Drugs and Disabilities: Conducting Special Education Evaluations of Students Who Abuse Drugs or Alcohol
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Although many health and mental health disorders are potentially considered disabilities under special education law, substance use disorder (previously known as drug or alcohol abuse or dependence) is not. In fact, in some states, a student cannot qualify for the Emotional Disturbance category of special education if drug abuse is the primary cause of emotional or behavioral problems. This article, co-written with school attorney Michael Waldspurger, clarifies the relationship between substance use and special education law.
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Chemical use among adolescents is pervasive, and it often impacts their academic progress and social/emotional functioning. (In this paper, the term “chemicals” includes alcohol, illegal drugs such as marijuana or cocaine, or abused prescription drugs). However, chemical abuse and chemical dependency are not recognized as “disabilities” under the Individuals with Disabilities Education Act (IDEA). As a result, the mere fact that a student abuses chemicals or has been diagnosed as chemically dependent does not make the student a “child with a disability” under IDEA. Similarly, the mere fact that a student uses chemicals does not trigger an obligation to evaluate the student under IDEA. While these legal principles seem straightforward, they provide little solace for educators or attorneys.
In practice, complex issues arise when educators are asked to evaluate a student who is actively using, or has recently used, chemicals. The illegal use of drugs can mimic mental health disorders, including mood disorders (such as Major Depression and Bipolar Disorder), anxiety disorders, and even psychotic disorders. As a result, chemical use can lead educators to mistakenly conclude that a student meets the eligibility criteria for special education under the category of Severe Emotional Disorder (SED) or Other Health Impairment (OHI). Such an error can have serious consequences for the student because neither the adverse emotional effects of intoxication nor the effects of withdrawal will improve from special education and related services. Indeed, the introduction of special education and related services in response to a student’s chemical use will compound the problem, and may even be harmful, because such services ignore the real problem and may enable the student to hide the chemical use for a longer period of time.
The introduction of special education and related services in response to a student’s chemical use can also impair the relationship between the school district and the student’s parents. When it becomes evident that such services are ineffective at addressing the student’s emotional and behavioral needs, the parents may blame the school district and, ironically, may demand a greater lever of service or a highly restrictive placement, such as a residential placement. In addition, when the student’s chemical use eventually comes to light, the parents may claim that the student’s chemical use was “caused by” a disability or that the student was “self-medicating” because the school district failed to identify the student’s disability in a timely manner. Such claims are particularly likely when the student is expelled for drug use and the parents later assert the drug use was a manifestation of a disability that the district allegedly failed to identify.
This article will explore the complexities of conducting a special education evaluation when the student who is the subject of the evaluation is actively using, or has recently used, chemicals. In addition, this article will highlight a number of legal issues that can arise when evaluating a student who is using, or has recently used, chemicals. Finally, this article will address some of the legal issues that can arise when a special education student begins abusing chemicals.
The Challenges in Evaluating Students Who Are Using Chemicals
Active chemical use can affect an educational evaluation in several respects. First, chemical use can adversely affect a student’s academic performance. In some cases, an undeniable correlation will exist between the onset of drug use and a decline in academic performance. Second, chemical use can affect the manner in which a student functions and interacts with others in the educational environment. Third, chemical use can affect a student’s performance on the instruments that are administered as part of an educational evaluation. For example, active chemical use can produce deficits in attention, executive functioning, problem solving, abstract reasoning, cognitive efficiency, and short-term and long-term memory. Fourth, chemical use can produce an inaccurate picture of a student’s absolute and relative strengths and weaknesses, that, in turn, can prevent an accurate identification of the student’s educational needs.
Most evaluations include parent and teacher reports of the student’s educational functioning. Such reports are often obtained through interviews, checklists, and the administration of behavioral scales. Unless the parent and teacher reports are specific to the student’s functioning before the chemical use began, after it began, or after it ended, the reports may produce a picture of a student who has significant needs, even though such needs derive exclusively from chemical abuse or dependency.
