Mental Health Related Services on IEPs
by
|
This paper provides an overview of the topic of mental health related services on IEPs and presents guidelines to assist school districts in establishing appropriate decision making processes to address this difficult topic.
|
The Surgeon General’s Report on Children’s Mental Health indicated that 18% of America’s children and adolescents have a mental health disorder, and that only 20% of these children receive treatment for their illnesses.[1] 5% are defined as severely emotionally disturbed. The majority of U.S. students who have psychiatric disorders are served in regular education programs. When students who have psychiatric disorders are identified as disabled and in need of special education, (e.g., SED/EBD, OHD, ASD), it is nevertheless common for them to have severe and untreated disorders. Ideally, they would all have appropriate mental health screening and treatment through County services, Public Health programs, primary care, and mental health providers, but this often is not the case. Given that many students in the U.S. are uninsured or underinsured, and that IDEA mandates that schools be the payers of last resort for related services, including mental health related services, schools face a tremendous responsibility in educating students who have mental health difficulties. This paper provides an overview of the topic of mental health related services on IEPs and presents guidelines to assist school districts in establishing appropriate decision making processes to address this difficult topic.
The key questions are: When are school districts responsible for providing mental health services to students under IDEA, and what are the limits of this responsibility? This paper addresses the responsibility of a public school to provide mental health services as a related service to eligible students with disabilities pursuant to IDEA. Other obligations and policy considerations exist relating to the provision of mental health services to non-IDEA students. However, these topics are beyond the scope of this paper.
1. Definitions
The IDEA requires school districts to provide related services to eligible students. The definition of “related services” is defined broadly in IDEA to include psychological services, social work services, and counseling services, as follows:
The key questions are: When are school districts responsible for providing mental health services to students under IDEA, and what are the limits of this responsibility? This paper addresses the responsibility of a public school to provide mental health services as a related service to eligible students with disabilities pursuant to IDEA. Other obligations and policy considerations exist relating to the provision of mental health services to non-IDEA students. However, these topics are beyond the scope of this paper.
1. Definitions
The IDEA requires school districts to provide related services to eligible students. The definition of “related services” is defined broadly in IDEA to include psychological services, social work services, and counseling services, as follows:
[Related services include] . . . such developmental, corrective and other supportive services (including . . . psychological services, . . . social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services . . . and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.
See 20 U.S.C. §1401(26)(A).
The federal regulations accompanying IDEA contain guidance on the meaning of terms included in the above-cited definition, as follows:
The federal regulations accompanying IDEA contain guidance on the meaning of terms included in the above-cited definition, as follows:
“Counseling services” means services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel. 34 CFR §300.34(c)(2).
“Parent counseling and training” means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s IEP or IFSP. 34 C.F.R. §300.34(c)(8).
“Psychological services” is defined to include not only psychological testing and assessment, consulting with other staff, and assisting in developing positive behavioral intervention strategies, but also includes “planning and managing a program of psychological services, including psychological counseling for children and parents.” 34 C.F.R. §300.34(c)(10).
“Social work services” is defined to include any or all of the following:
- preparing a social or developmental history on a child;
- group and individual counseling with the child and family;
- working in partnership with parents and others on those problems in a child’s living situation that affect the child’s adjustment in school;
- mobilizing school and community resources to enable the child to learn as effectively as possible in his or her educational program; and
- Assisting in developing positive behavioral intervention services. 34 C.F.R. §300.34(c)(14).
The accepted definition of the term “counseling” is the provision of assistance and guidance in resolving personal, social or psychological problems and difficulties. This definition is distinct from the accepted definition of “therapy,” which is intended to relieve or heal a mental or psychological disorder by psychological means. Therapy is not defined in IDEA, and many would argue that providing therapy to relieve or heal a psychological disorder goes beyond the supportive and corrective services to assist the child to benefit from education that are contemplated by IDEA.
2. Standard for Providing Mental Health Related Services Under IDEA.
The determination that a related service is “necessary” is fact specific and subject to varying interpretations. The United States Supreme Court articulated the standard in very practical terms, as follows: “[the student] cannot attend school unless the requested services are available during the school day.”[2]
It is instructive that the Court rejected the multi-factor test proposed by the school district, which would have permitted consideration of the need for continuous rather than intermittent care, whether existing school personnel could provide the service, the cost of the service and the potential consequences if the service were not properly performed. This demonstrates the Court’s view that Congress intended to ensure meaningful access to school for children with disabilities, and that a student should be provided a related service if the service is necessary for the child to be able to benefit from special education, without particular regard to the school district’s financial concerns.
