra2) chaired the meeting
on December 7, 2004 that resulted in a determination that Student is no longer
eligible for Section 504. During the meeting, Mr. Verra asked Student’s three 6th
grade teachers who attended (Elizabeth Hickey who teaches social studies, Sandy
Stymiest who teaches math, and Bill Howard who teaches science) to describe how
Student is doing in class. A fourth teacher (Johanna Dross who teaches English)
submitted a written memo dated December 7, 2004, giving her input. Parents also
attended the meeting and were invited to share their concerns. Exhibit S-7; testimony
of Mother, Verra.
23. Mr. Verra testified that the three teachers explained at the meeting that Student is a
hard worker, participated regularly in class, did everything that was asked of her, was
organized with her materials, earned good grades, completed most of her tests and
quizzes on time, and performed at a “very nice level” on a daily basis. He noted that
the teachers reported very few concerns, even with respect to her attention.
Testimony of Verra.
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Keith Verra testified that currently and for the past 13 years, he has been employed by Hopkinton, for the first 8
years as a 6th grade teacher and for the next 5 years as a guidance counselor. He explained that currently he is the
Hopkinton 6th grade guidance counselor. He noted that he holds a masters degree in education, which he received in
1994, and he is certified as a counselor. Mr. Verra testified that his current responsibilities include joining the
teaching team meetings (each team includes 4 teachers) during which students are discussed and teacher concerns
can be addressed. In addition, he is the designated 504 coordinator, he oversees all Section 504 plans and chairs all
meetings regarding Section 504 eligibility for particular students, and he has attended various workshops and
trainings regarding Section 504.
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24. However, Mr. Verra and Mother agreed in their testimony that Ms. Stymiest
(Student’s math teacher) took a position different than the other two teachers. Ms.
Stymiest stated during the meeting that Student should continue on her 504 plan. Ms.
Stymiest made clear that she believed Student required many accommodations in her
math class which, presumably, would not be made available to Student absent a
requirement that they be provided. Testimony of Verra, Mother.
25. Mr. Verra testified that after considering the input from Parents and the teachers
during the meeting and having considered Student’s grades and progress reports, he
concluded during the meeting that Student has an impairment (ADD) for purposes of
Section 504, that as a result of this impairment, Student needs accommodations to be
successful in school, but that Student’s impairment only moderately (rather than
substantially) impacts her learning and therefore Student was not eligible under
Section 504. Testimony of Verra.3
26. Mr. Verra testified that he concluded that Student’s impairment (ADD) only
moderately impacted her learning for the following reasons. In his view, Student’s
difficulties in math class are relevant and were factored into his consideration, but
ultimately he stated that he must consider Student’s learning as a whole rather than
solely within a single class. He opined that for an impairment to “substantially” limit
a student’s learning, the impairment must preclude the student from engaging in
learning all or most of the time – for example, during every period (or most periods)
of every day. In Mr. Verra’s view, his determination that Student’s impairment only
“moderately” limited her learning was appropriate because Student’s disability
impacts her learning and requires an accommodation only occasionally and not in
every period or during every school day. Testimony of Verra.
27. Mr. Verra testified that his determination of “moderately” impacting Student’s
learning is made only on the basis of the frequency of the limitation – that is, how
frequently Student’s ADD impairment interferes with or limits her learning, thus
requiring an accommodation. Mr. Verra made clear that in considering how often
Student’s disability required an accommodation (thereby indicating that her disability
would interfere with or limit her learning), he did not take into consideration those
instances where accommodations were provided to all of the students in a particular
classroom – for example, in Ms. Dross’s classroom and Mr. Howard’s classroom.
Testimony of Verra.
28. Mr. Verra testified that his determination of Section 504 eligibility was made only
within the context of Student’s 6th grade, including her current teachers, and therefore
does not pertain to any other context – for example, a different grade or different
teachers. He explained that Student’s 504 eligibility can be re-considered at any time,
including when she enters 7th grade in the fall of the 2005-2006 school year. He also
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Mother testified that she felt that prior to the meeting, Mr. Verra had made up his mind to deny Section 504
eligibility to her daughter and that her “best recollection” was that the first two pages of the Hopkinton form denying
her daughter eligibility had been filled out prior to the meeting, including the check-off indicating that Student’s
ADD did not substantially limit her learning. Mr. Vera’s testimony was to the contrary. I find Mr. Verra’s
testimony on this point more persuasive. I find that he made his determination of ineligibility only after receiving
input from Parents and the teachers during the meeting.
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noted that he only considered attentional issues relevant to Student’s diagnosis of
ADD and did not consider any executive functioning or organizational concerns. Mr.
Verra testified that in making his eligibility determination, he did not consider the
educational implications to Student in the event that no accommodations were
provided Student. Testimony of Verra.
