SPECIAL EDUCATION LEGAL JOURNEY

SCHOOLS CANNOT IGNORE MENTAL HEALTH DISABILITIES OF ITS STUDENTS

Schools cannot ignore the mental health disabilities of their students. Good mental health is critical to children’s success in school and life. Students who struggle with mental health benefit academically and socially when they receive support at school. When schools do not address mental health problems, the results can be costly: academic and behavior problems, dropping out, delinquency, and school violence.

Eligibility

The US Department of Health and Human Services reports that one in five adolescents has a diagnosable mental health disorder. Under the IDEA, schools must determine whether the student with a mental health disorder is a student who has a disability and, as a result of that disability, needs special education in order to make progress in school. These students typically qualify for services under other health impairment or emotional disturbance.

The Ninth Circuit Court of Appeals held that a student who receives mental health counseling and assistance from a 1:1 paraprofessional is receiving special education services. LJ v. Pittsburg Unified School District (9^th Cir. 2016) School districts should consider the impact of medication and outside incidences of psychiatric hospitalizations and suicide attempts. The court has held that it is hard to believe these types of incidences would not impact a student’s education. Id.

Specially Designed Instruction and Related Services

General education is what is provided to non-disabled students in the classroom. Special education is “specially designed instruction” to meet the unique needs of a child with a disability. (34 CFR Section 300.39) Mental health services such as psychological, social work, and counseling services are all related services. Mental health services do not extend to diagnostic and evaluation purposes. (20 USC Section 1401)

The California Department of Education provides the following graphic representation of an IDEA-based continuum of potential service environments:

https://view.officeapps.live.com/op/view.aspx?src=https://www.cde.ca.gov/sp/se/ac/documents/srvcarrayfgre.doc

The most intensive placement for students with mental health challenges is a residential placement. If placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child. (34 CFR Section 300.104)

Educationally Related Mental Health Services

Educationally Related Mental Health Services (ERMHS) are mental health services that are provided to students who have significant emotional or behavior issues that impede their ability to benefit from their special education services. These students have already been found eligible for special education services. In order to receive ERMHS, there must be a direct relationship between the student’s emotional or behavioral conduct and the lack of benefit from special education. Services may include school, home, or community-based counseling. Counseling may be provided to the student and/or their family.

Conclusion

In is unavoidable that schools will be required to serve students whose mental health disabilities impact their ability to progress in their education. If a school suspects a student has a mental health disability that may be impacting their education, it is important to assess the student. Refusing to identify a student with mental health needs and failing to provide appropriate support may lead to bigger problems down the road for the student and/or school.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

FORMAL PROCEDURES FOR INVESTIGATING BULLYING OF STUDENTS WITH DISABILITIES IS SEPARATE FROM AN IEP TEAM’S OBLIGATION TO ADDRESS THE IMPACT OF BULLYING ON FAPE

Bullying happens every single day. Schools have the responsibility to investigate incidents of bullying and discipline students who bully. Students with disabilities are at an increased risk of being bullied. In a recent due process decision, the Office of Administrative Hearings held that bullying of a student with a disability that deprives the student of meaningful educational benefit, it can constitute a denial of a FAPE under the IDEA.

A district may deny a student FAPE by failing to address reported bullying. Parents v. Colton Unified School District (OAH #2017060750) An IEP team should at least discuss the issue, document the conversation, and determine the impact, if any, on a student’s receipt of FAPE. Formal procedures for investigating bullying are separate from the IEP team’s obligations.

Making a determination of whether bullying has denied a student FAPE requires the following analysis:

Whether bullying occurred; and
Whether the bullying resulted in the student not receiving educational benefit.

A determination must be made of whether bullying occurred. The IDEA does not contain a definition for bullying. The California Education Code defines it for the purposes of possible suspension or expulsion. California Education Code Section 48900(r)(1) states:

(1) “Bullying” means any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act, and including one or more acts committed by a pupil or group of pupils as defined in Section 48900.2, 48900.3, or 48900.4, directed toward one or more pupils that has or can be reasonably predicted to have the effect of one or more of the following:

(A) Placing a reasonable pupil or pupils in fear of harm to that pupil’s or those pupils’ person or property.

(B) Causing a reasonable pupil to experience a substantially detrimental effect on his or her physical or mental health.

(D) Causing a reasonable pupil to experience substantial interference with his or her ability to participate in or benefit from the services, activities, or privileges provided by a school.

