I recently attended a School Law conference that included a session called “Mental Health Issues and the Impact on Special Education.” The topic brought together a room full of “school” and “parent” attorneys, parent advocates, NJ DOE special education mediators, NJ Office of Administrative Law Special Education Hearing Officers and child psychiatrists. I hoped for detailed discussion about what’s working best in New Jersey Schools when it comes to supporting students with mental health needs. Yet, through no fault of the speakers or audience, we barely scratched the surface of this complex topic.
Indeed, one of the nation’s former experts in special education law and policy called the intersection of mental health and special education, “one of the most difficult – and least understood – issues in the field of special education today.” See “ED, EBD, ODD, SOCIALLY MALADJUSTED: WHAT’S THE DIFFERENCE AND WHY DOES IT MATTER?” Melinda Jacobs (Copyright 2017)
So, if you find yourself unclear on whether a student with depression or anxiety is eligible for special education, at all, or whether the issue is an “Emotional Disturbance,”[i] versus a mental illness best categorized as a “disability that substantially limits a major life activity,”[ii] or whether the anxiety or depression is the factor causing a need for adaptation to the “content, methodology or delivery of instruction,” you’re not alone.
This room full of special education experts could have spent all day analyzing the case law about eligibility for therapeutic boarding schools. In fact, we did briefly discuss the distinction between a mental health illness that “substantially limits a major life activity,” under Section 504 versus one that requires “specially designed instruction,” under the IDEA. Ultimately, however, experts will disagree on best practices for such cases. The intersection of mental health and special education requires an intensely fact-specific, case by case analysis.
Further, while the mandate for schools to provide mental health supports is clear, the regulations still give much discretion to each school as to the logistics and substance. Not surprisingly then, the grey areas of special education eligibility for students with mental health issues continue to lead to expensive, protracted litigation for students, parents and schools. One example of such a case (though there are many), is M.S. and D.S. on behalf of N.S., Petitioners, v. Randolph Township Board of Education, OAL DKT NO EDS 4386-17 (Final Decision, July 16, 2018), where parents sought reimbursement for a unilateral placement in a therapeutic program.
After the conference, it occurred to me that despite all the legal and policy issues participants did not agree on, there was consensus on one, important thing: when it comes to offering mental health supports respond early, proactively and ensure coordinated communication so students don’t fall through the cracks or create a Child Find failure. “That’s obvious,” you may be thinking. But, if you’re looking for “rules,” when it comes to special education and mental health supports, this is one of the few things that all the laws, regulations, cases and policy guidance make clear – beyond the very clear mandate to provide such supports to students in the first place. Depending on the case, the early response may be as simple as assigning a staff member to mentor or offer extra support to a student, or as definite as initiating an evaluation under the IDEA.
Indeed, unlike some states, in addition to applicable federal laws (IDEA and Section 504), New Jersey state law has its own, very specific requirements for mental health support. Schools must have an integrated approach to screening and documenting any signs of student mental health issues. See N.J.A.C.§§6A:16-2.5, 6A:16-8.1, 6A:14-3.1, 6A:16-7.1(a)2 or the NJ DOE Resource Manual on Intervention and Referral Services for just a few examples. And please, do not take this blog to imply that we should start identifying every student having a bad day as having a mental health problem. Surely, schools have a great challenge in balancing proactive supports and screening for mental health, while also trying not to invade privacy or hastily label students.
The expert panel members (and audience members no doubt) agreed that having a well-coordinated system for communicating concerns about students among school staff was essential. Participants expressed concern about school teams working in isolation and not sharing information, often leading to Child Find issues and a failure to provide needed supports early enough. We discussed whether the Intervention and Referral Service and Child Study teams share information and documentation. Are IDEA case managers communicating with staff who handle Section 504 plans- or, often even better, are they the same people? Who responds to parent concerns? How and do school staff collaborate with parents to advocate, side by side, for community-based services where appropriate? When supports for a struggling student are not working, who attends the meetings to discuss what to do next? Equally important was agreement that when a student is struggling, parents should share information with the school, even before a student’s in-school behavior or academics shows any sign.
I’d love to hear from my New Jersey colleagues, especially those in South Jersey, whether parents, teachers, paraprofessionals, CST members, DOE specialists or outside providers. What is working in school-based mental health supports in your buildings? What challenges are you facing? Did you attend this conference and have a different reaction? I welcome your feedback and insight, please contact me at Jlenhart@posternockapell.com.
This article is for educational purposes only; it does not provide legal advice. Please be advised that there is no attorney-client relationship between you and Advo-Kids or this author. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
[i] under the IDEA
[ii] under Section 504 of the Rehabilitation Act as amended by the ADA