COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Ken1 and Middleborough Public Schools
BSEA#’s 10-0006 & 10-3523
DECISION
This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. § 1400 et seq.; 29 U.S.C. §794; and the regulations promulgated under these statutes.
A hearing in the above-entitled matter was held on February 25-26 and March 11, 2010 at the Massachusetts Department of Elementary and Secondary Education in Malden, MA. The record was left open until April 5, 2010 for receipt of written final arguments.
Those in attendance were:
Father
Student
Ethan Kisch Psychiatrist (via Speakerphone)
Geraldine Cassens Neuropsychologist (via Speakerphone)
Tami Joia Advocate for Parent/Student
Melissa Deutschmann Director of Special Education,
Middleboro Public Schools (MPS)
Mary Buchanan Team Facilitator, MPS
Jaelle Maczko School Adjustment Counselor, MPS
Dayle Carroll Speech-Language Pathologist, MPS
Catherine Tucker Special Education Teacher, MPS
Paul Tzovolos Extended School Year Coordinator, MPS
Sinead Peterson BCBA, MPS
Carolyn Lyons Attorney for MPS
Kristen Edwards Court Reporter
Maryellen Coughlin Court Reporter
Laurie Jordan Court Reporter
Raymond Oliver Hearing Officer, BSEA
The evidence consisted of Parent’s Exhibits labeled P-A through P-R excluding P-K, L, O; Middleboro Public Schools’ Exhibits labeled S-1 through S-55; and approximately 15 hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
Ken is a 16 year old young man who has resided in Middleboro with his father for the last five years, since Ken was in the 5 th grade. He is enrolled in the Middleboro Public Schools (MPS), currently at Middleboro High School (MHS). While in MPS Ken has been a special education student since 6 th grade functioning under an Individualized Education Plan (IEP). Ken is diagnosed with a number of medical and educational conditions which impact upon his educational functioning and he is on a number of medications for his various issues. Especially over the last several years Ken has missed a great deal of school.
On September 24, 2009 Parent filed for a hearing with the BSEA (BSEA# 10-006) requesting a 45 Day Extended Educational Evaluation at Wareham Academy. A hearing date was scheduled for October 29, 2009. However, on October 20, 2009 a mediation was held and a mediated agreement was reached. The parties requested that the matter go off calendar for six weeks. At the conclusion of that six week period, in early December 2009, the parties filed status reports. On December 8, 2009 MPS filed its own hearing request (BSEA#10-3523) requesting an Order from the BSEA that its proposed IEP for Ken was appropriate; Parent’s decision to keep Ken out of school was a denial of FAPE; and the submitted Physician Statements for a Home Program were deficient. MPS also filed a Motion to Consolidate both BSEA cases. BSEA# 10-3523 was also assigned to this Hearing Officer and MPS’ Motion to Consolidate BSEA# 10-006 and 10-3523 was granted. Several pre-hearing conference calls (PHCC) took place and a hearing was scheduled for February 10-11, 2010. However, owing to a major snowstorm both school (and therefore the hearing dates) were cancelled. At a subsequest PHCC the parties agreed to February 25-26 as hearing dates and the hearing took place on those two dates but did not conclude. The final day of hearing took place on March 11, 2010.
ISSUES IN DISPUTE
I. Does Ken require a 45 day extended evaluation at Wareham Academy?
II. Does MPS’ currently proposed IEP for Ken from June 2009 through June 2010 appropriately address his special education needs so as to provide him with a free and appropriate public education (FAPE) in the least restrictive educational environment?
III. Does Ken’s lack of attendance constitute a denial of FAPE?’
IV. Are the three physician statements requesting a home/hospital placement for Ken appropriate or deficient?
STATEMENT OF POSITIONS
Parent’s position is that Ken requires placement in a 45 day extended evaluation at Wareham Academy and that MPS’ currently proposed IEP is inappropriate to address Ken’s special education needs so as to provide him with FAPE in the least restrictive educational environment. Parent contends that MPS’ refusal to place Ken in a 45 day extended evaluation along with MPS’ refusal to provide Ken with a home placement pursuant to several physician statements constitutes a denial of FAPE.
