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 (9th 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.

(C) Causing a reasonable pupil to experience substantial interference with his or her academic performance.

(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 (9th 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.

 

(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/)

 

 

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.

 

(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/)

 

 

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.

 

(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.

 

(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/)

 

 

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 9th Circuit Court of Appeals revisited this issue and reversed those decisions.

In reversing prior decisions, the 9th 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 (9th 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.

 

(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/)