How often have you been contacted by a parent and told that their child is in crisis and cannot attend the public school and immediately must be placed into a therapeutic setting? Or that the parent has unilaterally placed their child into a residential program in Utah or another State other than New Jersey?
As the number of students diagnosed with debilitating anxiety, depression or other psychiatric disabilities continues to expand, school districts must be prepared to address how those disabilities may impact their educational programs. In many cases, a school district's failure to comply with the Individuals with Disabilities Education Act (IDEA) can lead to costly litigation and /or unexpected expenses.
Rise in Students With Anxiety and Depression
An estimated 17.1 million children in the United States have or have had a psychiatric disorder, according to the Child Mind Institute's 2016 Children's Mental Health Report. Half of all psychiatric illness occurs before the age of 14, and 75 percent by the age of 24. The most common psychiatric disorders in childhood are anxiety disorders, ADD/HD and disruptive behavior, depression and bipolar disorders, and eating disorders.
Depression and anxiety are particularly noted to be on the rise, especially among middle school and high school students. Not surprisingly, in a recently published study that surveyed over one million U.S. teens, it was found that as the involvement with social media by adolescents increases, the level of unhappiness increased and self-esteem dropped, often leading to social phobia, social anxiety, and depression.
Emotional Disturbance Under IDEA
The IDEA provides federal grants to states so that they may in turn provide disabled children with "a free appropriate public education" in the least restrictive, appropriate environment. Under the IDEA, depression and anxiety can both qualify as a disability. The IDEA defines emotional disturbance as:
a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance: (A) An inability to learn that cannot be explained by intellectual, sensory, or health factors. (B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers, (C) Inappropriate types of behavior or feelings under normal circumstances. (D) A general pervasive mood of unhappiness or depression. (E) A tendency to develop physical symptoms or fears associated with personal or school problems.
More than 354,000 children with emotional / psychiatric issues received services from their public school to address their individual needs related to emotional disturbance in the 2013-2014 school year, according to the U.S. Department of Education. This number continues to grow each school year.
Child Find Obligations under IDEA
The IDEA includes a "Child Find" mandate, which requires public education agencies to adopt policies and procedures that ensure that:
All children with disabilities residing in the State, including children who are homeless or wards of the state and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located and evaluated and a practical method is developed and implemented to determine which children are currently receiving needed special education and related services.
The Child Find duty extends to all children suspected of having a disability. Parents need not raise the issue themselves. Rather, the duty is triggered when the local education agency (LEA) has reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability. Excessive absenteeism, sudden changes in social connections with peers, drop in grades, can all be signs that intervention by the school is warranted. In New Jersey, a student's social and emotional issues are deemed intertwined with educational responsibilities. Therefore, the district is deemed to have the obligation to identify, evaluate and determine if there is eligibility under IDEA and whether services under the special education umbrella are warranted. When a student stops attending school, the courts view this as having an impact upon the delivery of educational services for which the school district may be responsible.
Addressing the Needs of Students with Emotional Disturbances
As highlighted above, it is not uncommon for the first notice to the school district of the severity of the disabling condition to be a notice by the parents of placement outside of the district. However, even a unilateral placement in a therapeutic setting or an out-of-state program does not divest a school district of its IDEA obligations to a student who remains officially registered in a district school and a resident of New Jersey. This obligation may exist despite the fact that the student may be not only be cognitively average or above, but also achieving at or above grade level across all academic areas.
In Regional School District No. 9 v. M.M., a federal court addressed the needs of a child with a serious emotional disturbance who was enrolled in various private schools, therapeutic boarding schools, and was hospitalized for psychiatric issues. While the school district argued that the child was not its responsibility due to the out-of-state placement, the court held that IDEA obligations exist whether or not the student attends public school and ultimately ordered tuition reimbursement for the student's attendance at a wilderness school and a therapeutic boarding school.
In addition to providing special education, IDEA also mandates that school districts provide certain "related services," which include but are not limited to psychological services; physical and occupational therapy; and therapeutic recreation. For students with depression and anxiety, obligations include planning and managing a program of psychological services, including psychological counseling for children and parents.
The counseling that is available in school districts often does not provide the level of care that is needed to stabilize the student. However, the legal obligation to continue to offer and provide both academic and emotional supports continues to rest upon the district. Where medical/psychiatric care is necessary, it is important for the school district to immediately work collaboratively with the parent and their legal representative if they have one to encourage access to health insurance and other resources that are available only to the parent.
For New Jersey school districts, the increase in anxiety and depression in adolescents and teens is an issue that deserves attention. With respect to your special education obligations, the failure to have policies, procedures and programs can lead to costly litigation. To learn more, we encourage you to contact a member of the Scarinci Hollenbeck Special Education Practice Group.
This article was originally publish in the New Jersey Association of Pupil Services Administrators Winter 2018 Newsletter which can be downloaded here.