Special Education Appeals BSEA #03-4823
COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Ilse1 and Plymouth Public Schools
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 on July 3 and August 6, 2003, at the Department of Education in Malden, MA. Those present for all or parts of the proceeding were:
Robert Sherman Director of Pupil Personnel Services
Plymouth Public Schools
Marjorie McEttick-Maloney Nurse Leader- Plymouth Public Schools
Roseanne Crowley Director of Special Education-
Plymouth Public Schools
David Judge President, Judco, Inc.
Janice Dowling Transportation Monitor-Judco, Inc.
Barbara Gallagher Bus Driver-Judco, Inc.
Mary Diane Wheeler Registered Nurse-Masstart
Jackie Govoni Observer
Kathleen Yaeger BSEA Legal Intern
Mary Gallant Attorney for Plymouth Public Schools
Linda Fowler Court Reporter
Lindsay Byrne Hearing Officer-BSEA
The official record of the hearing consists of documents submitted by the Parents labeled P-1 through 13, P-16, P-17, P.-20, P-21, P-22 and P-23; documents submitted by the School marked S-1 through S-22; and approximately 7.5 hours of recorded oral testimony. Both parties made oral closing arguments at the conclusion of the presentation of evidence and the record closed on August 6, 2003. The parents were pro se throughout the course of the administrative proceedings.
Whether the transportation plan developed by Plymouth, which provides I lse with a monitor who is not a licensed nurse, is reasonably calculated to ensure that I lse receives a free, appropriate public education?2
SUMMARY OF THE EVIDENCE
The issue presented for decision here is narrow. Only evidence bearing directly on that issue is discussed below:
· I lse is a twelve year old student with a refractory seizure disorder, asymmetric spastic quadriplegia, developmental delays, oromotor dysfunction, gastric esophageal reflex, gastritis, a vision impairment and ventriculoperitoneal shunts. She has attended the Cotting School for the last two years. The parties agree that the Cotting School is an appropriate educational program for I lse. Transportation between home and the Cotting School takes between one and one half hours and two hours fifteen minutes each way depending upon traffic and weather conditions.
(P-4; P-7, S-20; Gallagher; Mother)
· On November 1, 2002, the Team met to develop an IEP for I lse’s continued placement at the Cotting School. On December 13, 2002, the Parent accepted the Cotting School placement and program, but rejected the transportation arrangement in so far as it did not specify that I lse required the presence of a licensed nurse on the vehicle. (P-1, S-19)
· A Team meeting was held on April 15, 2003, to discuss I l se’s transportation needs and to train the transportation monitor. At that time there was no medical documentation supporting the Parents’ request for a licensed nurse monitor. Ms. McEttrick-Maloney, the nurse leader for Plymouth Public Schools, and Ms. Passanisi, the nurse leader for the Cotting School attended the meeting, as did the transportation monitor, Ms. Dowling and the owner of the transportation company, Mr. Judge. None of I lse’s medical care providers attended or provided guidance to the Team. The Parent explained that I lse required constant observation due to her uncontrolled seizure disorder. I lse has a vagal nerve stimulator (“VNS”) implanted on her left clavicle. When she appears to be heading toward or experiencing a seizure, a magnet is passed over (“swiped”) the site of the VNS to interrupt the disordered electrical activity in the brain. I lse’s complex partial seizures are typically quiet, and last one to four minutes. Precursors to I lse’s seizures are: staring, leaning to one side, rapid eye or facial movements, complaints of a “funny feeling” in her mouth, sudden changes in mood or appearance, flushing, stomachache or headache. She tends to experience more seizures when she is ill, tired, overheated, or asleep. At times these seizures can lead to tonic-clonic seizures. Seizures lasting more than five minutes require the administration of the prescription drug diastat. Diastat is administered rectally. (Dowling; McEttrick; Parent; S-9, 10, 14)
The Parent stated that the seizure protocol should be: on first noticing seizure or pre-seizure symptoms, swipe the VNS. Wait one minute. If no improvement is noted, swipe again. Wait three more minutes and swipe again if no improvement is observed. At five minutes into a seizure diastat should be administered. The Parent testified that she follows this procedure at home and in her own vehicle when transporting I lse. (Parent)
· Diastat is a prescription anti-convulsive medication. It is administered rectally using a pre-filled syringe. It may be administered only by a licensed health care provider or a responsible family member. I lse has a p.r.n. order for diastat. Administration is dependent on seizure symptoms, and not on I lse’s location. (Wheeler, McEttrick, Parent)
· Janice Dowling began working as the transportation monitor the day after the April 15, 2003 training/team meeting. She testified that she sits in the front passenger seat and turns to watch Ilse whose wheelchair is positioned in the center of the next passenger row. Ms. Dowling stated that she could observe I lse clearly, and could reach her VNS with the magnet when necessary, though it did require unbuckling her own seat belt and moving slightly out of her seat. The only times she actually used the VNS between April 16, 2003 and May 21, 2003 were at the explicit direction of the Parent. She never administered diastat to I lse and is not licensed to do so. She understood that were Ilse to experience prolonged or marked seizure activity she was to ask the driver to call 911 for emergency medical assistance.