It is important to note that the standard mandates services that are necessary, and does not mandate services that are merely “helpful” or “beneficial” to the student. In addition, the standard relates to services that are necessary to support the student’s education, as opposed to other, unrelated areas of the student’s life.
3. Limitations on Medical Services.
The related service definition only includes medical services that are “for diagnostic and evaluation purposes only.” Other medical services are beyond the scope of IDEA related services. For example, a school district was required to pursue medical services for diagnostic and evaluation services for a student whose unmet mental health needs were interfering with his academic and interpersonal success.[3]
Conversely, monitoring medication typically has been regarded as a medical service that goes beyond diagnosis and evaluation, and therefore excluded from a school’s responsibility.[4]
4. Continuum of Mental Health Services
Related services provided for students’ mental health needs do not necessarily neatly match the continuum of mental health services. From a mental health provider’s standpoint, the continuum of services from the least to the most intense, resembles the following:
2. Standard for Providing Mental Health Related Services Under IDEA.
The determination that a related service is “necessary” is fact specific and subject to varying interpretations. The United States Supreme Court articulated the standard in very practical terms, as follows: “[the student] cannot attend school unless the requested services are available during the school day.”[2]
It is instructive that the Court rejected the multi-factor test proposed by the school district, which would have permitted consideration of the need for continuous rather than intermittent care, whether existing school personnel could provide the service, the cost of the service and the potential consequences if the service were not properly performed. This demonstrates the Court’s view that Congress intended to ensure meaningful access to school for children with disabilities, and that a student should be provided a related service if the service is necessary for the child to be able to benefit from special education, without particular regard to the school district’s financial concerns.
It is important to note that the standard mandates services that are necessary, and does not mandate services that are merely “helpful” or “beneficial” to the student. In addition, the standard relates to services that are necessary to support the student’s education, as opposed to other, unrelated areas of the student’s life.
3. Limitations on Medical Services.
The related service definition only includes medical services that are “for diagnostic and evaluation purposes only.” Other medical services are beyond the scope of IDEA related services. For example, a school district was required to pursue medical services for diagnostic and evaluation services for a student whose unmet mental health needs were interfering with his academic and interpersonal success.[3]
Conversely, monitoring medication typically has been regarded as a medical service that goes beyond diagnosis and evaluation, and therefore excluded from a school’s responsibility.[4]
4. Continuum of Mental Health Services
Related services provided for students’ mental health needs do not necessarily neatly match the continuum of mental health services. From a mental health provider’s standpoint, the continuum of services from the least to the most intense, resembles the following:
a. A school psychologist, counselor, or social worker providing educational support, social skills training, designing positive behavioral interventions for an oppositional and defiant student, providing staff training in implementation of behavior plans, counseling (e.g. to help an anxious student benefit from educational programming), and nursing services (e.g. dispensing psychiatric medication).
b. Mental health diagnosis, outpatient therapy and/or medication management;
c. Day treatment;
d. Residential treatment;
e. Inpatient hospitalization
Traditionally, school districts have felt comfortable providing services within the first category and have considered other services to be outside of the boundaries of school responsibility. However, a review of case law and administrative decisions reveals that school districts have been held responsible to include other kinds of services on IEPs as well.
For example, the Minnesota Department of Education found that a school district denied FAPE to a student because it had failed to include psychological counseling services to address the student’s unique needs. School providers and the parent all agreed that the student, who engaged in inappropriate behaviors and truancy, needed psychological counseling. The parent was unable to provide mental health services, and so the state’s department of education ordered the school district to arrange for mental health therapeutic counseling at district expense.[5]
5. Obligation to Fund a Residential Placement
The most intensive (and typically the most costly) placement for students with mental health challenges is a residential placement. The federal regulations specifically contemplate residential programs for some IDEA students, as follows: “If placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child.” 34 C.F.R. §300.104.
Courts around the country have issued decisions about a school’s responsibility to fund a residential placement. The results of these cases vary widely, with some courts ordering a district to fund the costs of the program, and others finding the costs of a residential placement must be borne by another entity or the student’s family.
