COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: Lyle1 & Leominster Public Schools BSEA #11-1190
DECISION
This Decision is issued pursuant to M.G.L.c.71B and 30A, 20 U.S.C.§1401 et seq , 29 U.S.C. §794 and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on October 7, 2010 at the Central Office of the Leominster Public Schools in Leominster, MA. Present for all or part of the hearing were:
Ms. “L” Parent
Ms. “LL” Grandparent
Kathryn Silva Special Education Coordinator, Leominster Public Schools
Courtney Muller Administrator of Special Education, Leominster Public Schools
Carolyn Lyons Attorney for Leominster Public Schools
Stephanie Bialecki Advocate for Parents
Brenda Ginisi Court Reporter
Lindsay Byrne Hearing Officer, BSEA
The official record of the hearing consists of documents submitted by the School marked S-14, S-17, S-19. S-20, S-26, S-76, S-78, S-79; documents submitted by the Parented marked P-1, (P-29), P-2 (P-32), P-3 (P-36), P-4 (P-12A-1), P-5 (P-15-1), P-6 (P-19A-1), P-7 (P-25-A), P-8 (P-29A-1), P-9 (P-29B-1), P-10 (P-29C-1), P-11 (P-29D-1), P-12 (P-29D-2), P-13 (P-30B-1), P-14 (P-40-1), P-15 (P-41-A), P-16 (P-30A); and approximately 3 hours of recorded oral testimony. The School submitted a written closing argument on October 12, 2010. The Parents did not submit a closing argument. The record closed on October 22, 2010.
ISSUE
Whether Lyle is entitled to receive a home education program pursuant to 603 CMR 28.03 (3) (c)?
SUMMARY OF THE EVIDENCE
The limited issue presented here is part of a larger matter that is scheduled for hearing later in the month to accommodate evaluator’s schedules. The parties presented only those witnesses and documents relevant to the determination of the Student’s eligibility for home tutoring. The evidence may be briefly summarized:
1. During the 2009-2010 school year, Lyle was a 9 year old third grade student. He had an IEP which provided special education services in reading and speech. He had been diagnosed with a seizure disorder which was well controlled by medication. The parties agree that Lyle also demonstrated symptoms of anxiety and depression. (Muller; Silva; Parent; S-79; P-4, P-5).
2. The Parent came to believe that Lyle was being bullied by a classmate in school on account of his disability. She filed complaints with the building principal, the U.S. Department of Education Office for Civil Rights, and the Leominster Police Department. All conducted investigations and concluded that there was insufficient evidence to support the Parent’s claims. (Silva; Muller; Parent)
3. On May 1, 2009, the Parent submitted a “Physician’s Statement for Temporary Home or Hospital Education” (hereinafter “Physician’s Statement”) dated April 29, 2010. The Physician’s Statement indicated that it was completed by a Pediatric Nurse Practitioner who checked off that Lyle would require home based educational services for more than 14 days because:
Dangerous bullying situation has exacerbated [Lyle’s] anxiety level. At this time he is afraid to go to school. He has been out of school since April 14, 2010. School District needs to appropriately address this situation so that [Lyle] is no longer in fear of going to school and create a safe learning environment for him before he will be able to return to school.
