Michael Griffin, JD, LCSW
Staff Attorney
The Therapist 
(November/December 2007)

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When beginning the treatment of a child, a therapist conducts an assessment of the child’s past and present behavior. Gathering information about the child’s history provides the therapist with important data that may be used in treatment planning. During the initial assessment of the child, the therapist may discover that his or her patient has a special need, such as a need for medical care or for the evaluation of a suspected disability. Therefore, in addition to providing psychotherapy to the child, a therapist may elect to facilitate his or her patient’s access to an important adjunctive resource¹ during the course of treatment.

Because many children have disabilities, which interfere with their ability to succeed in their educational programs,² the resources that are provided by Special Education,³ including mental health assessment and treatment, should be of particular interest to child therapists. Yet, the complexity of the Special Education system can be bewildering to the uninitiated and therapists are unlikely to consider resources with which they are unfamiliar. This article intends to demystify Special Education and to provide therapists with fundamental information regarding eligibility and access to the system. The article also discusses key Federal and State laws, including the Individuals with Disabilities Education Act,⁴ and the availability of mental health services for Special Education students in California consequent to the passage of AB 2726.⁵

Qualifying for Special Education The Individuals with Disabilities Education Act (IDEA)
The Special Education system is governed by Federal and State laws and consists of specially designed educational instruction and related resources that are available to children with exceptional educational needs.⁶

The Individuals with Disabilities Education Act (IDEA)⁷ requires public school systems to provide children with disabilities free, appropriate public education (FAPE). The IDEA entitles children with disabilities who are between the ages of three and twentyone to an assessment of their suspected disabilities and to the particular services that are considered necessary for the child to benefit from a FAPE.⁸

When a child has a disability that interferes with his or her ability to make appropriate educational progress, he or she may be eligible for Special Education services.⁹ Under the IDEA, a “child with a disability” means:^{10 11}

A child with mental retardation;¹² hearing impairment;¹³ speech or language impairments; ¹⁴ visual impairment;¹⁵ serious emotional disturbance;¹⁶ orthopedic impairment; ¹⁷ autism;¹⁸ traumatic brain injury;¹⁹ other health impairment;²⁰ or specific learning disability.²¹

According to the IDEA, all states and local governmental entities must ensure that disabled students are afforded (at a minimum) the rights and benefits that they are entitled to under federal law.²²

California Law
In California, an “individual with an exceptional need”²³ up to twenty-one years of age may qualify for Special Education if, as a consequence of one of the following qualifying disabilities, he or she requires instruction, services, or both, which cannot be provided with modification of the regular school program:²⁴

A hearing impairment that impairs speech and language processing;²⁵

A concomitant hearing and visual impairment, the combination of which causes severe communication, developmental, and educational problems;²⁶

A qualifying language or speech disorder;²⁷

A visual impairment, which, even with correction, adversely affects educational performance;
²⁸

A severe orthopedic impairment, which adversely affects educational performance;²⁹

Limited strength, vitality or alertness, due to chronic or acute health problems, which adversely affect educational performance;³⁰

Autism/autistic-like behaviors; ³¹

Significantly below average general intellectual functioning along with deficits in adaptive behavior, which adversely affect educational performance;³²

A disorder in one or more of the basic psychological processes, including attention, visual processing, auditory processing, sensory-motor skills, and cognitive abilities that are involved in understanding or using spoken or written language, and a severe discrepancy between intellectual ability and achievement;³³

A serious emotional disturbance,³⁴ which adversely affects educational performance, and which is manifested over a long period of time by one or more of the following characteristics:

An inability to learn, which cannot be explained by intellectual, sensory, or health factors; an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; inappropriate types of behavior or feelings under normal circumstances, which are exhibited in several situations; a general pervasive mood of unhappiness or depression; a tendency to develop physical symptoms or fears associated with personal or school problems.³⁵

The Assessment Process
In order to become eligible to receive Special Education services, a child must first undergo an individual assessment of his or her educational needs.³⁶ The child’s parent or guardian, teacher, or any “other service provider” of the child may initiate an assessment of the child’s suspected disability by submitting a written request to the school.³⁷ A proposed, written assessment plan must be developed by the school and provided to the child’s parent or guardian within fifteen calendar days of the request for an assessment.³⁸ Upon receipt of the assessment plan, the child’s parent or guardian then has fifteen calendar days to decide whether or not to consent to the proposed assessment.^{39, 40} Following its completion, school personnel must prepare a written report of the results of the assessment, including the basis for their determination of the child’s eligibility for Special Education and related services.⁴¹

Although a child may be referred for an assessment of a specific suspected disability, federal and California law both require that he or she be assessed in all areas that are related to the suspected disability.⁴² That means that a child’s assessment might include, if appropriate, an evaluation of his or her health and development, vision, hearing, motor abilities, language and communication, general intelligence, academic performance, career and vocational abilities, and interests and social and emotional condition.⁴³.