For example, in a case involving an emotionally and behaviorally disturbed student whose behaviors included classroom disruption, profanity, insubordination, truancy, chemical abuse, sexual promiscuity, running away, and suicide attempts, the school attempted to educate her in a day treatment setting but was thwarted by her irregular attendance. The court ordered the school to fund a residential placement, on the grounds that it was impossible to separate the student’s behavior problems from the learning process, and impossible for her to make educational progress in a non-residential setting.[6] The court declined to decide the case based upon whether the placement was prompted by “educational” concerns, stating, “What should control our decision is not whether the problem itself is “educational” or “non-educational,” but whether it needs to be addressed in order for the child to learn.[7]
By contrast, in another case involving a student who engaged in running away and promiscuous behaviors, the court declined to order the school district to fund a residential placement, finding that a residential setting was not necessary to meet the student’s educational needs, but was indicated due to “issues apart from the learning process, which manifested themselves away from school grounds.”[8]
In another recent court decision, the court declined to require a school to reimburse parents for the cost of a residential placement. The court found that the student made progress in the placement offered by the public school (the school’s self-contained placement included academic and emotional support in a therapeutic setting) during times he was sober, but his progress was affected when his drug problem was active. The court rejected the plaintiff’s argument that the student’s drug problem and disability were “intertwined,” noting that accepting this argument would lead to financially strapped schools being required to fund substance-abuse programs for all students who happen to be disabled, absent any legal justification. The court reasoned that “while a residential placement may have been the most effective way to treat [the student’s] substance-abuse problem, that treatment was not the district’s responsibility.”[9]
In summary, some courts appear to rely on distinctions about the school district’s mission to educate, and decline to require payment for residential placements to address medical or drug related problems. Other courts inquire whether the residential setting is necessary for the child to be able to learn. While these are slightly different tests, the key to these cases appears to be whether a school district can convince the court that the student has a chance of making adequate progress in a non-residential setting.
What constitutes adequate progress is an unpredictable and fact-specific inquiry, subject to the persuasive abilities of expert witnesses. The Eighth Circuit decided that a showing of academic progress was sufficient to demonstrate a FAPE in a case where a child with a behavioral disability made little behavioral progress, but progressed academically at an average rate.[10] The court stated,
For example, the Minnesota Department of Education found that a school district denied FAPE to a student because it had failed to include psychological counseling services to address the student’s unique needs. School providers and the parent all agreed that the student, who engaged in inappropriate behaviors and truancy, needed psychological counseling. The parent was unable to provide mental health services, and so the state’s department of education ordered the school district to arrange for mental health therapeutic counseling at district expense.[5]
5. Obligation to Fund a Residential Placement
The most intensive (and typically the most costly) placement for students with mental health challenges is a residential placement. The federal regulations specifically contemplate residential programs for some IDEA students, as follows: “If placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child.” 34 C.F.R. §300.104.
Courts around the country have issued decisions about a school’s responsibility to fund a residential placement. The results of these cases vary widely, with some courts ordering a district to fund the costs of the program, and others finding the costs of a residential placement must be borne by another entity or the student’s family.
For example, in a case involving an emotionally and behaviorally disturbed student whose behaviors included classroom disruption, profanity, insubordination, truancy, chemical abuse, sexual promiscuity, running away, and suicide attempts, the school attempted to educate her in a day treatment setting but was thwarted by her irregular attendance. The court ordered the school to fund a residential placement, on the grounds that it was impossible to separate the student’s behavior problems from the learning process, and impossible for her to make educational progress in a non-residential setting.[6] The court declined to decide the case based upon whether the placement was prompted by “educational” concerns, stating, “What should control our decision is not whether the problem itself is “educational” or “non-educational,” but whether it needs to be addressed in order for the child to learn.[7]
By contrast, in another case involving a student who engaged in running away and promiscuous behaviors, the court declined to order the school district to fund a residential placement, finding that a residential setting was not necessary to meet the student’s educational needs, but was indicated due to “issues apart from the learning process, which manifested themselves away from school grounds.”[8]
In another recent court decision, the court declined to require a school to reimburse parents for the cost of a residential placement. The court found that the student made progress in the placement offered by the public school (the school’s self-contained placement included academic and emotional support in a therapeutic setting) during times he was sober, but his progress was affected when his drug problem was active. The court rejected the plaintiff’s argument that the student’s drug problem and disability were “intertwined,” noting that accepting this argument would lead to financially strapped schools being required to fund substance-abuse programs for all students who happen to be disabled, absent any legal justification. The court reasoned that “while a residential placement may have been the most effective way to treat [the student’s] substance-abuse problem, that treatment was not the district’s responsibility.”[9]
In summary, some courts appear to rely on distinctions about the school district’s mission to educate, and decline to require payment for residential placements to address medical or drug related problems. Other courts inquire whether the residential setting is necessary for the child to be able to learn. While these are slightly different tests, the key to these cases appears to be whether a school district can convince the court that the student has a chance of making adequate progress in a non-residential setting.