MPS’ position is that its currently proposed IEP for Ken at MHS is appropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment. MPS contends that Ken has been thoroughly evaluated and does not require a 45 day extended evaluation at Wareham Academy. MPS believes that father’s allowing Ken to refuse to go to school constitutes a denial of FAPE. Finally, MPS contends that all of the physician statements for a home/hospital placement are deficient and that Ken does not meet the regulatory criteria for a home placement.
PROFILE OF STUDENT
Ken is a 16 year old student. He is diagnosed with the following disorders: 1) Pervasive Developmental Disorder – Not Otherwise Specified (PDD-NOS); 2) Bi-Polar Disorder; 3) Attention Defict Hyperactivty Disorder (ADHD; 4) Learning Disabilities; 5) Anxiety Disorder. All of these disorders affect Ken’s educational functioning. Ken has been on a number of different medications for his various disorders over the years and currently takes medications including Lithium; Abilify; Lamictal; Lorazapan. (See testimony Father; Kisch; Cassens; P-B, D,H,I,J.)
Ken underwent a three year re-evaluation in late 2008 early 2009, including a pschoeducational evaluation (S-13), a psychological/personality evaluation (S-14), a speech-language evaluation (S-14), an occupational evaluation and sensory profile (P-C; S-10), and a functional assessing summary (S-15). Ken later received an independent neuropsychological evaluation in April 2009 (P-B; S-11) and a functional behavior assessment in November-December 2009 (S-9).
The MPS psychoeducational evaluation was performed in January 2009 (S-13). On the Wechester Abbreviated Scale of Intelligence (WASI) Ken’s verbal IQ was 80 (low average); performance IQ was 108 (average) and full scale IQ was 93 (average). On the Wechster Individual Achievement Test – 2 nd edition (WIAT-2) Ken’s oral language was low average, math was average, reading was extremely low and written language was extremely low, resulting in a total composite score in the borderline range at the 2nd percentile. Grade equivalents ranged between the mid 1 st grade to the mid 8 th grade on various individual subtests. Or the Woodcock Johnson Test of Achievement – 3 rd edition (WJ-3) Ken’s broad reading was at a 3.4 grade equivalent (very low) and his broad written language at a 4.7 grade equivalent (low). See S-13 for breakdown of test scores and complete psychoeducational evaluation).
The MPS speech-language evaluation was performed in April 2009 (P-A; S-12). On the Oral and Written Language Scales (OWLS) Ken’s listening comprehension and oral expression both fell within the low average range. On the Test of Problem Solving -2- Adolescent (TOPS-2) one of Ken’s subtest scores was average while the remaining subtests were all below average. (See P-A; S-12 for complete speech-language evaluation.)
An initial occupational therapy evaluation was performed in September-October 2009 by Regional Education Assessment and Diagnostic Services (READS). On the Beery Developmental Tests (BDT) Ken, then 15.5 years of age, scored an age equivalency of 13.5 in visual motor integration; 14.3 in visual perception; and 11.3 in motor coordination. (See P-C, S-10 for complete occupational therapy evaluations.)
Outside psychologist Neil Bowen performed MPS’ psychological/personality evaluation of Ken in December 2008 (P-C, S-14). Based upon projective testing Dr. Bowen found Ken to have a high level of anxiety, social immaturity and a heightened sensitivity to noise. Dr. Bowen found the primary issue to be control of Ken’s anxiety so as to get him to school on a regular basis and to help him to stay in his classes. (See S-14 for complete personality evaluation.)