Once a determination is made as to whether bullying has occurred, a determination must be made as to whether the student has lost any educational benefit. There is no clear rule governing how much of a change in academic performance or behavior is required. A school must be given a reasonable opportunity to prevent or address the bullying. M.L. v. Federal Way School District (9^th Cir. 2005) 394 F.3d 634. A disabled student is deprived of a FAPE when school personnel are deliberately indifferent to or fail to take reasonable steps to prevent bullying that substantially restricts a child with learning disabilities in his or her educational opportunities.

School districts have an obligation to protect all students from bullying. Taking disciplinary action against a student who engages in bullying may not be enough. If the student has disabilities, the IEP team may need to convene to discuss the bullied student’s needs.

If you believe your child is being bullied, do not ignore your concerns. You need to alert school staff so they can conduct an investigation. If your child has an IEP for disabilities, determine if it is necessary to call and IEP team meeting.

NON-ATTORNEY ADVOCATES MAY NOT REPRESENT ANY PARTY IN A DUE PROCESS HEARING

The Office of Administrative Hearings (OAH) is a quasi-judicial tribunal that hears administrative disputes. OAH is divided into two divisions: General Jurisdiction Division and Special Education Division. OAH’s Special Education Division contracts with the California Department of Education to handle special education due process hearings and mediations.

On September 28, 2017, the California Attorney General submitted Opinion No. 14-101 to the OAH. The Opinion held that neither the IDEA and/or California law authorize any party to a due process hearing to be represented by a person that is not an active member of the California State Bar in due process hearings. The Opinion recognized that the representation of another before a governmental entity has historically be regarded as the “practice of law.” Under the State Bar Act, it is unlawful to practice law in this state unless one is a member of the State Bar of California or is otherwise authorized by statute or court rule to engage in the practice of law.

The Attorney General’s Opinion does not prohibit a party from being accompanied and advised by individuals with special knowledge or training relating to the problems of individuals with exceptional needs. (See CA Education Code Section 56505.) However, these individuals may not represent the legal interests of the party if they are not an attorney.

If you believe you have a claim against your school district that may result in due process, contact Kristin Springer at (925) 551-1041 for a 20 minute free consultation.

CALIFORNIA ESTABLISHES SOCIAL-EMOTIONAL LEARNING GUIDELINES

On February 23, 2018, the California Department of Education (CDE) released new guidelines for teaching social and emotional skills. It is important to remember that these are guidelines, not laws. As such, schools are not required to follow them.

In an effort to improve social-emotional learning, the CDE established five guiding principles. They are:

1.) Adopt Whole Child Development as the Goal of Education. This principle recognizes that academics is just one part of learning. Students must have opportunities to practice, demonstrate, and reinforce social-emotional skills. Schools are encouraged to reflect the importance of social-emotional growth in their vision statements, discipline policies, and and skills instruction.

2.) Commit to Equity. Opportunities should be offered to all students. Schools should encourage a diverse student population to participate in the student body. The guidelines also encourage a workforce that is diverse.

3.) Build Capacity. Schools need to be intentional to build relationship-centered learning environments by offering research-based learning experiences. Schools should ensure every student and adult feels they belong and have value. The guidelines recognize schools may need to offer professional learning to address student social and emotional development.

4.) Partner with Families and Community. Schools are encouraged to expand learning opportunities to families and build respectful, mutually beneficial relationships.

5.) Learn and Improve. Schools should adopt continuous improvement practices which includes the need for comprehensive planning, implementation monitoring, and adoption of necessary policies and practices.

The guidelines are a good start in recognizing the need to address the social-emotional growth in California students. Students with social-emotional disabilities may receive services and supports under Section 504 of the Rehabilitation Act of 1973 and the IDEA, and corresponding state laws and cases. Any policies implemented by local school agencies should take these laws into consideration.

Statement on Parkland: Time to Take Action to Protect Our Children – Council of Parent Attorneys and Advocates, Inc.

Source: Statement on Parkland: Time to Take Action to Protect Our Children – Council of Parent Attorneys and Advocates, Inc.

ANNUAL GOALS

Annual goals identify area where a student needs special education services or specially designed instruction. The purpose of goals is to permit the IEP team to evaluate whether a student is making progress in an area of need. Goals can be functional or academic.

There are no legal limits on the number of goals an IEP can contain. For each area in which a special education student has an identified need, the IEP team must develop measurable annual goals. (CA ED Code Section 56345) If the student has one area of need, they will have one goal. If they have five areas of need, they will have five goals.

