COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
BSEA #08-2564 and BSEA #08-4033
OLIVER1 & the AGAWAM PUBLIC SCHOOLS
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 these statutes.
On January 22, 2008 the School District requested a hearing to challenge the sufficiency of the Parents’ January 8, 2008 Home/Hospital Education Statement. This matter was assigned BSEA docket # 08-4033. At the School District’s request, and over the Parents’ objection, the hearing request was consolidated with BSEA #08-2564, the due process proceeding initiated by the Parents on October 30, 2007. A full evidentiary hearing was held on both matters on January 31, 2008 and February 1, 2008 at the Offices of the Catougno Reporting Services in Springfield, MA.
Those present for all or part of the hearing were:
Parents
Herbert Gilmore, M.D. Physician, Baystate Medical Center, Springfield
Lisa Bruno 7 th Grade History Teacher, Agawam Public Schools
Robin Fernandes Educational Team Facilitator, Agawam Public Schools
Tracy Jo Pass 6 th Grade Teacher, Agawam Public Schools
Carol Patrick 6 th Grade Teacher, Agawam Public Schools
Patricia DiStefano School Psychologist, Agawam Public Schools
Margaret Harak Behavior Interventionist; Agawam Public Schools
John Provost Director of Special Services, Agawam Public Schools
Peter Smith Attorney, Agawam Public Schools
Brenda Ginisi Court Stenographer, Catougno Court Reporting
Lindsay Byrne, Hearing Officer, BSEA
The official record of the hearing consists of documents submitted by Parents Exhibits marked P1-P-24; P-27-44; P-49-P-57; P-54; P-55; P-57 and P-61; documents submitted by the School Exhibits marked S-1-S-43 and approximately 13 hours of recorded oral testimony and argument. The School was represented by Counsel. Parents were pro-se. Both Parties submitted brief written closing statements on February 4, 2008, and the record closed on that date. As the Student is currently receiving no educational services, having been withdrawn from school in the beginning of January 2008 by the Parents, the Hearing Officer is issuing an expedited decision on the discrete issue of whether the Student is entitled to publicly funded tutoring while he remains at home. The full Decision addressing all other issues raised by Parents will follow in due course.
ISSUE
I. Whether the Student has submitted a valid “ Physician’s Statement for Temporary Home or Hospital Education” entitling him to a publicly funded home tutoring program?
SUMMARY OF THE EVIDENCE
1. Oliver is a twelve-year-old 7 th grade student at the Agawam Junior High School. After an initial consultation in May 2006, Oliver was diagnosed by Dr. Herbert Gilmore, a pediatric neurologist, with Tourette’s Syndrome, Migraine Headaches, and Attention Deficit Hyperactivity Disorder (ADHD) (S-2). There is no evidence in this record of any additional credible diagnoses of cognitive, emotional, or behavioral disorders. Oliver attended regular education classes with a variety of modifications and accommodations for the 6 th grade year, 2006-2007 and the beginning of the 7 th grade year, 2007-2008 (S-3, S-7, Bruno, Pass).
2. Throughout the fall of 2007, the Parents and the School District disagreed about Oliver’s eligibility for special education services, the extent and the implementation of a Section 504 Plan for Oliver, the level of Oliver’s academic performance and behavioral compliance in 7 th grade classes, and appropriate pedagogical and procedural responses to Oliver’s needs and parental requests. The Parents sought a TEAM finding that Oliver is eligible for special education, and an Individualized Educational Plan (IEP) providing Oliver with a dedicated individual paraprofessional aide in all his core academic classes. The School offered a Section 504 Plan providing for grading, scheduling, and production modifications, provision of a laptop computer and third set of books, staff training concerning Tourette’s Syndrome, completion of a Functional Behavioral Assessment, weekly progress reports for the Parents and placement in selected inclusion and/or language-based classes (S-22). Oliver’s mother testified that she would accept the proposed 504 Plan as it contained all the elements she sought (Mother). Oliver’s father rejected the proposed 504 plan insisting that the proffered accommodations should be incorporated into an IEP (S-35). The Parents disagreed throughout the course of the hearing about the appropriate educational program for Oliver.
3. By January 7, 2008, the Parents had withdrawn Oliver from school. On January 8, 2008, Dr. Herbert Gilmore completed a Physician’s Statement for Temporary Home or Hospital Education. He certified that Oliver would require educational services at home for more than 14 days due to Tourette’s Syndrome and Migraine Headaches, which are worsened by the school program. Dr. Gilmore wrote that Oliver’s health would not affect the provision of full educational services, and that he could return to school when an IEP was in place (S-24). The statement was hand-delivered to the School during a pre-hearing conference on January 10, 2008.