29. Mr. Verra testified that at the December 7, 2004 eligibility meeting he did not conduct
a real (or “straw”) poll of those present, nor did he consult others outside of the
meeting. Rather, he made the decision himself (since he understood it to be his
responsibility to do so) after considering the information provided at the meeting.
Testimony of Verra.
30. After the December 7, 2004 meeting, Parents met with Hopkinton Assistant
Superintend Kevin Lyons4 to discuss informally the denial of Section 504 eligibility.
Later, Parents formally appealed to Dr. Lyons the determination by Mr. Verra that
their daughter was no longer eligible for Section 504. Dr. Lyons affirmed Mr.
Verra’s determination of ineligibility. Exhibit S-9 (Dr. Lyon’s response to Parents’
appeal); testimony of Mother, Lyons.
31. Dr. Lyons testified that he affirmed Mr. Verra’s decision because, on the basis of his
own review, he concluded that Mr. Verra had followed the appropriate procedures
and had made a decision that was both reasonable and correct. He noted that his
appeal decision reflects a review of the appropriateness of Mr. Verra’s decision,
rather than a new determination of ineligibility. Testimony of Dr. Lyons.
32. Dr. Lyons testified that there is no particular definition of “substantially” for purposes
of determining eligibility under Section 504, but rather it is a judgment made in each
particular instance in order to allow a student “to compete on a level playing field in
the classroom”. He noted that the chart that appears on Hopkinton’s eligibility form
serves as a reference tool to see where “substantially” fits on a continuum. Testimony
of Dr. Lyons; Exhibit S-7, first page.
33. This eligibility chart is a column (appearing at the bottom of the left hand side of the
form) listing the following nine categories relative to the degree to which a student’s
impairment limits a major life activity: totally, extremely, substantially, meaningfully,
frequently, moderately, infrequently, mildly, and negligibly. A student must meet the
category of “substantially” to be eligible. Dr. Lyons agreed with Mr. Verra’s
determination that Student met the category of “moderately”, not “substantially”.
Testimony of Dr. Lyons; Exhibit S-7, first page.
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Kevin Lyons testified that he received his PhD in reading and language education in 1981, has taught at the
elementary, middle and college levels for 30 years and worked as an administrator for 8 years. He stated that he is
currently employed by Hopkinton as the assistant superintendent for curriculum and operations, with one of his
responsibilities as the district’s Section 504 coordinator. He explained that in this role, he reviews all Section 504
eligibility determinations, provides training to the Section 504 chairpersons (such as Mr. Verra) and generally
ensures that Section 504 is implemented appropriately within the school district. He noted that he regularly attends
training and reads material relevant to Section 504. He stated that the Section 504 Policies and Procedures (Exhibit
S-15) are followed in Hopkinton.
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34. Mr. Verra testified that Student’s teachers would continue to provide the needed
accommodations even without being required to do so. Mother confirmed, from
information from her daughter, that her teachers appear to have continued to provide
her daughter with the accommodations (listed in the Section 504) after the
determination of ineligibility. Testimony of Verra, Mother.
Building accommodation plan.
35. Once he determined that Student was no longer eligible for Section 504 during the
December 7, 2004 meeting, Mr. Verra told Parents that Student may be able to
receive any necessary accommodations through a building accommodation plan, and
this was briefly discussed. Mr. Verra noted that at that time, Parents did not seem
interested in pursuing a building accommodation plan, with the result that although he
later prepared a building accommodation plan for Student (Exhibit S-16), it was not
shared with Parents.
36. Mr. Verra testified that the accommodations needed by Student in order to be
successful in 6th grade are reflected in this plan (Exhibit S-16), which
accommodations are essentially the same as those in the Section 504 plan that had
previously been in effect for Student (Exhibit S-6).
37. The building accommodations, which have been offered Student and are reflected in
Exhibit S-16, are voluntary accommodations on the part of a school district pursuant
to MGL c. 71, s. 38Q½ for the purpose of helping a student to succeed. These
accommodations are used as part of the pre-referral process to accommodate a student
within regular education rather than referring the student to special education.
Hopkinton has a general plan for this purpose (Exhibit S-11). Testimony of Lyons,
Verra.
38. These accommodations may be used where a student has an impairment that impacts
the student in the classroom, but not at a level to render the student eligible for
Section 504. The accommodations are not considered necessary for the student to
access the general curriculum. There is accountability in the implementation of these
accommodations since Dr. Lyons, in his capacity as Assistant Superintendent,
instructs the principals to implement them, and teachers can be disciplined for
refusing to do so. The building accommodation plan is developed through a Learning
Support Team that includes a student’s teachers, guidance counselor and specialists.
Testimony of Lyons, Verra; Exhibit S-11.
Independent evaluations of Student.
