MA Survey Finds Students With Emotional Needs Increasing

The Massachusetts Youth Health Survey (YHS), provided to students in grades 6-12, is conducted by the Massachusetts Department of Public Health in collaboration with the Massachusetts Department of Elementary and Secondary Education in randomly selected public middle and high schools biannually. DESE and DPH have just released the most recent statistics (available here), from a survey conducted in 2015, which shows an overall increase in students reporting emotional needs.

At a recent Massachusetts Continuing Legal Education (MCLE) conference, I presented about the importance of public school districts supporting students with emotional needs and authored an article on the subject. During the presentation, I discussed the 2013 YHS statistics – the most up to date statistics available at the time – and that nonprofits and special education attorneys have seen an increase over the years in calls about students who are not receiving appropriate services in school. Attorneys on both sides of special education disputes, educational experts, and advocates will not be surprised to learn about the increasing number of students reporting emotional needs in the 2015 statistics.

The 2015 YHS data shows an increase in high school students who reported feeling “sad or hopeless.” In 2013, 23.8% of high school students surveyed reported feeling “so sad or depressed daily for at least two weeks during the previous year that they discontinued usual activities.” In 2015, the percentage increased to 27.4% – the highest percentage reported since 2003.

In 2013, 12% of high school students surveyed reported that they “seriously considered attempting suicide” during the 12 months before the survey. In 2015, that percentage increased to 14.9% – also, the highest percentage reported since 2003.

Statistics also show an increase in the number of high school students who “made a plan about how they would attempt suicide” and those that attempted suicide.

As I wrote in the article for MCLE, entitled A Student’s Right to Emotional Progress:

The legal requirement for public school districts to provide appropriate services to students with emotional needs is well settled in Massachusetts. However, ‘what is old is new again’ as legislators, policy makers, hearing officers, and advocates continue to remind school districts of this important obligation. 

In recent years, research about the significant impact of emotional well-being on both immediate and long-term learning has gained traction in Massachusetts, influencing legislative and policy reform. Data suggests that this momentum might also be fostered by the volume of calls and complaints by families whose children with emotional challenges are not well supported by their local school districts …

The mandate to evaluate and provide appropriate services to students who have emotional needs is clear, and the importance of doing so in a timely and effective way is critical.

Click below to download the full text of my MCLE article.

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IEP Protections and Autism

The Autism IEP Act, championed by Massachusetts Advocates for Children, took effect in July 2006, amending M.G.L c. 71B § 3. Fast approaching its 10-Year anniversary, the law provides critical protections for students on the Autism spectrum and has had a significant impact on how school districts meet the needs of students.

The law requires that an Individualized Education Program (“IEP”) Team consider and specifically address the full range of a student’s complex communication, social, behavioral, and academic needs resulting from Autism Spectrum Disorder (ASD) to help ensure the provision of appropriate supports and services.

Following the passage of The Autism IEP Act, the Massachusetts Department of Elementary and Secondary Education issued an Advisory to school districts instructing that “[i]mpairment in communication is one of the defining characteristics of ASD; therefore communication skill development should be addressed as an essential piece of the student’s IEP.” Further, “[p]rogress in social skill development is a likely focus within the IEP of every student with ASD.”

Massachusetts Bureau of Special Education Appeals (BSEA) hearing officers have highlighted the importance and power of the protections. In Re: Amherst-Pelham Regional School District – BSEA # 12-1264 provides a helpful roadmap and analysis of the law. In Amherst, the parents of a twenty-one-year-old man challenged the appropriateness of their school district’s program and sought a private residential school placement for their son. Applying the content of the Autism IEP Act to the facts of the case, the hearing officer found that the district had failed to address the student’s communication and social skill needs, as required, and, in turn, failed to provide a Free Appropriate Public Education (FAPE).

The hearing officer wrote, “Social skill development is also a central area of focus for Student, as it is generally for all students on the autism spectrum. As discussed above in the Legal Standards section, [The Autism IEP Act] requires Amherst to have an IEP for students on the autism spectrum to ‘specifically address the … the need to develop social interaction skills and proficiencies.’” Further, “..notwithstanding the critical importance of communication skills, as recognized for many years…Student has virtually no functional communication skills, with the result that he is not able to express his choices or preferences in a reliable manner with respect to the vast majority of routine decisions and life choices…”

Student v. Belmont Public Schools – BSEA # 13-05177, and In Re Uxbridge Public Schools – BSEA # 11-1115 discuss eligibility for students on the autism spectrum, following the passage of the Autism IEP Act. Importantly, in Belmont, the hearing officer highlighted that an IEP Team must consider and specifically address a student’s need resulting from autism, even if the school district disagrees with the diagnosis.