The Individualized Education Program (IE P)

One of the basic components of Special Education is the Individualized Education Program, which is commonly referred to as an IEP.⁴⁴ An IEP is a detailed written description of a Special Education student’s educational plan. According to both Federal and California law, an IEP must include:⁴⁵

A statement of the child’s present levels of academic achievement and functional performance, including the manner in which the child’s disability affects his or her involvement and progress in the general education curriculum;⁴⁶

Measurable, annual academic and functional goals, designed to address the child’s educational needs that result from his or her disability;
⁴⁷

A description of the manner in which the child’s educational progress will be measured;⁴⁸

A statement of the Special Education and related services that are to be provided to the child and the program modifications or supports for school personnel that will be provided;⁴⁹

An explanation of the extent, if any, to which the child will not participate with nondisabled pupils in a regular education classroom;⁵⁰ A statement of any individual, appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child;⁵¹

The anticipated frequency, location and duration of classroom modifications and services.⁵²

The IEP Team
The IEP team is the primary source of decision- making concerning a child’s Special Education program. The IEP team is vested with the authority to determine whether or not the child’s assessment results demonstrate that the degree of his or her impairment(s) requires Special Education services.⁵³ The IEP team is required to meet within sixty days of receiving parental consent for the child’s assessment.⁵⁴

According to both Federal and California law, the composition of an IEP team must include:⁵⁵

One or both of the child’s parents, a representative selected by a parent, or both;⁵⁶

At least one regular education teacher of the child, if the child is participating in the regular education environment;⁵⁷

At least one Special Education teacher of the child;⁵⁸

A representative of the local educational agency(“LEA”). ⁵⁹

An individual who can interpret the instructional implications of any assessment results;⁶⁰

At the discretion of the parent, guardian or the LEA, other individuals who have knowledge or expertise regarding the child;⁶¹

If possible, the child himself/herself.62

Special Education Provides Access to Necessary Related Services
When a child qualifies for Special Education services, he or she is provided with access to “specially designed instruction and services.” ⁶³ It is important to note that a student who qualifies for Special Education services for a particular disability may also qualify for access to necessary related services (such as psychotherapy) if such services are considered necessary for him or her to benefit from Special Education.^{64, 65}

Under Federal law, the term “related services” means transportation, and such developmental, corrective, and other supportive services, including speech pathology and audiology services, interpreting services, psychological and counseling services, physical and occupational therapy, therapeutic recreation, social work services, school nurse services, rehabilitation counseling and medical services, as described in the individualized education program of the child.66

Mental Health Services for Special Education Students in California pursuant to AB 3632 and AB 2726.
In the case entitled Christopher T. v. San Francisco United School District, the Federal District Court ruled that the San Francisco Unified School District failed to assess and place disabled children in residential placement when necessary.67 The Court determined that Special Education students were entitled to receive all necessary services that are associated with providing their education and ordered that the child’s school district was financially responsible for the cost of providing such services. Following the Christopher T. v. San Francisco United School District case, California’s school districts experienced significant financial pressure in meeting the Special Educational needs of students. In 1984, pursuant to AB 3632, the California legislature elected to transfer the responsibility for providing mental health services for seriously emotionally disturbed (SED) children from school districts to county mental health departments.68 In 1996, California lawmakers extended the basic provisions of AB 3632 via the passage of AB 2726.69 Without a doubt, AB 3632 and its successor, AB 2726 have had a substantial impact on the provision of mental health services to California’s Special Education students.

