Balancing School Safety and Student Mental Health Issues ...

Balancing School Safety andStudent Mental Health Issues

with Public School IDEA /Section 504 Obligations

Michigan Association of Administrators of Special Education

February 12, 2019

Jordan M. Bullinger and Vickie L. Coe

800-949-3120 | clarkhill.com©2019 Clark Hill PLC©2019 Clark Hill PLC

2

Today is Advocacy Day in Michigan for MentalHealth

800-949-3120 | clarkhill.com©2019 Clark Hill PLC

WHAT’S ON TAP?

MENTAL HEALTH

DUTIES AND OBLIGATIONS OF SCHOOLS

DISCIPLINE AND DANGEROUSNESS

RESTRAINT AND SECLUSION

FEDERAL COMMISSION ON SCHOOL SAFETY

MDE MENTAL HEALTH TOOLKIT

©2019 Clark Hill PLC

3

This document is comprised of general information relative to the subject matters discussed herein. It is not intended togive legal advice and does not establish any attorney-client relationship. School Districts facing specific issues shouldseek the assistance of an experienced attorney.


4

MENTAL HEALTH


MENTAL HEALTH FACTS – CHILDREN AND TEENS

1 in 5 children ages 13-18 have or will have a serious mental illness.

20% of youth ages 13-18 live with a mental health condition.

11% of youth have a mood disorder.

10% of youth have a behavior or conduct disorder.

8% of youth have an anxiety disorder.

50% of all lifetime cases of mental illness begin by age 14 and 75% by age34.

Suicide is 3rd leading cause of death in youth ages 10-24.

90% of those who died by suicide has an underlying mental illness.

Approximately 50% of students age 14 years or older with a mental illnessdrop out of school.

The average delay between onset of symptoms and intervention is 8-10years.

National Alliance on Mental Illness quoting information from National Instituteof Mental Health


5



ADHD, behavior problems, anxiety, and depression arethe most commonly diagnosed mental disorders inchildren

9.4% of children age 2-17 years (approximately 6.1million) have received an ADHD diagnosis.

7.4% of children age 3-17 years (approximately 4.5million) have a diagnosed behavior problem.

7.1% of children aged 3-17 years (approximately 4.4million) have diagnosed anxiety.

3.2% of children aged 3-17 years (approximately 1.9million) have diagnosed depression.

Centers for Disease Control and Prevention


6



Having another disorder is most common in children with depression: about3 in 4 children aged 3-17 years with depression also have anxiety (73.8%)and almost 1 in 2 have behavior problems (47.2%)

For children aged 3-17 years with anxiety, more than 1 in 3 also havebehavior problems (37.9%) and about 1 in 3 also have depression (32.3%).

For children aged 3-17 years with behavior problems, more than 1 in 3 alsohave anxiety (36.6%) and about 1 in 5 also have depression (20.3%).

Treatment rates vary among different mental disorders:

Nearly 8 in 10 children (78.1%) aged 3-17 years with depression receivedtreatment.

6 in 10 of children (59.3%) aged 3-17 years with anxiety received treatment.

More than 5 in 10 children (53.5%) aged 3-17 years with behavior disordersreceived treatment.



7



Of students who DO receive mental health services, over75% receive those services in schools

Duchnowski, Kutash & Friedman, 2002; Power, Eiraldi,Clarke, Massuca & Krain, 2005; Rones & Hoagwood, 2002;Wade, Mansour, & Gua, 2008)


8


GROWING FOCUS ON SCHOOL MENTAL HEALTH


9

Schools havebecome de factosites for mentalhealth

For many, if schoolsdon’t provide,juvenile justicesystem is the nextprovider.


CURRENT NATIONAL DATA: PRINCIPAL’S CONCERNS


10


MENTAL HEALTH AND SCHOOLS

Breaking down silos


11



Isn’t just about:

Students with diagnosable problems

Therapy and behavior change

Connecting community mental healthproviders to schools

What mental health professionals do

Empirically-supported treatments.


12



Also about:

Providing programs to promote social-emotional development, preventmental health and psychosocial problems, and enhance resiliency andproactive buffers.

Providing programs and services to intervene as early as possibleafter the onset of learning, behavior and emotional problems.

Building the capacity of ALL school staff to address barriers to learningand promote healthy development.