The form further indicates that the Student’s health will not affect the provision of full educational services. (P-4, S-26)
4. Lyle’s medical records contain a notation on April 29, 2010: “needed a letter for school re: bullying issue no visit” (P-26, S-79)
5. Leominster, through its attorney, wrote to the Parent’s advocate on May 20, 2010 indicating that the Physician Statement submitted by the Parent did not meet the regulatory standards for home tutoring services. Leominster enclosed a copy of the DESE advisory on home/hospital services. Leominster also requested parental consent to permit Leominster to contact Lyle’s pediatrician directly about the request for home tutoring and enclosed a release form. (S-23)
6. A Team meeting was held on May 26, 2010 to review both the Parent’s request for home tutoring and Lyle’s IEP. Leominster reiterated its position that the Physician’s Statement was deficient. Leominster requested additional information from Lyle’s physician and offered: to invite the physician to a team meeting, to have a telephone conversation between school staff and the physician, to meet with the physician in the company of the Parents’ advocate, or to arrange for Lyle’s physician to speak directly with the School’s physician with whom he shared an office and practice. The Parent refused to consent to any contact between the School and Lyle’s health care providers. (Silva). The Team did not move beyond that issue to discuss Lyle’s IEP. (Muller)
7. The Parent submitted a letter from Lyle’s health care providers dated May 26, 2010, to the Team. The letter states:
This is the second request from this office for concerns regarding the educational plan for [Lincoln]. A Physician’s Statement for Temporary Home Education was signed by our office on April 29, 2010. He is a patient for whom this office provides primary medical care. He has a complicated medical history including a seizure disorder, learning difficulties, communication difficulties, anxiety disorder, depression and some developmental delays. He is currently on Depakote which he has been taking since February 2008. This has caused significant weight gain which he has no control over. He is extremely depressed, and feeling bullied at school. This sudden weight gain could be a contributing factor to his peers bullying him at school. [Lyle] is now struggling with school phobia which is preventing him from attending school. After a long conversation with his counselor, and his parents, I believe that [Lyle] is suffering from symptoms related to his anxiety disorder and believe that he needs to receive home education through the end of the school year or until his anxiety level subsides and a plan of action can be developed to reintroduce him to the school community. The letter contains two signatures purportedly those of the nurse practitioner and the physician. (P-2, S-79; Muller; Silva)
8. On June 15, 2010, the Parent submitted a third written request for home tutoring essentially repeating the letter of May 26, 2010. The letter, on Medical Associates Letterhead, appears to have different signatures. (P-3; S-14)
9. Leominster continued to decline the Parent’s request for home tutoring. Katherine Silva, the Special Education Coordinator at Lyle’s elementary School, explained that the district believed the Physician Statement and subsequent written requests did not meet the regulatory requirements as there is no medical diagnosis, no statement that Lyle is “confined” to home, no expected duration and no proposed treatment indicated on any of the submissions. Courtney Muller, the Director of Special Education for Leominster, testified that she explained the regulatory criteria to the Parent at the May 26th Team meeting, and repeatedly requested permission from her to gather the missing information directly from Lyle’s health care providers so that tutoring could begin. According to Ms. Muller, the Parent did not permit the School and Lyle’s health care providers to share information. (Silva; Muller)
10. The Parent requested a special education hearing on August 16, 2010. The School agreed to provide tutoring to Lincoln at the public library pending the outcome of the hearing. (Administrative Record)
11. Dr. Michael Lyons, Lyle’s pediatrician, testified by telephone. He stated he did not personally see Lyle during the spring, 2010. He has not had any contact with any outside mental health or educational service provider for Lyle. He has not reviewed any evaluations or individualized plans. He was not aware that Lyle experienced any anxiety-related issues prior to March or April 2010. He did not make any independent medical diagnosis of anxiety disorder. He learned of Lyle’s school difficulties due to bullying from the parent, and was not aware of any investigation conducted by the School, the police, or other administrative agencies. He was not aware that Leominster had offered to transfer Lyle to a different elementary school. Dr. Lyons testified that none of the Physician’s Statements completed by his office indicated that Lyle was “confined” to home. Dr. Lyons kept an unsigned version of the Physician Statement and supplementary letters in Lyle’s medical file and could not therefore verify any signatures. (Lyons)
FINDINGS AND CONCLUSIONS
There is no dispute that Lyle is a student with special learning needs and is therefore entitled to receive a free appropriate public education. There is also no dispute that a partially accepted Individualized Education Plan was in place for Lyle throughout the 2009-2010 school year. The issue presented here for decision is whether Lyle has been entitled to receive a home-education program since May 1, 2010. After careful consideration of all the evidence and arguments introduced at the Hearing, it is my conclusion that the School has carried its burden of proving that it is not obligated under 603 CMR 28.03 (B)(C) to provide home-tutoring services to Lyle2 . My reasoning follows:
Massachusetts requires a school district to provide tutoring in a hospital or in a student’s home on a temporary basis when the student’s medical condition prevents attendance in the school building.