39. An organization called Educational Directions, located in Westborough, MA,
performed a comprehensive evaluation of Student in October 2002. The evaluation
found Student to have at least average cognitive abilities, but with anxiety, inattention
and short-term memory weaknesses. The evaluation concluded that Student has
ADHD (attention-deficit/hyperactivity disorder) with mild learning disabilities in the
areas of executive function and short-term auditory memory. Student’s learning
deficits generally limit her ability to access, process and produce information, and the
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executive functioning deficits limit her organizational abilities. Exhibit S-13, P-2
(page 13); testimony of Dr. Antalek.5
40. A follow-up evaluation of Student was conducted by Dr. Antalek at Educational
Directions on May 28, 2005. This evaluation included updated cognitive testing to
determine what areas may be impacted by Student’s initiation of medication, as well
as specific testing (the Delis-Kaplan Executive Functioning test) to look at Student’s
executive functioning abilities. Testimony of Dr. Antalek; Exhibit P-1.6
41. Dr. Antalek testified (and her report reflects) that the two evaluations indicate that
Student continues to have ADHD and in addition to this disability, Student has
learning disabilities in the areas of executive function (organization and planning) and
short-term auditory memory. Dr. Antalek noted that the ADHD exists independent of
her other disabilities but likely exacerbates them. Testimony of Dr. Antalek; Exhibits
S-13, P-1, P-2.
42. Dr. Antalek testified as to the implications of these disabilities for Student. She
explained that if Student is presented with a short project (for example, a simple story
project), she is likely to be able to complete it quickly without difficulty. Similarly,
she noted that Student performs well with an objective format or where there are clear
task parameters. However, with longer projects (for example, a longer reading or
writing assignment that would typically be given in the 6th grade) or where more open
retrieval of information is required, or with unstructured tasks, her retrieval and
organizational deficits will fundamentally impact her performance. She noted that
when these challenges presented themselves to Student during the evaluation, Student
needed more time to complete the task – approximately one and one-half the normal
time. Dr. Antalek opined that Student would need a similarly longer period of time to
complete comparable schoolwork in 6th grade. Dr. Antalek opined that Student’s
learning disabilities are considered to be “mild” within the overall context of her
functioning at school as a bright student, but that the above-described specific deficits
are significant with respect to their impact upon Student’s abilities to complete certain
educational tasks successfully (as explained above) and are life-long. Testimony of
Dr. Antalek; Exhibit P-1.
43. Dr. Antalek testified that her conclusions were consistent with Father’s testimony of
Student’s inability to complete multi-tasks involved in getting ready for horseback
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Eileen Antalek testified that she is currently the assistant director of Educational Directions where she has worked
for the past ten years (five of which have been in her current position). She noted that she conducted the recent
evaluation of Student on May 28, 2005 at Educational Directions but was not involved in the October 2002
evaluation of Student at Educational Directions. Dr. Antalek completed a master’s degree in English in February
2005, completed her doctorate (EdD) degree in education, and has been a licensed school psychologist since
September 2004. Dr. Antalek testified that over the past ten years, she has been involved in approximately 100
evaluations per year; not quite half of which have involved elementary school students. She noted that the testing
that she conducted of Student reflects tasks that a student would be called upon to do in school in the 6 th grade. She
explained that for purposes of her testing of Student and developing her recommendations, she spoke with Parents
but not with Hopkinton teachers or staff. She noted that she is not familiar with the Hopkinton 6 th grade curriculum.
Testimony of Dr. Antalek; exhibit P-1.
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Dr. Antalek had also sent a letter, dated December 13, 2004, to Parents recommending that Student’s Section 504
plan remain in place at least until Student completes her first year of high school. Exhibit P-3.
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riding. She noted that with ADHD alone, one would expect that Student would not
have these difficulties with something that she enjoys (for example, horseback
riding), but that the executive functioning deficits result in her being disorganized
even with activities that she enjoys. Testimony of Dr. Antalek; Exhibit P-1.
44. Dr. Antalek summarized in her report:
[Student’s] overall reasoning skills are appropriately developed, but she is often
inefficient and disorganized in her approach. This causes her to work impulsively and
carelessly when timed, and she made many unnecessary errors. An accommodation
plan and medication regime have been applied successfully, and [Student] needs
continued accommodation in order to perform commensurate with her abilities.
Exhibit P-1 (page 3).
45. Dr. Antalek’s report then listed the following accommodations that, she stated in her
testimony, should be implemented consistently in order to address Student’s abovedescribed deficits:
 [Student] needs extended time to complete in-class and standardized exams,
particularly when extensive reading and/or writing is required due to retrieval and
organizational weaknesses.
 [Student] needs preferential seating within the classroom in order to facilitate
focus and attention. She also needs encouragement to review task parameters
before attempting new tasks.
 [Student] needs time to process information before responding because of
executive function and retrieval weaknesses. She would benefit from
brainstorming activities and visual cues to stimulate her thinking.