Addressing systemic matters at schools that affect mental health, suchas practices that engender bullying, alienation and studentdisengagement from classroom learning.

Drawing on all empirical evidence as an aid in developing acomprehensive, multifaceted, and cohesive continuum of school-community interventions to address barriers to learning and promotehealthy development.


13


14



CHILD FIND

IDEA and Section 504 require “child find.”

District’s duty to locate, evaluate and identifyeligible students.

Applies to students enrolled in District and tostudents living in District.

Requires knowledge of red flags.

Timely referral is critical.

Implementation of pre-referral strategies throughMTSS or other child study activities.

Districts cannot place burden on parents.


15


CHILD FIND AND MENTAL HEALTH IMPAIRMENTS

Mental health impairments much more difficult to identifythan physiological conditions. Many physiological conditionscan be identified through basic screenings or can beidentified by poor academic performance or by an inability tocomplete an educational task.

In contrast, mental health impairments often manifestthemselves in behaviors that can have a variety of causes.

These impairments can lead to truancy, tardiness, visits tothe school clinic, disruptive behavior, withdrawal, orsuspension.

Need sound processes in place so that staff know when toinitiate a referral, how to evaluate and how to accommodateand/or provide a free appropriate public education forstudents.


16


IDEA AND SECTION 504 REQUIRE FAPE

Defined by law, regulation and Courts;

Always individualized and never pre-determined;

Always determined based on proper procedure;

Always developed based on data and by a Team;

Always implemented;

Always documented;

Can and is subject to litigation.


17


BUILDING FAPE

Both the IDEA and 504 have a process;

Both require a plan to define it;

Based on “present level” of “academicachievement” and “functional performance”;

Built with general education, special education,related services and supplementary aids andservices;

Must be procedurally and substantivelyappropriate.


18


LRE

To the maximum extent appropriate

Educate students with disabilities with nondisabledstudents

No separate classes/schooling or other removalunless

Education in regular classes with supplementaryaids and services cannot be achieved satisfactorily,considering

• Impact on student with disability

• Impact on other students in classroom


19


LRE CONTINUUM

Neighborhood School with General Education;

Regular Classroom + Supplementary Aids and Services and a RelatedService;

Special Education Instruction in Regular School Setting + GeneralEducation supported by Supplemental Aids/Services;

Self-Contained Classroom in a General Education Facility;

Self-Contained Classroom in a Separate Facility within the District;

Regional or Center Program;

Residential Facility;

Home-Based Placement.


20

“The LRE continuum is not a progressive step by step process, wherein youmust await failure to move into a more restrictive setting.”

Danbury Bd. of Educ., 115 LRP 1631 (SEA DC 01/07/14)


SUPPLEMENTARY AIDS AND SERVICES

“…in determining the educational placement for eachdisabled student, the first line of inquiry is whether thestudent’s IEP can be implemented satisfactorily in theregular educational environment with the provision ofsupplementary aids and services. This requirement hasbeen in effect since 1975 when the Education of theHandicapped Act (EHA), the predecessor to the IDEA,originally became law.”


21

OSEP Memorandum 95-9, 21 IDELR 1152 (OSEP 1994)


POSITIVE BEHAVIOR SUPPORTS AND INTERVENTIONS

If behavior interferes with the learning ofstudents or others;

IDEA requires behavioral interventions andsupports and other strategies to be addressed;

Is a special factor in IEP development;

Is inherently tied to academic achievement andfunctional performance.


22

34 CFR 300.324(a)(2)(i); USDOE Q&A on Discipline (2009), Q E.3



A child who is removed to a change inplacement or because of special factorsmust receive, as appropriate, a functionalbehavioral assessment and behavioralintervention services and modifications,that are designed to address the behaviorviolation so that it does not recur.


23

34 CFR 300.530(d)(1)(ii)


BIP & PEER REVIEWED RESEARCH REQUIREMENT

A student with a disability’s IEP must include:

“A statement of the special education and related services andsupplementary aids and services, based upon peer reviewedresearch to the extent practicable, to be provided to thestudent…”

34 C.F.R.§300.320(A)(4)

OSEP - “[t]he phrase ‘to the extent practicable’…generallymeans …states, school districts, and school personnel mustselect and use methods that research has shown to beeffective, to the extent that methods based upon peer-reviewedresearch are available.”

