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Expert Answers: Julie Weatherly, Esq. on Legal Issues Surrounding Discipline and Mental Health

Headshot of Julie Weatherly, Esq.

Our special summer webinar “Come and Get It! A Legal Update on Discipline and Mental Health Issues for Special Ed Leaders” was with special education expert Julie Weatherly, Esq. During this webinar, Julie discussed discussed recent case law, including Endrew F. v. Douglas County School District, as well as important factors need to be clear on regarding discipline and mental health as they relate to special education. After the webinar, moderator Stephanie Taylor, Ed.S, NCSP, fielded viewer questions to Julie. Below is a summary of this informative Q&A.

Stephanie: What is the impact of the Endrew F. decision on your understanding of a district’s obligation to provide FAPE for students with behavioral/emotional/mental health needs?

Julie: I’m not surprised at all that people wanted me to reference Endrew F. As I was talking, I was trying to figure out where I could throw Endrew F. or that Supreme Court decision that came out in March into the mix so I’m glad there was a question on this topic. It was kind of hard to incorporate it into the mix because it really was not a spot on case as it relates to mental health issues or discipline. Those out there who are familiar with it know that it was the Supreme Court’s opportunity for the first time since 1982 to provide schools with some clarification regarding the standard for the provision of free appropriate public education.

In general, my answer to the question to how it impacts students with behavioral emotional mental health needs, is that if they are disabled under the IDEA, the new standard applies to them, so there’s nothing new about that or no change about that. I will say I’ll be looking at every single case that comes out of a federal court since Endrew F. to see how or if the clarified standard makes any difference to what schools need to be doing particularly with respect to students with behavioral or emotional mental health needs, which was the case with Endrew F. who is severely autistic. The question was whether the school had afforded him free appropriate public education.

But the real question before the Supreme Court was the standard that the Tenth Circuit Court of Appeals used when finding that the school district had afforded Endrew free appropriate public education using a standard that was articulated by the Tenth Circuit as something merely more than di minimis educational benefit. That was really what the case was all about — whether that was the appropriate standard, and the court generally ruled that merely more than di minimis is pretty much equal to nothing at all. That was not an acceptable standard.

The clarified standard from a substantive perspective from Endrew F. that we’re going to have to be looking at as we serve all students with behavioral and emotional mental health needs is asking whether the school’s IEP is reasonably calculated to enable the child to make progress in light of the child’s circumstances. And, I think when the focus on the child’s circumstance certainly can include the nature of the severity of the student’s disability, particularly if it is behavioral, emotional, or oriented toward mental health concerns, schools will be able to say in some cases, or in many cases, that the focus of progress for this child is not necessarily academic progress. The focus needs to be on progress in the area of behavior, emotion or mental health — that kind of thing.

I’ve worked on numerous cases where the child’s behavioral or emotional issues are so significant that the child really was not ready to learn. They didn’t have behaviors in place to even be able to participate successfully in the general curriculum. So I think we will see courts reminded that they need to assess a child’s progress based on the individual child’s circumstances, which is going to include the nature and severity of disability.

I’ve been monitoring the cases since Endrew F. — particularly those that deal with emotionally disturbed or behaviorally disordered students. There is one case that comes to mind where the court even noted that when we look at progress and FAPE for this student, we’re not looking at academics for this severely emotionally disturbed student with lots of behavioral problems and mental health issues. The focus for assessing progress is different than with another child.

One thing that I was hoping Endrew would actually tell us a little more about was that there might be some commentary with from the Supreme Court with respect to what kinds of residential placement services schools would be required to provide as part of FAPE and whether that would include any kind of mental health treatment. There are already some residential placement cases that say that it is not the responsibility of schools, but I was hopeful that Endrew F. might give us some Supreme Court insight. It didn’t; it just specifically talked about the clarified substantive standard for assessing FAPE. That’s a long answer with the bottom line that is it didn’t really necessarily impact on us too much. But more to come.

Stephanie: Sometimes complicated issues take long answers. One of the biggest takeaways I’m going to have from that for school teams is to really look at how the IEP is poised for that student to be successful. Thank you so much for that. Our second question is, what right does our district have in ensuring that parents follow through on our recommendations for getting their child the help they need?

Julie: Well, sadly, whenever someone asks me a question that involves what rights a district has, I generally have to respond, “not a lot.” Anytime a question is posited that way, there are clearly no rights per se and there is no real way under IDEA particularly to enforce anything as it relates to a parent not following through on recommendations, particularly for mental health counseling or whatever it might be. I know that some school districts are a bit leery about even recommending those kinds of services to meet a student’s needs because the argument could be that they’re obligated then to pay for them or to provide them otherwise under IDEA.