An independent neuropsychological evaluation was performed on April 24, 2009 by Clinical Neuropsychologist Geraldine Cassens (P-B, S-1). On the Wechster Intelligence Scale for Children – 4 th Edition (WIC-IV) Ken received the following scores:
Subtest Composite Score Range
Verbal Comprehension 81 Low Average
Perceptual Reasoning 100 Average
Working Memory 88 Low Average
Processing 80 Low Average
Full Scale IQ 84 Low Average
In comparing these 2009 WISC-IV scores with Ken’s last complete administration of the WISC-IV in 2006, Dr. Cassens observed a significant lowering of verbal and processing skills. Dr. Cassens also performed an extensive battery of neuropsychological instruments. (See P-B; S-11 for complete breakdown of results.) In her Summary and Recommendations Dr. Cassens wrote:
At the present time, [Ken] is a 15-year-old, right-handed adolescent whose overall intellectual abilities are in the Low Average to Average range. [Ken’s] neuropsychological profile reveals: significant sequencing and organizational deficits, a significant reading disorder, impaired verbal fluency, impaired repetition of sentences greater than 10 words in duration when provided out of context, and losing track during complex problem solving skills. In addition, despite medication, evidence of anxiety is in the Clinically At-Risk range. By history a written language disorder has also been identified by the school system. [Ken’s] profile is consistent with a Pervasive Developmental Disorder-Not Otherwise Specified, Bipolar Disorder (by history) Reading and Written Language disabilities, Executive Dysfunction, as well as anxiety.
Based upon her evaluation, Dr. Cassen’s made a number of recommendations including training in social skills, a small classroom, a behavioral program, an outside reading evaluation given Ken’s severe reading and written language weaknesses, extra 1:1 or small group support, study guides and homework assistance. Dr. Cassen’s final recommendation was that:
If the above recommendations cannot be adequately provided within the public school system, an outside placement should be chosen that meets [Ken’s] academic and emotional needs.
(See P-B; S-11 for complete neuropsychological evaluation.)
PARENT’S PROPOSED PROGRAM
Parent proposes that Ken be placed in a 45 day extended evaluation in a therapeutic environment at Wareham Academy to assist the team with respect to the type of supports, services and placement Ken needs in order for him to attend school and access the general curriculum. No documentary evidence/written exhibits were introduced regarding Wareham Academy. No representative of Wareham Academy was called by Parent to testify at this hearing. The only testimony regarding Wareham Academy was from Father and Ms. Deutschmann, MPS’ Director of Special Education. Father testified that Ken had not been accepted at Wareham Academy; that Ken had not applied to Wareham Academy; that they had not even seen Wareham Academy; that he did not know how Wareham Academy would address Ken’s issues; and that none of Parent’s expert witnesses had observed Wareham Academy (see also testimony; Kisch, Cassens.) Ms. Deutschmann, Middleobro’s Director of Special Education, testified that Wareham Academy is a brand new program this year; that it has no speech-language pathologist, no reading specialist and no BCBA; that several teachers are not certified in special education; and there currently is no director of the program. (See testimony, Father; Deutschmann.)
SCHOOL’S PROPOSED PROGRAM
MPS’ IEP for Ken proposes that Ken attend the LINKS program at MHS. Under this proposed placement, Ken would receive the following direct special education services from the special education teacher in the LINKS program: 1) Reading for 87 minutes 3 times per 6 day cycle; 2) Reading/decoding for 60 minutes 2 times per 6 day cycle; and 3) Academic Support for 87 minutes every day. From the speech-language pathologist Ken would receive: 1) a language session once per week for 45 minutes and 2) a speech-language session once per week for 45 minutes. The school adjustment counselor would provide Ken with individual counseling sessions twice per week and more time if necessary on an as needed basis. Ken would also participate in a social skills group for 45 minutes once per week under the direction of the special education teacher, speech-language pathologist, and school adjustment counselor. Through the LINKS program Ken would be able to participate in 2 regular education inclusion classrooms co-taught by a regular education teacher and a special education teacher. Within those regular education classes Ken would receive special education language arts support for 87 minutes 3 times per 6 day cycle and academic support for 87 minutes 3 times per 6 day cycle. Ken’s special education teachers would receive consultation services from the speech-language pathologist once per cycle for 15 minutes and consultation services from the school adjustment counselor once per week for 15 minutes. Also under this IEP extended school year services were proposed for 4 hours, 4 times per week over a 6 week period, plus additional, separate reading and speech-language services.