As stated at the outset, the chemical use can mimic mental health disorders and cause educators to mistakenly conclude that a student meets the eligibility criteria for SED. chemical use can also produce symptoms, such as limited endurance, inattention, inability to focus, and limited alertness, which can lead educators to mistakenly conclude that a student meets the eligibility criteria for OHI. Not surprisingly, hearing officers have found that the effects of ADHD and drug and alcohol use can appear similar in terms of ability to focus, complete tasks, engage in sustained effort on tasks, and in demonstrating sustained interest.
Not surprisingly, the effects of chemical use are most pronounced when a student is under the influence of chemicals at the time of the testing, observation, or interview, or when the student has used chemicals during the twenty-four hours preceding the testing, observation, or interview. One hearing officer has held that if a student appears to be under the influence of a chemical during the administration of an evaluation, “best practice” dictates that the educator discuss the apparent chemical use with the student and the parents and then seek to obtain the student’s agreement to abstain from using any chemicals for a specific period of time so that valid evaluation results can be obtained. Unfortunately, this purported “best practice” may quickly collide with reality. Most students who are chemically dependent will be unable to simply abstain from chemical use. Moreover, as discussed below, a brief abstention from chemical use may have little impact on the validity of the evaluation results.
Studies show that chemical abuse can have lingering effects on various functions, such as short-term memory, that can negatively impact a student’s overall performance. The duration and severity of the adverse effects from chemical use will depend on a variety of factors, including the type of drugs the student has been using and the frequency of the drug use. For example, if a chemically dependent student uses hardcore drugs like cocaine or heroin on a daily basis, the student’s performance on an educational evaluation may be impacted for weeks or even months. If the student uses a drug like Methamphetamine, the student’s performance may be impacted indefinitely.
Is Chemical Use an Exclusionary Factor?
The federal regulations implementing IDEA state that the category of SED “does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance.” Similarly, some states have adopted eligibility criteria that treat chemical use as an exclusionary factor. In Minnesota, for example, the eligibility criteria for emotional or behavioral disorders (EBD) require that a student exhibit a pattern of emotional or behavioral responses that adversely affects educational performance but is not primarily a result of illegal chemical use. Similarly, in Wisconsin the eligibility criteria for OHI require school districts to determine whether a student’s educational performance is adversely affected as a result of a health problem. Chemical dependency is not recognized as a “health problem” for purposes of IDEA. Therefore, if a student’s educational performance is adversely affected as a result of chemical use, as opposed to a health problem, the student will not qualify under the category of OHI.
Eligibility criteria that treat chemical use as an exclusionary factor give credence to the principle that chemical abuse and chemical dependency are not recognized as “disabilities” under IDEA. But such rules do not simplify the analysis. School districts must still determine whether adverse educational performance and divergent behaviors are the result of chemical use or due to a recognized disability.
May a School District Delay Evaluating a Student who is Actively Using Chemicals?
Unfortunately, federal law does not allow a school district to delay an evaluation and wait until a student stops using illegal chemicals. The U.S. Department of Education has repeatedly stated that a student’s substance abuse does not obviate a school district’s child find responsibility. Although some states have adopted rules that treat illegal drug use as an exclusionary factor when evaluating a student, such rules do not relieve a school district of the responsibility to conduct an evaluation in the first instance. A school district may not make a determination about the impact of a student’s suspected chemical abuse on eligibility prior to and without completing a sufficient and comprehensive evaluation.
Parsing the Effects of Chemical Use and a Disabling Condition
The obvious challenge is to identify and separate the effects of chemical use from the effects of any disabling conditions that might exist. Historical data on a student can be invaluable in overcoming this challenge, particularly when the data are plotted on a timeline. For instance, a precipitous decline in academic performance that correlates in time with the onset of drug use would be extraordinarily helpful information for the team to consider. Data on whether the student exhibited symptoms of a disabling condition before the onset of drug use or after the conclusion of drug use would also be helpful. Of course, the team will be severely hamstrung in its efforts if it lacks an accurate account of when the drug use began and, if applicable, when it ended. If the historical data cover a period of time when the student was using illegal drugs, and the onset of the drug use is unknown, it may be impossible to separate the symptoms of chemical abuse from the symptoms of a mental health disorder.