More remains to be seen. One of the biggest things that I’ve been hoping for is that we would see more lobbying efforts to increase mental health services and to put some emphasis on making those other agencies step to the plate and be as accountable as school districts are under IDEA, but the funding mechanisms aren’t in place for that. I think there should be some focus on that, but when we can’t bring them into the schools and we ask the parents then to follow through and they don’t do that, then again there’s no right on the part of the district except maybe under state or local provisions regarding reporting abuse or neglect if it got to that point. Other than that, schools are required to serve the children as they find the children.

If a parent doesn’t follow up with trying to meet the suggested needs for mental health services or ultimately treatment, then an IEP team may need to convene and discuss a more restrictive environment and proposal for change of placement to a more restrictive environment. In the past couple of years I’ve been seeing more school districts actually recommending residential placement. Usually that can only happen if the parent agrees to it, but I’ve had a couple of recent cases where the school district said “we don’t believe we can educate this child outside of a residential facility. We can’t segregate the educational needs from the mental health needs, and we’re willing to fund residential,” but I’ve had two recent cases where the parent said absolutely not.

Then, what does the school do? I think it may be then that if the parent won’t allow for that and the student is dangerous in the school environment, then the team may have to recommend the most restrictive setting, which could be a hospital home, or not hospital but a homebound type placement saying “we offered residential but the parent refused it so this is our only option.” If the parent requests due process, then the due process hearing officer then helps us out in terms of where we go from here. I just don’t know what other alternatives are there right now.

Stephanie: On a similar topic, the next question is what is our Child Find obligation for students who have been hospitalized due to mental health issues, and is it an automatic specialist assessment?

Julie: No. Not at all. As I said when I was talking about the referral red flags, if folks are looking at those referral red flags, I never want anyone to take those out of context and say, “Oh, well Julie Weatherly said that if a child is hospitalized, we automatically have to refer that child for an evaluation.” I say it is a referral red flag but it has to be analyzed in conjunction with any other things that are going on with the student and other data that’s available to see if there are other referral red flags, because clearly hospitalization is not a reason necessarily, and particularly I think the reason for the hospitalization. If it’s just a broken leg, that’s not going to trigger a Child Find responsibility, but if we’re talking about hospitalization for mental health or chronic health issues, then maybe that would be considered a referral red flag. Again, it’s all going to depend on other data and what the school knows or should know about the child’s trigger to Child Find obligation.

Stephanie: It seems like there is a lot of concern out in the field about when mental health issues are compounded by something else going on with the student, as well and how to differentiate those. Our next question is what criteria should an IEP team consider in deciding FAPE when a mental health issue is clouded by substance abuse?

Julie: That’s a tough one. When I think substance abuse, and treatment for substance abuse, I often get questions about the school district’s responsibility for that. But I think the court cases that have dealt with that have been pretty clear that that kind of treatment is clearly not educational in nature and not the responsibility of the school district. But, if a student is both grappling with mental health issues along with substance abuse, that could be very difficult for IEP teams to make good decisions about what evaluations are appropriate, if any, if a student is eligible. I’m not sure I really have a great response in terms of criteria that should be used.

It’s pretty tough to try to evaluate when a student also has a substance abuse problem and it could be that an eligibility determination can’t be made at that point in time. I do think if a child is determined eligible, back to the Endrew F. question earlier on, using drugs is going to play into the circumstances of that student when assessing whether or not the child has been afforded FAPE. If a student is receiving services and an IEP team has believed to be appropriate and the school district is providing them and making good faith reasonable efforts but the child’s substance abuse problems are getting in the way, I think that that would be under Endrew F. part of the child’s circumstances that would be considered in assessing progress and ultimately whether or not the students receive FAPE.

Stephanie: You spoke a lot today about the relationship that should exist between the schools and the community and sort of the reciprocity of services but our next question asks you to address the school district’s legal responsibility for conducting mental health evaluation.

Julie: Well, this is back to that very clear legal answer of “it depends.” A lot of folks would like to say, or school folks would like to assume or say, that the school district doesn’t have any legal responsibility for conducting mental health evaluations. However, do Google the Dear Colleague letter and resource guide that was issued by the Office for Civil Rights July of 2016. You can Google key terms ADHD, resource guide, dear colleague letter, office for civil rights and it will come up.

The reason I mention it here in response to this question is it talks about a school’s responsibility to conduct an evaluation for ADHD, which is included in the DSM V, so that would be a mental health evaluation technically. OCR has concluded that if a school team decides that it needs the evaluative information in order to make educational recommendations to proceed with the educational program for a child with a disability with a certain condition, then the school is responsible for providing for that evaluation as a related service either under IDEA or 504 because evaluations for diagnostic and evaluative purposes are included as related services in the definition of related services under IDEA specifically and then according to OCR.