After quoting the entirety of the Autism IEP Act, the hearing officer wrote, “On cross examination it was clear that the Team did not discuss Student’s engagement in repetitive activities, stereotyped movements, resistance to environmental changes, and the impact of changes in daily routines, even though the Belmont service providers, evaluators and teachers testified as to observations of some form of manifestation of same, as discussed in the Facts section of this Decision… Belmont’s witnesses conceded that no meaningful discussion regarding the diagnosis of autism ensued because the Belmont Team did not see its manifestation.”

In Belmont, the hearing officer concluded: “the evidence is persuasive that Student has made progress, but said progress is not meaningful progress in his greatest areas of need: the social, emotional and behavioral realms.” Similarly, in Uxbridge, the hearing officer, relying on the language of the Autism IEP Act, concluded that the student had significant social and communication needs that could not be remediated within the context of a general education program.

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3 Steps to Understanding Stay-Put

When used correctly, stay-put provides a powerful and important protection for families who have children with disabilities. In short, stay-put prevents unilateral action by a school district when parents object to a change in their child’s educational program or placement.

The protection ensures consistency in a student’s program during a dispute – which is critical for many students with disabilities.

For example, a student is placed at a private special education school placement pursuant to an IEP, and a school district proposes to transition the student back to the local public school. A parent can reject the proposal, and the school district will need to continue to fund the private school placement while the dispute is ongoing.

1) Where?  In Massachusetts, the right to stay-put can be found at 603 CMR 28.08 (7), “during the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise.”

Under the IDEA, 20 U.S.C. § 1415(j), “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child…”

2) When? Parents can assert their stay-put right when a school district proposes to change a student’s placement, program (including extended school year services), or when a district finds that a student is longer eligible for special education services.

In Leominster Public Schools – BSEA # 12-7450, a hearing officer found that parents properly invoked their right to stay-put when a school district proposed to change a student’s summer program from a 165-hour program to a 108-hour program.

3) How? If a district is proposing something different than the program a student is currently receiving, the student’s parents can reject the proposed IEP in full or in part. Parents should also write a letter accompanying the IEP signature pages, explaining that they want the services or placement to remain the same, and are asserting their right to stay-put.

A district cannot change a student’s educational program or placement unless either: 1) the parents agree to the change; or 2) either the parents or the district files for a hearing at the BSEA, and a hearing officer orders a change. Note that in Massachusetts, parents can invoke their right to stay-put without filing for hearing, which might not be the case in other states.

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Why Emotional Progress Matters

The U.S. Department of Education (“DOE”) recently reminded school districts about the importance of evaluating and providing special education services to students considered “twice exceptional.” This group includes individuals who have a disability and are also intellectually gifted. Of note, the DOE expressed concern about supporting students with emotional disabilities.

According to the DOE’s memorandum:

“In spite of the guidance provided in [a previous letter], we continue to receive letters from those who work with children with disabilities with high cognition, particularly those with emotional disturbance or mental illness, expressing concern that some local educational agencies (LEA) are hesitant to conduct initial evaluations to determine eligibility for special education and related services for children with high cognition.”

In its letter, the DOE sternly advises school districts to evaluate students suspected of having a disability, including emotional disabilities, regardless of cognitive strengths.

Anecdotally, over the last few years, I have seen a significant increase in referrals and calls from families who have experienced this “hesita[tion] to conduct initial evaluations” first-hand. Often school districts rely on academic achievement (e.g., passing grades, MCAS) as evidence that a student does not require initial evaluation or services, even when the student is falling apart in all other domains.

School districts wait to evaluate, services are delayed, and often a student’s unaddressed social and emotional needs become increasingly significant. I have seen school districts attempt to shift and avoid responsibility, insisting that emotional disabilities are not a school district’s responsibility – even when a student is struggling to attend classes and is socially isolated. Time and time again, I have seen these delays result in self-harm and hospitalizations. Sometimes these delays prevent a student from learning in a less restrictive setting, and result in the need for a residential placement.

Last week, I had the privilege of presenting to families at The Massachusetts Resiliency Center about their special education due process rights. The Resiliency Center is an organization that provides resources to survivors of the Boston Marathon bombing. I was struck by the stories I heard about students who are not receiving support in school despite significant emotional needs.

The mandate to evaluate and provide services to students who have emotional needs is clear, and the importance of doing so in a timely way is critical.

 

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FAPE and the School Bus

The right to a Free Appropriate Public Education (FAPE) does not end at the school house doors.

Students who have disabilities have a right to transportation as a “related service” when it is necessary to benefit from special education. A school district is responsible for providing transportation to ensure a student receives all the special education services outlined in his or her Individualized Education Program (IEP).