The potential for comorbidity adds to the challenge of identifying a student’s educational needs. Comorbidity occurs when chemical abuse or dependency is coupled with another disorder, such as depression or ADHD. Comorbidity does not mean that one disorder causes another; rather, it means that two disorders exist at the same time. Parent attorneys are fond of citing studies that claim that comorbidity between chemical dependency and adolescents diagnosed with ADHD is higher than in the general population. However, even if the student had ADHD prior to developing chemical abuse problems, the ADHD symptoms may have been mild in the educational environment prior to the chemical abuse. In this instance, it could be argued that the effect of the chemicals, and not the ADHD, is the culprit.
Should School Districts Propose a Chemical Health Assessment When Conducting an Educational Evaluation?
IDEA does not bar a school district from proposing a chemical health assessment as part of an initial evaluation or reevaluation of a student for special education. Further, some states seem to encourage the use of chemical health assessment as part of a special educational evaluation. In Minnesota, for example, the eligibility criteria for EBD specifically state that the evaluation may include data from chemical health assessments.
Caution must be exercised, however, when a school district proposes to conduct a chemical health assessment as part of a special educational evaluation. Several states have data privacy laws that classify communications with a chemical dependency counselor as “confidential” data, unless the communication relates to physical or sexual abuse of a child or danger to self or others. Parent attorneys have argued that such laws prohibit a school district from introducing the results of chemical health assessment into evidence at a due process hearing. School districts may be able to defeat this argument by asserting that the parent voluntarily placed into controversy the physical and mental condition of the student. But it is best to avoid this issue altogether. One way to avoid the issue is to inform the parent and student that the chemical health assessment will not give rise to a CD (Chemical Dependency) counselor-patient privilege, or any similar privilege, and to have the parent and student waive any right to assert such a privilege along with any right to assert that any part of the chemical dependency assessment will be confidential. Parents tend to support this approach, because without a waiver they, like the school district, may be unable to access any information the student provides to the CD counselor.
The public policy underpinning the confidentiality of communications between a CD counselor and a student is clear: as a society we want to encourage students to speak with CD counselors about potential CD problems. Unfortunately, this public policy comes at a significant cost. In practice, the shield of confidentiality may enable students to continue using dangerous substances without notice to their parents, who may be in the best position to implement the intervention that is necessary. If the student’s use is endangering themselves or others (e.g., driving while intoxicated), the CD counselor needs to recognize statutory requirements that allow communication of these concerns to the student’s parents.
Legal Issues that Can Arise When a Special Education Student Begins Using Chemicals
Drug and alcohol use and abuse are prevalent in the student population. For example, the 2007 Minnesota Student Survey of public school students noted that 35% of male and 25% of female high school seniors reported having had five or more drinks in a row in the previous two weeks on at least one occasion. The survey also found that 28% of male and 22% of female seniors reported driving after drug or alcohol use. Further, 34% of male and 27% of female seniors reported using marijuana or its derivatives in the previous year. Although lower, the percentages for younger students are still significant and troubling.
When special education students are caught using, possessing, or distributing drugs on school property, the school district may pursue expulsion if the IEP team determines that the behavior was not a manifestation of the student’s disability. Many SED students have IEP goals and objectives that address impulsivity and poor choices. The parents of such students may argue that the possession, use, or distribution of drugs was a manifestation of the student’s disability. This argument may be highly persuasive to a hearing officer unless the school district has evidence that the student was carrying out a plan, such as a pre-arranged drug transaction. Of course, irrespective of the outcome of the manifestation determination, the school district would have the option of pursuing a 45-day unilateral change of placement.
