COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Riley1 & the [redacted] Regional Technical School District
BSEA #07-2789
DECISION
This decision is issued pursuant to M. G. L. c. 71B, 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 February 13, 2007, at 11 Dartmouth Street, Malden, MA, and on February 21 and March 14, 2007, at 11 Dartmouth Street, Malden, MA with remote participation of a witness and the Parent by telephone. Those present for all or part of the proceeding were:
Parent
English Teacher, Regional Technical School District
Special Education Teacher, Regional Technical School District
Biology Teacher, Regional Technical School District
History Teacher, Regional Technical School District
Mathematics Teacher, Regional Technical School District
Adjustment Counselor, Regional Technical School District
Director of Special Education, Regional Technical School District
Assistant Superintendent/Principal, Regional Technical School District
Francis Killduff, Physician
Mary Joann Reedy, Attorney for Regional Technical School District
Lindsay Byrne, Hearing Officer
The official record of the hearing consists of: exhibits submitted by the Parent marked P-1-23; exhibits submitted by the School marked S-1-23; and approximately 7 hours of recorded oral testimony and argument. The parties made oral closing arguments on March 14, 2007, and the record closed on that date.
Issues
The issues are set out in the Prehearing Order of February 1, 2007:
1. Whether the November 2006-November 2007 Individualized Education Plan developed by Regional Technical School District (hereinafter referred to as “School District”) is reasonably calculated to provide a free, appropriate public education to Riley in the least restrictive setting?
2. If not, whether Riley is entitled to receive home tutoring due to a medical condition that causes erratic attendance in order to receive a free, appropriate public education?
Summary of the Evidence
1. Riley is a 15 year old student with a history of special education intervention targeted to address weaknesses in reading and organizational skills. He is a resident of [redacted] and entered the 9 th grade at the School District’s Regional Technical High School in the fall, 2006. He has a history of inconsistent school attendance for which the Parent has provided medical excuses. (Parent, Killduff; S-7)
2. The last accepted IEP in this record covers Riley’s 8th grade year in [redacted]. (S-18) That IEP calls for Riley to attend regular 8th grade classes with direct special education services in reading three periods per week and in “Learning Skills” five periods per week. The IEP also provides for weekly counseling. Accommodations in the IEP include: a second set of books for home use; a review meeting after the first quarter; modifications to math homework; computer access during class; organizational support for homework completion; and oral testing.
3. School District’s High School has an alternating split schedule: academic classes required for regular high school graduation are offered in one full week; vocational instruction occurs full-time during the following week. Riley’s 9th grade schedule included 1:1 reading instruction twice during the academic week and once during the vocational week for a total of 3 periods per “cycle”. He also received 3 periods of direct instruction in study skills and one period of counseling during the academic portion of each cycle. (SPED teacher, SPED Director)
4. On October 2, 2006, the Team met to develop an IEP appropriate for Riley’s needs in the context of vocational instruction and the two week academic/vocational cycle. The School District proposed an IEP providing daily study skills instruction, one period of direct reading instruction, and one period of counseling to be delivered during the academic week. The Parent rejected the proposed plan on October 26, 2006. (S-16; Parent; SPED Director)
5. After a resolution session, the School District proposed another IEP for the 2006-2007 school year. This IEP provides for: direct reading instruction three periods per 2 week cycle; direct instruction in study skills 3 periods per 2 week cycle; and one period of counseling per two week cycle. (S-92) The Parent has not signed the proposed IEP. It is the one at issue in this hearing.
6. During the Fall, 2006, Riley continued his prior pattern of inconsistent school attendance. By the December break Riley had accumulated 15 absences, 12 of them during the 1st Quarter. (S-2, 3) As a result Riley received grades of I (incomplete) in all his major academic subjects for the first quarter.