OSEP COMMENTARY TO 2006 IDEA REGULATIONS, 71 FED. REG.46664-65.


24



IDEA’s ‘peer reviewed research’ requirement applies to FBAs and BIPs

Several cases have found that BIPs were inconsistent with, contrary to, orwithout peer-reviewed research support. Examples include:

BIP included interventions that were inconsistent with and contrary topeer-reviewed research and reinforced problematic behaviors – e.g.repeated use of Timeout for student with escape behaviors.

BIP involved a point and level reward system that had no peer-reviewedresearch basis for students with autism. Also was not understood by thestudent with autism.

BIP failed to include peer-reviewed research based PBIS.


25


INTERCONNECTING SCHOOL MENTAL HEALTH AND PBIS

PBIS provides a solid foundation but more is needed.

PBIS systems, although showing success in social climate and discipline, often do not address the broader

community data and mental health prevention.

Requires a change in routines and procedures.

More parent and outside provider involvement

Requires a change in how interventions are selected and monitored.

Team review of research/data vs individual provider choice

Requires a change in the language that we use.

Identifying specific interventions vs generic terms such as “social work”, “counseling” or “supports”?

Changes the roles/functions of staff.

More coordinating/overseeing of some interventions being employed


26


27

Advancing EducationEffectiveness:

Interconnecting SchoolMental Health and

School-Wide PositiveBehavior Support

Editors: Susan Barrett,Lucille Eber and Mark Weist

pbis.orgcsmh.umaryland

IDEA Partnership NASDSE


IDEA AND MENTAL HEALTH

Counseling, psychological and social work services are relatedservices that students with disabilities may require to receive FAPE.34 CFR §300.34(a).

Counseling services are services provided by qualified socialworkers, psychologists, guidance counselors, or other qualifiedpersonnel. 34 CFR § 300.34(c)(2).

Students must receive counseling, psychological, and social workservices where those services are required for the student to receivean educational benefit.

Districts are not, however, responsible for funding mental healthservices that constitute medical treatments for a child by a licensedphysician except to the extent that the services are for diagnosticand evaluation purposes only. 34 CFR § 300.34(c)(5).


28


PARENT COUNSELING AND TRAINING

Parent counseling and training is a related service that is available toparents. 34 CFR § 300.34(c)(8).

The purpose of parent counseling and training is to provide supportand information to parents in order to better equip them to participatein their child’s educational program. 71 Fed Reg 46,573 (2006).

Designed to:

Assist parents in understanding their child’s disability;

Provided parents with information about child development; and

Help parents acquire the necessary skills that will allow them tosupport the implementation of their child’s IEP or IFSP.

34 CFR § 300.34(c)(8).


29


SECTION 504 AND DISCRIMINATION

• Section 504 prohibits a district from discriminating againsta student based on the student’s mental health issueswhen excluding a student from participating in school ordenying a student the benefits of a school program.

• Districts must provide equal opportunity/access tostudents with mental health issues as provided to otherstudents.

• Districts must act to protect students with mental healthissues from disability-related bullying and harassment.

• 34 CFR §§104.4 &104.33.


30


31

DISCIPLINE&

DANGEROUSNESS


UNILATERAL IAES

• Child carries weapon to/possesses weapon atschool, school premises, school function

• Child knowingly possesses or uses illegal drugs orsells or solicits sale of controlled substance while atschool, school premises or school function

• Has inflicted serious bodily injury at school, schoolpremises, school function


32

If any of the three apply, you must still conduct an MDR. However, you canremove the student to an IAES for not more than 45 school days regardless ofthe outcome of the MDR.


WEAPONS AND DRUGS

• Definition of weapon under IDEA is differentthan definition of weapon under RevisedSchool Code

• Definition of drugs (illegal or controlledsubstance) under IDEA is likely different thanthe definition of drugs under your policies

• For purpose of unilateral IAES, you must followthe federal definitions

• Photograph and identify the weapons anddrugs


33


SERIOUS BODILY INJURY


34

Not SBI• Broken nose• Swollen knee where

Principal did not seekmedical attention

• Discomfort, disorientationand pain rated at a 7 outof 10 but returned towork the next day.

