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 obtained. 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 on 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 or 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 of 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 (4 th Cir. 1998) (holding a child not eligible for special education because he was socially maladjusted and did not have an ED).