Riley’s homeroom and math teacher testified that Riley had the knowledge to pass all the tests, but that he was absent for the actual test administration and so received the incomplete grade. At the request of guidance after the first quarter closed, Riley’s math teacher identified the missing assignments and tests. Riley completed all the missing work and currently has an 89 average. Riley’s math teacher testified that Riley is willing, able, and sufficiently organized to make up any missed work. (Math teacher)
Riley’s U. S. History teacher testified that Riley transferred into her class in October and subsequently missed the final quarter tests earning him an incomplete grade. He made up the tests when requested and earned a B+ grade. Recently he also missed the 2 nd quarter tests, but made up the work in a timely fashion garnering a B grade. The history teacher noted that Riley volunteers to read aloud in class, even primary source material. She has not noticed any difficulty with his reading fluency or comprehension. (History teacher)
Riley’s Biology teacher testified that Riley was initially awarded a 1st quarter grade of incomplete because he was absent for the test. Subsequently his make-up work was substandard and incomplete earning him an F for the quarter. He also missed the second quarter tests and some classes. By the time of the hearing, however, Riley had made up all the homework and tests earning a grade of C. (Biology teacher)
Riley’s English teacher testified that Riley missed assignments and tests during the 1st quarter but, after talking directly with him and guidance about the value of the work, Riley now always makes up missing work in a timely fashion. The English teacher stated that Riley has a good memory and excellent reading comprehension. She recommended that he be placed in a more challenging English class for the 10th grade. (English teacher)
The SPED teacher provides direct 1:1 reading instruction using the Wilson method. He testified that Riley has a good memory and good organization skills. Riley is making good progress in the structured, sequential reading program. Although he has done no formal reading assessments, the SPED teacher notes that Riley is halfway through the standardized reading program and demonstrates improved reading fluency and rate since he began in September 2006. Riley always makes up the tutorials he misses due to his absences. The SPED teacher testified that the type and frequency of the reading intervention he provides: 1:1 instruction 3 times in a two week cycle, is appropriate for Riley. (SPED teacher)
7. The Parent testified that he was unhappy with the failure of the School District to implement the amount of direct reading service set out in the last accepted IEP. He stated that pursuant to the “stay put” principal, Riley should have been receiving three periods of reading intervention every week, not just on academic weeks. He asserted that due to the two week cycle Riley’s agreed upon special education intervention had been cut in half.
The Parent also testified that he rejected the proposed IEP (S-12) because
it did not include provisions for a second set of books to be sent home, and monthly meetings between the School and the Parent. (Parent) The Parent acknowledged that Riley had actually received the requested second set of books. (see also S-21; SPED Director) The Parent also acknowledged that he had a reasonable amount of communication with the school during the fall, 2006, with at least three face-to-face meetings and multiple phone conversations with the principal and special education director. (Parent)
The Parent requested that Riley have a specific accommodation of additional time to complete assignments. That accommodation appears in multiple places on the November 2006 – November 2007 IEP rejected by the Parent both as part of the study skills and counseling goals and as an accommodation in the general academic curriculum. (S-12) At the hearing the Parent testified that since the beginning of the 2006-2007 school year Riley has learned: how to identify what he needs help with; to find, ask for and receive help; and to complete and turn in missed assignments and tests. (Parent)
8. The Parent asserts that Riley requires a home tutoring component to the IEP. He testified that Riley is unavoidably absent from school due to a serious medical condition which frequently confines him to the home. The Parent declined to elaborate on the diagnoses, treatment, prognosis, or educational impact of the unspecified medical condition citing privacy concerns. He stated that it was his understanding that once a physician completed the “Physician’s Statement for Temporary Home or Hospital Education” that the School was required to provide tutoring anytime the Student was absent for up to one year. The Parent testified that Riley could not keep up with assigned class work, homework, and tests without coordinated tutorial support at home.