• Contusions

SBI• Severe concussion,

which included intenseheadaches, nausea andmissed work

• Medical treatment wheretwo drugs failed toprovide pain relief andcharacterized as worst inher life

IDEA adopts the definition of “serious bodily injury” from the U.S. Criminal Codewhich defines serious bodily injury as bodily injury which involves substantial risk ofdeath; extreme physical pain; protracted and obvious disfigurement; or protractedloss or impairment of the function of a bodily member, organ, or mental faculty.

Most student assaults of another student, teacher or administrator will notmeet the definition


WHEN SEEK ALJ/COURT ORDER?


35

Student returning to placement Following a unilateral 45 school day IAES for

weapons, drugs or serious bodily injury, and thereis still concern about dangerousness

Where unilateral 45 school day IAES not triggered,misconduct a manifestation of disability, andconcern regarding dangerousness

Unsuccessful in attempt to reach bilateral agreementwith parents to extend or initiate a 45 school day IAES,or parent disputes IEPT proposal to modify currentplacement and files DP complaint, invoking stay-put


OPTIONS FOR SEEKING CIP


36

Initiate an Expedited Due Process Hearing to obtain afinding of dangerousness and an order initiating orextending a 45 School Day placement. This option first became available under IDEA-97

Seek a court order to change the student’s placement. This is called a Honig injunction. It was used prior

to IDEA-97, and was recognized as a continuingoption for districts in an OSEP Memorandum issuedSeptember 19, 1997.


ALJ AUTHORITY


37

ALJ’s authority in request for Change in Placementorder: Return the child with a disability to the placement

from which child was removed; or Order a change in placement of a child with a

disability to an IAES for not more than 45 schooldays if the ALJ determines that maintaining thecurrent placement of such a child is substantiallylikely to result in injury to the child or others.

Note: District needs to demonstrate dangerousness + appropriate IAES for child.


APPROPRIATE IAES


38

Services - A child with a disability who is removed from the child’scurrent placement to an IAES shall:

• (i) continue to receive educational services…so as to enable thechild to continue to participate in the general educationcurriculum, although in another setting, and to progress towardmeeting the goals set out in the child’s IEP; and

• (ii) receive as appropriate, a functional behavioral assessment,behavioral intervention services and modification, that aredesigned to address the behavior violation so that it does notrecur.


EXPEDITED HEARING TIMELINES


39

• The District must convene a Resolution Session within 7 calendar days ofreceipt of the Complaint by the District and MDE.

• MAHS will assign an ALJ and schedule a Prehearing Conference Call with theparties to discuss the issues raised in the complaint, and either schedule thehearing or schedule another call.

• The District has 15 calendar days from the date of receipt in which to resolvethe Complaint through Alternative Dispute Resolution.

• MAHS has 20 school days following the receipt of the Complaint in which toconduct a hearing.

• MAHS has 10 school days following the last day of hearing to issue adecision.

• The ability of MAHS at present to conduct an expedited hearing within the 30school day timeline established by IDEA is questionable.

Expedited Hearings filed over the Summer may actually run longer than a similarlyfiled Non-Expedited Hearing due to the “school day” based timelines for thehearing and decision.


HONIG INJUCTION OR TRO


40

When? If the parents refuse change of placement School is convinced that the student is truly dangerous,

school officials can request an injunction to unilaterallychange the student’s placement

Have to go to DP hearing first? No, per USSC decision in Honig v Doe, 484 U.S. 305, 326-327

(1988). USDOE concurs.What have to prove? Overcome legal presumption of appropriateness of current

placement by showing that maintaining child in currentplacement is substantially likely to result in injury either toself, or others.


PROOFS FOR A HONIG INJUNCTION


41

Substantial evidence of the following: Reasonable steps have been taken to minimize risk

of harm in the current setting; The current IEP is appropriate; The proposed alternative placement allows the

student to participate in the general educationcurriculum, although in a different setting;

The student can continue to work on IEP goals; and, Unless the student is removed from the current

placement, the student is dangerous andsubstantially likely to injure himself or others.