The MHS schedule consists of 4-87 minute blocks of time per day and the LINKS program is provided within that structure. LINKS is a therapeutic setting which serves a population of high school students with emotional needs who are not aggressive. It is staffed by a full time special education teacher and a school adjustment counselor, one of whose office doors opens directly into the LINKS classroom. The LINKS classroom also has a door to the outside which allows students who feel it necessary to enter and exit from the LINKS classroom without transitioning through the main high school setting. LINKS allows students frequent check in’s with the school adjustment counselor and facilitates students on behavioral intervention plans.
(See S-2; testimony, Buchanan; Tucker; Maczko; Carroll; Tzovolos; Deutshmann.)
FINDINGS AND CONCLUSIONS
It is undisputed by the parties and confirmed by the evidence presented that Ken is a student with special education needs as defined under state and federal statues and regulations. The parties are in substantial agreement regarding the nature and manifestations of Ken’s special education needs. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.
Based upon three days of oral testimony, the written documentation introduced into evidence, and a review of the applicable law, I conclude that:
I. Ken does not require a 45 day extended evaluation at Wareham Academy.
II. MPS’ currently proposed IEP for Ken from June 2009 through June 2010 appropriately addresses his special education needs so as to provide him with FAFE in the least restrictive educational environment with several modifications/amplifications.
III. Ken’s lack of attendance constitutes a denied of FAFE.
IV. The three physician statements requesting a home/hospital placement for Ken are deficient.
My analysis follows.
Pursuant to Schaeffer v. Weast 126 S.Ct. 528 (2005) the United States Supreme Court has placed the burden of proof in special education administrative hearings upon the party seeking relief. Therefore, in the instant case Parent bears the burden of proof in demonstrating that Ken requires an extended evaluation; the parties each share the burden of proof regarding the appropriateness or inappropriateness of the MPS IEP;2 and MPS bears the burden of proof regarding both Ken’s lack of attendance denying him FAPE and the lack of appropriateness of the physician statements.
I.
603 CMR 28.05(2)(b) provides, in pertinent part:
(b) Evaluation information is inconclusive. If the Team finds the evaluation insufficient to develop an IEP , the Team, with parental consent, may agree to an extended evaluation period…
4) the extended evaluation…shall not exceed eight school weeks.
5) The extended evaluation shall not be considered a placement. Emphasis added.
In the instant case the Team developed an IEP (S-2) in June 2009 covering June 2009 through June 2010. On July 6, 2009 Parent accepted the 2009 summer services and all of the services during the 2009-2010 school year but rejected the placement at MHS (See S-2, last page.) Therefore, MPS, based upon all of its own evaluations (S-10, 11, 12, 13, 14, 15; P-A, C) and the independent neuropsychological evaluation of Dr. Cassens (P-B; S-11), promulgated an IEP. That IEP’s services were specifically accepted by Parent while rejecting the MHS location. Based upon these actions by MPS and Parent, this case does not meet the above-cited regulatory criteria for an extended evaluation.
Further, neither expert witness called by Parent, Dr. Kisch or Dr. Cassens, recommended an extended evaluation for Ken. Dr. Kisch testified and wrote via his Physicians Statements (see Physician Statement Section IV of this DECISION for more detailed discussion) that Ken required a substantially separate out of district placement but not an extended evaluation. Dr. Cassens through her testimony and neuropsychological evaluation made numerous recommendations, none of which called for an extended evaluation. (See testimony, Kirch; Cassens; P-B, G, H, I, J; S-11, 28, 29, 30)
In short, there is nothing in the documentary or testimonial evidence which supports Parent’s position that Ken requires an extended evaluation. If Parent’s intent is to use the extended evaluation process as a “trial placement” for Ken, that is not the regulatory purpose of an extended evaluation.
