COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Norwood Public Schools
BSEA # 11-5444
PARTIAL DECISION
This partial decision 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.
A hearing was held on May 19, 24, 26, 27, and 31, 2011 in Malden, MA before William Crane, Hearing Officer. The parties agreed that as soon as possible following the hearing and receipt of argument, I should address the limited issue of the appropriateness of Norwood’s using a hip stabilizing belt while feeding Student. The parties provided written argument on this issue on June 3, 2011.
I am hereby issuing a partial decision on this limited issue.
Norwood seeks to use a hip stabilizing belt for the limited purpose of assisting with (and making safer) Student’s feeding at school, while Parents take the position that a hip stabilizing belt is not warranted and constitutes unauthorized restraint.
Student, who is diagnosed with Pervasive Developmental Disorder Not Otherwise Specified, is a medically-complicated young boy. He has a number of documented medical concerns related directly to feeding, including gastroesophageal reflux, tracheomalacia and failure to thrive. At the same time, however, Student has a normal swallow. A G-tube was placed in July 2007 and continues in place for supplemental feeding. Student has low muscle tone which reduces his ability to maintain a stable, upright sitting posture for extended periods of time; and, more specifically, he has reduced oral muscle tone and strength, with the result that he eats slowly. Student is easily distracted, and it is not unusual for him to reach for others or for their food when he gets excited. For these reasons, when he is eating by mouth (which is what occurs at school), Student requires assistance and must be closely supervised at all times. Norwood has a written plan in place for Student for purpose of oral feeding at school. Testimony of Mother, Hayden-Sloane, Hamilton-Dodd; exhibits P-1, P-11, P-35, S-33.
At school, Student eats lunch and snack while sitting in a Rifton chair. As compared to a typical chair, the Rifton chair provides increased support for Student while seated. The hip stabilizing belt is a seat belt that is attached to the Rifton chair. Until objected to by Parents, Norwood used the hip stabilizing belt with Student during feeding times. Testimony of Mother, Stoddard.
Norwood’s use of the hip stabilizing belt served several purposes. The belt kept Student seated in an upright posture and in appropriate alignment for eating. This supported Student’s suck, swallow and breath pattern and promoted effective chewing and swallowing. All of this promoted efficient eating of food and reduced Student’s risk of choking. Testimony of Hayden-Sloane, Stoddard; exhibit S-34.
Norwood also found that the hip stabilizing belt served the purpose of preventing Student from standing up while eating. Student has stood up several times when eating without the use of the hip stabilizing belt. At least some of Student’s attempts to stand while eating in the Rifton chair may be the result of a stand-up reflex in his lower body that occurs when he attempts to straighten his legs to achieve an appropriate posture for swallowing. When Student stands up while eating, this increases the risk of choking. Testimony of Hayden-Sloane, Stoddard, Mother; exhibits S-34 S-37.
It can take as long as 40 minutes for Student to eat his lunch and as long as 20 minutes for him to eat his snack at school. Norwood found that the use of the hip stabilizing belt allowed Student to be in an appropriate, safe posture for eating without Student’s needing to use an excessive amount of effort to maintain this posture. This resulted in Student’s having more energy for eating. Student was eating more efficiently and effectively with the use of the hip stabilizing belt. His food consumption at school has decreased since the hip stabilizing belt was discontinued. Testimony of Hayden-Sloane, Stoddard.
I consider Norwood’s decision to use a hip stabilizing belt to be comparable to a school district’s selection of a particular methodology of instruction. In the latter context, a BSEA Hearing Officer is required to defer to a school district’s choice of methodology unless to do so would deny FAPE. Norwood’s decision to use the hip stabilizing belt was based on recommendations of persons with expertise in feeding Student and who bear the responsibility of safely and effectively feeding Student while at school. Its decision should not be overturned unless there is substantial and persuasive evidence or law to the contrary.
Parents sought to rebut Norwood’s evidence through the testimony of a private occupational therapist (Carol Hamilton-Dodd, MA, OTR/L) who has a specialty in feeding and who has worked with and recently (May 12, 2011) observed and re-assessed Student for feeding issues. Ms. Hamilton-Dodd testified that she agreed that if Student bends over or is playing while eating, there is a greater risk of choking; but she was not certain whether Student’s standing up would increase the risk of choking. Ms. Hamilton-Dodd further testified that, on the basis of her observation and assessment, she did not believe that a hip stabilizing belt was needed to ensure Student’s safety while eating, and she did not recommend its use. Testimony of Hamilton-Dodd; exhibit P-47.
Although Ms. Hamilton-Dodd was a credible, expert witness, I found her testimony to be less persuasive than that of Ms. Hayden-Sloane. This is because Ms. Hamilton-Dodd’s observation of Student eating was conducted over a relatively short period of time (15 minutes as compared to Student’s needing up to 40 minutes to complete a meal at school) and without the distractions of the school lunch room where Student eats with other children. Ms. Hayden-Sloane, who is a trained feeding specialist and who recently assessed Student regarding feeding, has far more extensive experience addressing Student’s feeding challenges within the actual context in which they arise at school. Testimony of Hamilton-Dodd, Hayden-Sloane; exhibits P-47, S-45.
