COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Stoneham Public Schools
BSEA No. 09-3121
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC §1400 et seq .; Section 504 of the Rehabilitation Act of 1973 (29 USC §794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A), as well as the regulations promulgated under these statutes.
The subject matter of this case is the amount and type of medical documentation required to support the provision of home-based services to an eligible student. On November 17, 2008, the Stoneham Public Schools (Stoneham) filed a hearing request with the Bureau of Special Education Appeals (BSEA) alleging that it believed that the Student, who had received home-based services for medical reasons since approximately 2006, was being denied a free, appropriate public education. The District’s belief was based on the Parents’ alleged refusal to cooperate with the District in obtaining the medically-related information necessary to formulate an IEP for the Student. Stoneham seeks a determination that without additional documentation justifying home instruction, Student should return to Stoneham High School on a full-time basis.
After postponements for good cause that were requested by the parties and granted by the Hearing Officer, a pre-hearing conference was held on February 12, 2009, and a hearing was held on April 28, 2009.
Parents proceeded pro se , and the School was represented by counsel. Each party had an opportunity to examine and cross-examine witnesses and submit documents into the record. The documentary record consists of School’s exhibits S-1 through S-13 and Parent’s exhibit P-1. The record also consists of approximately 1.5 hours of tape-recorded testimony and argument. The parties made oral closing arguments on April 28, 2009 and the record closed that day.
Those present for all or part of the proceeding were:1
Student’s Father
Frank Scott, Ph.D. Director, Pupil Personnel Services, Stoneham Public Schools
Donna M. Brine TEAM Chairperson, Stoneham Public Schools
Thomas Nuttall, Esq. Attorney for Stoneham Public Schools
ISSUES PRESENTED
The sole issue for hearing is whether the medical documentation of the alleged need for home-based services for the 2008-2009 school year was inadequate because it (a) did not contain information regarding Student’s current medical condition, the medical reasons for Student’s home confinement, and the medical needs to be considered when planning home-based instruction; and, (b) was not provided by the specialist overseeing Student’s treatment for the cited medical condition.
POSITION OF SCHOOL
Since approximately March 2006, Student has received home-based instruction from the Stoneham Public Schools because health and medical issues stemming from a neurological condition and the treatment regimen for that condition allegedly preclude his attendance at school. In September 2008, in response to a complaint filed by Parents, the Division of Program Quality Assurance (PQA) of the Department of Elementary and Secondary Education (DESE) determined that Stoneham had been providing home-based services without sufficient supporting medical documentation.
PQA issued a Corrective Action Plan directing Stoneham, among other things, to obtain certain information from Student’s treating neurologist, in order to develop an appropriate IEP. Parent has consistently refused to provide the necessary information, or to authorize Stoneham’s school physician to speak with Student’s treating neurologist. As a result, Stoneham has been unable to comply with the directives of PQA, lacks sufficient information to develop an appropriate IEP for either home-based or school-based services, and Student is being denied a FAPE. Moreover, the PQA investigator has informed Stoneham that unless it obtains the documentation that PQA deems sufficient, the District should require Student to return to Stoneham High School on a full-time basis.
POSITION OF PARENTS
Parents have provided the School with letters from Student’s primary care physician (PCP) which document Student’s medical condition and need for home-based educational services. Since the PCP is aware of Student’s needs and oversees and coordinates all of his medical care, including specialist care, this documentation is adequate, and, indeed, was deemed adequate by Stoneham while Student was in middle school. Moreover, if the School feels it needs more information, School representatives may speak with the PCP. There is no need for the School to speak with Student’s specialists, which would be an invasion of Student’s and the family’s privacy. Meanwhile, the School has unjustifiably failed to provide Student with a sufficient amount of work to do at home, causing him to fall behind. Finally, the family will be leaving Stoneham at the end of the school year.
FINDINGS OF FACT
1. Student is a now-16 year-old young man. At all relevant times, Student has lived with his family within the Stoneham Public School District.
