Norwood P.S. BSEA #11-5444
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Norwood School District BSEA #11-5444
RULING ON PARENTS’ MOTION FOR COMPLIANCE
Parents have filed a motion asserting that Norwood Public Schools (Norwood) has taken actions that are noncompliant with my partial decision in this matter. Norwood has filed an opposition.[1]
On June 7, 2011, I issued a partial decision on the limited issue of the appropriateness of Norwood’s using a hip stabilizing belt while feeding Student. Norwood sought to use a hip stabilizing belt for the limited purpose of assisting with (and making safer) Student’s feeding at school, while Parents took the position that a hip stabilizing belt is not warranted and constitutes unauthorized restraint.
My partial decision noted that Massachusetts Department of Elementary and Secondary Education (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. 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]
In my partial decision, I highlighted subpart (a), quoted above, pursuant to which the regulations allow for a “stabilizing device” to be exempt from the restraint regulations (and therefore its use would be otherwise permissible) if it is “ordered by a physician”.
In summary, my partial decision found that it would be appropriate for Norwood to use a hip stabilizing belt in accordance with a physician’s written order. I then ordered that“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.”
Parents take the position that the physician’s order obtained by Norwood is noncompliant with my partial decision for a number of reasons. Parents point out that the physician’s order provides no medical reasons, medical diagnosis, or “reasonable credible rationale” to show that Student requires a hip stabilizing device, does not provide instructions for the use of the device, does not distinguish why use of the belt is a stabilizing device as opposed to a mechanical restraint, puts no limitations on its need or duration, and sets no time for review of the practice as Student’s needs may change. Parents further argue that the physician’s order is inconsistent with 603 CMR 46.01 (3) and IDEA’s least restrictive environment (LRE)[3] mandates because less intrusive alternatives to mechanically restraining Student with a belt were not considered by the physician. Parents further state that the physician failed to examine Student “or even observe him while feeding in his present medical condition.” Finally, Parents take the position that Norwood’s physician’s order “usurp[s] medical decision-making rights from custodial parents.” See Parents’ motion, pages 2-3.
Norwood’s opposition explains that in reaching his decision to order the stabilizing belt, Norwood Public Schools’ Medical Director (Bruce Weinstock, MD, MPH) “consulted with experts and reviewed available materials and reports, including the letter provided by Carol Hamilton-Dodd and the June 7, 2011 Partial Decision”; and he viewed Student’s “feeding video”. Norwood’s attorney’s letter to the Hearing Officer, dated July 19, 2011.
It is not disputed that Norwood has obtained a physician’s order for the use of the hip stabilizing belt. The order, dated June 17, 2011, is in the form of a letter from Dr. Weinstock to Joanne Ryan, RN, BSN, who is a nurse for the Willett Early Childhood Center at the Norwood Public Schools. The letter states that it is a “formal order to implement the feeding program approved by Partial Decision 6-7-11 court order”. The letter then states as follows: “Order: Please use a lap stabilizing belt, appropriately securing [Student] into a Rifton Chair while feeding/eating.”
For the reasons stated above, Parents do dispute the existence of a physician’s order for the hip stabilizing belt, but take the position that more is required, both with respect to the order itself and with respect to the process that Dr. Weinstock used in deciding to authorize use of the stabilizing belt.
The DESE regulations, quoted above, only state that a “physician’s order” for a stabilizing device is needed to avoid the regulatory requirements regarding restraint. The regulations, on their face, require nothing more, either in terms of the content of the order itself or in terms of the process used by the physician for authorizing the stabilizing belt. In other words, Parents would have me add substantive and procedural standards to what appears within the DESE regulations, and I would then evaluate the appropriateness of the physician’s order pursuant to these standards. For the reasons explained below, I decline to do so.
The DESE restraint regulations cited above may be compared with the DESE regulations requiring a physician’s order relative to authorization of educational services in the home or hospital. Relevant portions of these latter regulations read, in part, as follows:
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 school days in any school year, the principal shall arrange for provision of educational services in the home or hospital.[4]
These regulations make clear that a physician’s statement must do more than simply order that home tutoring should occur—that is, the order must explicitly verify that the student must remain at home for medical reasons for no less than 14 school days.[5]
From a review of these regulations, it seems clear that when DESE intends that a physician provide more than a simple, conclusory order, it gives the details of what the requisite order must include. As noted above, within the DESE restraint regulations, no such additional requirements regarding a physician’s order can be found. Similarly, the DESE restraint regulations do not set forth any particular process that the physician must follow prior to writing his or her order.
I conclude that the DESE restraint regulations regarding a physician’s order are not intended to require anything more than what is explicitly set forth within those regulations, and that I have no basis for adding substantive or procedural standards for purposes of my reviewing a physician’s order or determining its appropriateness.
For these reasons, I find that Norwood’s physician’s order is in compliance with the requirements of the DESE restraint regulations. My partial decision required no more and no less than compliance with these regulations.[6]
Accordingly, I conclude that Norwood’s physician’s order is in compliance with my partial decision.
Therefore, Parents’ motion is DENIED.
By the Hearing Officer,
William Crane
Date: August 2, 2011
Footnotes
[1] Parents seek an opportunity to submit “full legal briefs” on their motion. I find that further briefing (as well as a motion hearing) is unnecessary in light of the limited nature of the issue in dispute and the papers received from the parties.
[2] 603 CMR 46.02 (5).
[3] The phrase “least restrictive environment” means that “[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 USC § 1412(a)(5).
[4] 603 CMR 28.03(3)(c) (emphasis supplied).
[5] In those home tutoring disputes where I have considered the sufficiency of a physician’s statement, I have simply examined whether the order, on its face, satisfies the explicit regulatory standards for such an order, as found within the DESE regulations. The physician’s order is deemed sufficient or insufficient on the basis of whether the explicit regulatory standards have been met. See In Re: Danvers Public Schools, BSEA # 09-2776, 14 MSER 381, (11/10/08); In Re: Bellingham Public Schools, BSEA # 04-1976, 10 MSER 71 (2/17/04). Parents have provided no basis for me to follow a different approach in the instant dispute.
[6] Parents’ additional argument, that least restrictive principles (within the restraint regulations and the IDEA generally) are violated, is also misplaced. Norwood’s physician’s order takes the hip stabilizing belt outside the scope of the restraint regulations. Therefore, least restrictive principles generally applicable to restraints do not apply. Also, LRE requirements under the IDEA are not implicated because the stabilizing belt does not limit Student’s opportunity to be educated with typical peers. See footnote 3, above, regarding LRE requirements.