Student v. Lowell Public Schools District – BSEA #02-1497



<br /> Student v. Lowell Public Schools District – BSEA #02-1497<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re : Student v. Lowell Public Schools District

BSEA # 02-1497

RULING ON THE PARENT’S MOTION FOR ORDER REQUIRING HOME TUTORING

On September 20, 2001 the Parent/Student filed a request for Emergency Hearing in the above referenced matter. The matter was granted emergency status on September 21 st , and a notice of Hearing was issued the same date setting the matter for Hearing on October 1, 2001. Both Parties requested a postponement, Lowell Public Schools (hereinafter, “Lowell”) on September 26 th and the Parent on September 27 th . The requests were granted on September 27 th and the matter scheduled at the request of Lowell for a Pre-Hearing Conference on October 30, 2001. On October 17 th the Parents filed a Motion for Order Requiring Home Tutoring. A Motion Session was scheduled on October 19 th for October 22, 2001. It is this issue that the Parents/Student request be decided expeditiously.

The Parent submitted documents labeled PE-1 through PE-4 and PE-A through PE-G in support of their motion. Lowell offered no documents but relied on the exhibits proffered by the Parents. This Ruling is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C. 794, M.G.L. chs. 30A, 71B and the Regulations promulgated under said statutes.

The question before me is whether Lowell is obligated to offer the Student Home tutoring until the ultimate issue on placement is decided.

The Parent argues that she has submitted the requisite medical documentation to support home tutoring given the Student’s current emotional/psychological status and that the Student’s current placement in Lowell is unsafe. According to the Parent, Lowell has not been able to address the Student’s disability and instead has resorted to calling the Parent to pick up the student from school, imposing disciplinary suspensions and filing criminal, and civil actions against the Student. The Parent requests that the BSEA issue an interim order, based upon the physician’s Statement for Temporary Home or Hospital Education, that the Student be provided services in the home until the ultimate placement issue is decided.

Lowell differs by asserting the physician’s Statement does not provide adequate medical reasons to support a home placement. It states that it has not received documentation from the physician that includes either a diagnosis or specifically states that the Student should receive educational services in the home. The staff at the Wang School is eager to work with the Student and argues that it is in her best interest to be in school.

Facts :

1. Student is a fourteen year old eighth grader at the Ann Wang School (hereinafter, “Wang School”) in Lowell, Massachusetts. (PE-4)

2. Student has been diagnosed with bipolar disorder type II with psychotic features NOS. Her severe emotional disturbances have caused her 19 psychiatric hospitalizations between the ages of 7 and 14, three of which occurred during the past year. (PE-4) Student has been on several medications and is currently on medication to address the mental illness. She has poor socialization skills and has not benefited from group treatment in the past. (PE-A) According to the Parent’s Affidavit, the Student weighs approximately 220 pounds and can be very difficult to control. Neither the Parent nor the Student was present on the date of the Motion Session as the Student was appearing before a different forum on criminal charges brought by a Wang School Official.

3. The Student is an active client of the Department of Mental Health (hereinafter, “DMH”). (PE-4)

4. Student has attended a number of residential, therapeutic and behavioral day programs. From January through October 1999 she attended Cornerstones, a DMH funded residential program, then the Laura Le Alternative School run by Lowell from October 1999 through May 2000 and was then placed by Lowell at the Wang School in September of 2000, where she remains to date. (PE-4)

5. From April 5 th through May 23, 2001, the Student was admitted at the Lowell Youth Treatment Center (hereinafter, “LYTC”) affiliated with the Westwood Pembroke Health System. On May 23, 2001, Dr. Edwin Ilano, her treating physician, recommended that the Student be placed in an alternative school such as a therapeutic day school upon discharge. (PE-A) At the time of this hospitalization the Student presented with symptoms of depression, as well as episodes of agitation and out of control behaviors. (PE-A; PE-C)

6. Via letter to the Parent of May 17, 2001, Darcie M. Nuttall, LMHC, also recommended a structured therapeutic educational environment with a behavioral based system in place. (PE-B) She did not rule out the possibility of residential placement. (Id.)

7. Since the beginning of the 2001-2002 school year, the Student has had numerous behavioral incidents in school. (PE-4)

8. Student was admitted to the LYTC between September 6 th and 11, 2001 to monitor an adjustment on her medications. According to the Parent, she contacted Lowell to request home tutoring on September 10 th and was informed by Ms. Marcia Byrne that home services would be provided upon receipt of a Physician’s Statement for Temporary Home or Hospital Education. (PE-4) The aforementioned statement was faxed by Lowell to Dr. Ilano, who in turn sent the completed form back to Lowell. (Id.)

9. The student was discharged on September 11 th and stayed at home on September 12 th . On the 13 th of September, Lowell notified the parent that home tutoring would not be approved because Dr. Ilano’s note did not provide an adequate medical reason for the Student to receive home tutoring. Disagreeing with Lowell’s position, Dr. Ilano wrote a letter to Lowell on September 24, 2001 again recommending that the Student be placed in a therapeutic day school where the Student’s significant behavioral, psychiatric and learning needs could be addressed. (PE-C) He warned that an inappropriate school environment could precipitate future hospitalizations. (PE-C)

10. On September 19 th the Parent requested an emergency Team meeting and requested an Emergency Hearing with the BSEA. (PE-4)

11. On September 20 th the Student spent approximately three hours in the principal’s office because other students were teasing her. The next day she reported not feeling well and spent the day sleeping in the nurse’s office. (PE-4)

12. On Monday September 24 th the Student was suspended from school for one day due to an episode associated with yelling and swearing. (PE-4)

13. The student returned to school on September 27 th . The same date the Parent met with the Wang School’s social worker and provided her with tools to help the Student (eg. a journal to write, a squeeze ball, and other recommendations.) (PE-4) Later that day the Student was suspended for inappropriate behavior. Mr. Prescott of the Wang School stated that he would be pressing criminal charges against the Student for disturbing school assembly. The Student was scheduled to appear in Juvenile Court on September 23, 2001.