Key elements of AB 2726
Inter-agency responsibility for the provision of mental health services.
AB 2726 provides procedures for the referral of children to county mental health departments and defines the responsibilities of those departments.70 It also provides that the State Department of Mental Health, or any community mental health service that is designated by the State Department of Mental Health, is responsible for the provision of mental health services, when such services are required in a child’s IEP.71

Shared responsibility for mental health assessments
An LEA, IEP team, or a parent may initiate a referral for an assessment of the social/emotional status of a child.72 Based on the results of the assessment, an IEP team may then refer him or her to a community mental health service.73

A California student may qualify for mental health services under AB 2726 if his or her functioning, including cognitive functioning, is at a level sufficient to enable him or her to benefit from mental health services.74 The student must also demonstrate significant emotional or behavioral characteristics that impede him or her from benefiting from educational services.75 If, on the basis of an assessment, the student’s emotional/behavioral problems are determined to be “social maladjustments,” “temporary adjustment problems,” or problems that can be “resolved with short-term counseling,”76 he or she will not qualify for mental health services under this area of law.77

Education in the “Least Restrictive Environment”
The IDEA and California law both require that students be provided with educational and related services in the least restrictive environment. 78 What that means is that a local educational agency (LEA) is not required to place a pupil in a more restrictive educational environment (such as a residential treatment setting) in order for the pupil to receive the mental health services that are specified in his or her individualized education program if the mental health services can be appropriately provided to the student while he or she participates in a less-restrictive educational setting (such as the existing school or a day program). 79

Special Education and Residential Placement California Law
AB 2726 requires California counties to assume financial and programmatic responsibility for residential placement for eligible Special Education students, regardless of where their placement was located.80 Realistically however, AB 2726 did not open the door to unlimited funds. In the language of AB 2726, the California legislature underscored the importance of providing cost-effective treatment, within the least restrictive treatment environment:

“A local education agency shall not be required to place a pupil in a more restrictive educational environment in order for the pupil to receive the mental health services specified in the pupil’s individualized education program if the mental health services can be appropriately provided in a less restrictive setting. It is the intent of the Legislature that the local education agency and the community mental health service vigorously attempt to develop a mutually satisfactory placement that is acceptable to the parent and addresses the pupil’s educational and mental health treatment needs in a manner that is cost-effective for both public agencies….” 81

Federal law
Although it is certainly possible for parents to obtain residential treatment services for their children, the extreme cost of such services is a relevant factor. Considering the federal/ state mandate of “least restrictive environment” and the need to provide “cost-effective” treatment, it isn’t hard to imagine that many Counties are going to impose rigorous scrutiny on any request for placement. Of course, a child’s parents are free to assert that their child should be provided with access to residential treatment, based upon the IDEA. To be successful, they would be required to demonstrate that residential services are actually necessary for their child to benefit from a free, appropriate, public education. In order to obtain reimbursement for the cost of residential treatment services, parents must satisfy a two-prong test that was established in the case entitled, Burlington v. Department of Education.82 First, it must be shown that the child’s IEP is not “reasonably calculated to enable the child to receive educational benefits.” 83 Second, it must be shown that the proposed residential placement is appropriate for the child.

In general, it is difficult for parents to obtain residential placement for their child under the IDEA because the first prong of the test established in Burlington (also known as the Rowley standard) is quite easy for school districts to meet. And, because the IDEA and California law both require that children with disabilities be educated in the least restrictive environment, a student who would be likely to make educational progress in a setting that is less restrictive than residential treatment, is not entitled to a residential placement even if the residential setting would enable the child to be successful in his or her educational program.

Whether residential treatment is appropriate for a given child is a complex question that depends on the facts of the individual case. In any event, residential treatment is only one of many resources and services that are available via the Special Education system. In spite of its numerous rules, regulations and overall bureaucratic complexity, Special Education is an accessible, multifaceted system of resources for many children. A child therapist who is familiar with the Special Education system is more likely to consider the resources that are potentially available to his or her patient and to bring that information to the attention of the child's parents.

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Michael Griffin, J.D., is a Staff Attorney at CAMFT. Michael is available to answer members’ questions regarding business, legal, and ethical issues.