 [Student] needs a few minutes at the beginning and end of each class to organize
her materials.
 Because of organization and memory weaknesses, [Student] should learn and use
semantic mapping strategies to organize, categorize, and memorize new
information. For example, timelines, charts, and graphs may be used in the
notebook when reviewing classroom notes.
 Because [Student] has difficulty remembering facts and other rote information,
she should learn to use mnemonic devices to help her recall information for
exams. For example, [Student] could take the first letter from keywords and terms
to create a phrase that she would write at the top of the test paper before she
begins work.
 [Student] needs to use a homework planner to keep track of homework and due
dates. In addition, a daily checklist should be incorporated into the planner that
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includes individual tasks to complete long-term assignments. The planner will
need to be checked on a daily basis by teachers and parents until these skills
become automatic.
 All tasks should be kept short and specific. For example, a research project
should be broken down into incremental tasks, with a checklist provided that
[Student] can check off as she completes her work.
Testimony of Dr. Antalek; Exhibit P-1.7
DISCUSSION
As noted earlier in this Decision, the only issue in dispute is whether Student satisfies the
definition of “handicapped person” in Section 504 of the federal Rehabilitation Act, a
necessary prerequisite to a finding of eligibility and protection under this statute. I therefore
consider this issue in detail below. I also note that a BSEA Hearing Officer recently
considered this issue in In re: Needham Public Schools, BSEA # 04-3810, 11 MSER 19, 2526 (2004) (Berman).
A. Eligibility under Section 504
Statute and regulations.
Protection against discrimination pursuant to Section 504 of the federal Rehabilitation Act
extends only to persons who fit within the definition of “handicapped person”. Although the
statutory language of Section 504 offers little assistance in determining the meaning of this
term, the regulations promulgated by the federal Department of Education pursuant to
Section 504 provide the following guidance:
(1) Handicapped person 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.8
7
Dr. Antalek, in her testimony, also made reference to parts of three exhibits that describe generally the nature of
Student’s disability. Exhibits P-9, P-10, P-11. I reference these exhibits here although I do not find that they
enhance my understanding of Student’s particular disability and its limitations on her ability to learn.
8
34 CFR 104.3(j) (emphasis added).
12
This language makes clear, and the First Circuit Court of Appeals has confirmed, that to be
considered a “handicapped person”, Student must meet two criteria – first, she 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 her major life activities.9
Both parties in the instant dispute acknowledge that Student has one or more mental or
physical impairments that satisfy the first criteria for eligibility under Section 504. 10 The
parties further agree that Student’s impairments limit, at least to some degree, her major life
activity of learning. The crux of their disagreement is whether Student’s impairments limit
her learning to a sufficient degree – that is, to a “substantial” degree, as required by the
above-quoted regulatory language.
Case law.
In considering the question of whether Student’s impairments substantially limit her major
life activity of learning, I turn to case law interpreting Section 504. Case law interpreting the
Americans with Disabilities Act (ADA) will also be considered since the First Circuit Court
of Appeals has concluded that case law construing the ADA generally pertains equally to
claims under the Rehabilitation Act.11
The United States Supreme Court, as well as several lower federal courts, have had occasion
to discuss and provide guidance regarding the meaning of “substantially limits” as that
phrase is found within the above-quoted definition of “handicapped person”. In a 2004
decision, the First Circuit summarized this general guidance as follows:
Although the federal statutes do not explicitly define the phrase "substantially limits,"
in Sutton the Supreme Court instructed that the phrase suggests “considerable” or
“specified to a large degree.” Even so, while substantial limitations should be
considerable, they also should not be equated with “utter inabilities.” The Supreme
Court has stated that "[w]hen significant limitations result from an impairment, the
disability definition is met even if the difficulties are not unsurmountable." An
impairment can substantially limit a major life activity, even though the plaintiff is
still able to engage in the activity to some extent.12
In addition, the Supreme Court has described certain principles when making a determination
as to whether an impairment substantially limits a major life activity. First, the Supreme
9
E.g., Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 20 (1st Cir. 2004) (general discussion of eligibility under
Section 504).
10
Hopkinton concedes that Student has ADHD and that this impairment satisfies the requirement, under Section
504, that Student have a mental or physical impairment. The First Circuit Court of Appeals has concluded that, in
an appropriate case, a diagnosis of ADHD may be a mental impairment within the meaning of Section 504’s
definition of handicapped person. Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 155 n.18 (1st Cir. 1998). As
discussed later in this Decision, the evidence further reflects that Student has additional learning disabilities.
11
Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 19 (1st Cir. 2004); Bercovitch v. Baldwin School, Inc., 133
F3d 1411, 151 n.13 (1st Cir. 1998) and cases cited therein.
12
Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 21-22 (1st Cir. 2004) (internal quotations and citations
omitted).