14. The Student returned to school on October 1, 2001 but her father was called to go pick her up as she was banging her head against the wall and kicking the heater. The Student has not returned to school since that day. (PE-4)

15. The Parent again communicated with the Student’s pediatrician and the mental health clinician to discuss home tutoring. (PE-4) On October 8, 2001 the pediatrician, Dr. Weiss issued a request on a prescription sheet that the Student be offered home tutoring until appropriate school placement could be arranged. (PE-2) On October 15, 2001 both, Dr. Weiss and the clinician Ms. Nuttall submitted to Lowell a completed Physician’s Statement for Temporary Home or Hospital Education form requesting home services for more than 14 days. (PE-1) This form provides a diagnosis of psychotic disorder NOS and states that the student had been reacting to stimuli in an unsafe violent manner at or after school. Dr. Weiss further checked the box indicating that the Student’s health would affect the provision of full educational services during this period. (Id.)

16. On October 16, 2001, Mr. Langlois of the Wang School contacted the Parent to inform her that the form submitted by Dr. Weiss was unacceptable because it didn’t state a medical reason why the Student couldn’t attend school. He also stated that a “51A” charging child neglect could be filed and that the school could also contact a truancy officer. He further informed the parent that placement would not be discussed at the Team meeting scheduled to take place on May 24 th . (PE-4)

17. The Parent was then notified on October 15 th that the Team meeting would be cancelled because the Student had not completed her evaluations. This decision was reversed during the motion session at which time the parties agreed to hold the team meeting as scheduled and deal with the missing OT/PT evaluation at a later time.

18. Lowell asserts that it is able and willing to service the Student at the Wang School.

Ruling :

No dispute exists regarding the Student’s entitlement to Special Education or that her disabilities are related to learning, psycho-emotional and behavioral issues. The issue before me is whether Lowell is responsible to offer the Student home services as per the physician’s document submitted to the school on October 12, 2001. Based on the exhibits and the arguments proffered by the attorneys I find that Lowell is indeed responsible to offer home services effective immediately.

M.G.L. c. 71B section 2, addressing regulations and special education programs among others, establishes a student’s right to receive special education in the home. In pertinent part it states that “Children receiving or requiring special education shall be entitled to participate in any of the following programs: … (5) teaching or treatment at home;…” M.G.L. c. 71B section 2. The specific process to access these services is found in the Regulations.

In the section establishing the responsibilities of a School Principal, the Massachusetts Regulations for Special Education mandate that s/he, in coordination with the Administrator for Special Education, arrange the provision of educational services in the home for a period no less than 14 days upon receipt of a physician’s note, for children entitled to special education services. 603 CMR 28.03:(3)(c). Said regulation provides:
(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 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. 603 CMR 28.03:(3)(c).

This language is unequivocal and does not leave the provision of educational services in the home to the discretion of the school principal or the special education administrator where the requisite medical order is issued for medical reasons and the home placement is required for at least 14 days. The regulation sets out the process that must be initiated upon receipt of the appropriate physician’s order. In the case at bar, Dr. Weiss’ statements in the Physician’s Statement for Temporary Home or Hospital Education form submitted on October 15, 2001 complies with the requirements of law. The Statement requires the Student to stay in the home due to complications associated with a diagnosis of Psychotic Disorder NOS. (PE-1) According to Dr. Weiss the school environment was causing the Student to react to stimulus in unsafe ways at school as well as violent acting out after school. In the past, and as recently as April and September of 2001, the student has been hospitalized for similar behaviors associated with this same diagnosis. (See PE-A and PE-C) In Dr. Weiss’ opinion, the Student’s health would affect provision of full services during the period ordered for a home program. (PE-1) Accordingly, I find that the Physician’s Statement has provided ample “medical reasons” for Student to remain at home for no less than 14 days. Moreover, if Lowell received Dr. Ilano’s Physician’s Statement for Temporary Home or Hospital Education in September 2001, it was obligated to arrange for services since that time.

Furthermore, 603 CMR 28.04:(4) on unscheduled evaluations for medical reasons further mandates that:

If, in the opinion of the student’s physician, an eligible student is likely to remain at home, in a hospital, or in a pediatric nursing home for medical reasons and for more than sixty (60) school days in any school year, the Administrator of Special Education shall, without undue delay, convene a Team to consider evaluation needs and, if appropriate, to amend the existing IEP or develop a new IEP suited to the student’s unique circumstances. 603 CMR 28.04:(4)

Notwithstanding this requirement of the law, since this case is scheduled to proceed to Hearing in November of 2001 I need not address this section of the Regulations at the present time.

ORDER

The Parent’s Motion is GRANTED. Lowell is ordered to commence provision of educational services, inclusive of special education services in the home forthwith.

So ordered by the hearing officer,

Rosa I. Figueroa

Hearing Officer

Dated: October 24, 2001


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