9. On January 7, 2006, while Riley was a student at the [name of town redacted] Middle School, his physician, Francis Killduff, completed a Home/Hospital Statement requesting that Riley receive educational services at home due to recurrent viral infections, which could cause cumulative absences totaling more than fourteen days during the school year. (S-7) On March 14, 2006, Dr. Killduff submitted another note to [town] stating that Riley continued to have frequent absences due to an “unexplained illness” and requesting that his absences be “excused”. (S-7) It is not clear from the record when the School District became aware of these physician notes. Dr. Killduff testified that despite his own examinations and multiple referrals to medical specialists there was never a medical explanation for Riley’s absences from school during the 2005-2006 school year. (Killduff)
10. At the pre-enrollment physical examination conducted on August 1, 2006, Dr. Killduff noted that Riley was developing normally and had no chronic or acute illnesses and nothing that would prevent his full participation in school. (S-5; Killduff) That unremarkable school health form was the only information the School District had concerning Riley’s health status until November 2006. (Killduff, SPED Director)
11. Sometime in November 2006, the Parent provided the School District with the Home/Hospital Statement completed by Dr. Killduff in January 2006. The Parent requested, on the authority of that January 2006, statement, that the School District provide home tutoring to Riley anytime he was absent. The Special Education Director for Regional Technical School District (who was also the IEP liaison for Riley), testified that he was confused by the lack of information on the form filled out by Dr. Killduff as doctors typically provide some helpful information concerning the impact of the medical condition, suggested interventions and expected duration. None of that information appeared on the January, 2006 statement. (S-7) The SPED Director was also concerned about the number of absences accumulated by Riley, twelve during the first quarter, and the effect of the absences on Riley’s school performance. On November 16, 2006 The SPED Director contacted Dr. Killduff in an attempt to secure more relevant information. Dr. Killduff told him that there was no medical explanation for the number of absences. (SPED Director, Kilduff; S-7; see also S-4)
12. Shortly after his conversation with the SPED Director, Dr. Killduff completed a “Health Certificate” at the Parent’s request. The Parent told him that the number of Riley’s absences was approximately 15 and he was in danger of losing credit. Dr. Killduff then wrote the School District requesting that Riley’s cumulative absences be excused due to an “undiagnosed illness”. (S-6) Dr. Killduff spoke to the SPED Director again, telling him there was no medical reason for the absences. (Killduff; see also Assistant Superintendent / Principal)
Dr. Killduff also completed a Home/Hospital Statement on December 6, 2006, noting that Riley was “having symptoms that prevent him from attending school”. Responding to the question concerning how educational services will be affected by the Student’s health Dr. Killduff wrote: “unable to state as medical condition remains obscure.” (S-23) When Dr. Killduff asked the Parent why Riley was missing so much school, the Parent refused to share information and asked the doctor not to communicate with the School. (Killduff) Dr. Killduff testified that Riley does not have any disease which would prevent him from going to school regularly or would require him to remain at home for an extended period of time. Dr. Killduff noted that while his frequent absences may justify tutoring to continue educational progress, there is no medical basis for Riley’s attendance issues. (Killduff)
Findings and Conclusions
The Parties agree that Riley is a Student with a disability as defined in 20 U. S. C. § 1401 et seq . and M. G. L. c. 71B, and is therefore entitled to receive a free, appropriate public education in the Regional Technical High School. The most significant question before me is whether the Individualized Education Plan most recently proposed by the School District, and rejected by the Parent, is reasonably calculated to provide Riley with a free, appropriate public education in the least restrictive setting. After careful consideration of the entire evidentiary record, and the arguments of both parties, it is my determination that the IEP developed for Riley as a result of the resolution session held on November 21, 2006, contains direct special education services and general education modifications and accommodations sufficiently tailored to Riley’s learning needs as to ensure that he will make meaningful educational progress in the High School. My reasoning follows:
The greater preponderance of the documentary evidence at the hearing established that the November 2006-November 2007 IEP proposed by the School District contained direct special education services in reading, organizational skills and counseling that had proven effective for Riley in his previous educational placement at [redacted]. (S-12) Those services, then accepted by the Parent, permitted Riley to participate in the mainstream of the [redacted] Middle School, to pass his courses, and to gain admission to the Regional Technical High School through a competitive admissions process. (S-17, S-18, S-19, S-20; SPED Director; Parent)
The great weight of the credible testimony at the hearing established that those same services and accommodations, provided to Riley at the Regional Technical High School District during the Fall and Winter, 2006-2007, pursuant to the last accepted IEP permitted Riley to make meaningful educational progress in the general curriculum as well as toward the specific goals listed in the IEP. (S-18; Parent; SPED teacher, Math teacher, History teacher, Biology teacher, English teacher, SPED Director, Adjustment Counselor; see also S-2, S-3) There was no testimony from any teacher or evaluator that the type, level, frequency, or setting of any proposed or delivered special education service was inappropriate, inadequate, or unlikely to result in a meaningful educational benefit to Riley. As the proposed 2006-2007 IEP closely mirrors that of the 2005-2006 IEP last accepted by the Parent and implemented by both [town redacted] and the School District’s High School with demonstrably effective results, the evidence in this record would not support a finding that it is inappropriate for Riley. Turning to the Parent’s specific challenges to the 2006-2007 IEP:
A. The Parent requested that the proposed 2006-2007 IEP include a provision for a second set of textbooks for home use, as the 2005-2006 IEP did. The SPED Director testified that such a provision could be easily included and noted that the School District had made a second set of books available to Riley by October 23, 2005, at the latest. (S-21; SPED Director)
B. The Parent requested progress reports. The evidence shows that regular and special education progress reports were completed on schedule. (S-2, 3)
C. The Parent requested monthly meetings with teachers. Due to communication difficulties and scheduling issues, the SPED Director assumed full responsibility for home-school communication in November, 2006.2 The Parent testified he was satisfied with the extent of the communication with the SPED Director, but would prefer direct contact with Riley’s teachers. I find that it is not unreasonable for the School District to designate one point of contact for parental communication when a Student’s schedule involves multiple teachers and settings and both the Parent’s and the School’s communication “window” is very small. The mere designation of a contact person does not negatively affect the Parent’s procedural rights under the relevant special education laws, nor does it necessarily affect the provision of a free, appropriate public education to the Student.
