Needs and FAPE Monica Conrad , Attorney mconrad@lewis-kappes.com - - PowerPoint PPT Presentation

Social Emotional Needs and FAPE

Monica Conrad, Attorney

mconrad@lewis-kappes.com

Stephanie Slone, Attorney

sslone@lewis-kappes.com

2016-2017 Indiana Survey of Children’s Health (students age 3-17)

• 1 in 10 have ongoing emotional, developmental and/or behavioral

health needs

• 1 in 10 have anxiety problems
• 1 in 20 have depression
• 1 in 10 have behavioral problems
• 1 in 9 received mental health treatment
• 1 in 5 received or needed treatment but had big problem accessing it
• 1 in 20 students missed 7-10 school days
• 1 in 25 students missed more than 11 school days

Mental Health Support in Schools

• School counselors
• American School Counselor Association recommends 1:250. National – 1:482
• Highest ratio – Arizona 1:924. Lowest – Vermont 1:250
• School social workers
• School Social Work Association of America recommends 1:250
• Indiana school counseling not mandated for K-8. Grades 7-12, 1:300
• School psychologists
• National Association of School Psychologist recommends 1 for every 500-700
• students. National – 1:1182

Early Intervening Services (RTI, PBIS, & MTSS)

Early Intervening Services from Article 7

"Early intervening services“ as defined in Article 7: Services provided to students in grades kindergarten through 12, with a particular emphasis on students in grades kindergarten through 3, who are not currently eligible for special education or related services, but who need additional academic and behavioral support to succeed in a general education environment. 511 IAC 7-32-29.

Social Emotional Needs and FAPE Early Intervening Services from Article 7

The parent of a student who participates in a process that assesses the student's response to scientific, research based interventions must be provided with written notification when a student requires an intervention that is not provided to all students in the general education classroom.

• Early intervening services do not limit or create a right to a free

appropriate public education; or

• Delay appropriate evaluation of a child suspected of having a

disability.

• 511 IAC 7-40-2(f).

Mental Health Services and Counseling

Consent for Mental Health Services by a licensed Mental Health Therapist

• Under 16-36-1.5-4, before providing mental health services, a mental

health provider must obtain consent from each patient.

• “Mental health provider” is defined as the following: (1) A registered

nurse or licensed practical nurse licensed under IC 25-23; (2) A clinical social worker licensed under IC 25-23.6-5; (3) A marriage and family therapist licensed under IC 25-23.6-8; (4) A psychologist licensed under IC 25-33; (5) A school psychologist licensed by the Indiana state board of education; or (6) An individual who claims to be a mental health provider.

Consent for Mental Health Services by a licensed Mental Health Therapist

• The statute does not define what services qualify as “mental health

services.”

• Informed consent isn’t required for guidance counselors; however, if

providing services as a mental health provider and/or providing “mental health services,” then attention to the requirement of IC 16-36 is

• recommended. Parental consent to health care for a minor must be
• btained. Further, consent must include:

(1) the mental health provider’s training and credentials; (2) the reasonably foreseeable risks and relative benefits of proposed treatments and alternative treatments; and (3) the patient’s right to withdraw consent for treatment at any time.

Certificate of Incapacity

Certificate of Incapacity

Indiana Department of Education Certificate of Incapacity/Physician Statement FAQ, DOE explained that:

• A physician’s statement is used to provide the required medical

justification to enable schools to make provision for instruction to be provided to students during extended absences. A certificate of incapacity is a note from a physician documenting a student’s illness

• n specific dates so that a school may apply its attendance policy

concerning excused or unexcused absences.

Certificate of Incapacity Continued…

Indiana Department of Education Certificate of Incapacity/Physician Statement FAQ, DOE explained that:

• Local school policy determines whether student absences are excused
• r unexcused. A physician does not determine whether a student’s

attendance is excused. If a school requires additional medical information, it will need to obtain the consent of the parent to discuss the reason for the student’s absence with the physician.

Physician Statement of Chronic Illness or Injury

Within Indiana Department of Education Certificate of Incapacity/Physician Statement FAQ, DOE explained that:

• A physician’s statement is required to secure educational services for

students with injuries and temporary or chronic illnesses when it is expected that due to the injury or illness that the student will be unable to attend school for a minimum of 20 instructional days in a school year, whether these days are consecutive or in the aggregate. Before instruction for a student unable to attend school can begin, the parent must provide the school with the physician’s statement. (511 IAC 7-42-12.) The school may need to contact the physician to obtain additional information to enable the school to determine appropriate supports and accommodations during the student’s absence from school. If so, parental consent will be required.

Childfind Obligations

Section 504

• “in interpreting evaluation data and in making placement decisions, a

recipient shall:

• (1) draw upon information from a variety of sources, including aptitude

and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior,

• (2) establish procedures to ensure that information obtained from all such

sources is documented and carefully considered,

• (3) ensure that the placement decision is made by a group of persons,

including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and

• (4) ensure that the placement decision is made in conformity with the

least restrictive environment.