Finally, even if an extended evaluation was justified pursuant to 603 CMR 28.05 (2)(b) and warranted by the evidence presented, no documentary or testimonial evidence has been submitted regarding the appropriateness of Wareham Academy to perform an extended evaluation of Ken, or whether Wareham Academy would even consider doing so.
II.
MPS’ 2009-2010 IEP for Ken, on paper, appropriately addresses Ken’s special education needs so as to provide him FAFE in the least restrictive educational environment. The LINKS program has been described under SCHOOL’S PROPOSED PROGRAM , above. Eighteen students are assigned to LINKS but some students use the LINKS classroom as a base or check in and/or to utilize the school adjustment counselor’s service. Many spend the majority of their day within the regular education setting. Ken’s largest class within LINKS would be 6:1. (See testimony, Tucker; Maczko.) All of the LINKS service providers-special education teacher, speech-language pathologist, and school adjustment counselor-are appropriately certified and experienced in their specific areas of expertise (testimony, Tucker; Maczko; Carroll; S-50, 51, 53). This IEP incorporates many of independent evaluator Dr. Cassen’s recommendations (P-B; S-11).
The fundamental problem is that Ken does not access the LINKS program. Ken refuses/is unable to go to school on most days. Father testified that sometimes Ken will get dressed and get ready to go to school but then refused to leave the house and sometimes Ken will get into the car and drive to school with his father but then refuse to get out of the car and go into school. On the rare occasions Ken gets into school he often calls his father to come and pick him up after 1-2 hours. Father could not recall the last time that Ken made it into school for two consecutive days. (See testimony, Father.) Based upon Ken’s school attendance records (P-Q) during the 2008-2009 school year Ken attended school for only 53 out of a possible 180 school days for an attendance rate of only 29%. During the 2009-2010 school year from September 10, 2009 to January 11, 2010 Ken was present for only 13 days out of a possible 76 school days for an attendance rate of only 17%. Of those 13 days Ken attended he was tardy 3 days and dismissed early 3 days. Thus, Ken was in attendance for only 7 full days of school during the time period of September 10, 2009 to January 1, 2010. (See P-Q for complete attendance records.)
On October 20, 2009 the parties went to mediation and signed an Agreement Reached Through Mediation (P-F; S-27). Pursuant to this mediated agreement the parties agreed that in an attempt to get Ken back into the school setting, MPS would contract for the services of a BCBA (Board Certified Behavior Analyst). The BCBA would then: 1) complete a record review; 2) complete a home/school assessment; 3) develop a plan which could be implemented in school and at home designed to enable Ken to re-integrate into the school setting; 4) review the social skills program Ken could participate in at LINKS; 5) provide parent training/consultation to enable Parent to assist Ken in being successful in school. Under this agreement, Ken was to attend LINKS for a shortened day (only 2-87 minute periods) for the first six weeks with the intent to gradually transition him into a full school day program). (See P-F; S-27 for complete Agreement Reached Through Mediation.)
MPS contracted with Dr. Sinead Petersen, a BCBA, to perform the agreed upon services and perform a functional behavioral assessment (FBA). On October 29, 2009 Dr. Petersen conducted a three hour functional assessment interview at Ken’s home from 9:30 a.m.-12:30 p.m. with Ken, his father, their advocate and Ms. Maczko, the School Adjustment Counselor, present. Based upon this assessment interview Dr. Petersen developed a self-montoring sheet for Ken to record and rate his anxiety levels and identify the coping strategies/activites engaged during these intervels. Dr. Petersen also created a daily data collection sheet to be completed by Father tracking the number of hours Ken slept, bedtimes and waketimes, activities engaged in from 6 p.m. to bedtime, medications administered, and activities engaged in when Ken refused to go to school in the morning from 8:30 a.m. to 12:30 p.m. (See S-9; testimony, Petersen.)