D. The Parent requested that the special education reading service be delivered three times each week, rather than three times during each two week cycle. He argued that failure to deliver the reading service weekly resulted in a denial of FAPE both for failure to deliver services listed on the last accepted IEP and for failure to adhere to the expert recommendations in the record. The Parent brings up an interesting point about the split scheduling followed by many vocational technical high schools, including this School District. Does the alternate scheduling of vocational instruction and academic classes affect the provision of special education services to eligible students? This issue, while relevant, is beyond the scope of this hearing. Here I need only resolve two questions: whether Riley received special education services consistent with the last accepted IEP, and whether the current proposed reading tutorial three times per two week cycle is reasonably calculated to provide a meaningful educational benefit to him?
First, when an IEP is to be implemented in an entirely different setting than the one it was originally written for, through change of grade or new residence or building relocation, the student is entitled to receive services comparable to those designated by the IEP Team until the new Team has an opportunity to meet to discuss the changed circumstances. There is no evidence in this record that the Parent was unaware of the alternate scheduling in use at the School District in advance of the Student’s enrollment. He met with the SPED Director during the summer before Riley entered the school. (SPED Director) There is no indication that he objected at that time to the alternate scheduling arrangement, nor that he requested a different schedule or additional reading services for Riley. While three times per week is clearly not identical to three times per two week cycle, the issue is whether the amount of reading services at the Regional Technical High School is “comparable” to that Riley received in Middle School. Riley’s reading teacher at the School District’s High School testified that the school’s reading program was “comparable” because the 1:1 tutorial is more intensive than the small group instruction Riley received at his Middle School. The SPED teacher also noted that Riley continued to receive three periods of reading for each academic week as he did in Middle School.
While I am not convinced that these justifications would support a “comparable” conclusion in another appeal, here there is no indication that the Parent and Student were ignorant of the effect of the Regional Technical School District’s vocational scheduling on the frequency of Riley’s special education reading service. There is no evidence that the family, the sending school specialists or the receiving school service providers objected to delivery of specialized reading services only during the academic week of the scheduling cycle. There is no evidence that any evaluator or service provider made a specific recommendation to increase the number of reading service sessions for Riley due to the anticipated change in intensity or limited scheduling of the service. The preponderance of the evidence in this record amply supports the conclusion that Riley continued to make reasonable and effective progress in the acquisition of reading skills with the three reading tutorial periods per two week cycle in use at the Regional Technical High School.
Indeed there is no credible evidence to the contrary. The SPED teacher testified that Riley was making good progress in the systematic reading program he uses and he would not recommend additional services. Riley’s regular education teachers uniformly noted no reading difficulties. (History teacher, English teacher, Adjustment Counselor)3
Therefore, based on the limited record in this case, I find that the reading services provided to Riley by the Regional Technical School District were “comparable” to those provided in his last accepted IEP. I also find that even if the reading services Riley received at the Regional Technical School District were not “comparable” to those received in Middle School, there was no discernable negative effect on his academic progress in the Fall and Winter, 2006. Riley continued to make effective progress with the Regional Technical School District service model and is therefore not entitled to receive any compensatory reading instruction.4
Further I find that the proposed 2006-2007 plan calling for Riley to receive three periods per scheduling cycle of reading tutorial comports with the recommendations of his current reading instructor and teachers and is reasonably calculated to ensure his effective progress toward his special education and regular education goals. I accord the results of a neuropsychological evaluation conducted in November, 2004, substantially less weight that the opinions of educators who are currently working with Riley.