13
Court has made clear that whether a person may be considered a “handicapped person” under
the statute is decided with respect to each individual, requiring that the determination be
made on a case-by-case basis.13
Second, a person seeking eligibility must "be presently — not potentially or hypothetically
— substantially limited to demonstrate the requisite disability."14
Third, the determination of whether an individual is substantially limited in a major life
activity must take into account mitigating measures such as medication taken by the
individual as well as any compensating strategies (such as hard-work) utilized by the
individual. In other words, the person’s impairments must be determined to substantially
limit a major life activity after the mitigating measures have been taken into account.15
Fourth, the limitations of the major life activity (for example, learning) are considered in
comparison to an average person (or “most persons”) within the general population.16 For
purposes of a student’s seeking Section 504 eligibility, the First Circuit Court of Appeals has
instructed that the comparison is to an “average student his age”.17 For a more
comprehensive discussion of this issue, see footnotes 24, 25 and 26, below, and
accompanying text.
Fifth, the impact of the impairment(s) must be “permanent or long term”.18
Sixth, it is insufficient for an individual attempting to establish eligibility merely to submit
evidence of a medical diagnosis of an impairment. Instead, Section 504 requires those
"claiming the Act's protection . . . to prove a disability by offering evidence that the extent of
the limitation [caused by their impairment] in terms of their own experience . . . is
substantial."19
With these principles in mind, I turn to the evidence presented in this case.
Consideration of the evidence.
As noted above, there is no disagreement that Student has impairments sufficient to meet the
first prong of the definition of “handicapped person”. Hopkinton agrees that Student’s
ADHD satisfies this standard. There was also unrebutted expert testimony and evaluation
reports, and I so find, that, additionally, Student has learning disabilities in the areas of
executive functioning (organization and planning) and short-term auditory memory. Facts
13
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002); Sutton v. United Airlines, Inc., 527 U.S. 471,
483 (1999).
14
Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999).
15
Murphy v. United Parcel Service, Inc., 527 U.S. 516, 521 (1999); Albertson's Inc. v. Kirkingburg, 527 U.S. 555,
565-67 (1999).
16
Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999); Toyota Motor, Mfg., KY. Inc. v. Williams, 534 U.S.
184, 200-201 (2002)
17
Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 156 (1st Cir. 1998).
18
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184. 198 (2002).
19
Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999).
14
Section of this Decision (Facts), pars. 39, 41. It is the effect of this combination of
impairments on Student’s learning that must be considered.20
There is little, if any, disagreement as to the limitations on Student’s learning as a result of
her impairments. However, there is relatively little evidence in this dispute as to the impact
of those limitations on her learning when the necessary accommodations are not provided.
This is because all of Student’s needed accommodations have been provided during at least
the past two school years, and therefore progress reports and grades during that time period
do not indicate the impact of Student’s impairments on her learning. Grades and progress
reports prior to this time would be dated, and would have been prior to Student’s beginning
medication to address her ADHD. For these reasons, the determination of Student’s actual
learning limitations, as a result of her impairments, is necessarily grounded on (1) a recent
formal evaluation of Student’s impairments, (2) recent anecdotal situations at home or in the
community, and (3) what accommodations continue to be necessary in order that Student be
successful at school.
I find that Parents have provided credible, unrebutted evidence that Student’s impairments
limit her learning in the following ways.
Student’s retrieval and organizational deficits negatively and fundamentally impact her
performance with relatively long projects (for example, a longer reading or writing
assignment that would typically be given in the 6th grade) as compared, for example, to a
simple story project. Facts, par. 42.
Student’s retrieval and organizational deficits negatively and fundamentally impact her
performance where relatively open retrieval of information is required or with unstructured
tasks as compared, for example, to assignments with an objective format or where there are
clear task parameters. Facts, par. 42.
A practical implication of Student’s difficulty completing these educational tasks is that
Student generally requires one and one-half the amount of time normally needed for a 6th
grader to complete these same tasks. Facts, par. 42.
In addition, Student’s impairments cause her often to be inefficient and disorganized in her
approach. This causes her to work impulsively and carelessly when timed, with the result
that she makes many unnecessary errors. Facts, par. 44.
Student’s executive functioning impairments result in a level of disorganization that makes
her unable to complete multi-task assignments without cuing, even when the task is
something that she enjoys in the community such as getting ready for horseback riding.
Facts, pars. 21, 43.
20
I note that Parents did not share their evaluations with Hopkinton until relatively recently and, as a result,
Hopkinton argues that I should consider only Student’s ADHD. However, on or before March 24, 2003, Hopkinton
was aware of Parents’ October 2002 evaluation as well as Parents’ concerns regarding Student’s executive
functioning and memory limitations. Exhibit S-3. There is no indication that Hopkinton ever sought to obtain this
evaluation from Parents or that it was ever precluded from further evaluating Student to determine, for itself,
whether Student has these learning disabilities.