What constitutes adequate progress is an unpredictable and fact-specific inquiry, subject to the persuasive abilities of expert witnesses. The Eighth Circuit decided that a showing of academic progress was sufficient to demonstrate a FAPE in a case where a child with a behavioral disability made little behavioral progress, but progressed academically at an average rate.[10] The court stated,
Where, as here, the record indicates that a student’s behavioral problems, if unattended, might significantly curtail his ability to learn, the fact that he is learning is significant evidence that his behavioral problems have, at least in part, been attended to. Of course, we wish that CJN had made more behavioral progress, but the IDEA does not require that schools attempt to maximize a child’s potential, or, as a matter of fact, guarantee that the student will actually make any progress at all. It requires only that the student be provided with an IEP that is reasonably calculated to provide educational benefit . . .
6. Practical Concerns and Recommendations
There is wide variability among districts regarding the threshold for defining a mental health service as a related service. This variability is understandable, given the lack of definition contained in IDEA and the discrepancies among courts.
The cost of providing services designed to address mental health needs can be expensive. In a small number of states, provisions exist in law to shift the cost of mental health services to entities other than schools. For example, Missouri [11] has capped school districts’ financial responsibility limits, after which costs are borne by the state. In California, mental health related services on IEPs are the responsibility of the county rather than the school district.
There is wide variability among districts regarding the threshold for defining a mental health service as a related service. This variability is understandable, given the lack of definition contained in IDEA and the discrepancies among courts.
The cost of providing services designed to address mental health needs can be expensive. In a small number of states, provisions exist in law to shift the cost of mental health services to entities other than schools. For example, Missouri [11] has capped school districts’ financial responsibility limits, after which costs are borne by the state. In California, mental health related services on IEPs are the responsibility of the county rather than the school district.
In most states, however, while a school district may seek reimbursement for related services from third parties, it remains responsible if reimbursement is not available. The mandate to provide related services exists regardless of funding availability. Failure to provide a required related service can lead to responsibility for the costs of privately obtained services as well as attorneys’ fees and litigation-related expenses.
The specific contractual arrangements for mental health service providers varies widely among school districts, as well. School districts may choose to have services provided by their own district-supervised staff, or through contracts with providers in the community. Each situation has its advantages and disadvantages.
The potential benefits of hiring a district’s own employees to provide mental health services include: (1) the ability to supervise and direct employees; (2) the improved likelihood of cooperation and communication between the mental health professional and other school members of the team if all are co-workers located in proximity to each other.
If a district uses its own employees to provide mental health services to students, it should carefully consider (1) how it will ensure that its employees are appropriately qualified to perform the services; (2) how it will provide appropriate supervision and direction; and (3) that it has adequate insurance to cover the activities of the mental health professional. For example, in an unfortunate situation of a lawsuit against the district for providing inadequate supervision of a school-hired therapist in a case of a student suicide, the district would need to assure that its insurance policy would provide adequate coverage.
The potential benefits of using independent contractors include the ability to limit district liability by requiring independent contractor to purchase and maintain professional liability insurance, and the ability to increase and reduce the contract according to student needs.
As a practical matter, any contract with psychologists or social workers should include (1) provisions for the professionals to furnish proof of professional liability insurance to the school district; (2) provisions recognizing that records of related service are educational records and specifying that all records of related services provided to students pursuant to the contract will be made available to the school and will be the school’s property upon termination of the contract; and (3) provisions relating to the privacy of student records. (For more information on this topic, please refer to “Bridges and Firewalls: Contractual Relationships for Mental Health Services Provided in School Settings” Inquiry and Analysis, April, 2009)
Contracting with outside providers for on-site, co-located mental health services provides another potential advantage. These providers can also serve general education and special education students in the school setting where mental health treatment is not a related service, but is beneficial to the students. In this situation, there is no mandate to have the treatment records be part of the school record, thus providing greater data privacy for the students and their families.
Conclusion:
It is an inescapable fact that schools serve children whose mental health challenges affect their ability to benefit from education. Resources are scarce, and mental health services can be expensive. However, it can be costly and legally indefensible to seek to avoid the responsibility to provide appropriate related services.
The authors recommend a two pronged approach: First, districts can enter into successful collaborative relationships with other systems (e.g., county mental health and public health programs) to assure that students’ mental health needs are met through sources outside of the school setting.
Second, it is essential for schools to educate IEP teams about the standards and requirements of the law, ensure that professionals are appropriately licensed and supervised, and seek to provide appropriate services in a cost-sensitive way.