E. Finally, the heart of the dispute between the parties is whether Riley is entitled to receive home tutoring as part of his special education program. The Parent asserts that Riley has an unusual medical condition which he cannot disclose, even to Riley’s health care providers. According to the Parent this condition causes frequent absences. The parent argues that upon presentation of a Home Hospital Education Form signed by a physician, the Regional Technical School District is obligated to provide home tutoring any time Riley is absent for medical reasons. The Parent is seeking an order requiring the Regional Technical School District to provide a tutor to teach all regular and special education coursework to Riley at home on any day Riley is absent from school.
Regional Technical School District asserts that the Home Hospital Education Form provided by Dr. Killduff does not offer sufficient information either to meet the state criteria for provision of home tutoring services, or to develop an appropriate individualized home tutoring plan for Riley. The School District contends that it is permitted to seek additional information from Riley’s physician to determine the validity and the appropriate scope of the home tutoring request.5 It also asserts that it may reject a request for home tutoring if there is an insufficient medical basis.
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),6 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 Hospitalization Education Statement meeting even these minimal criteria. The form filled out by Dr. Killduff in January, 2006, contains no language indicating that Riley must remain at home. Neither does it give any supportable “medical reason” for the home tutoring request. The School District did not have access to this form for the first quarter of Riley’s attendance at the school when he accumulated more than 10 absences.7 As a result when the Parent produced the January 2006 physician’s statement and requested home tutoring, it was reasonable for the special education director to seek additional, updated information from the physician signatory, Dr. Kilduff, particularly as Dr. Killduff had given Riley a clean bill of health in August, 2006. (S-7, 5) When Dr. Killduff then reported that there was no medical reason for Riley’s absences, the SPED Director correctly determined that the regulatory criteria for providing home tutoring services had not been met.
The Home Hospital Education Form submitted by the Parent to the School District in February, 2007, is no more supportable. (S-23) On that form, dated December 6, 2006, Dr. Killduff again fails to indicate either that Riley must remain at home or that there is a special medical condition which prevents regular school attendance. Dr. Killduff’s testimony that there is no medical reason preventing Riley from attending school regularly supports the School District’s determination that Riley is not currently eligible for home tutoring services.
There is no medical evidence in this record meeting the basic regulatory standards under which a public school may determine that a student is eligible for publicly funded home tutoring. On the other hand there is substantial evidence that Riley is making effective progress in regular and special education with the modifications and accommodations currently in place in spite of his irregular attendance record. Therefore I find that the decision of the Regional Technical School District to decline to provide the intermittent home tutoring services to Riley requested by his Parent should be confirmed.
ORDER
1. The November 2006-November 2007 IEP proposed by Regional Technical School District is reasonably calculated to ensure Riley a free, appropriate public education;
2. The request of the Parent to include in the proposed IEP home tutoring services for medical reasons is not supported by any credible evidence in this record, does not meet regulatory standards set out at 603 CMR 28.03 (3), and is denied.
April 18, 2007
Lindsay Byrne, Hearing Officer
1
This decision has been modified for public dissemination. “Riley” is a pseudonym and all other information that could reasonably lead to the identification of the student has been rephrased or removed. This published decision is not the “oficial record” decision.
2
The BSEA had mail, telephone and scheduling difficulties with the Parent similar to those reported by the School District.
3
The Parent did not challenge the proposed frequency of special education support for organizational skills and counseling. The Parent acknowledged that Riley had made significant progress in acquiring organizational, time management and self-advocacy skills and in independently using them at school. (Parent; See also Adjustment counselor, English teacher, Math teacher, History teacher).
4
See generally: In Re : Medford , 8 MSER 329 (2002) for a comprehensive discussion of entitlement to compensatory special education services.
5
The School District accepts the medical excuse for Riley’s cumulative absences. Those absences will not affect the award of credit for his 9 th grade classes.
6
The DOE Home and Hospital Guide can be found on the DOE website at http://www.doe.mass.edu/pqa/ta/hhep-qa.html
7
I note that the parties did not discuss whether these scattered absences occurred during the academic, vocational, or both components of the Student’s schedule.