“Obligations of Schools to Meet the Medical and Psychiatric Needs of Students”
By Dean M. Beer, Esquire
Two recent decisions in the field of special education can be of importance to a significant number of personal injury attorneys who represent children whose disabilities affect their educational programs. These decisions involve medical or psychiatric considerations which many children with disabilities frequently face.
The first decision is an Opinion Letter from the Office of Civil Rights of the United States Department of Education. In the case of In re: Anacortes School District, (OCR Opinion Letter 2009), a child with an Individualized Education Plan (IEP) for a specific learning disability began to miss an extensive amount of school due to medical issues. Despite absenteeism related to medical considerations, the student’s IEP did not address her medical needs, and when these medical needs changed and her absenteeism increased, the District failed to reevaluate the student or to modify the IEP to meet the student’s changing educational needs which resulted from the new medical issues.
Because many school-age children who are injured in accidents often miss a great deal of school, the Anacortes decision is important because it addresses the obligation to evaluate the child’s situation in light of his/her complete needs – including medical – and to modify the student’s program to meet those needs.
The District in Anacortes took steps which are frequently but improperly made by school districts for children with medical or mental health issues – the District asked the parent to disenroll the child, “accommodated” the child only for a learning disability, provided minimal in-home instruction and a modified schedule, contacted a child protective service agency, conducted no reevaluation of the student in light of the changing health needs, and eventually caused the child to leave the school district to enroll in a cyber charter school. The Office of Civil Rights clearly and unequivocally found these actions to violate both Section 504 and the ADA; notably, because OCR does not have jurisdiction to investigate claims under the Individuals with Disabilities Education Act (IDEA), no finding was made with regard to the more comprehensive protections for children under IDEA.
The second case involved a child with major emotional and behavioral issues. It is important to note that adolescents who suffer serious head injuries including traumatic brain injury often develop serious emotional problems which become a critical part of the personal injury action. In Regional School District No. 9 v. M.M., 2009 U.S. Dist. LEXIS 71032 (D.C. Conn. 2009), the court addressed the needs of a child with a serious emotional disturbance who was enrolled in various private schools, therapeutic boarding schools, and experienced psychiatric hospitalizations. The M.M. case involved both tuition reimbursement at a wilderness school and a therapeutic boarding school each of which was ordered by the court together with compensatory education.
In M.M., the student was placed in an out-of-state therapeutic wilderness program and a therapeutic boarding school after notice to the School District of the student’s significant emotional/psychiatric needs. The child’s only contact with the public school was taking some final exams sent from a prior private placement from which the student had been discharged. The School District did not evaluate the child when the student was available while in-state program or at a nearby out-of-state school, and the District simply informed the family that the child would be evaluated upon a return to the State of Connecticut. Although the parents offered to pay School District’s costs in conducting an out-of-state evaluation, the School District refused. The School District claimed that the child was not its responsibility due to the out-of-state placement.
In awarding both tuition reimbursement to a therapeutic wilderness camp and a therapeutic boarding school, as well as compensatory education, the court relied upon a number of critical aspects of IDEA. For example, the court emphasized that the School District’s obligation to conduct a special education evaluation involves all children who reside within a school district, and includes children placed in out-of-state programs. The court also emphasized that school districts must evaluate every child who is suspected of a disability, and that clear proof of the disability need not exist prior to an evaluation occurring. The emotional and psychiatric needs of the student in these circumstances were held to be more than sufficient notice to the School District of its obligation to evaluate the child. The court specifically held that the “diagnosis of depression, [the student’s] use of medication, and [the student’s] psychiatric hospitalization that prevented her from commencing classes at” the public school “is sufficient to raise a suspicion that [the child] may have suffered from an emotional disturbance”. Interestingly, the court also noted that “the Child Find requirement is an affirmative obligation and a parent is not required to request that a school district identify and evaluate a child”.
It is important that parents look to school districts or charter schools to meet the complete educational needs of children who have medical or psychiatric issues. Personal injury counsel should view the school’s special education offerings with a critical eye, and not assume that a school district will necessarily provide all services to which a child is entitled. Too often, budgetary or administrative considerations cause schools to shortchange students and allow significant needs to be unmet. Effective advocacy by counsel and the family can ensure that the child receives the programming necessary to meet the child’s complete needs, which can include private programs to address emotional needs.
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