Given the payer of last resort mandates of IDEA and the significant percentage of uninsured students, state and national school organizations should consider lobbying for changes in legislation that will result in the reduction of both legal and financial liabilities to school districts that attempt to address students’ unmet mental health needs.
The specific contractual arrangements for mental health service providers varies widely among school districts, as well. School districts may choose to have services provided by their own district-supervised staff, or through contracts with providers in the community. Each situation has its advantages and disadvantages.
The potential benefits of hiring a district’s own employees to provide mental health services include: (1) the ability to supervise and direct employees; (2) the improved likelihood of cooperation and communication between the mental health professional and other school members of the team if all are co-workers located in proximity to each other.
If a district uses its own employees to provide mental health services to students, it should carefully consider (1) how it will ensure that its employees are appropriately qualified to perform the services; (2) how it will provide appropriate supervision and direction; and (3) that it has adequate insurance to cover the activities of the mental health professional. For example, in an unfortunate situation of a lawsuit against the district for providing inadequate supervision of a school-hired therapist in a case of a student suicide, the district would need to assure that its insurance policy would provide adequate coverage.
The potential benefits of using independent contractors include the ability to limit district liability by requiring independent contractor to purchase and maintain professional liability insurance, and the ability to increase and reduce the contract according to student needs.
As a practical matter, any contract with psychologists or social workers should include (1) provisions for the professionals to furnish proof of professional liability insurance to the school district; (2) provisions recognizing that records of related service are educational records and specifying that all records of related services provided to students pursuant to the contract will be made available to the school and will be the school’s property upon termination of the contract; and (3) provisions relating to the privacy of student records. (For more information on this topic, please refer to “Bridges and Firewalls: Contractual Relationships for Mental Health Services Provided in School Settings” Inquiry and Analysis, April, 2009)
Contracting with outside providers for on-site, co-located mental health services provides another potential advantage. These providers can also serve general education and special education students in the school setting where mental health treatment is not a related service, but is beneficial to the students. In this situation, there is no mandate to have the treatment records be part of the school record, thus providing greater data privacy for the students and their families.
Conclusion:
It is an inescapable fact that schools serve children whose mental health challenges affect their ability to benefit from education. Resources are scarce, and mental health services can be expensive. However, it can be costly and legally indefensible to seek to avoid the responsibility to provide appropriate related services.
The authors recommend a two pronged approach: First, districts can enter into successful collaborative relationships with other systems (e.g., county mental health and public health programs) to assure that students’ mental health needs are met through sources outside of the school setting.
Second, it is essential for schools to educate IEP teams about the standards and requirements of the law, ensure that professionals are appropriately licensed and supervised, and seek to provide appropriate services in a cost-sensitive way.
Given the payer of last resort mandates of IDEA and the significant percentage of uninsured students, state and national school organizations should consider lobbying for changes in legislation that will result in the reduction of both legal and financial liabilities to school districts that attempt to address students’ unmet mental health needs.
References
|
[1] Report of the Surgeon General's Conference on Children's Mental Health www.surgeongeneral.gov/topics/cmh/childreport.htm
[2] Cedar Rapids Community SD v., Garret F., 526 U.S. 66, 72 (U.S. 1999)(availability of nursing services as a related service to ventilator-dependent IDEA student; discussion of medical services exclusion). [3] Minnesota Department of Education Complaint No. 2101 (2005). [4] Doe v. Shorewood School Dist., 2005 WL 2387717 (E.D. Wis. 2005); M.G. v. Sergi, 554 F.Supp.2d 201 (D. Conn. 2008). [5] MDE Complaint No. 07-055C (2007). [6] Independent School District 284 v. A.C., 258 F.3d 769 (8th Cir. 2001). |
[7] Id. at 777.
[8] Ashland School District v. Parents of R.J., 585 F.Supp.2d 1208 (D. Ore. 2008); see also Butler v. Evans, 225 F.2d 887 (7th Cir. 2000)(where residential placement was almost exclusively for medical reasons and not for educational purposes, the court denied a parent’s demand for reimbursement. Student received daily psychiatric counseling, intensive drug therapy and recreational therapy, but limited educational services).[9] P.K. v. Bedford Central Sch. Dist., 569 F.Supp. 2d 371, 387 (S.D.N.Y. 2008). [10] CJN v. Special School District No. 1, 323 F.3d 630 (8th Cir. 2003). [11] http://dese.mo.gov/divspeced/Finance/HighNeedIndex.html |