Annual goals must be based upon the student’s present level of academic achievement and functional performance, and which the child has a chance of attaining within a year. (CA ED Code Section 56345; Parents v. Del Mar Unified School Dist.. (2017) OAH# 2017010586). Development of the IEP, including goals, is a fact-intensive exercise. (Endrew F. ex rel. Joseph F. V. Douglas County School Dist. RE-1 (2017) 137 S. Ct. 988). The Supreme Court in Endrew held the IEP must be drafted in light of the child’s circumstances. A majority of an IEP meeting should focus on this fact-intensive exercise.

When the IEP goals fundamentally fail to address the student’s needs based on a misunderstanding of the district’s obligations under the IDEA, there is a de facto failure to meet the requirements of federal and state law. (Parents v. Liberty Union High School Dist. (2017) OAH# 2017020873). In the Liberty case, the school district did not believe they had an obligation to remediate fundamental reading and spelling weaknesses of a high school student. They believed they were only required to provide accommodations and modifications which would allow the student to access the curriculum. OAH disagreed.

As you prepare for your child’s IEP meeting, in addition to other documents the school will rely upon, be sure to request a copy of any draft present levels of performance and goals which will be shared among school district personnel prior to the meeting. If you cannot understand how the two documents relate to each other and allow you to measure progress, contact Kristin Springer at (925) 551-1041 to discuss the legal sufficiency of the documents. It is easier to correct procedural errors before they happen.

IDEA CLAIMS: THE TWO YEAR STATUTE OF LIMITATIONS

The IDEA is a federal law enacted to ensure every child with special needs is afforded a free and appropriate education. Prior to 2004 the IDEA did not contain a statute of limitations. In 2004, Congress reauthorized the IDEA and added a two-year statute of limitations. A statute of limitations is a law which sets out the maximum time that parties have to initiate legal proceedings from the date of the alleged offense.

Parents and school districts are entitled to file due process complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free and appropriate public education of such child. (20 USC Section 1415(b)(6)(A)). The two-year statute of limitations for filing due process applies equally to a parent’s request for an IEE. (Placentia-Yorba Linda Unified School Dist. v. Parents (2012) OAH #2012051153).

Calculating the Two-Year Statute of Limitations

20 USC Section 1415(f)(3)(C) states:

A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.

Since the reauthorization, hearing officers have wrestled with the interpretation of the two-year statute of limitations. In 2017, the 9^th Circuit Court of Appeals held there is no automatic two-year time bar of claims based on the date of the filing of the case. Avila v. Spokane School Dist. 81 (9^th Cir. 2017) 852 F.3d 936. The 9^th Circuit refused to uphold a strict occurrence rule which would calculate the two-year statute of limitations from the date the due process complaint was filed. Instead, they upheld the discovery rule, which requires courts limit claims to the two-year period that precedes the date when a parent or agency knew or should have known about the alleged action that forms the basis of the complaint. Avila. This is a question of fact for the hearing officer.

Exceptions to the Two-Year Statute of Limitations

There are only two narrow exceptions to the two-year statute of limitations. 20 USC Section 1415(D)(i) and (ii) provide the following exceptions:

specific misrepresentations by the local educational agencythat it had resolved the problem forming the basis of the complaint; or
the local educational agency’s withholding of information from the parent that was required under this subchapter to be provided to the parent.

These narrow exceptions require that the LEA’s actions be intentional or flagrant rather than a repetition of an aspect of determining whether a student received a free appropriate public education. Placentia-Yorba Linda Unified School Dist.

Hearing officers have recognized that while an IEP’s implementation is on-going, special education law does not recognize the doctrine of continuing violations as an exemption from the two-year statute of limitations. (Parents v. Hermosa Beach City Elementary School Dist. (2011) OAH# 2011081019).

As you negotiate disputes with your local school district, it is important to keep in mind the two-year statute of limitations. If you don’t, you may lose your right to file a claim for violations under the IDEA as well as other federal and state laws.

If you believe you have a claim against your school district, contact Kristin Springer at (925) 551-1041 to determine whether your claim falls within the statute of limitations.

TRANSITION SERVICES- NOT JUST FOR STUDENTS WHO TURN 16

The IDEA specifies that a student is entitled to transition services as he or she prepares to exit the public school system. (20 USC Section 1414(d)(1)(A)(i)(VII)). Many courts have interpreted the IDEA narrowly by concluding the purpose of the statute is to prepare students to enter the workforce. Those courts have excluded transition services at any other time. In 2017, the 9^th Circuit Court of Appeals revisited this issue and reversed those decisions.