15
Student’s impairments are considered to be life-long. Facts, par. 42.
There is no disagreement that Student requires accommodations in order to be successful in
learning at school.21 The relevance of this inquiry was made clear by the Ninth Circuit Court
of Appeals: “learning-impaired student may properly be considered to be disabled [under
Section 504 and the ADA] if he could not have achieved success without special
accommodations”.22
There also is no disagreement that the accommodations needed by Student are those reflected
within her most recent Section 504 plan, which are substantially the same as those
recommended in Dr. Antalek’s evaluation.23 Essentially the same accommodations have
been provided Student during at least the last two school years. Facts, pars. 5, 10, 11, 34.
The accommodations reflected within Student’s most recent Section 504 plan and those
recommended by Dr. Antalek reflect, at least implicitly, that Student has significant, practical
deficits regarding attention, organization, and retrieval and processing of information. It is
apparent that these deficits substantially impact her learning in a variety of settings.
Finally, I take note of the fact that Hopkinton twice determined Student to have an
impairment that substantially limited her ability to learn, making her eligible under Section
504. When Hopkinton determined that Student was no longer eligible, no determination was
made that Student’s impairment had somehow improved or that her impairment limited her
learning any less than when she was found eligible under Section 504. Instead, Hopkinton
determined only that Student did not require accommodations (over and above those
provided to all students) most of the time – that is, an analysis of frequency of need for an
accommodation. (For reasons explained below, I believe that this method of determining
Section 504 eligibility is flawed.) The unrebutted evidence (from Dr. Antalek’s testimony
and the two independent evaluations) is that Student’s impairments have essentially
remained the same from the time they were first identified in an independent evaluation in
October 2002 through Dr. Antalek’s evaluation of Student on May 28, 2005. Facts, pars. 9,
11, 26, 27, 39, 40, 41.
On the basis of this evidence, I find that Student’s impairments restrict her ability to perform
activities and tasks that are of central importance to her education, with the result that
Student’s impairments impose significant limitations on her learning. Without these
accommodations, Student cannot be successful in learning at school. I make these findings
with respect to Student in comparison to the average student her age and after taking into
account the medication she is taking and her compensating strategies (that include working
Hopkinton’s closing argument at page 14 (“[P]arents have argued that [Student] continues to need accommodation
in order to succeed. Hopkinton Public School agrees.”) In their testimony, Mr. Verra and Dr. Lyons agreed. Facts
pars. 25, 37.
22
Wong v. Regents of University of California 01-17432 (9th Cir. 2004).
23
When Student was found not eligible for Section 504, Hopkinton continued to implement these same
accommodations for the remainder of the 6th grade year. Hopkinton also proposed to continue many of these
accommodations through a more informal building accommodation plan. Mr. Verra testified that the
accommodations that Student needs to be successful are reflected in the proposed building accommodation plan,
which he believes to be essentially the same as those described in Student’s most recent Section 504 plan. Facts,
pars. 34, 35, 36.
21
16
very hard). I further find that the impact of Student’s impairments is, at least, long term and
probably permanent.
Hopkinton’s basis for determination of ineligibility.
Hopkinton argues that the extent to which Student’s impairments limit her learning must be
gauged in the context of the particular 6th grade classrooms in which Student’s learning has
been taking place.
In at least two of Student’s 6th grade classrooms, the teachers routinely provided to all
children the accommodations needed by Student, with the exception of the accommodation
of sitting in the front of the room and the accommodations for taking the MCAS test. The
result has been that at least in these two classrooms, Student has had little need for additional
accommodation. Hopkinton’s Section 504 Coordinator (Mr. Verra) conceded the need for
individual accommodations in a third classroom – math – but reasoned that the need for
accommodations in a single classroom was not sufficient to meet the “substantially limits”
eligibility requirement. Facts, pars. 25, 26.
In determining that Student’s impairments did not substantially limit her learning, Hopkinton
applied a test of how frequently Student required an accommodation over and above what
was provided routinely to all of the children in the classroom. As Mr. Verra explained in his
testimony, Student did not need a teacher to provide her with an additional accommodation
all or even most of the time. This was because accommodations needed by Student were
being provided to all children in several of Student’s classes. Hopkinton concluded that
Student was not eligible under Section 504. Facts, par. 27.
For reasons discussed below, within the relevant case law and federal regulations, I find no
support for Hopkinton’s determination of ineligibility based on a consideration of Student’s
impairments, as they impact upon her learning only within the particular educational context
of her 6th grade classrooms.
When seeking to understand the implications of the phrase “substantially limits” within the
context of Section 504 and the ADA, the courts have routinely referred to and relied upon the
Department of Justice (DOJ) regulations implementing Section 504 and the Equal
Employment Opportunity Commission (EEOC) regulations implementing the ADA.