However the prescribed data collection sheets were not completed by either Ken or Father. Further, despite numerous attempts by Dr. Petersen to observe Ken in his LINKS classroom, Ken failed to attend school following the October 29, 2009 home meeting with Dr. Petersen. Dr. Petersen finally observed the LINKS classroom on December 4, 2009 without Ken present, in order to write the report for her functional behavioral assessment (FBA). (See testimony, Petersen; Father; S-9, 32.)
Dr. Petersen detailed her LINKS observation in her FBA (S-9). Dr. Peterson reported:
Overall, the program observation was impressive for several reasons; the high staff to student ratio allows students to receive individualized programming. The calm and organized environment provides students a supportive place where they can complete outside classroom work. Finally, the adjustment counselor is an active member of the program and is available to each student as needed to help them manage their own behaviors. Finally, the regular social skills group provides each student with an opportunity to build their repertoire to become more successful and confident in the school setting.
It is this writer’s clinical opinion that the LINKS program is entirely appropriate for [Ken] given the high student ratio, the on-site adjustment counselor and the individualized programming available.
Summary
Clearly [Ken] is losing significant learning opportunities by not attending school. The prescribed data collection sheets were not completed by [Ken] or [Father]. A behavioral assessment cannot rely on self reports alone. Without objective measurable data the environmental contingencies maintaining the school refusal behavior could not be evaluated. It is with regret that a behavior plan could not be created to help increase [Ken’s] success and independence.
Recommendations
1. Complete the prescribed data collection forms to objectively measure all environmental factors that correlate with school refusal behavior.
2. Develop a behavior intervention based on a functional behavioral assessment to increase [Ken’s] social, behavioral and educational success.
Parent criticized Dr. Petersen for failing to complete the FBA and behavioral plan for getting Ken back into school as stipulated in the mediation agreement. However, I find that Parent and Ken subverted the mediation agreement by totally failing to cooperate with Dr. Petersen in filling out the prescribed forms (specified above) which may have uncovered maladaptive home behaviors affecting Ken’s non-attendance at school. Ken’s failure to attend LINKS after the home meeting with Dr. Peterson so that she could observe him interacting with the teacher, school adjustment counselor, and other students was a further roadblock frustrating Dr. Peterson’s completion of the FBA and her ultimate report. I conclude that Parent’s and Ken’s actions completely sabotaged the entire purpose of the Agreement Reached Through Mediation-to develop a process to get Ken back into the school setting.
In addition to the reduced day schedule provided for in the mediated agreement, MPS made other efforts/offers to assist getting Ken to school, including the school adjustment counselor doing home visits to ease Ken’s transisition back into school; 1:1 transportation; and 1:1 transportation with the school adjustment counselor on the van. All of these suggestions were rejected by Parent and/or Ken. (See testimony, Maczko; Buchanan; Father.)
I believe Dr. Kisch’s testimony that Ken’s non-attendance at school is related to his psychiatric condition; that Ken is not avoiding school just to do so; and that Father and Ken both want Ken to go to school. I also believe Dr. Kisch’s testimony that he has seen this inability to go to school in other children with Ken’s condition (See testimony, Kisch.) I find that Ken’s bipolar and anxiety disorders certainly contribute to Ken’s aversion to attending school. However, based upon the totally of evidence presented, I also find that Ken’s non-attendance results in no real downside for Ken. Father testified that if Ken refuses to go to school, video games are withheld from for the duration of that school day. (See also testimony, Peterson; S-9.) Dr. Petersen also testified and reported in S-9 that Ken himself admitted that when he refuses to go to school he watches television and rides his bike outside (S-9; testimony, Petersen; Father). On those rare occasions when Ken gets into school he often calls Father after a short period of time to come and pick him up and Father does so. I also believe Father that he really wants Ken to go school and has really tried to get him to go. However, I find that the alternative of not going to school for Ken is actually quite attractive and allows Ken the avoidance of responsibility and addressing his issues. I find that not only does Ken need to go to school but there needs to be some form of motivation for Ken not to remain at home. Until both issues are confronted and forthrightly addressed and dealt with, there is little basis to believe that Ken will attend school no matter where the placement might be.