In a recent Massachusetts Bureau of Special Education Appeals (BSEA) decision, a hearing officer made clear that the obligation of a school district to provide appropriate transportation should not be taken lightly.

In Vladimir & Acton-Boxborough Regional School District – BSEA # 15-03957, hearing officer Lindsay Byrne found that Acton-Boxborough had failed to act on numerous occasions, despite clear evidence that the transportation it was providing was problematic.

In the case, Acton-Boxborough was contracting with CASE Collaborative to provide transportation for a 16-year-old student to LABBB Collaborative. CASE refused to drive the student due to evolving safety concerns. On the bus, the student removed his clothing and struggled with reflux/vomiting.

In the decision, the hearing officer chastised the school district for its failure to act, “Acton-Boxborough did not reconvene the Team to discuss the new information it had received concerning Vladimir’s transportation requirements. Acton-Boxborough did not evaluate Vladimir or his transportation environment to determine whether developing a plan to address the behavioral concerns raised by CASE could avoid the diminishment of special education programming Vladimir was then experiencing. Acton-Boxborough did not address the Parent’s specific request to change the transportation plan set out in Vladimir’s 2014-2015 IEP from ‘regular’ to ‘special’. No explanation was offered for Acton-Boxborough’s inaction.”

The hearing officer decided that, “While reimbursing the Parent for some of the costs she incurred in taking up the school’s transportation responsibilities is a start, it does not meet Acton-Boxborough’s obligations to ensure seamless access to all of the special education services set out in Vladimir’s IEP.” The hearing officer also ordered that Acton-Boxborough complete a Functional Behavioral Assessment, update the student’s IEP to reflect that he needed special transportation, and convene the Team to develop a transportation plan.

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The Power of the Partial Rejection

An Individualized Education Program (IEP) is a legal document that guides the delivery of special education services and supports for a student. After a school district proposes an IEP, parents, who are members of their child’s special education Team, have an opportunity to respond.

A family can accept, reject, or reject an IEP in part. Whenever a dispute exists, I almost always advise to reject an IEP in part (a partial rejection).

When a family fully accepts an IEP, they are telling the school district that they agree wholeheartedly with its proposal. A full acceptance signifies that there is no disagreement. The Massachusetts Bureau of Special Education Appeals (BSEA) has consistently held that it will not consider disputes over past IEPs that were accepted in full. Hearing officers have said, “without a showing of lack of notice of parental options and due process rights, lack of meaningful parental participation in the development of the IEP, or any other procedural impropriety, the BSEA does not revisit accepted expired IEPs.” (Sudbury Public Schools – BSEA # 05-4726 and 05-4827)

On the other hand, a partial rejection makes clear that a family does not agree with the program a school district is proposing. A partial rejection also preserves the right to later seek compensatory services — services to make-up for the inappropriate program.

A partial rejection does not necessarily mean that a family is refusing special education services. By partially rejecting an IEP, and including a cover letter or email, a family can clarify that they are allowing a school district to implement its proposed program, but are rejecting the program to the extent that their child needs services beyond those proposed to make effective progress. This process informs a school district that there is a disagreement, but it should still provide services.

If parents have already accepted an IEP and have concerns about whether it is appropriate, they can revoke their acceptance at any time, and partially reject instead, by sending a letter or email to a school district.

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10 Red Flags in Special Education School Records

The best way for parents to determine whether their child is making effective progress is to rely on independent evaluators. In addition, there are red flags to look for within a student’s school records, including those found in Individualized Education Programs (IEP) and progress reports.

Below are ten examples of red flags that might indicate that a student is not making effective academic, social, and emotional progress.

  1. Goals and short-term objectives that repeat year after year.
  2. Goals and short-term objective that change without an indication that the student met the previous years’ goals.
  3. Goals and short-term objective that are not measurable. Note that in November, 2013, a law was passed that requires school districts to continue the current practice of including measurable short-term objectives and benchmarks in the IEPs of all students with disabilities. The Massachusetts special education law (Chapter 71B) was amended to include: “A child’s individualized education program, or IEP, as defined is 20 USC sec 1401 (14) shall include a statement of measurable annual goals, including academic and functional goals, and a description of benchmarks or short-term objectives.”
  4. Lack of measurable post-secondary goals (transition goals) based on a transition assessment for students 14 and older.
  5. Progress Reports that use amorphous/vague language.
  6. Progress Reports that specifically state that goals or short-term objectives are not met.
  7. Drastic changes in services year after year.
  8. Reduction of services with a change in school.
  9. Failing grades or MCAS scores.
  10. Language in evaluations or IEPs related to the student’s lack of consistency, including “varying progress,” “day to day,” “sometimes,” “with varying degrees of prompts,” “depending on mood/behavior,” etc.