· On May 13, 2003, the Cotting School Nurse, Ms. Passanisi, proposed a “Care Plan for Seizures Occurring During Specialized Assisted Transport to School”. The plan identifies the pre-seizure and seizure symptoms listed by the Parent at the April 15, 2003, meeting. It sets out the procedure to be followed in the event I lse experiences a minor seizure during transportation: VNS swiping. The plan also describes a typical tonic-clonic seizure pattern for I lse and directs the monitor to: protect I lse’s airway and head; swipe the VNS; document the starting time; alert the driver to pull off the road, call 911 and the Judco, Inc. dispatcher. The plan does not provide for the administration of diastat. (P-8, S-8) The Parents did not sign or approve the transportation plan. (McEttrick-Maloney; P-8, S-8)
· On May 30, 2003, Dr. Glader of Children’s Hospital, wrote supporting the assignment of a “bus monitor with appropriate training in seizure identification and intervention” to I lse’s vehicle. Dr. Glader added, “In the event of an emergency the monitor should be able to alert the driver to pull the vehicle over and call emergency supports.” The letter does not mention the licensure of the monitor. The letter does not mention the administration of diastat on the vehicle. (S-2)
· On June 3, 2003, Dr. Riviello of Children’s Hospital wrote supporting the assignment of “a responsible adult” able to observe and recognize I lse’s seizure symptoms and to swipe her VNS when necessary. Dr. Riviello does not mention the licensure of the monitor. He does not mention the administration of diastat on the vehicle. (P-6, S-1)
· On June 19, 2003, Ms. Wheeler, a registered nurse consultant with Masstart, a Department of Public Health program that develops individual health plans, wrote to the school recommending that the bus monitor assigned to monitor I lse’s seizure activity be a licensed nurse capable of administering diastat en route. Ms. Wheeler testified that she made her recommendation after a lengthy discussion with the Parent, a review of I lse’s individual health plan and individual education plan, and the letters from Dr. Riviello and Dr. Glader. She did not have any independent contact with school personnel or medical providers. She stated that she recommended the presence of a licensed nurse on I lse’s vehicle primarily for assessment and prevention of her seizures because a layperson could not be appropriately trained for these tasks in just an hour or two. (P-3; Wheeler)
· On June 27, 2003, Dr. Glader revised her May 30 th letter concerning transportation arrangements for I lse. At the Parent’s request Dr. Glader wrote that I lse required a licensed nurse transportation monitor capable of administering diastat when needed. (P-2; Parent)
· The Cotting School has swiped I lse only once, during the summer of 2002. The Cotting School nurse has never administered diastat to I lse. (Parent, McEttrick)
· Marjorie McEttrick-Maloney is the nurse leader at the Plymouth Public Schools responsible for oversight of individual health plans for medically-involved students. She testified that she worked with the transportation company, the parents, and Cotting School personnel to develop I lse’s transportation plan. She stated that the presence of an unlicensed bus monitor is appropriate for I lse because she can be safely swiped on the bus by any responsible adult with brief training, Ms. McEttrick-Maloney added that diastat may only be administered by a licensed healthcare provider to an unrelated student and cannot be safely administered during transportation. According to Ms. McEttrick-Maloney, established nursing protocol prevents administration of diastat on a wheelchair van. For safe administration the student must be lying horizontally on her/his side. The nurse must then open the buttocks, insert the syringe, release the medication slowly and hold the buttocks closed for at least five minutes. Improper administration of diastat, such as insertion of the syringe while held over a lap or while standing, could result in a perforated rectum or inadequate dosage. Adherence to accepted standards of good nursing practice would prevent any licensed nurse from administering diastat on a wheelchair van, or from removing a student from a van to the side of the road during a seizure. The only acceptable course of action for a nurse confronted with a student on a wheelchair van experiencing a seizure requiring rectal medication is to call an emergency medical response team. That is precisely the plan developed by the Cotting School nurse, accepted by Plymouth and proposed to the Parents. (S-8, P-8) Ms. McEttrick-Maloney consulted with the school physician, Dr. Blasberg, on June 3, 2003, regarding I lse’s transportation arrangements. He told her that if I lse truly needed constant monitoring and the administration of diastat, that transportation was not appropriate and the school should explore a residential placement. (McEttrick-Maloney)
Ms. McEttrick-Maloney acknowledged that at least one Plymouth student is accompanied on school provided transportation by a licensed nurse due to a potential need for administration of diastat. She testified, however, that the student was transported a short distance on a different type of vehicle than that on which I lse rides. (McEttrick-Maloney)
· I lse’s mother testified that on May 21, 2003, I lse left the wheelchair van looking “funny” and proceeded to have a lengthy seizure which precipitated several days of uncontrolled seizure activity. The transportation monitor did not report any difficulty on the van and had not used the magnet to swipe the VNS. The mother asserted that the monitor cannot properly observe I lse, and cannot safely reach to swipe her, from the front passenger seat. (Mother) The mother also reported that she has administered diastat in nonstandard positions and on her own van without significant difficulty. (Mother)
FINDINGS AND CONCLUSIONS