When a school district seeks to discipline a special education student for drug use, the parents may go on the offensive and argue that the district’s failure to provide an appropriate program of education led to the drug use. For instance, the parents may argue that the student is self-medicating because the district failed to identify the student’s needs or because the district failed to provide the services and supports that were necessary to address the student’s identified needs. Hearing officers have generally rejected these arguments, but school districts are well-advised to consider all the facts before reacting to such an argument.
When special education students develop chemical dependency, difficult questions can also arise in regard to the appropriateness of the student’s placement. The parents may argue that the chemical dependency is the result of the student’s SED, for example, and that the school district is obligated to pay for a placement in a sober school, in a day treatment facility, or in a residential facility that will address the student’s chemical dependency. The simple response would be to provide prior written notice denying the parents’ request because CD is not recognized as a disability under IDEA. However, many cases will not lend themselves to a simple response. Unfortunately, some IEPs have goals that address CD. (The following transition goal is an example: “Student will improve behaviors in his community from choosing activities involving illegal chemicals 30% of the time to choosing chemically free activities 100% of the time.”) When an IEP specifically addresses CD, the school district may have a difficult time arguing that it has no obligation to further address the CD as part of a free appropriate public education.
Conclusion
School districts must overcome a number of challenges when conducting an initial evaluation of a student who is actively using, or has recently used, illegal chemicals. Despite the consideration of historical data, an evaluation will ultimately produce a snapshot of a student at a given point in time. The main challenge is to ensure that the snapshot accurately depicts the student’s educational performance and needs. In developing this picture, school districts must be aware of the legal issues that can arise during the evaluation process.
About the Authors
Michael (Mick) Waldspurger, J.D. (mjw@ratwiklaw.com) is a shareholder with the law firm of Ratwik, Roszak & Maloney, P.A. Mr. Waldspurger practices extensively in the area of school law, including the areas of special education, labor and employment, negotiations, data privacy, board governance, and litigation. Mr. Waldspurger represents school districts in Minnesota and Wisconsin and works with clients to find reasonable solutions that avoid unnecessary disputes.
William Dikel, M.D. (dikel002@umn.edu, www.williamdikel.com) is a consulting child and adolescent psychiatrist who provides local (Minnesota) and national consultation, assisting school districts meet the needs of students who have mental health disorders. He provides diagnostic evaluations, in-service presentations, consultation, expert testimony in special education due process hearings, and program planning and development services. Dr. Dikel specializes in assisting districts enter into relationships with mental health clinics in order to provide school based treatment services.
In practice, complex issues arise when educators are asked to evaluate a student who is actively using, or has recently used, chemicals. The illegal use of drugs can mimic mental health disorders, including mood disorders (such as Major Depression and Bipolar Disorder), anxiety disorders, and even psychotic disorders. As a result, chemical use can lead educators to mistakenly conclude that a student meets the eligibility criteria for special education under the category of Severe Emotional Disorder (SED) or Other Health Impairment (OHI). Such an error can have serious consequences for the student because neither the adverse emotional effects of intoxication nor the effects of withdrawal will improve from special education and related services. Indeed, the introduction of special education and related services in response to a student’s chemical use will compound the problem, and may even be harmful, because such services ignore the real problem and may enable the student to hide the chemical use for a longer period of time.
The introduction of special education and related services in response to a student’s chemical use can also impair the relationship between the school district and the student’s parents. When it becomes evident that such services are ineffective at addressing the student’s emotional and behavioral needs, the parents may blame the school district and, ironically, may demand a greater lever of service or a highly restrictive placement, such as a residential placement. In addition, when the student’s chemical use eventually comes to light, the parents may claim that the student’s chemical use was “caused by” a disability or that the student was “self-medicating” because the school district failed to identify the student’s disability in a timely manner. Such claims are particularly likely when the student is expelled for drug use and the parents later assert the drug use was a manifestation of a disability that the district allegedly failed to identify.
