IEP – 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/)

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.

“THE GOALS MAY DIFFER, BUT EVERY CHILD SHOULD HAVE THE CHANCE TO MEET CHALLENGING OBJECTIVES.” – SUPREME COURT OF THE UNITED STATES

On March 22, 2017, the Supreme Court of the United States issued a decision in Endrew F. v. Douglas Country School District 580 US ____ (Mar. 22, 1997). This is a good time for parents to review their child’s IEP and determine if it provides a free and appropriate education to their child in light of the Supreme Court’s findings in Endrew F. The Supreme Court opined that every child should have a chance to meet challenging objectives. The process used to establish an IEP and implementation of a child’s IEP are important to protecting this right.

Establishment of the IEP

The Supreme Court opined that an IEP must be constructed after careful consideration of the:

Child’s present levels of achievement;
Disability; and
Potential for growth.

The collaboration between the school and parents on these issues is key to an appropriate IEP. The present levels of achievement and disability are often subject to discussion because they are included on the IEP form. An area that may be overlooked is the potential for growth. There isn’t an area specifically designated for this topic.

The IEP should be reasonably calculated to enable the child to receive educational benefits. For students integrated in the regular classroom, this requires the IEP to be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. For students not fully integrated, the IEP must allow the child to pursue academic and functional advancement. In both circumstances, The IEP must take into consideration the unique circumstances of the child.

The courts give deference to the school district based on their expertise. The Supreme Court opined that, given the expertise, schools are required to air their opinions and be prepared to offer a cogent and responsive explanation of their decisions. Parents are entitled to ask seek information and documentation to understand the school’s opinions.

Implementation of the IEP

Parents and school officials should monitor progress during the implementation of the IEP. Parents are not at the school site and unable to monitor progress in person. Therefore, it is important for parents to request school work, including anything generated during specialized academic instruction.

Parents should not accept trivial progress. Parents should expect their child will make progress in light of his or her unique needs. Trivial progress is no longer acceptable.

If you believe your child’s IEP does not contain challenging objectives or your child is not making appropriate progress in light of his or her circumstances, it is important to seek the advice of legal counsel who can help you analyze your situation.

(You can view my initial impressions of the Endrew F. case here: https://specialedlegaljourney.com/2017/03/24/new-ruling-a-school-must-offer-an-iep-reasonably-calculated-to-enable-a-child-to-make-progress-appropriate-in-light-of-the-childs-circumstances/)

PARENTAL PARTICIPATION IN IEP PROCESS IS A CRITICAL FEATURE UNDER IDEA- DURING IEP MEETINGS AND IMPLEMENTATION OF SERVICES

One of the complaints I often hear from parents is that the school is not allowing them to be a part of the decision-making process. They are allowed to speak at the IEP meetings only to have their opinions and ideas shot down by the school district. At the end of the IEP meeting they are presented an offer of FAPE in a take it or leave it manner. Lawmakers designed the IEP process to be collaborative and, as such, nobody should leave an IEP meeting feeling like they were not an important part of the process.

According to the IDEA, the IEP team shall include parents of the child with a disability. (20 USC Section 1414(1)(B)) Parents are listed first in order as IEP team members. Often times, parents are not represented by an advocate or attorney at the IEP meeting. Therefore, lawmakers devoted an entire section of the IDEA to procedural safeguards. (20 USC 1415) Some of those safeguards are:

Notice of meeting (time, purpose, location, and who will be in attendance);
Right to bring others with knowledge/expertise regarding the child;
Meeting scheduled at a mutually agreed upon time and place;
Alternative means of participation;
Right to a copy of the evaluation reports and any other documents considered in making decisions by the IEP team;
Right to an Independent Educational Evaluation (if parents disagree with a district’s evaluation); and
Right to due process.

When formulating an IEP, a school district “must comply both procedurally and substantively with the IDEA,” M.L. v. Fed. Way Sch. Dist. 394 F.3d 634,664 (9^th Cir. 2005) (citing Rowley v. Hendrick Hudson Sch. Dist. 458 U.S. 176 (1982), so that the process will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians,” Endrew F. v. Douglas City Sch. Dist. 580 U.S. (March 22, 2017). (M.C. v. Antelope Valley Union High Sch. Dist. No. 14-56344 (9^th Cir., March 27, 2017)) The courts recognize the parents have a unique perspective on their child and observe their child in a multitude of situations.