42



ISD TOTALS USE OF SECLUSION AND RESTRAINT 17-18

Studentswithout

Disabilities

Studentswith

DisabilitiesTotal Students Reportedas Secluded orRestrained 405 2,310

Total Seclusions 451 9,055

Total Restraints 792 9,231


43




44

0

200

400

600

800

1,000

1,200

1,400

1,600

1,800

Total Seclusions of Students with Disabilities by ISD




45

0

200

400

600

800

1,000

1,200

1,400

0 5,000 10,000 15,000 20,000 25,000 30,000 35,000

Tota

lSe

clu

sio

ns

of

Stu

de

nts

wit

hD

isab

iliti

es

Ages 6-21




46

0

200

400

600

800

1,000

1,200

1,400

1,600

1,800

Total Restraints of Students with Disabilities by ISD




47

0

200

400

600

800

1,000

1,200

1,400

1,600

1,800

0 5,000 10,000 15,000 20,000 25,000 30,000 35,000

Tota

lRe

stra

ints

of

Stu

de

nts

wit

hD

isab

iliti

es

Ages 6-21


U.S. DOE INITIATIVE TO ADDRESS INAPPROPRIATE USE OFRESTRAINT AND SECLUSION


48

Compliance Reviews

• OCR’s 12 regional offices will conduct compliance reviews on recipients’ use ofrestraint and seclusion on children with disabilities.

• Compliance reviews will focus on the possible inappropriate use of restraint andseclusion, and the effect of such practices on the school’s obligation to provide afree appropriate public education (FAPE) for all children with disabilities.

• OCR will conduct compliance reviews and work with public schools to correctnoncompliance.

CRDC Data Collection

• OCR will conduct data quality reviews and work directly with school districts toreview and improve restraint and seclusion data submitted as a part of the CivilRights Data Collection (CRDC).

• OCR will provide technical assistance to schools on data quality, to ensure thatthey are collecting and reporting accurate data relating to the use of restraint andseclusion.


U.S. DOE INITIATIVE CONT.


49

Support for Recipients

• OCR will provide technical assistance to public schools on the legal requirements of Section504 of the RehabilitationAct relating to the use of restraint and seclusion on children withdisabilities.

• OCR will partner with OSERS to provide joint technical assistance to support recipients inunderstanding how Section 504, Title II, and the Individuals with Disabilities Education Act(IDEA) informs the development and implementation of policies governing the use ofrestraint and seclusion.

• OSERS will support recipients identified by OCR through compliance reviews or through thecomplaint resolution process to ensure they have access to appropriate technical assistanceand support.

• OSERS will support schools to ensure they have access to technical assistance andavailable resources as they establish or enhance environments where the implementation ofinterventions and supports reduces the need for reliance on less effective and potentiallydangerous practices.

• OSERS will consider how current investments may be utilized to provide support andtraining to schools, districts, and states.

• OSERS and OCR will jointly plan and conduct webinars for interested parties related to theuse of appropriate interventions and supports for all students.


50



“Our recommendations can assist states and local communities, but ultimatelygovernors and state legislators should work with local school leaders, teachers,parents, and students to address their own unique challenges and develop theirown specific solutions.” - Secretary DeVos


51


52


A VISION FOR SCHOOL MENTAL HEALTH

Strong stakeholder involvement and a shared family-school-community system agenda.

Full continuum of effective supports and services for allstudents in general and special education.

The right staff with the right training, supervision, coachingand support.

Strong emphasis on achieving valued outcomes.


53


RECOMMENDATIONS

1. Rescind Obama era guidance on student discipline. 2014 guidance heldthat schools could be found in violation of federal civil rights laws if policiesled to disproportionately high rates of discipline for students in one racialgroup or for students in special education.

2. Arming “specially selected and trained” school staff. Recommendsschools hire staff with prior experience using firearms, including militaryveterans or retired law enforcement officials.

3. Character development and developing a culture of connectedness.Recommends schools should adopt effective social and emotional learning(“SEL”) strategies, employ a variety of data sources, including climatesurveys, to guide evidence-based interventions, and adopt social, emotionaland behavioral supports to appropriately support and respond to studentbehavior. Report does not identify any new federal resources for theseactivities.


54


RECOMMENDATIONS

4. Make schools “harder” targets. Schools should examine potentialproblems with their facilities through “risk assessments.” Commissionrecommends the creation of a clearinghouse to share strong securitystrategies and exploration of modifications to existing grant programs toenable more funding to enhance school security.

5. Cyberbullying. Schools should adopt school climate initiatives and supportfor digital citizenship and character develop and employ appropriatesystems to monitor social media and mechanisms for reportingcyberbullying incidents.