This article will explore the complexities of conducting a special education evaluation when the student who is the subject of the evaluation is actively using, or has recently used, chemicals. In addition, this article will highlight a number of legal issues that can arise when evaluating a student who is using, or has recently used, chemicals. Finally, this article will address some of the legal issues that can arise when a special education student begins abusing chemicals.
The Challenges in Evaluating Students Who Are Using Chemicals
Active chemical use can affect an educational evaluation in several respects. First, chemical use can adversely affect a student’s academic performance. In some cases, an undeniable correlation will exist between the onset of drug use and a decline in academic performance. Second, chemical use can affect the manner in which a student functions and interacts with others in the educational environment. Third, chemical use can affect a student’s performance on the instruments that are administered as part of an educational evaluation. For example, active chemical use can produce deficits in attention, executive functioning, problem solving, abstract reasoning, cognitive efficiency, and short-term and long-term memory. Fourth, chemical use can produce an inaccurate picture of a student’s absolute and relative strengths and weaknesses, that, in turn, can prevent an accurate identification of the student’s educational needs.
Most evaluations include parent and teacher reports of the student’s educational functioning. Such reports are often obtained through interviews, checklists, and the administration of behavioral scales. Unless the parent and teacher reports are specific to the student’s functioning before the chemical use began, after it began, or after it ended, the reports may produce a picture of a student who has significant needs, even though such needs derive exclusively from chemical abuse or dependency.
As stated at the outset, the chemical use can mimic mental health disorders and cause educators to mistakenly conclude that a student meets the eligibility criteria for SED. chemical use can also produce symptoms, such as limited endurance, inattention, inability to focus, and limited alertness, which can lead educators to mistakenly conclude that a student meets the eligibility criteria for OHI. Not surprisingly, hearing officers have found that the effects of ADHD and drug and alcohol use can appear similar in terms of ability to focus, complete tasks, engage in sustained effort on tasks, and in demonstrating sustained interest.
Not surprisingly, the effects of chemical use are most pronounced when a student is under the influence of chemicals at the time of the testing, observation, or interview, or when the student has used chemicals during the twenty-four hours preceding the testing, observation, or interview. One hearing officer has held that if a student appears to be under the influence of a chemical during the administration of an evaluation, “best practice” dictates that the educator discuss the apparent chemical use with the student and the parents and then seek to obtain the student’s agreement to abstain from using any chemicals for a specific period of time so that valid evaluation results can be obtained. Unfortunately, this purported “best practice” may quickly collide with reality. Most students who are chemically dependent will be unable to simply abstain from chemical use. Moreover, as discussed below, a brief abstention from chemical use may have little impact on the validity of the evaluation results.
Studies show that chemical abuse can have lingering effects on various functions, such as short-term memory, that can negatively impact a student’s overall performance. The duration and severity of the adverse effects from chemical use will depend on a variety of factors, including the type of drugs the student has been using and the frequency of the drug use. For example, if a chemically dependent student uses hardcore drugs like cocaine or heroin on a daily basis, the student’s performance on an educational evaluation may be impacted for weeks or even months. If the student uses a drug like Methamphetamine, the student’s performance may be impacted indefinitely.
Is Chemical Use an Exclusionary Factor?
The federal regulations implementing IDEA state that the category of SED “does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance.” Similarly, some states have adopted eligibility criteria that treat chemical use as an exclusionary factor. In Minnesota, for example, the eligibility criteria for emotional or behavioral disorders (EBD) require that a student exhibit a pattern of emotional or behavioral responses that adversely affects educational performance but is not primarily a result of illegal chemical use. Similarly, in Wisconsin the eligibility criteria for OHI require school districts to determine whether a student’s educational performance is adversely affected as a result of a health problem. Chemical dependency is not recognized as a “health problem” for purposes of IDEA. Therefore, if a student’s educational performance is adversely affected as a result of chemical use, as opposed to a health problem, the student will not qualify under the category of OHI.