2. Student’s profile is not in dispute. Documents on the record indicate that he has generally average cognitive ability, together with a specific learning disability that interferes with his performance in reading, math, and spelling. There also is no dispute that because of this learning disability, Student qualifies for special education services and accommodations under an IEP, completely independently of the neurological disorder that is the subject of this hearing. But for this medical condition, Student would be attending regular education classes at Stoneham High School supplemented with academic support in the resource room under an accepted IEP issued in March 2008. (S-1)
3. In March 2006, while still in middle school, Student was diagnosed with a neurological condition known as “pseudotumor cerebri.” This condition, according to Parent, gives rise to the same symptoms as a brain tumor, although there is no tumor present. Student receives treatment for his illness from a neurologist, (also referred to as a neuro-opthalmologist), Frank Rizzo, III, M.D. His specialty care is overseen and managed by his PCP, pediatrician Mirna Aeschlimann, M.D. (Father, S-6)
4. According to a letter written by Dr. Aeschlimann on September 3, 2008, Student has “severe photosensitivity” and “severe headaches” associated with his illness. Additionally, according to Father, the medication used to treat Student’s illness causes Student to have unpredictable and uncontrollable diarrhea. (Father, S-6)
5. As a result of these symptoms, Dr. Aeschlimann and Parents assert that Student can handle “a full load of school work,” (within the tutoring context) but cannot function in the school environment. (Father, S-6)
6. Student’s illness was diagnosed in 2006. Beginning in approximately March 2006, while he was in the seventh grade in the middle school, Student began to receive home-based instruction (tutoring) from Stoneham. He continued to receive such instruction for eighth grade, during 2006-2007. According to Parent, there were no major disputes between Stoneham and the Parents over these services while Student was in middle school. Dr. Aeschlimann provided the medical documentation required to justify home tutoring, and there was no dispute at that time over the adequacy of that documentation. (Father, S-7)
7. At the start of the 2007-2008 school year, Student enrolled in Stoneham High School as a ninth grader. For most of ninth grade, Student continued to receive home-based instruction in the form of tutoring for his four major subjects.2 (Father, S-1)
8. On March 10, 2008, Stoneham convened a TEAM meeting to develop a new IEP covering the period March 10, 2008 to February 28, 2009. During this TEAM meeting, the parties discussed Student’s health status. A letter dated March 25, 2008, from TEAM Chairperson Donna Brine memorialized that discussion, noting that (a) the IEP would be written to document the special education services [Student] would receive when he was well enough to return to school; (b) Parents already had obtained (but apparently not yet submitted) a letter from Student’s doctor indicating the need for home tutorial services; and (c) the School wished to gradually transition Student back into the High School building at a time and a pace approved by Student’s physician, once that physician deemed Student well enough to return to school for any portion of the day. Ms. Brine wrote that the School could be “very flexible” in allowing Student access to high school resource staff to assist with planning his transition. (S-2)
9. The letter stated further that “addressing [Student’s] health issues has to take priority over his academic program at this time,” and, as of the TEAM meeting date, Student would not likely be able to complete ninth grade because his health condition had “impacted his ability to complete his assignments and meet regularly with his tutors.” (S-2)
10. On or about April 10, 2008, the School issued an IEP for March 2008 through February 2009. As stated above, the TEAM intended this IEP to be implemented at Stoneham High School, if and when Student returned.
11. The April 2008 IEP called for 5 x 90 minutes per week of academic support in the resource room along with various accommodations to address Student’s learning issues. (S-1). This IEP noted Student’s receipt of home tutoring due to illness. The Parents’ stated concern was that Student’s health issues were affecting his educational progress. Further, Parents wanted Student to continue with social contacts. The Vision Statement noted that the TEAM “would like for [Student] to be able to return to school.” Parents accepted this IEP on May 19, 2008. (S-1)
12. Parents were dissatisfied with the amount of tutoring Student received during 2007 – 2008, and with Student’s inability to complete course requirements for ninth grade. In early July 2008, Parents filed a written statement of concern to that effect with DESE’s Division of Program Quality Assurance (PQA).