4. Dr. Gilmore testified that stress is known to worsen the symptoms of both Tourette’s Syndrome and Migraines. He stated that he completed the Home/Hospital Education Statement due to the Parents’ reports of increased stress and symptoms that they attributed to Oliver’s school program. Dr. Gilmore admits that he doesn’t know what Oliver’s school program was, that he could not determine whether Oliver needed an IEP, nor what an IEP for Oliver should contain. Dr. Gilmore noted that any number of things, apart from school, could be stressful for Oliver. In fact, according to the Parents, Oliver’s Tourette’s and Migraine symptoms increased over the course of the summer 2007 (Gilmore).
Dr. Gilmore testified that he had last seen Oliver in October 2007. Dr. Gilmore had not personally observed any worsening symptoms but relied on parental reports about Oliver’s condition to make informed judgments. He had no information from the school. Dr. Gilmore had not changed any of Oliver’s treatment regimes over the past year. No new interventions were introduced in January 2008. Dr. Gilmore is not recommending any activity or environmental restrictions for Oliver other than school attendance (Gilmore).
5. The Mother testified that Oliver couldn’t go to school because it is not “right” for him. He needs more direct help from the teachers, more sympathy, more organizational support, less homework, and generally a less stressful environment. He has continued to have migraine headaches and some Tourette’s symptoms throughout January 2008. There have been no changes in his treatment regime during this time. He has not been hospitalized. He is not receiving any specialized treatment at home. There are no restrictions on his activities or his environment while he is out of school. Oliver spends his time playing guitar, using the computer, skateboarding and reading by himself during school hours, and playing actively in the community with friends and family after school and on weekends. Oliver has well developed social skills, and a great sense of humor. According to his mother, Oliver’s behavior both at school and at home is “good”. He will be able to go back to school when the school has a good plan for him. The School’s resolution proposal dated November 20, 2007, contains pretty much everything that Mother is looking for (Mother, S-22).
FINDINGS AND CONCLUSIONS
After careful consideration of the limited evidence pertinent to the issue of the Parents’ request for home tutoring services, and the parties’ arguments, it is my determination that the physician statement submitted by the Parents in support of their request does not meet minimum regulatory standards for public funding of an out-of-school education program.
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). See also M. G. L. c. 71B s. 2.
The Massachusetts Department of Education (DOE) 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) (issued February 1999, revised February 2005), (hereafter the DOE Home and Hospital Guide),2 provides assistance in the interpretation of the 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. While it is impossible to replicate the total school experience through the provision of home/hospital instruction, a school district must provide, at a minimum, the instruction necessary to enable the student to keep up in his/her courses of study and minimize the educational loss that might occur during the period the student is confined at home or in a hospital;
DOE Home and Hospital Guide Question 1, Paragraph 2.
A public 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 educational services as described under 603 CMR 28.03 (3)(c). DOE 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:
DOE 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;
· the expected duration of the confinement; and
· what medical needs of the student should be considered in planning the home or hospital services
DOE 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.”
In this matter the record shows that the School District has not received a Home Hospital Education Statement meeting these minimal criteria. The form 28R3 completed by Dr. Gilmore on January 8, 2008, contains no language indicating that Oliver must remain at home. Nor does it indicate that there is a new medical condition, an exacerbation of a previous condition, a treatment, or some other identifiable medically related problem, which currently prevents Oliver from attending school. (See also P. 4 supra .) It lacks both an initial date of confinement and a prediction of the anticipated duration of the confinement. That is not surprising as it is clear from the testimony of both Dr. Gilmore and the Parent that Oliver is not actually “confined” to home, or restricted in any activity, due to Tourette’s Syndrome and/or Migraine headaches. I note particularly that Dr. Gilmore has not seen Oliver since October 2007 at which time Oliver was attending school, has not noted any changes in Oliver’s medical presentation since that visit, and has not recommended any changes in Oliver’s medical treatment. The preponderance of the evidence in this record supports the conclusion that Oliver is not attending school because the Parent is unhappy with the school program for him. While there may be legitimate concerns about the school program for Oliver, there is insufficient evidence in this record of the medical reason required by statute and regulation to initiate a publicly funded home tutoring program. Therefore, I find that the decision of the Agawam Public Schools to decline to provide the home tutoring requested by the Parents should be affirmed.
By the Hearing Officer:
Lindsay Byrne
Dated: February 7, 2008
1
Oliver is a pseudonym used for confidentiality and classification purposes in publicly available documents.
2
The DOE Home and Hospital Guide can be found on the DOE website at http://www.doe.mass.edu/pqa/ta/hhep-qa.html