EEOC regulations define "substantially limits" as "[s]ignificantly restrict[s] as to the
condition, manner or duration under which an individual can perform a particular major life
activity as compared to the condition, manner, or duration under which the average person in
the general population can perform that same major life activity."24 The DOJ regulations do
not define the phrase "substantially limits," but the preamble to the regulations provides: "A
person is considered an individual with a disability . . . when the individual's important life
activities are restricted as to the conditions, manner, or duration under which they can be
performed in comparison to most people."25
24
25
29 C.F.R. § 1630.2(j)(1)(ii) (emphasis added).
28 C.F.R. Pt. 35, App. A § 35.104 (1999) (emphasis added).
17
In addition, case law makes clear that the appropriate context for considering the impact of
an impairment is not the particular setting in which the individual is seeking an
accommodation -- for example, a particular job for which the individual has applied, a
particular examination that needs to be taken, a particular educational curriculum or a
particular school. Rather, the inquiry must consider the nature and implications of the
impairment in a broader and more general context -- for example, the ability to perform “a
broad range of jobs in various classes”, or the ability “to learn as a whole” or to learn
“generally”, and the inquiry includes a comparison to most people or the average person in
the general population.26
For these reasons, I do not agree with Hopkinton’s determination of ineligibility based only
on the limited context of Student’s particular classrooms and teachers during her 6th grade
year. Student’s impairments must be considered as they exist presently (not hypothetically
or in the future) but, at the same time, from a more global perspective – that is, her learning
as a whole. Her impairments must also be measured within the context of the general
population of children at her age level. From this vantage point, I find that Student’s
impairments substantially limit her ability to learn, for the reasons already described. 27
26
E.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999) (inquiry under EEOC regulations is whether
individual was “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in
various classes as compared to the average person having comparable training, skills and abilities” rather than
whether the individual was substantially limited in the ability to perform a particular job – for example, the job of
commercial airline pilot for which the individual applied); Toyota Motor, Mfg., KY. Inc. v. Williams, 534 U.S. 184,
200-201 (2002) (“When addressing the major life activity of performing manual tasks, the central inquiry must be
whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the
claimant is unable to perform the tasks associated with her specific job.”); Emory v. Astrazeneca Pharmaceuticals
LP, 401 F.3d 174 , 179-180 (3rd Cir. 2005) (“essence of the inquiry regards comparing the conditions, manner, or
duration under which the average person in the general population can perform the major life activity at issue with
those under which an impaired plaintiff must perform”); Ristrom v. Asbestos Workers Local 34, 370 F.3d 763 (8th
Cir. 2004) (inquiry is whether the individual “has produced evidence to prove his asserted impairments . . . limit his
ability to learn to a considerable or large degree as compared to the average person in the general population”);
Wong v. Regents of University of California 01-17432 (9th Cir. 2004) (relevant inquiry is not whether individual
could keep up with a particular medical school curriculum, but whether his impairment “substantially limited his
ability to learn as a whole, for purposes of daily living, as compared to most people”); Gonzales v. National Bd. of
Medical Examiners, 225 F.3d 620 (6th Cir. 2000) (in determining whether substantial life activities of reading and
writing are “substantially limited”, inquiry is the condition, manner, or duration under which the major life activity
can be performed in comparison to most people, rather than individual’s need for extended time to take the medical
licensing examination); Bartlett v. New York State Board of Law Examiners, 226 F.3d 69, 80 (2nd Cir. 2000)
(“ultimate question is whether Bartlett's lack of automaticity and slow rate of reading amount to a substantial
limitation in comparison to most people" rather than need for an accommodation to take the state bar exam);
Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 155-156 (1st Cir. 1998) (relying on ADA regulations that provide
that individual must be “[s]ignificantly restricted as to the condition, manner or duration under which [he] can
perform a particular major life activity as compared to the condition, manner, or duration under which the average
person in the general population can perform that same major life activity”); Soileau v. Guilford of Maine, Inc, 105
F.3d 12, 15-16 (1st Cir. 1997) ("Impairment is to be measured in relation to normalcy, or, in any event, to what the
average person does."); Knapp v. Northwestern Univ., 101 F.3d 473, 481 (7th Cir. 1996) (with respect to an
impairment that affects the major life activity of learning, "[t]he impairment must limit [learning] generally”);
Darian v. Univ. of Massachusetts Boston, 980 F. Supp. 77, 87 (D.Mass. 1997) (Gertner, J.) (holding that nursing
student was disabled because impairment "substantially interfere[d] with her ability to fully participate in an
education program" not just a nursing program). See also In re: Needham Public Schools, BSEA # 04-3810, 11
MSER 19, 25-26 (2004) (Berman) (discussing federal case law relevant to meaning of phrase “substantially limits”).
