COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Danvers Public Schools
BSEA # 09-2776
RULING ON MOTION TO DISMISS
This ruling 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 c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
Danvers Public Schools filed a hearing request, seeking a determination that Student is not entitled to home tutoring services. Parents have filed a Motion to Dismiss .1
The Massachusetts regulation requiring educational services in the home or hospital is 603 CMR 28.03(3)(c). It reads as follows:
Upon receipt of a physician’s written order verifying that any student enrolled in a public school or placed by the public school in a private setting must remain at home or in a hospital on a day or overnight basis, or any combination of both, for medical reasons and for a period of not less than fourteen school days in any school year , the principal shall arrange for provision of educational services in the home or hospital. Such services shall be provided with sufficient frequency to allow the student to continue his or her educational program, as long as such services do not interfere with the medical needs of the student. The principal shall coordinate such services with the Administrator for Special Education for eligible students. Such educational services shall not be considered special education unless the student has been determined eligible for such services, and the services include services on the student’s IEP. [Emphasis supplied.]
This regulatory provision has been addressed by the state Department of Elementary and Secondary Education in its Question and Answer Guide on the Implementation of Educational Services in the Home or Hospital , 603 CMR 28.03(3)(c) and 28.04(4), i ssued February 1999, revised February 2005 ( ESE Question and Answer Guide ).2
The above-quoted regulations and the ESE Question and Answer Guide make clear that in order for a physician’s statement to be sufficient to require home tutoring, the physician must provide a written statement that, inter alia , states that the student must remain at home for medical reasons for at least 14 days.
Parents rely on the medical statement of Student’s pediatrician, Maureen Mathews, MD. Dr. Mathews’ statement, dated September 11, 2008, states in part: “Due to the exacerbation of illness during the school year, [Student] has a very difficult time attending school on a regular basis.” Dr. Mathews’ statement then notes that Student has done well with home tutoring in the past and “recommends” that home tutoring be provided for the duration of the school year.
This physician statement is insufficient. Clearly, it explains that Student would have difficulty attending school on a regular basis and states a “recommendation” regarding home tutoring, but the physician statement does not unequivocally state that Student must remain home for medical reasons for at least 14 school days.
For these reasons, I find that the physician statement is insufficient for purposes of requiring home tutoring, and Parents’ Motion to Dismiss is DENIED without prejudice.
This matter will proceed as a conference call at 3:00 pm on November 13, 2008.
By the Hearing Officer,
William Crane
Dated: November 10, 2008
1
Parents also filed a Motion to Quash , which has been withdrawn by Parents. Danvers filed a Motion to Invalidate the Home Hospital Authorization , which, in light of the instant Ruling, is moot.
2
The ESE Question and Answer Guide may be found at the ESE website at http://www.doe.mass.edu/pqa/ta/hhep_qa.html#