Based upon the totality of evidence presented, I conclude that MPS’ IEP for Ken is essentially appropriate to address Ken’s special education needs so as to provide him FAPE in the least restrictive educational environment, with several modifications/amplifications.3 Ken has never really attempted to access LINKS on anything close to a consistent basis and the LINKS program/MPS IEP contains many recommendations of Parent’s own independent evaluator, Dr. Cassens. (See testimony Cassens; P-B; S-9.)
The following modifications/amplifications should be made to MPS’ IEP for Ken:
1) A complete psychiatric evaluation for Ken with specific recommendation regarding Ken’s school issues/school attendance/capability to attend school should be performed as soon as possible.
2) A complete reading evaluation of Ken should be performed by an outside reading specialist with specific recommendations to address Ken’s significant reading disability and written language weaknesses. (See Dr. Cussen recommendation #8.)
3) After receipt of the above-ordered evaluations and recommendations, the Team shall meet to consider such evaluations in promulgating Ken’s new IEP and future educational programming.
III.
I find that Ken’s substantial lack of school attendance over the last several years (P-Q – School attendance records; discussion in Section II, above) clearly constitutes a denial of FAPE. Dr. Cassens noted an actual decline in Ken’s IQ scores from 2006 to her testing in 2009 in both verbal and processing skills. (See testimony Dr. Cassens; P-B p. 6; S-11 p.6.) Ken’s learning and emotional impairments may certainly impact upon this decline in verbal and processing skills necessary for learning. However, minimal school attendance results in minimal exposure to a learning environment, minimal learning stimulation, minimal learning reinforcement and minimal learning opportunities, which can also be enhanced by the social stimulation of teachers, counselors, therapists and peers. All of these factors are missing when Ken does not attend school and would result in a regression of skills across all academic areas. I conclude that Ken cannot receive a free and appropriate public education if he does not attend school.
IV.
Dr. Kisch wrote a total of three Physician Statements for Temporary Home or Hospital Education pursuant to 603 CMR 28.03(3)(c) requesting educational services at home relevant to the 2009-2010 school year. The first Physician Statement was written on Dr. Kisch’s prescription pad on October 29, 2010. Dr. Kisch wrote (P-G; S-28):
Please implement home instruction effective immediately for this emotionally disabled student, current non-attending, pending special needs school placement. DX:PDD.
Dr. Kisch’s next Physician Statement was written on the Massachusetts Department of Education Physician Statement Recommended Form and was dated November 19, 2010 (P-D; S-29). Dr. Kisch wrote:
Please implement home instruction for this emotionally disabled student currently non-attending, pending special needs school placement.
Pervasive developmental disorder Bipolar disorder requiring special school placement.
Dr. Kisch’s final Physician Statement was also written on the recommended form and was dated January 13, 2010 (P-J; S-30). Dr. Kisch wrote:
Out of school due to serious emotional disability since 10/09; will not be able to attend regular public school; requires placement in special needs school (chapter 766, 502.4(i) or 502.5 prototype.
Pervasive developmental disorder Bipolar disorder.
603 CMR 28.03(3)(c) provides, in pertinent part:
(c) Educational services in home or hospital. 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 for a period of not less that fourteen days in any school year, the principal shall arrange for provision of educational services in the home or hospital. Emphasis added.
The Massachusetts Department of Elementary and Secondary Education (DESE) through its Advisory on the Implementation of Educational Services in the Home or Hospital (see S-33) further clarifies the above-cited regulation as follows:
2. Who is Entitled to Educational Services in the Home or Hospital? Public school students. A pubic school student who, due to documented medical reasons, is confined to home or a hospital for not less than fourteen (14) school days during the school year is entitled to receive home/hospital education services as described under 603 CMR 28.08(3) (c). Emphasis added.