The bottom line is if a school team decides that it needs that evaluation done in order to decide what the child needs educationally, then push come to shove it is the school’s responsibility. Now oftentimes parents get those done and they bring them to the school’s attention and they certainly can be used, but OCR says that schools cannot force parents to go out and get those evaluations in this resource guide. It worries me when I’m sitting down with a school team and they’re frustrated because the parent hasn’t gone out and got that evaluation done and they can’t move on with the 504 determination or determining what the child needs under the IDEA, and they say to me we’re just waiting on the parent to give us that evaluation back. My response generally is not to wait too long because it ultimately is the school’s responsibility because you’ve made that educationally relevant and educationally necessary for this child, and therefore it’s the school district’s responsibility to get it done.

Stephanie: Our next question is, what is the typical legal process for change of placement due to disciplinary action? What actions can a district take if an offense is found to be a manifestation of a disability?

Julie: The tips that I went through in my presentation gave a good overview of the typical legal process. If a parent is upset with a change of placement due to disciplinary action, the typical legal process to challenge it is going to be through a due process hearing. If they do that in a disciplinary context to challenge, a disciplinary decision or disciplinary action that’s taken, then the law calls for the convening of an expedited due process hearing. It would be a much quicker process than your typical IDEA due process case. It’s pretty complicated and for school folks. I generally say you just need to let your special ed director and school attorney handle that typical legal process if there’s a challenge.

As for the second part of the question about what action a district can take if they find that a violation of the student code of conduct is a manifestation of a student’s disability: technically, we know that if they find that, then a change of placement through a disciplinary or use of the unilateral removal, the change of placement days just can’t happen. The presumption is if it’s found to be a manifestation, the student will return to his or her current placement as defined under the IDEA or the child’s IEP, that program as we discussed in terms of that being the placement for the student. If it is a manifestation, not only is the presumption that the child will return to the current placement at the time that the child committed the offense, but also the law contemplates that the team must also conduct a functional behavioral assessment and develop a behavior intervention plan in situations where it is a manifestation.

Stephanie: We’ve had a lot of questions about physically aggressive students. If a student has a tendency to lash out, what are the legal requirements to avoid restraint and keep other students safe?

Julie: Well, first of all I will give another lawyerly response: “it depends.” It does depend a lot on how a particular state sets forth certain requirements regarding the use generally of restraint and/or seclusion. There was some discussion that began back in 2009 at a federal level where Congress was talking about legislating on the use of restraint in schools, but that was not successful. There were a couple of things that passed the Senate and the House, but nothing ever came to fruition. What we did see between 2009 and now is that most, if not all, states put in something in place as it relates to either guidance or statutory requirements relative to the use of restraints in schools, so the states have kind of stepped to the plate.

In terms of specifics, there may be state laws that have different requirements even in the Ten Day count or even what constitutes a change of placement. In California for instance, placement can also include site or location. When I generally present, I always like to remind people check their own state’s requirements. This is a major state requirement in terms of the use of restraint and seclusion. The Office of Civil Rights issued another Dear Colleague letter in December, 2016 to say restraint is not prohibited, but there is consistent the language that’s used to the effect that restraint is a last resort and is used only when the professionals believe that the student’s behavior constitutes imminent danger to that child or to others. Restraint certainly can be used, but if it is required often, it may be time to sit down and revisit the student’s IEP altogether and consider a change of placement to a more appropriate setting.

Stephanie: Super important information there Julie. Thank you so much. We’ll just do one last question. We’ll do something that will hopefully leave teams with some actionable information right here at the end. Can you provide some examples of how we get can creative to find alternatives to suspensions and expulsions?

Julie: Oh boy. I wish I could wax on for 15 minutes with all these examples. I’m just kidding. I wish there were a lot of them. I wish I had that many. As we discussed earlier, it isn’t a change of placement according to the US Department of Ed to move a child to a setting that continues the services on the IEP, that allows the student to continue to participate in the general curriculum, and allows the student to participate in the least restrictive environment, the same least restrictive environment that the student had in the IEP.

Getting creative is making sure that you’re not “changing the placement” and that could include in-school suspension, although I would prefer that my clients not call it in-school suspension because suspension just triggers someone to count it as a day regardless of what it actually is. I find that in-school suspension these days, and in-school suspension classrooms, the children are required to do work and they’re not suspended from services at all. They’re actually getting everything that they would have gotten. However, if a student is sitting in ISS all day, every day, then I have a problem in whether it’s even an appropriate measure to use if it is not working.

I’ve had clients contract with outside agencies to provide space for alternative classrooms or things that don’t constitute a change of placement, but are used to continue the child’s placement just in another classroom setting or different bricks and mortar. Getting creative with some alternative classes. I also worry about the use of the term “alternative school” anymore because a lot of people think the alternative school when you use that term is that is just where all the bad kids go and that’s clearly not the case these days. We have all kinds of different alternative programs that could implement a child’s placement without officially changing placement. That’s as much as I can do with my thoughts on creativity at this hour, at this point in time. I hope that’s helpful.

Want to watch the entire webinar by Julie Weatherly? Click here.

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