Parental participation shall be meaningful. Meaningful participation is more than attendance at the IEP meeting. (Amanda J. v. Clark County Sch. Dist. 260 F.3d 1106 (9^th Cir. 2001) District representatives are allowed to meet before an IEP meeting to develop a proposal or response that will be discussed at a later meeting. (34 C.F.R. 300.501(b)(3)) School districts should never say “we don’t do that here” or “we won’t consider that.” It prevents the parties from collaborating and builds mistrust.

The court frowns upon school districts lack of transparency during the IEP process, as well as during the implementation of the IEP. Congress is just as concerned with parental participation in the enforcement of the IEP as it is in the formation. (Rowley 458 at 205) Parents must be able to monitor and enforce the services that their child is to receive. When a parent is unaware of the services offered to the student—and, therefore, can’t monitor how these services are provided—a FAPE has been denied, whether or not the parent had ample opportunity to participate in the formulation of the IEP. (M.C. at 14)

If you have a question about whether your legal rights to participate in the IEP process has been less than meaningful, give me a call at 925-551-1041. Each case is unique to a specific set of facts and must be analyzed separately.

HELP THE SCHOOL YEAR GET OFF TO A GREAT START

The end of summer and beginning of a new school year can be a stressful time for parents with a child who has an IEP or 504 Plan. There are things parents can do to help get the new school year off to a great start.

Establish a Good Relationship with Your Child’s Teacher.

Your child’s teacher or teachers have a lot of responsibilities leading up to the new school year. Don’t assume that they have the time to review your child’s IEP or 504 Plan. That doesn’t mean that you approach your child’s new teacher or teachers in a hostile manner and put them on the defensive. Many teachers appreciate a parent who provides a summary of strengths and struggles of an incoming child with a disability. Provide your child’s teacher with a copy of their IEP or 504 Plan. I always recommend adding information regarding strategies that have worked for other teachers. Be sure to close out the letter thanking them for their time and letting them know that you are there to support your student and the teacher.

Review Your Child’s Most Recent IEP.

It is important to review your child’s IEP to make sure you understand your child’s current goals and what the school agreed to provide. If you have questions regarding the clarity of any provisions of the IEP, write to your child’s case manager or the appropriate service provide and ask for clarification. If informal attempts to clarify provisions of your child’s IEP are unsuccessful, call an IEP meeting.

Take Time to Organize Your Paperwork.

I recommend parents start a new folder or binder every year. The folder or binder should be used to keep track of relevant IEPs, communication, progress reports, assessments, and meeting notes. I also recommend parents keep copies of work samples that show your child’s strengths and weaknesses. These documents will be helpful during future IEP meetings and in the event disagreements lead to due process.

Determine if Any New Issues Have Arisen.

The new school year is a good time to think about whether new academic, social, organization, or behavior concerns have arisen. Inform the IEP team in writing regarding any new concerns. Don’t wait for your child to struggle, or worse fail.

If you believe your child’s IEP does not provide FAPE or your child’s 504 Plan is no longer sufficient, consult with an attorney on how to get things on the right track.

Special Education Timeline: IEPs

The following checklist is designed to help parents and school districts meeting the timelines required under federal and state law. This checklist is a guide and is not intended to substitute for current federal and state laws.

Description	Timeframe	Date Requested (if applicable)	Date Completed
Child Find	Within first 30 days of school year or of student enrollment
Referral to special education	“in a timely manner”
Propose assessment plan for initial assessment	15 calendar days from date of referral
General education intervention (Referral plans in excess of 20 days from end of school year)	Within 60 calendar days of the start of interventions, IEP team must convene to review a child’s progress and meet every 30 school days thereafter (excludes school breaks in excess of 5 days)
General education intervention (Referral plans 20 days or less from end of school year)	Shall be completed within the first 30 calendar days at the beginning of the school year.
IEP team meeting notice	At least 7 calendar days advance notice to parent
Eligibility determination	60 calendar days to determine eligibility after parental consent to assessment plan Exceptions: – Child moves to a new school district – Parents refuse to make student available
IEP team meeting	Within 30 days of a determination that a child is a child with a disability
Exception to determination timelines	If anyone on the IEP team thinks parents need more time, the meeting can be rescheduled to give parents time but the legal timeline should still be met
Send parents evaluation	Upon request the school district shall provide the most recent evaluation report
IEP implemented	Immediately
Reassessment	Every 3 years (Triennial)
IEP review	– At anytime at the request of the parent(s) or district staff – At least 1 time per year
Independent education evaluation

Should you have any further questions, please contact Kristin Springer at specialedlegaljourney@comcast.net.