Based upon the above regulatory scheme, a student must remain at home/be
confined to home for medical reasons to receive educational services in the home. Such a situation does not exist in the instant case.
As cited above, Ken informed Dr. Petersen and Ms. Maczko, the school adjustment counselor, during their home visit on October 29, 2009 that when he refuses to go to school he watches TV and rides his bike outside. The testimony of Ms. Maczko most succinctly summarizes Ken’s activities:
Q: What did [Ken] tell you during the BCBA’s interview?
A: We were there for I think about three hours. So there was lots of discussion. He said that he wanted to come to school. We talked about what he was doing with this time when he wasn’t coming to school. He said that he was going to the YMCA, riding his bike, playing basketball outside, spending time with his friends . Emphasis added. Trans. Vol. III page 28.
I find that Ken’s activities, described above, do not meet the criteria of 603 CMR 28.03(3)(c). Ken’s conditions clearly do not require that he must remain at home/be confined to home for medical reasons.
Further, Dr. Kisch’s testimony supports his physician’s statements and plainly established his purpose in writing then:
My intention was to provide a statement that would enable the public school to move on with providing students with an educationally appropriate placement. Trans. Vol. I page 151.
However, the purpose of a physician’s statement is to verify that a student requires educational services to be provided in a hospital or their home, not to provide a student with a different educational placement.
In Sutton Public Schools , BSEA# 08-5499; 14 MSER 268; 51 IDELR 90 (2008) this Hearing Officer concluded:
Finally, Dean does not meet the standards of 603 CMR 28.03 (3) for a home/hospital placement. Home tutoring is mandated only when the student must remain at home…. for medical reasons. Dean plays outdoors and goes to see his counselor…The use of a Dr.’s certificate to justify a change in or a different educational placement is not appropriate under the above cited regulation….
In Bellingham Public Schools BSEA 04-1976; 10 MSER 71; 41 IDELR 74 (2004) Hearing Officer Crane concluded that for Parents to prevail in obtaining home tutoring, the physician’s statement must provide a basis to conclude that the student cannot be educated within a school and that a simple recitation of the student’s diagnoses is not sufficient.
In his three physician’s statements, reproduced earlier in this DECISON , Dr. Kisch has done exactly what is proscribed by the above two BSEA Decisions – used a physician’s statement to attempt to change Ken’s educational placement by listing his various diagnoses.
Based upon the foregoing, I conclude that the three physician’s statements requesting a home placement for Ken are not sufficient to justify such a home placement pursuant to 603 CMR 28.03(3)(c).
ORDER
I. Ken does not currently require a 45 day extended evaluation.
II. MPS’ proposed IEP for Ken for the 2009-2010 school year was/is appropriate to address Ken’s special education needs so as to provide him with FAPE in the least restrictive educational environment with the three modifications/amplifications delineated in Section II, above.
III. Ken’s lack of attendance does constitute a denial of FAPE.
IV. The three physician’s statements are deficient.
By the Hearing Officer,
__________________________________
Dated: June 11, 2010
Raymond Oliver
1
Ken is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.
2
The burden of proof is shared by Parent and MPS regarding the appropriateness of MPS’ IEP for Ken because 1) Parents must show the IEP is inappropriate before there can be any consideration of an extended evaluation but 2) MPS specifically requested a finding of the IEP’s appropriateness in BSEA# 10-3523.
3
I give little weight to Dr. Kisch’s recommendations for an out of district placement. Dr. Kisch has not seen MPS’ placement for Ken, has not attended any team meetings and has not interacted with any MPS representatives. Even more significantly he is not Ken’s therapist. Dr. Kisch sees Ken on a monthly basis to monitor/adjust his medications (See testimony, Kisch.) Ken’s therapist did not testify or produce any written report.