Eligibility criteria that treat chemical use as an exclusionary factor give credence to the principle that chemical abuse and chemical dependency are not recognized as “disabilities” under IDEA. But such rules do not simplify the analysis. School districts must still determine whether adverse educational performance and divergent behaviors are the result of chemical use or due to a recognized disability.
May a School District Delay Evaluating a Student who is Actively Using Chemicals?
Unfortunately, federal law does not allow a school district to delay an evaluation and wait until a student stops using illegal chemicals. The U.S. Department of Education has repeatedly stated that a student’s substance abuse does not obviate a school district’s child find responsibility. Although some states have adopted rules that treat illegal drug use as an exclusionary factor when evaluating a student, such rules do not relieve a school district of the responsibility to conduct an evaluation in the first instance. A school district may not make a determination about the impact of a student’s suspected chemical abuse on eligibility prior to and without completing a sufficient and comprehensive evaluation.
Parsing the Effects of Chemical Use and a Disabling Condition
The obvious challenge is to identify and separate the effects of chemical use from the effects of any disabling conditions that might exist. Historical data on a student can be invaluable in overcoming this challenge, particularly when the data are plotted on a timeline. For instance, a precipitous decline in academic performance that correlates in time with the onset of drug use would be extraordinarily helpful information for the team to consider. Data on whether the student exhibited symptoms of a disabling condition before the onset of drug use or after the conclusion of drug use would also be helpful. Of course, the team will be severely hamstrung in its efforts if it lacks an accurate account of when the drug use began and, if applicable, when it ended. If the historical data cover a period of time when the student was using illegal drugs, and the onset of the drug use is unknown, it may be impossible to separate the symptoms of chemical abuse from the symptoms of a mental health disorder.
The potential for comorbidity adds to the challenge of identifying a student’s educational needs. Comorbidity occurs when chemical abuse or dependency is coupled with another disorder, such as depression or ADHD. Comorbidity does not mean that one disorder causes another; rather, it means that two disorders exist at the same time. Parent attorneys are fond of citing studies that claim that comorbidity between chemical dependency and adolescents diagnosed with ADHD is higher than in the general population. However, even if the student had ADHD prior to developing chemical abuse problems, the ADHD symptoms may have been mild in the educational environment prior to the chemical abuse. In this instance, it could be argued that the effect of the chemicals, and not the ADHD, is the culprit.
Should School Districts Propose a Chemical Health Assessment When Conducting an Educational Evaluation?
IDEA does not bar a school district from proposing a chemical health assessment as part of an initial evaluation or reevaluation of a student for special education. Further, some states seem to encourage the use of chemical health assessment as part of a special educational evaluation. In Minnesota, for example, the eligibility criteria for EBD specifically state that the evaluation may include data from chemical health assessments.
Caution must be exercised, however, when a school district proposes to conduct a chemical health assessment as part of a special educational evaluation. Several states have data privacy laws that classify communications with a chemical dependency counselor as “confidential” data, unless the communication relates to physical or sexual abuse of a child or danger to self or others. Parent attorneys have argued that such laws prohibit a school district from introducing the results of chemical health assessment into evidence at a due process hearing. School districts may be able to defeat this argument by asserting that the parent voluntarily placed into controversy the physical and mental condition of the student. But it is best to avoid this issue altogether. One way to avoid the issue is to inform the parent and student that the chemical health assessment will not give rise to a CD (Chemical Dependency) counselor-patient privilege, or any similar privilege, and to have the parent and student waive any right to assert such a privilege along with any right to assert that any part of the chemical dependency assessment will be confidential. Parents tend to support this approach, because without a waiver they, like the school district, may be unable to access any information the student provides to the CD counselor.