13. After an investigation, PQA issued a report which concluded, in pertinent part,3 that the physician’s statements on which the School had been relying since 2006 to provide Student’s home-based tutoring were inadequate because they did not “contain information regarding the date of confinement to the home, the medical reason(s) for the student’s home confinement and the medical concerns to be considered in planning the home-based instruction.” PQA further concluded that only one statement indicated the expected duration for confinement (for September 2006), and the others did not indicate when Student was to return to school, referring instead to his being out of school indefinitely.” PQA further concluded that the documentation did not meet the requirements of 603 CMR 28.03(c) or DESE’s Question and Answer Guide on the Implementation of Educational Services in the Home or Hospital , issued in 1999 and revised in 2005.
14. Additionally, the PQA report noted that “the physician that was signing the notices was not the neurological specialist who was overseeing the student’s care and medication for the cited medical condition.” (S-7) The report did not, however, make any reference to the role of the pediatrician, Dr. Aeschlimann, in coordinating Student’s care as asserted by Father in his testimony, or draw any conclusions to the effect that Dr. Aeschlimann lacked the necessary knowledge or expertise to submit the notices at issue.
15. Stoneham received the PQA report on or about September 15, 2008. Meanwhile, however, on or about September 10, 2008, Parents provided the School with the September 3, 2008 letter from, Dr. Aeschlimann, referred to in Paragraphs 4 and 5, above. (S-6) The content of this letter, which was written on the stationery of the pediatric group where Dr. Aeschlimann practices, and contains the address, telephone number, and fax number of the practice is reproduced below verbatim:
To school
Stoneham Public Schools:–
RE: [Student]
BD: [Student’s birth date]
DGS: Pseudo Tumor Cerebri, Severe Photosensitivity, Severe Headaches.
Followed by Mass. Eye & Ear and Neurologist. He can have a full load of school work but cannot be in the school environment needs home tutoring. /s/ Mirna Aeschlimann, M.D.
16. In a letter dated September 19, 2008, Stoneham’s Director of Pupil Personnel Services, Dr. Frank Scott, informed Parents of the steps Stoneham intended to take as a result of the PQA report and Corrective Action Plan. The letter stated that “it has been determined that the submitted physician’s statements which have been submitted since March, 2007 have been inadequate and the Stoneham School District has a responsibility to seek additional information….Also noted to be of significant concern was that the physician that was signing the notices was not the neurological specialist who was overseeing the student’s care and medication for the cited medical condition.” (Scott, S-8)
17. Dr. Scott’s letter further stated that “the PQA report requires that the IEP Team receive a physician’s notice that contains all the required information…4 and that [i]n order to facilitate communication with [Student’s] physicians, [Dr. Scott] had given [Parents] a Release of Information form during [their] meeting of September 2 nd that named Dr. Mirna Aeschlimann, Pediatrician, and Dr. Rizzo, Neuro-opthalmologist.” (S-8) As of the date of the letter, Stoneham had not received signed releases, and Dr. Scott included duplicate release forms in the letter. (S-8)
18. On September 30, 2008, Stoneham convened a TEAM meeting as directed by PQA. In a letter to Parents dated September 30, 2008, TEAM chair Donna Brine stated that Stoneham lacked the “necessary information to clearly identify the actual limitation [sic] that confine [Student] to home and prevent him from attending school, since that information needs to come from [Student’s] neurologist.” (S-9) The letter further acknowledged Parents’ intention to produce a letter with the necessary information after Student’s upcoming neurologist appointment.5 (S-9)
19. In response to concerns about privacy that Parents had expressed at the TEAM meeting, the School agreed to restrict its own access to Student’s treaters by designating the School’s physician, Dr. Marc Prifko, as the individual who would have contact with Student’s physicians. In a letter dated October 8, 2008, Ms. Brine enclosed an updated release of information form to this effect for Parents’ signature. The form granted permission for Dr. Prifko (rather than the “Stoneham Public Schools, Department of Pupil Personnel Services,” per the original release given to Parents) to exchange information with Dr. Aeschlimann and Dr. Rizzo. (S-10)
