PARAGOULD, Ark. -- A Northeast Arkansas family claims their impending senior has been blocked from attending school, because officials have refused to give her food and drink throughout the day -- requiring a doctor's note or liability waiver for the girl to return, following a breach of medical privacy and contentions over special education services.
Senior Year, Sudden Stall
Twins Madison and Mallory Wilson have had plans to spend college together at Arkansas State University, Jonesboro.
"Yes, I've told her, Mallory, when we go to college we're going to share a dorm and have all the same classes," Madison said. "We were going to have so much fun. At this point, though, I just want her to be able to return to school."
But those plans are indefinitely put on pause, and Mallory's future as a Greene County Tech Golden Eagle are uncertain.
"[It's] her senior year. Everybody says it's supposed to be the best year of school. Five months of it have been taken away," Madison said.
Mallory has cerebral palsy, and she requires help with physical activities. She's also nonverbal, meaning she cannot verbally communicate. Still, she's a straight-A student in general education classes. She's a member of the Student Council; she's been a former cheerleader. She was set to graduate in May.
"I have never heard of a school district refusing to educate a child," her mother, Carla Wilson, said.
In Special Education, the duties of a school district are spell out in the IEP, or Individualized Education Program. It's developed by a team of at least five people, including the student or their parent representative. It covers accommodations that a student might need and modifications to schedules or curriculum. For instance, where general education students might take a written exam, a special needs student might be asked the questions orally and asked to respond either by communication device or otherwise.
School Declines to Comment
KARK requested an interview with Greene County Tech Superintendent Gene Weeks. He initially noted that due to ongoing litigation, he couldn't talk about the issue or any student's specific case. We acknowledged the restrictions he would have on discussing a student's private issues, but we did request an interview regarding the district's policies and procedures regarding IEP's and special education. He indicated that he would be available throughout the day of March 15. He then reneged and emailed to decline our request to set a time without explanation.
Discrimination via Denial of Food and Drink?
"She deserves so much more," Carla said. "She's been pigeon-holed and held back."
Mallory's IEP, as provided by her mother and attorney is dated October 19, 2016. It includes having an aide to help with her physical needs, like feeding, drinking and toileting. She is also slated to receive daily nursing services. But on October 24, just five days after the IEP was finalized for the 2016-17 school year, Carla said she received a call from the district.
"We are not going to feed Mallory anymore. We are not going to do that," a man identified as Greene County Tech High School Principal Chad Jordan said on a phone call recording provided by Carla Wilson.
In the conversation, Jordan informs Carla that she or Madison could provide the food and drink Mallory requires. Carla works 45 minutes away from the school. Madison attends college and works full-time. Carla suggested that the school's trained professional nurses could provide the care. But Jordan rejected that offer, despite Mallory's medication and IEP requiring those services.
During the phone call, Jordan tells Carla that the school will not feed Mallory because there are concerns that they do not know how to do so safely. In the IEP, Carla agreed to conducting a swallow study for Mallory in order to secure oral motor therapy she alleges Mallory was being denied. The IEP mentions a need to possibly change feeding techniques, but does not express concern over choking or staff feeling unprepared to provide the services.
The IEP calls for a FEES study, which uses a video scope to show what occurs when a person is swallowing, whether they aspirate or inhale fluids and food or appropriately clear their airways. Dysphagia, or difficulty swallowing and risks of aspiration are not uncommon in individuals with cerebral palsy due to lack of muscle control.
"I was telling mom that I'll stop going to school to take care of her. She said we would be able to work this out," Madison said. "We never thought it would take this long. It's been almost five months."
Jordan said the school wanted to conduct an IEP meeting to discuss the swallow study and receiving professional training to feed Mallory safety. Jordan also mentioned guardianship for Mallory because she had turned 18.
Swallow Study and Medical Records Breach
A swallow study was conducted on September 29, 2016, but it was not a FEES study. According to Carla, Arkansas Children's Hospital staff suggested a barium swallow study that might reveal more than the FEES study. Carla said she relented, but during the study Mallory became agitated from not being in her molded chair. Carla had to discontinue the study as Mallory began crying.
"It was an incomplete study. She was fighting for her place in space and slipping out of the chair," Carla said. "I had to stop it. She was upset. I decided we would attempt the FEES study, and I worked with her PCP to get another prescription for the FEES study that I should have just told them to go ahead with in the first place."
According to Carla, between the time of securing the second prescription and doing the FEES study, the school sought and obtained Mallory's medical records from Arkansas Children's. A breach letter from ACH confirms that the hospital sent a copy of the incomplete barium study to the school's Special Education Administration, and it acknowledged that it was an unauthorized release under HIPPA, the medical records privacy law.