The public policy underpinning the confidentiality of communications between a CD counselor and a student is clear: as a society we want to encourage students to speak with CD counselors about potential CD problems. Unfortunately, this public policy comes at a significant cost. In practice, the shield of confidentiality may enable students to continue using dangerous substances without notice to their parents, who may be in the best position to implement the intervention that is necessary. If the student’s use is endangering themselves or others (e.g., driving while intoxicated), the CD counselor needs to recognize statutory requirements that allow communication of these concerns to the student’s parents.
Legal Issues that Can Arise When a Special Education Student Begins Using Chemicals
Drug and alcohol use and abuse are prevalent in the student population. For example, the 2007 Minnesota Student Survey of public school students noted that 35% of male and 25% of female high school seniors reported having had five or more drinks in a row in the previous two weeks on at least one occasion. The survey also found that 28% of male and 22% of female seniors reported driving after drug or alcohol use. Further, 34% of male and 27% of female seniors reported using marijuana or its derivatives in the previous year. Although lower, the percentages for younger students are still significant and troubling.
When special education students are caught using, possessing, or distributing drugs on school property, the school district may pursue expulsion if the IEP team determines that the behavior was not a manifestation of the student’s disability. Many SED students have IEP goals and objectives that address impulsivity and poor choices. The parents of such students may argue that the possession, use, or distribution of drugs was a manifestation of the student’s disability. This argument may be highly persuasive to a hearing officer unless the school district has evidence that the student was carrying out a plan, such as a pre-arranged drug transaction. Of course, irrespective of the outcome of the manifestation determination, the school district would have the option of pursuing a 45-day unilateral change of placement.
When a school district seeks to discipline a special education student for drug use, the parents may go on the offensive and argue that the district’s failure to provide an appropriate program of education led to the drug use. For instance, the parents may argue that the student is self-medicating because the district failed to identify the student’s needs or because the district failed to provide the services and supports that were necessary to address the student’s identified needs. Hearing officers have generally rejected these arguments, but school districts are well-advised to consider all the facts before reacting to such an argument.
When special education students develop chemical dependency, difficult questions can also arise in regard to the appropriateness of the student’s placement. The parents may argue that the chemical dependency is the result of the student’s SED, for example, and that the school district is obligated to pay for a placement in a sober school, in a day treatment facility, or in a residential facility that will address the student’s chemical dependency. The simple response would be to provide prior written notice denying the parents’ request because CD is not recognized as a disability under IDEA. However, many cases will not lend themselves to a simple response. Unfortunately, some IEPs have goals that address CD. (The following transition goal is an example: “Student will improve behaviors in his community from choosing activities involving illegal chemicals 30% of the time to choosing chemically free activities 100% of the time.”) When an IEP specifically addresses CD, the school district may have a difficult time arguing that it has no obligation to further address the CD as part of a free appropriate public education.
Conclusion
School districts must overcome a number of challenges when conducting an initial evaluation of a student who is actively using, or has recently used, illegal chemicals. Despite the consideration of historical data, an evaluation will ultimately produce a snapshot of a student at a given point in time. The main challenge is to ensure that the snapshot accurately depicts the student’s educational performance and needs. In developing this picture, school districts must be aware of the legal issues that can arise during the evaluation process.
About the Authors
Michael (Mick) Waldspurger, J.D. (mjw@ratwiklaw.com) is a shareholder with the law firm of Ratwik, Roszak & Maloney, P.A. Mr. Waldspurger practices extensively in the area of school law, including the areas of special education, labor and employment, negotiations, data privacy, board governance, and litigation. Mr. Waldspurger represents school districts in Minnesota and Wisconsin and works with clients to find reasonable solutions that avoid unnecessary disputes.
William Dikel, M.D. (dikel002@umn.edu, www.williamdikel.com) is a consulting child and adolescent psychiatrist who provides local (Minnesota) and national consultation, assisting school districts meet the needs of students who have mental health disorders. He provides diagnostic evaluations, in-service presentations, consultation, expert testimony in special education due process hearings, and program planning and development services. Dr. Dikel specializes in assisting districts enter into relationships with mental health clinics in order to provide school based treatment services.