27
I similarly note the inappropriateness of determining whether an impairment substantially limits a major life
activity on the basis of how frequently an accommodation is needed, which is the approach utilized by the
Hopkinton Section 504 coordinator. I am not aware of a single judicial or administrative decision that has
determined whether an impairment substantially limits a major life activity on this basis.
18
Student’s academic success.
Relying on a Connecticut special education Hearing Officer’s decision, Hopkinton further
argues that where a student with a mental or physical impairment achieves at least average
grades, positive teacher reports and completed homework assignments, the impairments will
not be considered to “substantially limit” her learning.28
Although the Connecticut decision provides a useful analysis, I do not find it relevant to the
instant dispute. There is nothing within the Connecticut decision that indicates that the
student was receiving accommodations at the time that she was obtaining satisfactory grades
and teacher reports, and completing her homework assignments. In contrast, Hopkinton
relies upon Student’s success in the classroom during those times when necessary
accommodations were being provided to her under her Section 504 plan.
The Ninth Circuit Court of Appeals has further explained:
That is not to say that a successful student by definition cannot qualify as "disabled"
under the Acts. A blind student is properly considered to be disabled, because of the
limitation on the major life activity of seeing, even if she graduates at the top of her
class. Nor do we say that a successful student cannot prove "disability" based on a
learning impairment. A learning-impaired student may properly be considered to be
disabled if he could not have achieved success without special accommodations.29
Hopkinton agrees that Student’s accommodations are necessary for her to be successful in
learning at school.30 There is no doubt that Student’s successes at school are, to a significant
extent, attributable to the accommodations that she has received pursuant to her Section 504
plan. Therefore, reliance upon those successes is not persuasive that Student is not
sufficiently impaired to be eligible under Section 504.
Hopkinton also points out that it is willing to provide, voluntarily, essentially all of the
accommodations that Student needs through a building accommodation plan. It is apparent
that what Hopkinton chooses to provide a student to accommodate her impairments is not
relevant to a determination of whether those impairments substantially limit her learning.
Conclusion.
For these reasons, I conclude that Student is eligible under Section 504 of the federal
Rehabilitation Act of 1973.
28
Westport Board of Education, Connecticut State Education Agency , 40 IDELR 85 (2003).
Wong v. Regents of University of California 01-17432 (9th Cir. 2004). See also Singh v. George Washington
University, 368 F. Supp.2d 58, 66 (D.C. 2005) (prior academic success irrelevant in determining student’s ability to
take timed multiple-choice tests); Rush v. National Bd. of Medical Examiners, 268 F. Supp.2d 673 (N.D.Tex. 2003)
(notwithstanding history of significant academic success, individual found to have a disability that entitled him to an
accommodation under the ADA).
30
See footnotes 22 and 23, above, and accompanying text.
29
19
B. Accommodations under Section 504
At the beginning of the evidentiary Hearing, it appeared that in the event that I decided that
Student is eligible under Section 504, I would then need to determine what accommodations,
if any, should be provided Student pursuant to Section 504. However, at the end of the
evidentiary Hearing, Parents’ attorney indicated that Parents sought the accommodations
recommended by their expert, Dr. Antalek, and Hopkinton’s attorney responded that in the
event that I were to conclude that Student is eligible under Section 504, Hopkinton would not
object to the provision of Dr. Antalek’s recommended accommodations.
I anticipate that, in light of this Decision, a Section 504 meeting will occur prior to the
beginning of the 2005-2006 school year to determine Student’s accommodations for 7th
grade. In the unlikely event that the parties cannot reach agreement, they may return to the
BSEA to resolve their dispute.
I conclude that, at present, there is no dispute between the parties regarding the
accommodations required by Student pursuant to Section 504, and I therefore decline to
make further findings or to issue an order regarding this aspect of the case.
ORDER
Student is eligible pursuant to Section 504 of the Rehabilitation Act of 1973.
By the Hearing Officer,
William Crane
Dated: July 19, 2005 31
31
I commend both parties and their attorneys. Hopkinton teachers and staff demonstrated their commitment to
Student’s education, including the provision of accommodations necessary to allow her to succeed. Parents’
commitment to their daughter is self-evident. They also made clear their appreciation for the excellent Hopkinton
teachers who have worked with their daughter. Both attorneys are highly skilled, and represented their clients
effectively, efficiently and without rancor. This was simply a case where all agreed that they have a disagreement in
principle that required resolution by the BSEA.
I also note, with appreciation, the helpful assistance provided by BSEA legal intern Sarah Wilhite in researching
relevant case law and regulations for this Decision.
20
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).
Compliance
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).
21
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).
Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau
decision to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau
decision in federal district court is also thirty (30) days of receipt of the decision, as provided in
the Massachusetts Administrative Procedures Act, M.G.L. c.30A. Amann v. Town of Stow, 991
F.2d 929 (1st 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.
Confidentiality
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.
22