Parents also submitted a signed, notarized letter from Student’s physician (Christopher Giuliano, MD), dated May 9, 2011. In his letter “To whom it may concern”, Dr. Giuliano wrote that he did not believe it necessary for Student to be “restrained while eating as this will not affect his risk of choking.” However, Dr. Giuliano did not testify, and there is no basis for me to conclude that he has expertise in feeding a child with Student’s disabilities; and although he made a general reference to restraint, his letter did not address the specific question of the appropriateness of using the Rifton hip stabilizing belt. Exhibits P-34, P-39. I therefore do not give his letter probative value.
Mother’s testimony also supported Parents’ position. She testified that when Student stands up, he can be prompted to sit down. Mother also testified that at home and, more recently at school where Mother or Father has been feeding Student, Student has been fed without incident without wearing a hip stabilizing belt. Testimony of Mother. However, this evidence does not support the proposition that Student can be precluded, by prompts or cuing, from standing up while eating without the use of a belt. Nor does this evidence contradict Norwood’s assertion that there is a serious risk of choking if Student eats without a hip stabilizing belt.
In reviewing the above evidence, I am persuaded that use of a hip stabilizing belt substantially improves Student’s food intake (which is particularly important in light of Student’s diagnosis of failure to thrive) and substantially decreases the risk of choking. However, as discussed below, I further find that, absent an order from a physician, Massachusetts Department of Elementary and Secondary Education (DESE) regulations preclude Norwood’s use of a hip stabilizing belt.
DESE regulations 603 CMR 46.00 govern the use of restraint within a public school district. The regulations are entitled “Physical Restraint” and much of the content of the regulations is directed at physical restraint. However, the regulations also address briefly the use of mechanical restraint.1 The relevant language, contained with the definition section, is as follows:
Restraint – Other: Limiting the physical freedom of an individual student by mechanical means or seclusion in a limited space or location, or temporarily controlling the behavior of a student by chemical means. The use of chemical or mechanical restraint is prohibited unless explicitly authorized by a physician and approved in writing by the parent or guardian. The use of seclusion restraint is prohibited in public education programs.
(a) Mechanical Restraint: The use of a physical device to restrict the movement of a student or the movement or normal function of a portion of his or her body. A protective or stabilizing device ordered by a physician shall not be considered mechanical restraint.2
By its terms, the above-quoted regulatory language prohibits the use of mechanical restraint unless “explicitly authorized by a physician and approved in writing by the parent or guardian.” It is not disputed that Parents have not approved the use of the hip stabilizing belt and are unlikely to do so in the immediate future. Thus, to the extent that the hip stabilizing belt is considered to be mechanical restraint, Norwood is not allowed to use it.
I find that the hip stabilizing belt falls within the general regulatory definition of mechanical restraint, thereby making the use of the belt subject to these regulations. This is because the belt limits Student’s “physical freedom … by mechanical means.” See quoted language, above.
However, there is one possible way for Norwood’s use of the stabilizing belt not to be considered mechanical restraint and therefore not to require parental consent. In subpart (a), quoted above, the regulations allow for a “stabilizing device” to be exempt from the restraint regulations (and therefore its use would be otherwise permissible) but only if it is “ordered by a physician”. It is not disputed that no physician has ordered the use of a hip stabilizing belt for Student.3
These regulatory standards regarding restraint do not permit any further exemption, even for purposes of protecting the safety of Student.
In summary, I find that it would be appropriate for Norwood to use a hip stabilizing belt in accordance with a physician’s written order. Norwood may seek to obtain a physician’s order for this purpose. However, unless and until a physician has ordered its use for Student, Norwood is precluded from using a hip stabilizing belt with Student for any purpose.
ORDER
For reasons explained above, Norwood may not utilize a hip stabilizing belt when feeding Student unless and until Norwood obtains a written order from a physician for this purpose.
By the Hearing Officer,
William Crane
Dated: June 7, 2011
1
The DESE regulations distinguish mechanical restraint from physical restraint. The latter is defined to mean “[t]he use of bodily force to limit a student’s freedom of movement.” 603 CMR 46.02 (3). As noted in the text above, mechanical restraint refers to limiting the physical freedom of a student by mechanical means.
2
603 CMR 46.02 (5).
3
This part of the regulations also serves to clarify a related point, which is that contrary to Norwood’s arguments, a belt used for the limited purpose of physically stabilizing a student in a chair (rather than a belt used for the purpose of limiting or controlling the voluntary movement of a student trying to exit the chair) is precluded unless ordered by a physician. This is because a hip stabilizing belt is a “stabilizing device” that, in effect, limits Student’s “physical freedom”, thereby bringing it within the scope of the regulations.