Section 504

• A doctor statement of chronic illness is only ONE source of

information.

• Requires 504 committee “gather complete information from a variety
• f sources,” to ensure any placement decisions are “in conformity”

with LRE.

• Essential for parents to provide a consent for release of information.
• Requires 504 committee to address recommendations for any

intermittent attendance issues.

Article 7

The student is assessed or information is collected in all areas related to the suspected disability, including, if appropriate, the following:

(A) Development. (B) Cognition. (C) Academic achievement. (D) Functional performance or adaptive behavior. (E) Communication skills. (F) Motor and sensory abilities, including vision or hearing. (G) Available educationally relevant medical or mental health information. (H) Social and developmental history.

511 IAC 7-40-3(e)(4).

Article 7

• If a student is already identified as a student receiving special education

services, the CCC must convene to review and/or revise the student’s IEP.

• Includes consideration for placing a student on homebound that has an

injury and temporary or chronic illnesses.

• Where private provider raises social or emotional issues or physical

limitations, the school must ensure adherence to its obligation to follow the childfind.

• If additional information is needed, the school is required to propose a

reevaluation of the student. 511 IAC 7-40-8(b)(2).

• A medical evaluation is permitted when a diagnosis and evaluation of a medically

related disability is needed to determine eligibility. 511 IAC 7-43-1(j).

ED Eligibility Considerations

While a mental health diagnosis alone does not qualify a student for a disability, DSM-V characteristics needs consideration.

“Emotional Disability” means an inability to learn or progress that cannot be explained by cognitive, sensory, or health factors. The student exhibits one (1) or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance: (1) A tendency to develop physical symptoms or fears associated with personal or school problems (2) A general pervasive mood of unhappiness or depression (3) An inability to build or maintain satisfactory interpersonal relationships (4) Inappropriate behaviors or feelings under normal circumstances (5) Episodes of psychosis

ED Eligibility Considerations

• Social maladjustment is not generally enough to qualify under the

Article 7 definition of ED; there must be a causal connection between the qualifying mental health condition and educational difficulties

• See W.G. v. NY City Dept of Educ., 801 F.Supp.2d 142 (S.D.N.Y. 2011)

(“inappropriate behavior that is attributable to social maladjustment, rather than to an independent emotional disturbance, is insufficient to warrant recognition and accommodation of an [ED] disability.”).

• See Springer v. Fairfax County School Board, 134 F.3d 659 (4th Cir. 1998)

(holding a child not eligible for special education because he was socially maladjusted and did not have an ED).

ED Eligibility Considerations

• The key phrase for determining whether an outside diagnosis of a

mental health issue (e.g. ODD, Conduct Disorder) qualifies as an Article 7 disability is whether the condition “adversely affects a child’s educational performance.”

• Poor grades are not always necessary to establish that a child with anxiety-

driven truancy issues has an adverse impact on educational performance. If a child’s condition, such as anxiety, causes her to miss significant amounts of school then that may constitute an adverse impact on her educational performance.

• See Slippery Rock Area School District, 114 LRP 38151 (Pa. State Educational Agency

(“SEA”), Aug. 10, 2014).

• “Education Performance” likely does not include social and emotional

difficulties; it primarily means “academic performance.”

• See Maus v. Wappingers Central School District, 688 F. Supp.2d 282 (S.D.N.Y. 2010).

OHI Eligibility Considerations

While a mental health diagnosis alone does not qualify a student for a disability, DSM-V characteristics needs consideration. “Other Health Impairment” means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment that:(1) is due to chronic or acute health problems…

Mental Health Risk Assessments

IDOE Memorandum: Mental Health Risk

STEP 1: Ensure that appropriately licensed staff are trained to make initial assessment of mental health risks. (i.e., school counselors, school psychologists, school social workers, or mental health therapist)

• Consider tools and techniques that discern stated threats from true threats.
• https://www.doe.in.gov/sites/default/files/safety/principles-threat-assessment.pdf
• https://www.doe.in.gov/sites/default/files/safety/1.pdf
• https://www.doe.in.gov/sites/default/files/safety/questions.pdf

May 29, 2019 IDOE Memo: Right to Attend Pending Mental Health Assessment

IDOE Memorandum: Mental Health Risk

Types of threats (Is this a threat?) Keep in mind the following types of Threats:

• Direct Threat: Identifies a specific act against a specific target and is delivered in a

straightforward, clear, and explicit manner: “I am going to place a bomb in the school’s gym.”

• Indirect Threat: Tends to be vague, unclear, or ambiguous. The plan, the intended victim, the

motivation, and other aspects of the threat are masked or equivocal: “If I wanted to, I could kill everyone at this school”. Violence is implied but tentatively “if I wanted to” and suggests a violent act COULD occur not that it WILL occur.

• Veiled Threat: Strongly implies but does not explicitly threaten violence. “We would be better
• ff without you around anymore” clearly hints at a possible violent act, but leaves it to the

potential victim to interpret the message and give a definite meaning.