There is no dispute that I lse is a student with special learning needs as defined by 20 U.S.C. § 1401 and M.G.L. c. 71B and is thus entitled to receive a free, appropriate public education. There is also no dispute that the current educational program at the Cotting School is appropriate for I lse. The only issue is how to provide safe access to that program. While the answer to this narrow question is relatively simple, the consequences of the answer are rather more complicated. After careful consideration of all the evidence adduced at the hearing, and of the arguments of both parties, I find that Plymouth Public Schools provided an appropriate standard of supervision during I lse’s transportation between home and school throughout the 2002-2003 school year. I further find that changed circumstances require immediate reconsideration of I lse’s transportation plan. My reasoning follows:
First, the parties worked throughout the school year to devise an appropriate transportation plan for I lse. The nurse at the Cotting School and the nurse at Plymouth worked together to evaluate the current information they had concerning I lse’s day to day functioning, health status, and transportation needs. Based on the available information they developed a plan they believed met I lse’s monitoring needs, prevented undue injury and comported with nursing care standards. (P-8, S-8; McEttrick-Maloney) I found Ms. McEttrick’s-Maloney’s explanation of the process and the effect of developing I lse’s transportation plan to be thorough, reasonable, professional and credible. I therefore assign her opinion that I lse’s transportation needs were appropriately met with the assignment of a monitor capable of swiping the VNS when necessary, and of summoning an emergency medical response team when necessary, great weight. I further note that there is no contemporaneous opinion from a health care professional that would support a finding that the transportation plan developed by Plymouth did not meet I lse’s needs.
That changed, however, on June 27, 2003, when Dr. Glader recommended that a licensed nurse be assigned to monitor, and to medicate, I lse during transportation between home and school. (P-2) The introduction of a physician’s opinion about a medical issue during school hours alters the Team’s decision-making process. Unlike reasonable disagreements between teachers, therapists or even nurses, neither the team, nor the Bureau of Appeals for that matter, has the discretion or authority to ignore or override a physician’s directive concerning a patient’s medical need. The U.S. Supreme Court ruling in I rving I ndependent School Dist. v. Tatro , 468 U.S. 883 (1984) is instructive here. See also : Macomb County I nt. School Dist. V. Joshua S. , 715 F. Supp. 824 (E.D. Mich 1989) In drawing a bright line between physician provided medical services and other school health services, the court recognized the need to provide some measure of clarity concerning the lines of authority for students with medical issues requiring attention during the school day, as well as to avoid the spectre of the unauthorized practice of medicine. Extending that reasoning to the facts here I find that a physician’s order for direct medical service, such as the essentially private duty nursing care contemplated here, overrides a previously existing health care plan. The student’s team must reconvene at that point to discuss the effect of the physcian’s order and to develop a plan to accommodate the necessary service.
I note that I lse’s team was unable to respond in a timely fashion to Dr. Glader’s note of June 27, 2003. Neither Dr. Glader’s recommendation, nor the recommendation of Ms. Wheeler, were available to the Team until five days before the scheduled due process hearing on July 3, 2003. (P-2; P-3) While both documents may be viewed with a good deal of skepticism, prepared as they were at the Parents’ request, based only on information supplied by the Parents, and provided at the last minute, in haste, to the School, they nevertheless should be considered by the Team as new and relevant information.
If the Team determines that the physician order for full time nursing care during home-school transportation is genuine, the Team is faced with a set of difficult issues to resolve. Ms. McEttrick-Maloney testified that adherence to good nursing practice would prevent a licensed professional from administering diastat to I lse on the wheelchair van. Therefore the Team will have to consider, at a minimum: the apparent conflict between the Student’s needs and professional standards of care; alternate modes of transportation such as lying in an ambulance; the feasibility of requesting a waiver from a nursing regulatory body, the parents or other interested entities; the appropriateness of a shortened school day to avoid seizure triggers; reassignment to an appropriate day placement within a more reasonable commuting distance; and even residential placement. The participation of I lse’s health care providers may prove valuable to the Team in addressing these difficult issues.
Plymouth Public School’s transportation arrangement and plan was appropriate for I lse during the 2002-2003 school year. The Team must reconvene within fifteen days of the date of this decision to discuss alternate transportation and/or educational placement arrangements for the 2003-2004 school year. There is no evidence in this record that the School is responsible for any significant denial of I lse’s educational rights, either substantively or procedurally. Therefore an award of compensatory education as requested by the Parents is not warranted.
By the Hearing Officer,
Lindsay Byrne, Hearing Officer
“I lse ” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
Though the Parents raised other issues concerning the training, seating, and job performance of the monitor they are subsidiary to the critical issue of licensure and ultimately need not be addressed given the decision on the primary issue.