Choking history and dysphagia are documented in the IEP as known medical history issues for Mallory. According to Carla, there have been no documented accidents or issues.
"After I received the call from Mr. Jordan, I contacted the school nurse and asked if there had been any issues," Carla said. "She told me there hadn't been any. The one time she had been called it was nothing. So, I don't know what they're making these decisions based on."
According to Carla, she received the call from Jordan on October 24. According to case filings by the school district, the district did not receive the FAXed medical records were not received until October 26.
"She's been at school 13 years, they have fed her without any issue," Carla said.
According to Carla, no changes have been ordered by Mallory's physician, which Carla said she has told the district multiple times.
Waiver of Liability, Access to Doctors: Is It Required?
"I have to look out for liability in the school," Superintendent Gene Weeks said in phone call audio from February that Wilson provided.
Weeks went on to suggest that Carla give the school nurse access to Mallory's primary care physician, so the doctor could instruct the nurse on how to proceed with feeding. In the phone call, Carla states that the school does not have consent to contact Mallory's medical professionals, due to the previous breach.
"I'm telling you that I don't trust anybody," Carla said in the phone call. "After the dishonesty, I just don't trust anyone. I'm not ready to consent to that without speaking with my attorney."
The school has demanded access not only to Mallory's doctors. In November at a facilitated IEP meeting, school officials drafted a memorandum of understanding. Carla Wilson, nor any representative for Mallory was present. According to Carla, she had informed the school multiple times that she would not be able to attend on that day, but the meeting was held without her, anyway.
In the memorandum of understanding, the school said it would draft a waiver of liability which would have to be signed before Mallory could resume oral intake at school. We contacted several disability and special education specialists, who said they have never heard of a school requiring a liability waiver to attend, noting that feeding is part of the requirement of a Free Appropriate Public Education (FAPE) under federal law.
According to Arkansas Department of Education officials, they cannot comment on any particular case or student's issue. However, in general, a school cannot demand access to a student's medical professionals. The schools typically can request consent to coordinate and request doctor's notes or authorizations to provide medication or therapy. Changes to an IEP without a meeting require agreement by the parent and written documentation of the amendment. However, if the IEP committee meets and determines that changes are appropriate, the district can implement the revised IEP after providing written notice to the parent and waiting the appropriate time period.
"Do you think the school is concerned about Mallory's safety?" this reporter asked Carla Wilson.
"No. I think they're concerned about Greene County Tech," she said. "I think this is a way of bullying me into releasing them from responsibility. All four of my children have been students in Green County Tech. We've always supported the school district. But there have been services throughout the years that they should have been providing Mallory, that they haven't been. Over the summer and during the last IEP meeting, I had pressed for those services and therapies. I think that's what this has a lot to do with."
The family filed a Due Process Complaint, which is a method for dispute resolution established in federal law under the Individuals with Disabilities Education Act (IDEA). A hearing officer, following the filings, ordered the school to stay put and follow Mallory's IEP.
According to Arkansas Department of Education officials, in general, a stay put order is meant to maintain the status quo prior to whatever issue arises. The IEP is usually the governing document regarding the student's education until the dispute is resolved. The department has no power to enforce the stay put order, but a hearing officer can hold a school district in contempt for violating it.
According to the family, it held a meeting with the school district and the hearing officer, in which the hearing officer suggested Mallory's family provide its own aide to assist with her physical and educational needs at school until an April hearing could be held.
According to the family, the school has ignored the order and rejected their provision of an aide, who they hired after raising private funds to send the aide with Mallory to school through a GoFund me account. According to Madison, Mallory and the aide travelled with her to the school, but they were turned away.
"They didn't get past the office door," Carla Wilson said. "The look on her face of disappointment was just insurmountable."
"Did that hurt that day?" this reporter asked Madison.
"Yes. You can only take so much," Madison said. "You absorb, and absorb and absorb all of this emotion. I normally try not to get upset in front of Mallory, but I burst out in tears. I was convinced this was going to work."
Mallory, being nonverbal, has a hard time expressing vocalized emotions. According to Wilson, those frustrations turn inward, and as a result, Mallory has suffered stomach aches and other ailments from the stress of the situation.
At this point, it will be at least April before a due process hearing is held. So, it's unclear whether Mallory will graduate in May as planned. She's just four and a half credits short, according to her IEP.
"She has the cap, the gown, the invitations?" this reporter asked Carla Wilson.
"Yeah, she has it all -- except the access to school," Carla replied.
Madison and Mallory still dream of college life to come, but right now they're just trying to make it through tomorrow.
"She deserves to walk across that stage and get her diploma and show everybody that I got my education. "
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