20. Father testified that within two weeks of receiving Ms. Brine’s letter, he had told Dr. Aeschlimann that she could speak with Dr. Prifko, but that Dr. Aeschlimann had heard nothing from Stoneham. (Father)
21. In a letter dated October 24, 2008, Dr. Frank Scott, Administrator of Pupil Personnel Services, stated that the School had received neither a letter from Student’s neurologist nor a signed release from Parents. The letter further indicated that Stoneham planned to request a due process hearing, as it was unable to comply with the PQA directives in the absence of such letter and/or release. (Scott, S-11)
22. At hearing, Father testified that Parents had lost trust in the District for various reasons and, therefore, were unwilling to allow the access to Dr. Rizzo that the School requested. Moreover, Parents had granted the School permission to speak with Dr. Aeschlimann, who coordinated Student’s care as his primary care provider, and the School had chosen not to do so. Father further testified that the family would be leaving Stoneham at the end of the 2008-2009 school year. (Father)
FINDINGS AND CONCLUSIONS
Based on the evidence submitted at hearing, I conclude that the September 3, 2008 letter from Dr. Aeschlimann, which is the sole medical documentation in the record supporting Parent’s request for home instruction, did not meet the minimum regulatory standards justifying such instruction.
Massachusetts schools must provide students with home or hospital-based tutoring when the student has a medical condition that precludes his or her attendance in a school building for at least fourteen days per school year. This obligation to provide such tutoring is triggered by the school’s receipt of documentation, by a physician, of the medical necessity for the student’s being educated at home or in the hospital. The pertinent state regulation states the following:
Upon receipt of a physician’s written order verifying that any student…must remain at home or in a hospital on a day or overnight basis, or any combination of both, for medical reasons and for…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).
To assist in interpretation of this regulation, the Massachusetts Department of Elementary and Secondary Education (DESE) has issued a 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) ( Home and Hospital Guide ).6 According to this Guide , once a student’s personal physician has determined that the student will need home or hospital instruction, for medical reasons, for more than 14 days per school year, the physician must submit a signed written statement setting forth, at a minimum,
· 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.
DESE Home and Hospital Guide , Question 3, Paragraph 1. The physician must present this information on either DESE form 28R/3 or in an equivalent signed statement. Id.
Here, the sole medical documentation on the record that supports Student’s asserted need for home-based instruction is a letter from Student’s pediatrician dated September 6, 2008 and quoted in Paragraph 14, above. Other than naming the Student’s diagnosis and two symptoms, this letter contains none of the information required by the Guide . The letter is silent as to the date of Student’s home confinement, the medical reasons therefore (the diagnostic label and mention of two symptoms provides no information as to why Student may not enter the school environment; i.e., says nothing about why the illness precludes school attendance); the expected duration of home confinement, and Student’s needs to be considered in planning home-based services.
Clearly, this document does not even minimally meet the requirements of the relevant regulation and portion of the Guide . Stoneham, therefore, lacks sufficient medical verification to warrant provision of home instruction services.7
As mentioned above, Stoneham’s hearing request arose from its inability to fully comply with a PQA Plan of Correction in the face of inadequate medical documentation of Student’s condition and the Parents’ unwillingness to allow the School access to the necessary information. This Plan of Correction covered issues that are outside the scope of the hearing request, namely steps that the School should have taken or should take to ensure the adequacy of Student’s IEP given his asserted medical condition. In an effort to comply with the relevant PQA directives as well as to meet Student’s needs, Stoneham—unsuccessfully– sought a physician statement from the neurologist, Dr. Rizzo in addition to Dr. Aeschlimann, and also sought permission for the school physician to have contact with both of Student’s treaters.