6. Mental Health and Counseling. Integrating mental health prevention andtreatment services and supports into schools. Comprehensive school-basedmental health systems (“CSMHS”). Increase training of adults to recognizesymptoms of mental illness. Increase collaboration through a systems ofcare (“SOC”) framework that includes all systems that are involved inproviding services to children – social services, education and juvenilejustice.


55


RECOMMENDATIONS

7. “No Notoriety” campaign. Schools, as part of the development of anycrisis preparedness, should also include a media plan to identify who willtalk to the press after a tragedy, what information should be released, how tocommunicate through a variety of media vehicles and when and were suchdiscussions should occur.

8. Psychotropic Medication. Behavioral agencies, in collaboration withschools, should increase opportunities to access treatment services inschools in order to reduce barriers to access.

9. Age Restrictions for Firearm Purchases. States should consider offeringtraining other resources to promote safe storage of firearms.


56


57

MICHIGAN DEPARTMENT OF EDUCATIONMENTAL HEALTH TOOLKIT


SBE POLICY ON INTEGRATING MENTAL HEALTH

In 2003, State Board of Education adopted the Policy on Coordinated SchoolHeath Programs to Support Academic Achievement and Healthy Schools.

Policy makes four broad recommendations regarding desire that each schooldistrict develop, adopt and implement, “to the extent that resources permit,” acomprehensive plan for a Coordinated School Health Program (“CHSP”) that:

Responds to the needs, preferences, values of families and thecommunity;

Emphasizes a positive youth development approach;

Is based on models that demonstrate evidence of effectiveness; and

Makes efficient use of school and community resources.

In addition, recommends adoption of the eight component CHSP modelsuggested by the Centers for Disease Control and Prevention (“CDC”).Model is based on the premise that the health of school-age children isdependent upon a systems approach that addressed program, policy,services and environmental issues.


58



Each school district establish as School Health Council and each schoolbuilding establish a School Health Team. Each Council/Team should includea diverse representation of school staff, families, students and members ofthe community to oversee and evaluate the Coordinated School HealthProgram and make recommendations to the school board.

School Health Council focuses on district-level policies and programsand works in conjunction with district-level school health committeesthat may already be in place (i.e. Emergency Management PlanningTeams).

School Health Team focuses on building-level implementation andcollaboration process to integrate decision making.

Each school building and district designate a School Health ProgramCoordinator to assist with implementing and evaluating the CSHP.

MDE provide all possible assistance to school districts and schools to implementeffective CSHPs.


59


MENTAL HEALTH IN SCHOOLS TOOLKIT

Available on the Michigan Department of Education’s website.

https://www.michigan.gov/mde/0,4615,7-140-74638_53593---,00.html

Toolkit designed to provide school staff no-cost techniques, ideas, andresources for incorporating social and emotional well-being strategies in theclassroom and throughout the school.

Provides information for administrators, teachers, information for schoolimprovement teams and information on student responses to surveys.

Identifies some best practice tools for healthier schools that are designed tohelp:

Assess your district’s approach to mental health in schools

Identifying existing resources and gaps in your program

Organize your program and optimize your resources

Strengthen your approach for integrating mental health in schools


60


RESOURCES

Collaborative for Academic, Social and Emotional Learning: https://casel.org/

Edutopia: https://www.edutopia.org/

The Georgetown University Center for Child and Human Development:https://gucchd.georgetown.edu/

Michigan Mental Health Network: http://www.mhweb.org/

National Suicide Prevention Lifeline

UCLA School Mental Health Program: Center for Mental Health in Schools:http://smhp.psych.ucla.edu/

University of South Florida, Research and Training Center for Children’sMental Health, School Based Mental Health Services:http://rtckids.fmhi.usf.edu/sbmh/default.cfm

Second Wind Fund, Inc: http://www.thesecondwindfund.org/

MDE’s Mental Health in Schools website:https://www.michigan.gov/mde/0,4615,7-140-74638-199286--,00.html


61


SENATE BILL 149 (H-1)

Includes supplemental State Aid spending for the 2018-2019 school year.

Allocations include:

$30 million for school mental health support services and $1.3 million forthe Department of Health and Human Services to administer theprogram.

