February 2012, Pub #5507.01
Local Education Agencies (school districts) are now responsible for providing mental health services to students who need them to perform socially and academically. However, there is a lot of misinformation about mental health services being shared at Individualized Education Plan (IEP) meetings. This publication clarifies the law so parents and advocates are prepared to challenge the misinformation at the IEP meeting.
“Educationally-Related Mental Health Services” means 30 minutes per week of counseling with the school psychologist.
Many school districts will only offer 30 minutes per week of school counseling for students who have behaviors or psychiatric/ emotional needs. Under the Individuals with Disabilities in Education Act (IDEA), related services that could benefit a student with behavior challenges or mental health needs includes:
ADVOCACY TIP: At the IEP be prepared to ask for any combination of the above related services that you believe to be appropriate for the student to benefit from his/her education. If the school district refuses to offer these services, document the dispute in the IEP in order to file for due process.
The District Does Not Have to Provide Any Service That Requires a Licensed Physician.
IDEA defines related services as supportive services that are required to assist a child with a disability to benefit from special education. 20 U.S.C § 602(2)(A); 34 CFR §300.34(a). Supportive services do not include medical services provided by a licensed physician, except for those performed for diagnostic or evaluation purposes. Id. “Medical services” means services provided by a licensed physician to determine a child’s medically related disability that results in the child’s need for special education and related services. 34 CFR§ 300.34 (c)(5).
Some students may require placement in a residential program that offers educational services and psychotherapy or treatment by a psychiatrist. The IEP team should consider whether the educational and treatment goals of the IEP may be so inextricably linked that the school district is required to fund a placement that offers educational as well as psychiatric treatment in order for the student to enjoy a free appropriate public education (FAPE). Taylor v. Honig, 910 F.2d 627 at 633 (9th Cir. 1990)(District responsible for payment for placement that offered educational and medical services); Kruelle v. New Castle County School District, 642 F. 2d 687, 694 (3rd Cir. 1983) (Student’s required medical and educational services were “so intertwined that they could not be separated” ); and Seattle School District, No. 1 v. B.S. , 82 F.3d 1493, 1502 (9th Cir. 1996) (holding that the child required residential placement to address her behavioral disabilities and enable her to benefit from her education).
ADVOCACY TIP: If you are seeking services from a licensed physician for purposes of diagnosing or evaluating a student, you may obtain the service from a licensed physician at the school district’s expense. Any other medical service by a licensed physician, which does not qualify as diagnosis and evaluation, is not permitted under IDEA. However, when a student’s educational and mental health treatment needs cannot be separated, the school district may be responsible for payment for a residential placement that offers both educational and medical services (e.g., psychotherapy).
MYTH # 3
District Cannot Afford Residential Placements, So It Does Not Have to Offer Them.
Some school districts decide, prior to the IEP meeting, that residential placements will not be discussed. Districts must provide a full continuum of alternative placements to ensure that students receive services in the least restrictive environment. Longstanding federal and state policy have specifically forbidden placing a student in a segregated setting over a general education setting, if the placement decision is based on administrative factors and not on student needs. A district cannot use lack of appropriate placements as an excuse for denying students the right to an education in the least restrictive environment. [34 CFR Sec. 300.39; Federal Policy Letter on LRE, Education for the Handicapped Law Reporter (EHLR) page 211:384, March 21, 1986; CDE, Office of Special Education, Policy Statement on Least Restrictive Environment (October 10, 1986).]
MYTH # 4
The District Does Not Have to Invite County Mental Health to the IEP.
If a student’s IEP includes mental health services from a county mental health provider, parent is entitled to invite the provider to the IEP meeting. The IEP team should include any person with specific expertise or knowledge of the student, at the request of the parent or school district. Whether the additional invited person has sufficient knowledge or expertise is decided by the party who invited the person to the meeting. Cal. Education Code §56341(b).
ADVOCACY TIP: Be sure to request the attendance at the IEP of the county mental health professional who is working with your child. His or her input is important for the development of the IEP.
MYTH # 5
The District’s Recommendation Regarding Mental Health Services Carries More Weight than that of County Mental Health.
The IEP team has to make decisions regarding program, placement and services based on the student’s unique needs and a plan for educational benefit. The county mental health provider has the benefit of working with the student and making a recommendation based on direct knowledge of the student’s need. The opinion of that provider should carry more weight than a school administrator who does not have mental health expertise, or who has not been working with the student.
ADVOCACY TIP: Should the school district choose to ignore the recommendation of the county mental health provider be sure the disagreement is documented in the IEP in order to preserve the dispute for due process.
MYTH # 6
Parents Who Have Private Insurance or Medi-Cal Must Consent to Using These Resources to Obtain ERMHS.
Some school districts have advised parents that if they have private insurance, Medi-Cal or other public benefits they must consent to the school district billing those resources to obtain related services for the student. This is not accurate. In fact, school districts may not require parents to sign up for or enroll in public benefits or insurance programs in order for their child to receive a FAPE. 34 CFR § 300.154(d)(2)(i). If a parent consents to use of such resources, the school district may not require the parent to pay a deductible or co-pay or otherwise incur any expense associated with obtaining the service needed for FAPE. 34 CFR § 300.154(d)(2)(ii).
The school district may not use a child’s public benefits or insurance if that use would: decrease available lifetime coverage; cause parent to have to pay for services that are needed outside of school; lead to increased premiums; or put the child at risk of loss of eligibility for home and community-based waivers. Id.
ADVOCACY TIP: Disability Rights California is not suggesting that parents should withhold consent for use of public benefits or private insurance. However, prior to giving consent, parents should confirm that the use of these resources will not result in increased cost for parent.
MYTH # 7
Parent Must Coordinate Services Not Provided by the District.
IDEA’s implementing regulations require school districts to coordinate community support for students, even if the school district is not required to offer such support as a related service. The regulations mandate the school district to:
34 CFR § 300.34(c)(14).
ADVOCACY TIP: Coordination of services is particularly important for students with mental health needs because the disability impacts the student in different settings. The student will benefit from communication between school, home and community to develop a consistent response to the student’s emotional needs and behaviors. At the IEP, be sure to ask school staff to be part of the process for bringing resources from school, home and community together.
MYTH # 8
The District Has 60 Days to Assess for Special Education Eligibility and Another 60 Days to Assess for Mental Health Services.
An assessment for eligibility for special education services must be completed within 60 days. Cal. Educ. Code §56344(a). In the past, the assessment timeline for special education eligibility was 60 days and a mental health assessment was separate and could take an additional 60 days. There is no need for the separate process and eligibility and assessment for mental health services should be a total of 60 days.
ADVOCACY TIP: Be clear that the IEP states that all necessary assessments will be completed within 60 days of the assessment plan being signed.