In reversing prior decisions, the 9^th Circuit Court looked at 20 USC 1414(d)(1)(A)(i)(IV) which states that the IEP must include supplementary aids and services which will allow children to… be educated and participate with other children with disabilities and nondisabled children. Services that ease the transition between institutions or programs- whether public or private- serve this purpose. R.E.B. v. State of Hawaii Dept. of Education (9^th Cir. 2017) 870 F.3d 1025.

If a student will be transitioning between new academic environments (preschool to school, elementary to middle school, etc.) and you believe they require a transition plan, contact Kristin Springer (925) 551-1041.

PROCEDURAL SAFEGUARDS: DOCUMENTING FREQUENCY, LOCATION, AND DURATION

All special education and related services, supplementary aids and services, program modifications, and supports for school personnel that are included on a student’s IEPs are required to be documented so that all involved with developing and implementing the IEP have a clear understanding of what will be provided to the student. The IEP is required to specify the anticipated frequency, location, and duration of services. (20 USC Section 1414(d)(1)(A)(i)(VII)).

Everyone on the IEP team, including parents, should know the amounts of services being offered. J.L. v. Mercer Island School District (9^th Cir. 2010) 592 F.3d 938. Recently, in contrast to prior rulings, the 9^th circuit held that IEPs create a contractual relationship between the school and a student’s representative (parent, guardian, etc.). M.C. v. Antelope Valley Union High School District (9^th Cir. 2107) 852 F.3d 840. The IEP is a formal, written offer to provide certain services to a student. When the IEP is written clearly, many factual disputes regarding what services, placement, or additional educational assistance was offered can be avoided. Union School District v. Smith (9^th Cir. 1994) 15 F.3d 1519.

An IEP which doesn’t detail the anticipated frequency, location, and duration of the proposed specialized academic instruction may seriously infringe on a parent’s right to participate in the IEP process, especially where the offer improperly delegates the determination of frequency and duration of specialized instruction to teachers outside the IEP. R.E.B. v. State of Hawaii Dept. of Education (9^th Cir. 2017) 870 F.3d 1025. The IEP is the blueprint for enforcement and requires a formal, specific offer. R.E.B. citing Union School Dist.

If you are unable to understand what services your child should receive as a part of their IEP, contact Kristin Springer at (925) 551-1041 to discuss having your child’s IEP reviewed.

WHAT DOES IT MEAN THAT A CHILD WITH A DISABILITY MUST ALSO BE IN NEED OF SPECIAL EDUCATION SERVICES?

In order to receive special education services under federal and state law, a student must qualify as a child with a disability. A “child with a disability” is statutorily defined as a child with intellectual disabilities, hearing impairments, speech or language impairments, visual impairments, serious emotional disturbance, orthopedic impairments, autism traumatic brain injury, other health impairment, or specific learning disability and who, by reason thereof, needs special education and related services. 20 USC Section 1401(c)(A). A student with a qualifying disability is not automatically entitled to an IEP. There must be a demonstration of a need for special education and related services.

In 2017, the 9^th Circuit Court of Appeals addressed the issue of whether the student had demonstrated the need for special education services. (L.J. v. Pittsburg Unified School District (9^th Cir 2017) 850 F.3d 996. The student met three eligibility criteria and was receiving services from the school. The school provided the services as “general education services.” These services included mental health counseling, a one-to-one aide, and other classroom based accommodations. The court found these services to be special education services. It was determined L.J. met both prongs of the eligibility criteria.

The 9^th circuit court discussed the distinction between general and special education services. General education is what is provided to non-disabled children in the classroom. Students in the general education setting do not receive specialized services. In contrast, special education is “specially designed instruction” to meet the unique needs of a child with a disability. (34 C.F.R. Section 300.39(a)(1)).

“Specially designed instruction” means adapting, as appropriate to the needs of an eligible child the content, methodology, or delivery of instruction to:

address the unique needs of the child that result from the child’s disability; and
ensure access of the child to the general curriculum

( 34 C.F.R. § 300.39(b)(3)).

If your child has a disability (or suspected disability) that interferes with their school performance, they may be eligible for an IEP. You can request the school assess your child by submitting a written request explaining your child’s disability (or suspected disability) and how you believe it impacts their school performance. If the school determines your child has a disability, they will also look at whether your child requires specially designed instruction.

If you have further questions regarding this topic, feel free to contact Kristin Springer at 925-551-1041.