$21.2 million for two new federal grants ($14 million for the MichiganCharter School Subgrant Program and $7.2 million for promoting andexpanding high-quality preschool services).


62


63

QUESTIONS


COPYRIGHT

• The content of this presentation is copyrighted by Clark Hill PLC.

• As with all legal issues, this presentation provides general principles only,and your attorney should be consulted for specific questions related to anyand all principles contained herein.

• School law issues are complex and fact specific; when in doubt, consult withyour legal counsel!


64

THANK YOU!


65

Vickie L. Coe

[email protected]

517-318-3013

Jordan M. Bullinger

[email protected]

616-608-1146

Balancing School Safety andStudent Mental Health Issues

with Public School IDEA /Section 504 Obligations

Michigan Association of Administrators of Special Education

February 12, 2019

Jordan M. Bullinger and Vickie L. Coe


2

Today is Advocacy Day in Michigan for MentalHealth


WHAT’S ON TAP?

MENTAL HEALTH


DISCIPLINE AND DANGEROUSNESS



MDE MENTAL HEALTH TOOLKIT


3

This document is comprised of general information relative to the subject matters discussed herein. It is not intended togive legal advice and does not establish any attorney-client relationship. School Districts facing specific issues shouldseek the assistance of an experienced attorney.


4

MENTAL HEALTH



1 in 5 children ages 13-18 have or will have a serious mental illness.

20% of youth ages 13-18 live with a mental health condition.

11% of youth have a mood disorder.

10% of youth have a behavior or conduct disorder.

8% of youth have an anxiety disorder.

50% of all lifetime cases of mental illness begin by age 14 and 75% by age34.

Suicide is 3rd leading cause of death in youth ages 10-24.

90% of those who died by suicide has an underlying mental illness.

Approximately 50% of students age 14 years or older with a mental illnessdrop out of school.

The average delay between onset of symptoms and intervention is 8-10years.

National Alliance on Mental Illness quoting information from National Instituteof Mental Health


5



ADHD, behavior problems, anxiety, and depression arethe most commonly diagnosed mental disorders inchildren

9.4% of children age 2-17 years (approximately 6.1million) have received an ADHD diagnosis.

7.4% of children age 3-17 years (approximately 4.5million) have a diagnosed behavior problem.

7.1% of children aged 3-17 years (approximately 4.4million) have diagnosed anxiety.

3.2% of children aged 3-17 years (approximately 1.9million) have diagnosed depression.



6



Having another disorder is most common in children with depression: about3 in 4 children aged 3-17 years with depression also have anxiety (73.8%)and almost 1 in 2 have behavior problems (47.2%)

For children aged 3-17 years with anxiety, more than 1 in 3 also havebehavior problems (37.9%) and about 1 in 3 also have depression (32.3%).

For children aged 3-17 years with behavior problems, more than 1 in 3 alsohave anxiety (36.6%) and about 1 in 5 also have depression (20.3%).

Treatment rates vary among different mental disorders:

Nearly 8 in 10 children (78.1%) aged 3-17 years with depression receivedtreatment.

6 in 10 of children (59.3%) aged 3-17 years with anxiety received treatment.

More than 5 in 10 children (53.5%) aged 3-17 years with behavior disordersreceived treatment.



7



Of students who DO receive mental health services, over75% receive those services in schools

Duchnowski, Kutash & Friedman, 2002; Power, Eiraldi,Clarke, Massuca & Krain, 2005; Rones & Hoagwood, 2002;Wade, Mansour, & Gua, 2008)


8


GROWING FOCUS ON SCHOOL MENTAL HEALTH


9

Schools havebecome de factosites for mentalhealth

For many, if schoolsdon’t provide,juvenile justicesystem is the nextprovider.


CURRENT NATIONAL DATA: PRINCIPAL’S CONCERNS


10



Breaking down silos


11



Isn’t just about:

Students with diagnosable problems

Therapy and behavior change

Connecting community mental healthproviders to schools

What mental health professionals do

Empirically-supported treatments.


12



Also about:

Providing programs to promote social-emotional development, preventmental health and psychosocial problems, and enhance resiliency andproactive buffers.

Providing programs and services to intervene as early as possibleafter the onset of learning, behavior and emotional problems.

Building the capacity of ALL school staff to address barriers to learningand promote healthy development.