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 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…. 603 CMR 28.03 (3) (emphasis added). See also M.G.L. c71B §2
The Massachusetts Department of Education (DOE) Question and Answer Guide on the Implementatation of Educational Services in the Home or Hospital, 603 CMR 28.03 (3)(c) and 28.04 (4) (issued February 1999, revised February 2005), (hereafter the “DESE Home and Hospital Guide”)3 , provides assistance in the interpretation of the applicable special education regulation:
The intent of this regulation on home or hospital instruction is to provide a student receiving a publicly funded education with the opportunity to make educational progress even when a physician determines that the student is physically unable to attend school.
A public school student who, due to documented medical reasons, is confined to home or a hospital for no less than fourteen (14) school days during the school year, is entitled to receive home/hospital educational services as described under 603 CMR 28.03 (3)(c). DESE Guide Question 2, paragraph 1.
For both public school students and private school students, the justification for any needed home or hospital instruction must be documented by a student’s personal physician. DESE Home and Hospital Guide Question 2, Paragraph 3.
Once the student’s personal physician determines that a student’s medical condition will require either hospitalization or home care for not less than 14 school days, the physician must notify the school district responsible for the student in order to begin the home/hospital instruction process. The student’s physician must complete a Department of Education form 28R/3 (or equivalent signed statement) and submit it to the student’s building principal or other appropriate program administrator. At a minimum the physician’s signed notice must include information regarding:
the date the student was admitted to a hospital or was confined to home;
the medical reason(s) for the confinement; and
what medical needs of the student should be considered in planning the home or hospital services
DESE Home and Hospital Guide Question 3, Paragraph 1.
To summarize the pertinent regulation and the guidance from the Massachusetts Department of Education: qualification for publicly funded home tutoring services requires, at a minimum, a statement from a physician verifying that a student “must remain at home” for “medical reasons.”
The record in this matter shows that Leominster has not received a Physician’s Statement meeting the necessary regulatory criteria. The form presented on May 1, 2010 does not indicate that Lyle “must remain at home”, does not identify the medical reason for the tutoring request, and does not, by extension, set out the expected duration of the confinement due to a medical condition. The subsequent letters of May 26 and June 15, 2010 do not cure these deficiencies. Apart from lacking traditional indices of reliability, neither letter clearly states a medical reason for Lyle’s confinement to home. Instead both identify the family’s perception of Lyle’s vulnerability to bullying as the justification for a home education, and both identify a change in school environment as the outcome which will permit Lyle to return to school. The testimony of Dr. Lyons did not elucidate or alter the lack of medical justification for home confinement. The preponderance of the evidence supports the conclusion that Lyle is not attending school because the Parent is unhappy with the school environment and program for him. There is insufficient evidence in this record of the medical reason required by M.G.L. c 71B §2 and 603 CMR 28.03 (c) to initiate a publicly funded home tutoring program. I am persuaded, therefore, that Leominster’s decision to seek clarification and additional medical support for the Parent’s requests for home tutoring during the spring, 2010 was reasonable, and that Leominster’s refusal to provide the home tutoring in the absence of a properly completed Physician’s Statement was justified under these circumstances.
ORDER
Lyle is not entitled to receive a publicly funded home education program pursuant to 603 CMR 28.03 (3).
By the Hearing Officer
_________________________
Dated: November 3, 2010
1
“Lyle” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
The burden of proof rests with the party challenging the placement or program or the document purportedly entitling the Student to either. Schaffer v. Weast , 546 U.S.49 (2005)
3
DESE Guide to Implementation of Educational Services in the Home or Hospital can be found at www.doe.mass.edu/pqu/ta/hhep-qa-html.