Woonsocket (RI) Call: Civil Right Compliance Questioned (Mold in School)

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N.S. civil rights compliance questioned

MICHAEL HOLTZMAN , Staff Writer 09/05/2003

NORTH SMITHFIELD -- A federal agency handling civil rights discrimination violations obtained an agreement from the school district last week to remediate its "compliance concerns" related to a complaint lodged by a parent.

The mother of an 8-year-old boy alleges the school district failed to provide the appropriate accommodations required by law for her son whom she said suffered from headaches for months at North field Elementary School.

Nelligan of Woonsocket Hill Road attributes her son’s health issues to mold problems in the building, although the Office of Civil Rights (OCR) for the U.S. Department of Education said it would be "premature" and "inappropriate" to evaluate the accuracy of that contention.

Mold and air quality issues at NSES have required intervention corrections since 2001, while apparently unrelated mold problems are currently being corrected and caused this year’s school year to be delayed for three days until Monday.

At issue in the OCR investigation is the school district’s delayed response evaluating the boy under Section 504 of the federal Rehabilitation Act of 1973. The civil rights statute ensures a student with a mental, physical or medical impairment that "substantially limits" major life activities -- including learning -- must be provided a series of accommodations by the school district.

In the case of Nelligan’s son, an OCR investigator and attorney found: the school district failed to follow correct procedures under Section 504; failed to provide procedural safeguards and that certain school staff, including administration, lacked knowledge of Section 504 procedures.

More specifically, the OCR found the school district, without educational justification, from October 2002 to April 2003, "delayed considering" the boy for Section 504 eligibility."

The 1,900-student school district is subject to Section 504 regulations because it receives federal funds, said the OCR, explaining why it accepted Nelligan’s complaint for resolution.

The two-page agreement reached with Superintendent M. Scherza and which he signed on Aug. 27 lists a process by which the school department must consider the third-grader’s eligibility for accommodations and services pursuant to Section 504 law.

It says the district will promptly reach mutual consent on a physician to examine the boy and convene a team meeting to determine his eligibility for Section 504 services.

Other stipulations say that until the boy’s eligibility for services is determined, the school district "shall negotiate with the complainant and implement the interim placement of the student in a mutually agreeable facility within the district or outside the district in a public or private school."

Among a dozen general stipulations and others related specifically to this case, the agreement says, "The district shall continue to conduct periodic air quality CO2 testing and other necessary environmental testing of NSES, and will share the results with parents and guardians of students and with its faculty and staff."

The district must also reimburse Nelligan for six months of educational expenses through June, which the mother pegged at about $500.

Scherza refused comment on the case. "The right to privacy is sacrosanct. I’m not even going to discuss it," Scherza said Thursday afternoon.

Later in the day, a spokesperson at the OCR in Washington provided a virtually identical copy of the investigative report that Nelligan furnished, which it sent to Scherza. The public document was redacted solely for the name of the boy involved, officials said.

The complaint was pursued by OCR investigator -Anne Khoulani and attorney Mela, according to the report issued by L. Pierce, program manager.

The OCR staff discussed concerns with Scherza during an Aug. 4 site visit and an Aug. 8 conference call, the report said. On Aug. 27, the OCR and Scherza reached a joint resolution "designed to remedy OCR’s compliance concerns."

It concludes: "OCR will monitor periodic implementation of the enclosed agreement, and expects that the district will submit periodic status reports, beginning Sept. 15, 2003.

"In closing, we would like to thank you, Dr. () Fricklas (pupil personnel director) and your staff for the time, assistance and spirit of cooperation extended to OCR staff during our investigation," Pierce wrote Scherza.

Nelligan said, "I feel that the district has discriminated against my 8-year-old son by failing to provide a free appropriate public education (labeled FAPE under the law) due to the ongoing mold problems in the building. I would like to share this agreement publicly so every parent whose child becomes ill due to IAQ (indoor air quality) in their school building has a place to turn to file a complaint."

Within 10 pages listing background, issues, concerns and conclusions, the OCR said its investigation found that during the past three years: at least three teachers who’d expressed concerns to administrators over IAQ health-related issues, transferred out of NSES; also, at least three pupils, including Nelligan’s son, withdrew from NSES for IAQ health-related concerns.

The report listed a chronology of Nelligan’s son’s schooling at NSES since kindergarten in 2000-2001 until this August, including Nov. 27, 2002 when the mother withdrew her son from school over concerns he continued to have headaches at NSES, until the end of February when Nelligan filed a complaint with the OCR.

That happened two days after the district held a meeting required under federal law and found her son ineligible under the Individuals with Disabilities Education Act (IDEA), the OCR said. The district reported no absence of disability since the boy had passing grades, "stated no further evaluations were warranted and recommended discontinuing the referral."

The OCR reported that the special education administrator said their team should have considered, but did not, a pediatric neurological evaluation from Nov. 8, 2002 that diagnosed the boy "with migraine induced by sinusitis. The doctor "alluded to a possible school environment allergen," the OCR reported.

On several occasions, the OCR noted Nelligan was "not provided with procedural safeguards" when she sought remediation but was told there was nothing else that could be done, or the accommodation she sought could not be accomplished.

Since she reported her son had been free of headaches during first grade attending class in the new wing of the school, Nelligan sought a return to that wing when her son’s headaches returned in second grade. Scherza said no second graders were housed in that wing, and therefore switched his room but not into the new NSES wing, the OCR said.

Aspey, a spokesperson for OCR, said their officials anticipate cooperation and compliance from the school district as officials determine what services are required under Section 504. She said the complainant, Nelligan, "was pleased with the outcome."

Meanwhile, School Committee Chairwoman A. Charest said she only knew that an administrative meeting had been held over this issue, adding, "not everything comes through us. That’s why we have administrators.

"I don’t think it was mishandled by the superintendent. I think it was handled appropriately," she said of Scherza working with the OCR, while not updating the School Committee at this stage.

Of Nelligan filing the complaint, Charest said, "Obviously she legally has the right to do what she did, as does every other parent in the school system if that’s what they choose to do."

©The Call 2003