It is not necessary to make any findings or rulings on whether Parents were required to comply with these requests (for a statement from the specialist and for Dr. Prifko’s access to both physicians) as a condition of receiving home instruction, however, because the Parents have not provided even the bare minimum of documentation, from any one of Student’s physicians, that would trigger the School’s obligation to provide home-based services in the first place.
CONCLUSION AND ORDER
Based on the foregoing, effective the date of this decision, Stoneham is no longer required to provide home-based instruction to Student. Student is entitled to the services set forth in his most recently accepted IEP, or any successor accepted IEP formulated through the normal TEAM process or in conjunction with Stoneham’s compliance with the PQA Plan of Correction.
By the Hearing Officer,
__________________________ ________________________
Sara Berman
Dated: June 4, 2009
1
Stoneham subpoenaed Dr. Joseph F. Rizzo, III, Student’s neuro-opthalmologist, but Dr. Rizzo neither appeared at the hearing nor contested the subpoena. Stoneham elected not to seek enforcement of the subpoena.
2
The uncontested documentary record indicates that Stoneham provided Student with one hour per week of tutoring in each of world history, earth science, English and algebra. Student also received tutoring in Spanish at the beginning of the school year, but Father cancelled the course in November 2007. (S-4) A total of 87 tutoring sessions were scheduled between October 2007 and June 2008. Of these, 61 actually took place and 26 were cancelled. Approximately 4 sessions were cancelled by the District, and the remainder by the Parents (generally for medical reasons). (S-4, S-7, Father) The record contains no information regarding academic support services, but these services are not at issue in this case.
3
The scope of the PQA report was broader than the single issue of the adequacy of the physician statements. In sum, PQA was concerned that the TEAM had not fully addressed “the possible actions to take to address the fact that the Student is of compulsory school age…continues to be confined at home, has not participated in the annual MCAS, and is not accessing [FAPE] in the least restrictive environment. In addition, there was a lack of evidence…that the district considered implementing the class attendance policy or provided the parent with information regarding home schooling…” (S-7) In its corrective Action Plan, PQA directed Stoneham to convene a TEAM meeting to consider how to provide Student with FAPE in the LRE, either through full or part-time school attendance, approved homeschooling, or home based educational services. Thus, PQA ordered Stoneham to submit to PQA a copy of a “physician’s notice for the current home confinement for the 2008-2009 school year that includes all the required information.;” however, this was only one of several documents that PQA directed Stoneham to provide, and one of several actions that PQA told Stoneham to take. However, the sole issue for this appeal is the adequacy of the information provided by Student’s physician.
4
The information referred to is that set forth in the pertinent regulation and question and answer guide as recited in Paragraph 12, above.
5
At this TEAM meeting and in other communications with Stoneham, the Parents expressed their concern that Student had not received enough schoolwork during his tutoring sessions to be able to pass ninth grade. They asked for an increased volume of schoolwork, and an opportunity to “test out” of certain classes rather than repeat them. Finally, they repeatedly indicated their hope that Student would eventually be well enough to return to school, and asked for opportunities to attend school-related activities (e.g., a dance.) (Father, Brine, S-9)
6
The Guide was first issed in February 1999 and revised in February 2005.
7
This case is factually similar to one recent BSEA decision and one ruling on the issue of adequacy of medical documentation. In both the decision, Oliver and the Agawam Public Schools , BSEA Nos. 08-2564 and 08-4033 (Byrne, February 7, 2008); and the Ruling on Motion to Dismiss in In Re : Danvers Public Schools , BSEA No. 09-2776 (Crane, November 10, 2008), BSEA hearing officers determined that schools were not required to provide home-based services when the physician statements submitted did not provide the threshold information set forth in the Guide. This case, like Agawam and Danvers, is one where the Parents and their physician(s) have not met even the minimal verification requirements to support a request for home instruction.