• Conditional Threat: Warns that a violent act will happen unless certain demands or terms are

met: “If you don’t pay me one million dollars, I will place a bomb in the school.”

May 29, 2019 IDOE Memo: Right to Attend Pending Mental Health Assessment

Example

IDOE Memorandum: Mental Health Risk

STEP 2: If the mental health assessment can be verified, a superintendent or school leader may exclude or excuse a student found mentally or physically unfit for school attendance. An exclusion or excuse under this section is valid for the school year during which it is issued and shall not violate a student’s right to FAPE.

• Best Practice: Document and report factors that support conclusion that an

exclusion from school is necessary.

May 29, 2019 IDOE Memo: Right to Attend Pending Mental Health Assessment

Mental Health Assessment

STEP 3: If a physician, psychologist, or psychiatrist certifies that a student is fit for school attendance, the superintendent or school leader may not exclude or excuse that student.

• “The school may not refuse to provide educational services pending a

psychiatric evaluation. If the school believes that the student is a danger to himself or others, the school may determine the child should be educated in an alternate setting.”

• “If the school determines the student is in need of a suicide evaluation or mental

health assessment is not grounds for a suspension or expulsion, which are the

• nly reasons a child can be exclude from education following due process.”
• Best Practice: Request release to share information and ensure that school

findings are provided to private evaluator.

May 29, 2019 IDOE Memo: Right to Attend Pending Mental Health Assessment

Mental Health Assessment

STEP 4: Consider need for any school based childfind obligations

• “If the school requires any evaluation pending the right to return to

school, the evaluation would be at the expense of the school.”

• The policy and protocols that protect student in the event that they are

suicidal or may be harmed by another student need to be included in your school Crisis Intervention Plan. See 511 IAC 4-1.5-7.

• Review evaluation considerations under Section 504 and/or Article 7.

May 29, 2019 IDOE Memo: Right to Attend Pending Mental Health Assessment

Least Restrictive Environment Considerations

Placement Decisions

• Allowing a physician to "prescribe" homebound services may amount

to a denial of FAPE. See Pocono Mountain Sch. Dist., 111 LRP 77918 (SEA PA 12/12/11).

• The CCC makes the decision to place a student on homebound. See

Questions and Answers on Providing Servs. to Children with Disabilities During an H1N1 Outbreak, 53 IDELR 269 (OSERS 2009).

• Homebound instruction is not appropriate for students with

disabilities whose needs can be met in a less restrictive setting. See

Brado v. Weast, 53 IDELR 316 (D. Md. 2010).

• Schools cannot place a student on homebound instruction in

contradiction to an IEP. See CP-123-2016.

Placement Decisions

The exchange of information between the school and the private medical provider should clarify the significance of the:

• Medical condition,
• The prognosis,
• The treatment and expected duration of treatment,
• Any related health conditions that may impact on learning and/or school attendance.

September 6, 2019 IDOE Memo RE 511 IAC 7-42-12 Instruction for Student Requiring Homebound Instruction:

• A physician can recommend 1 of 3 types of homebound instruction: permanent, intermittent, or

temporary.

• Most students who receive homebound services only receive them temporarily such as after an

illness, accident, or surgery.

• Students who are medically complex typically do not fit into this category and either need

services intermittently or on a permanent, ongoing basis.

Placement Decisions

September 6, 2019 IDOE Memo RE 511 IAC 7-42-12 Instruction for Student Requiring Homebound Instruction : Intermittent services may be provided to students who have frequent absences or intermittent absences. Services can be offered in a variety of ways, such as:

• Only offered each day the student is unable to attend;
• A blend of in-school and homebound, such as one day a week in school and

4 hours of homebound;

• Intermittent periods of homebound, such as 2 weeks out of school with

homebound, followed by a month of services in school; and/or

• Students who are completely unable to attend school may also receive

homebound services on a permanent basis.

Placement Decisions

When schools determine that an eligible student is unable to attend school pursuant to 511 IAC 7-42-12(b), the requisite “instruction and related services must be provided by appropriately licensed personnel.” 511 IAC 7-42-12(e). This includes instruction to be provided by teachers licensed to teach the grade level of the student and must be provided by appropriately licensed personnel. “A student that is receiving instruction while homebound should be counted in attendance of school if instruction is being provided by appropriate personnel.” See IDOE September 6, 2019 Memo RE 511 IAC 7-42-12

Instruction for Student Requiring Homebound Instruction.

Interim Alternative Educational Setting Placement Decisions

• General. The parent of a child with a disability who disagrees with any

decision regarding placement under §§ 300.530 [pertaining to 10 day removals] and 300.531 [determination for an interim alternative educational setting], or the manifestation determination under § 300.530(e), or an LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting a hearing.

• The hearing is requested by filing a complaint pursuant to §§ 300.507 and

300.508(a) and (b). IDEA, 34 CFR § 300.532

Questions?

Monica Conrad mconrad@lewis-kappes.com Stephanie Slone sslone@lewis-kappes.com 317.639.1210

One American Square, Suite 2500 Indianapolis, IN 46282