Addressing systemic matters at schools that affect mental health, suchas practices that engender bullying, alienation and studentdisengagement from classroom learning.

Drawing on all empirical evidence as an aid in developing acomprehensive, multifaceted, and cohesive continuum of school-community interventions to address barriers to learning and promotehealthy development.


13


14



CHILD FIND

IDEA and Section 504 require “child find.”

District’s duty to locate, evaluate and identifyeligible students.

Applies to students enrolled in District and tostudents living in District.

Requires knowledge of red flags.

Timely referral is critical.

Implementation of pre-referral strategies throughMTSS or other child study activities.

Districts cannot place burden on parents.


15


CHILD FIND AND MENTAL HEALTH IMPAIRMENTS

Mental health impairments much more difficult to identifythan physiological conditions. Many physiological conditionscan be identified through basic screenings or can beidentified by poor academic performance or by an inability tocomplete an educational task.

In contrast, mental health impairments often manifestthemselves in behaviors that can have a variety of causes.

These impairments can lead to truancy, tardiness, visits tothe school clinic, disruptive behavior, withdrawal, orsuspension.

Need sound processes in place so that staff know when toinitiate a referral, how to evaluate and how to accommodateand/or provide a free appropriate public education forstudents.


16


IDEA AND SECTION 504 REQUIRE FAPE

Defined by law, regulation and Courts;

Always individualized and never pre-determined;

Always determined based on proper procedure;

Always developed based on data and by a Team;

Always implemented;

Always documented;

Can and is subject to litigation.


17


BUILDING FAPE

Both the IDEA and 504 have a process;

Both require a plan to define it;

Based on “present level” of “academicachievement” and “functional performance”;

Built with general education, special education,related services and supplementary aids andservices;

Must be procedurally and substantivelyappropriate.


18


LRE

To the maximum extent appropriate

Educate students with disabilities with nondisabledstudents

No separate classes/schooling or other removalunless

Education in regular classes with supplementaryaids and services cannot be achieved satisfactorily,considering

• Impact on student with disability

• Impact on other students in classroom


19


LRE CONTINUUM

Neighborhood School with General Education;

Regular Classroom + Supplementary Aids and Services and a RelatedService;

Special Education Instruction in Regular School Setting + GeneralEducation supported by Supplemental Aids/Services;

Self-Contained Classroom in a General Education Facility;

Self-Contained Classroom in a Separate Facility within the District;

Regional or Center Program;

Residential Facility;

Home-Based Placement.


20

“The LRE continuum is not a progressive step by step process, wherein youmust await failure to move into a more restrictive setting.”

Danbury Bd. of Educ., 115 LRP 1631 (SEA DC 01/07/14)


SUPPLEMENTARY AIDS AND SERVICES

“…in determining the educational placement for eachdisabled student, the first line of inquiry is whether thestudent’s IEP can be implemented satisfactorily in theregular educational environment with the provision ofsupplementary aids and services. This requirement hasbeen in effect since 1975 when the Education of theHandicapped Act (EHA), the predecessor to the IDEA,originally became law.”


21

OSEP Memorandum 95-9, 21 IDELR 1152 (OSEP 1994)



If behavior interferes with the learning ofstudents or others;

IDEA requires behavioral interventions andsupports and other strategies to be addressed;

Is a special factor in IEP development;

Is inherently tied to academic achievement andfunctional performance.


22

34 CFR 300.324(a)(2)(i); USDOE Q&A on Discipline (2009), Q E.3



A child who is removed to a change inplacement or because of special factorsmust receive, as appropriate, a functionalbehavioral assessment and behavioralintervention services and modifications,that are designed to address the behaviorviolation so that it does not recur.


23

34 CFR 300.530(d)(1)(ii)



A student with a disability’s IEP must include:

“A statement of the special education and related services andsupplementary aids and services, based upon peer reviewedresearch to the extent practicable, to be provided to thestudent…”

34 C.F.R.§300.320(A)(4)

OSEP - “[t]he phrase ‘to the extent practicable’…generallymeans …states, school districts, and school personnel mustselect and use methods that research has shown to beeffective, to the extent that methods based upon peer-reviewedresearch are available.”

OSEP COMMENTARY TO 2006 IDEA REGULATIONS, 71 FED. REG.46664-65.


24