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References:

1 The term “resource” in this context, broadly refers to any source of assistance to the patient, including medical, remedial, instructive, supportive or legal services, etc. “Adjunctive resource” simply means, in addition to the mental health services that are being provided.
2 In California, there are approximately 680,000 students enrolled in Special Education. See, Calif. Dep’t of Education Enrollment Data, at: http://www.cde.ca.gov/sp/se/ds/
3 Calif. Educ. Code, § 56031 “Special Education” means specially designed instruction, at no cost to the parent, to meet the unique needs of individuals with exceptional needs, whose educational needs cannot be met with modification of the regular instruction program, and related services, at no cost to the parent, that may be needed to assist these individuals to benefit from specially designed instruction.” 420 U.S.C. § 1400
5 Calif. Gov’t Code, § 7576 (Codifies the provisions of AB 2726)
6 Calif. Educ. Code, § 56031
7 20 U.S.C. § 1400; See also, Section 504, Rehabilitation Act of 1973; 20 U.S.C. § 794
8 20 U.S.C. §1400
9 20 U.S.C.§ 1400; Calif. Educ. Code, §56031
10 20 U.S.C. § 1400
11 Id. Regarding Special Education terminology: The IDEA refers to an eligible student as “child with a disability;” California Education Code, §56026 refers to an eligible student as an“ individual with an exceptional need,” and Title 2, § 60010(q) of the California Code of Regulations uses the term “pupil with a disability.”
12 20 U.S.C. § 1401
13 Id.
14 20 U.S.C. § 1401
15 Id.
16 Id.
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.; Calif. Educ. Code, §56440 Federal law provides that, at the discretion of the state and local educational agency, “child with a disability” may also include three to nine year old children who are experiencing various developmental delays.
22 20 U.S.C. § 1400
23 Calif. Educ. Code, § 56026
24 Calif. Educ. Code, § 56026; 5 CCR. §3030
2 55 CCR § 3030
26 Id.
27 Id.
28 Id.
29 Id.
30 Id.
31 Id.
32 Id.
33 Calif. Educ. Code, § 56337; 5 CCR,§ 3030(j)
34 5 CCR,§ 3030
35 Id.
36 Calif. Educ. Code, § 56320
37 Calif. Educ. Code, § 56029
38 Calif. Educ. Code, § 56321(a)
39 Calif. Educ. Code, § 56043(a)(b)
40 Calif. Educ. Code, § 56021.1 Defines “parental consent.”
41 Calif. Educ. Code, § 56327
42 Calif. Educ. Code, § 56320(f ) Gov’t Code § 7572(a); 2 CCR, §6010
43 Calif. Educ. Code, § 56320
44 20 U.S.C. § 1414; calif. Educ. Code, § 56345
45 Id.
46 Id.
47 Id.
48 Id.
49 Id.
50 Id.
51 Id.
52 Id.
53 Calif. Educ. Code, §56341; 5 CCR § 3030
54 Calif. Educ. Code, §56043(c)
55 20 U.S.C. § 1414; Calif. Educ. Code, § 56341
56 Id.
57 Id.
58 Id.
59 Id. :LEA” means “Local education agency” a school district county office of education which provides Special Education and related services.
60 20 U.S.C. § 1414; Calif. Educ. Code, § 56341
61 Id.
62 Id.,
6 320 U.S.C. § 1401; 2 CCR , § 60010(h)
64 Id.
65 20 U.S.C. § 1401; 2 CCR § 60010(m) “Necessary to benefit from Special Education” means a service that assists the pupil with a disability in progressing toward the goals and objectives listed in the IEP.
66 20 U.S.C. § 1401
67 Christopher T. v. San Francisco United School District, 553 F. Supp. 1107 (U.S.D.C., N.D. Cal., 1982). In this case, the San Francisco Dept. of Social Services and San Francisco Juvenile Court Probation Dept. caused disabled children to be placed in residential placements based upon a requirement that the child was first made a ward of the Juvenile Court.
68 Calif. AB 3636 (1984)
69 Calif AB 3632 (1984); Calif. AB 2726 (1996)
70 Calif. AB 2726 (1996); Calif. Gov’t Code § 7576
71 Id.
72 Id.
73 Id.
74 Id.
75 Id.
76 Id.
77 Id.
78 20 U.S.C. §1400; AB 2726 (1996); Calif. Gov’t, Code §7576
79 Id.
80 AB 2726 (1996); Calif. Gov’t Code, § 7576 This also applies when the child’s placement is located out of state.
81 Calif. AB 2726 (1996)
82 Burlington School Committee v. Mass. Dep’t of Educ.,471 U.S. 359
83 Hendrick Hudson Dist. Bd. of Educ. v. Rowley,458 U.S.176(1982)