“School Districts and the Mental Health System: Who’s Responsible for Providing FAPE?”

By Heather M. Hulse, JD, MA, MS

Many students identified with special education needs pursuant to the Individuals with Disabilities Education Act (“IDEA”) have been diagnosed with mental health disorders.  Consequently, many special education students are also receiving services from mental health agencies.  Specifically, special education students commonly receive Therapeutic Staff Support (“TSS”), Behavioral Specialist Consultation (“BSC”), Mobile Therapy (“MT”), and Intensive Case Management (“ICM”) services. Frequently, these services are provided in the school setting.

School districts may permit mental health service providers into schools to render various services to special education students.  These mental health workers often provide services that seek to address the student’s social, emotional, and behavioral needs.  Nonetheless, it is the child’s school district that is required under the IDEA to provide a Free Appropriate Public Education (“FAPE”).  More specifically, the child’s school district must develop and implement an appropriate educational program in the Least Restrictive Environment.

When a special education student is also receiving mental health services, there are several significant implications that school districts must consider.  First, school districts are required to address all of the student’s special education needs through an appropriate Individualized Education Plan (“IEP”).  The student’s academic, social, emotional, behavioral, developmental, and physical needs must be addressed in the child’s IEP.  Indeed, the IDEA specifically requires school districts to provide “…supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes…school health services and school nurse services, social work services in schools, and parent counseling and training.”  It is important to further note that the IDEA provides that parent counseling and training includes “helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s IEP…”  Moreover, social work services in schools includes “group and individual counseling with the child and family” and “working in partnership with the parents and others on those problems in a child’s living situation (home, school, and community) that affect the child’s adjustment in school.”  Thus, the student’s IEP must include all of the related services necessary to afford meaningful educational progress, which includes academic, social, emotional, behavioral, developmental, and physical progress.

School districts are required to implement the student’s IEP in the Least Restrictive Environment consistent with the child’s complete educational needs.  This means that special education students must be educated with typically-developing peers to the maximum extent appropriate.  Special classes, separate schooling, or other removal of special education students from the regular education environment may occur only if the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.  The Third Circuit Court of Appeals has specified that school districts must consider the full range of supplementary aids and services that can be provided in the regular education setting, and must also make efforts to modify the regular education program to accommodate special education students. Oberti v. Board of Education, 995 F.2d 1204 (3d Cir. 1993).  Thus, referring a special education student to a more restrictive placement, such as a full-time Emotional Support classroom or a partial hospitalization program, should be considered only after the full range of appropriate supplementary aids and services have been provided and have not been effective in promoting meaningful educational progress.  This can often seem conflicting to recommendations from a mental health agency or provider.  Indeed, it is not uncommon for a mental health agency or provider to recommend a more restrictive placement.  However, mental health agencies and providers are not obligated to make recommendations for a FAPE consistent with the IDEA. School districts, however, are legally bound to provide an appropriate educational program in the Least Restrictive Environment.

Finally, since it is the school district’s responsibility to provide special education students with a FAPE, it is the school district that is liable for the failure to provide FAPE.  This is true even where the school district chooses to allow mental health agencies and providers to render related services to special education students.  School districts must ensure that services provided to special education students are appropriate, research-based, implemented with fidelity, and rendered by trained and qualified professionals.