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Today is National Children’s Mental Health Awareness Day

May 9th, 2013

By Marion Walsh, Esq.

Today is National Children’s Mental Health Awareness Day.   Statistics show evidence of increasing mental health issues in children.   Chances are everyone knows a child struggling with mental health issues. According to statistics from the Surgeon General, approximately one in five children in the U.S. will experience a mental, emotional, or behavioral disorder between kindergarten and graduation. Failure to address children’s mental health needs is linked to poor academic performance, behavior problems, and school violence, dropping out, substance abuse, special education referral, suicide, and criminal activity.

Despite the high frequency and children’s clear needs for help, too many myths and unspoken stigmas plague families who have children struggling with mental health issues.  Clearly, a public health approach is necessary to address disorders and promote mental health in children.    Parents and school districts must forge partnerships to address this unfolding crisis.  Indeed, along with help from medical providers, they are the only ones who can.  However, funding cuts and tax caps in school districts have made the problems harder to address.

Signs of Mental Health Problems in Children:

The Mayo Clinic and other professionals list the following signs of mental illness in children:

· Mood changes: Look for feelings of sadness or withdrawal that last at least two weeks or severe mood swings that cause problems in relationships at home or school.  Some students simply withdraw.  School avoidance or physical symptoms without physical causes can also be a sign of mental distress.

· Intense feelings: Be aware of feelings of overwhelming fear for no reason — sometimes with a racing heart or fast breathing — or worries or fears intense enough to interfere with daily activities.

· Behavior changes: Look for drastic changes in behavior or personality, as well as dangerous or out-of-control behavior. Fighting frequently or expressing a desire to hurt others also are warning signs.

· Difficulty concentrating: Look for signs of trouble focusing or sitting still, both of which might lead to poor performance in school.

· Unexplained weight loss: A sudden loss of appetite, frequent vomiting or use of laxatives might indicate an eating disorder.

· Physical harm: Sometimes a mental health condition leads to suicidal thoughts or actual attempts at self-harm or suicide.

· Substance abuse: Some children use drugs or alcohol to try to cope with their feelings.

Why the Prevalence of Mental Health Problems in Children?

On the one hand, our world and schools are much safer and enlightened than decades ago.  Most states have outlawed corporal punishment; laws require services and accommodations for children with disabilities; parents monitor teachers’ abuse and vice versa; therapists are around every corner.    Clearly we are diagnosing disorders more precisely.   However, our society is more stressed, anxious and pressured.   Many parents must work long hours and do not see problems until they become crises.  The Internet has unleashed cruelty and crudeness of a previously unimagined scope.   Single parent families add risk factors.  In general, children may receive little training in ethics at home nor at school.  The accessibility of assault rifles shocks the conscience and makes apocalyptic violence a potential threat.

Legal Basics:

Parental Responsibilities:

Obviously, parents have a legal duty to care for their children and family represents the first source of support for a child’s mental health.  However, the increased stress and fracturing of life today makes it imperative that schools partner with parents to help children.   Parents must take a proactive role in helping their school district understand their child’s needs and also finding private help.   Yet parents, while closest to their children, can be in denial of serious problems.  A social partnership is necessary.

School District Responsibilities:

As noted by the National Association of School Psychologists, schools represent excellent places to promote good mental health.   Children spend a significant amount of time in school, and educators have the opportunity to observe and address their needs. Doing so effectively requires developing the capacity both to reinforce children’s natural mental health strengths and to identify and respond to children suffering mental health disorders.

Not every child with mental health issues has a disability but if a condition affects educational performance, the student should be referred for special education and related services.    Pursuant to the Individuals with Disabilities Education Improvement Act (IDEA), 20 USC §1400, et. seq. and parallel state law, school districts have a responsibility to identify and provide appropriate services to students with disabilities, including those who have an emotional disturbance or disability. As the Supreme Court noted in Honig v. Doe in 1988, “Among the most poorly served of disabled students were emotionally disturbed children: Congressional statistics revealed that for the school year immediately preceding passage of the Act, the educational needs of 82 percent of all children with emotional disabilities went unmet. See S. Rep. No. 94-168, p. 8 (1975).”

Under the 2006 IDEA Part B regulations, 34 CFR §300.8 (c)(4)(i), “emotional disturbance ” means 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.

Steps School Districts Can Take:

School districts should develop a task force and work with community members to create systems and policies to proactively address student mental health needs.

1. Develop Effective Child Find and Special Education Programs with Effective Evaluations

2. Provide Effective Monitoring and Building Level Interventions

3. Train to Spot Signs of Mental Illness in Children and to Take Affirmative Steps

4. Develop Effective Anti-Bullying Programs (Bullying exemplifies and causes mental health problems).

5. Provide Parent Education and Parent Counseling and Training

6. Cultivate Partnerships with Outside Agencies

What Does Not Work

The Blame Game:

Schools often expect parents to have private mental health services to address school behavior.  Parents without resources cannot pay for private services and the community based resources have very long waiting lists.  Parents who can afford the services may not be able to address the behavior that is based in school or caused by the school environment. Often the parents get blamed for not “dealing” with the problem.  Parents also blame the school personnel for not addressing the problem.  The blame game can go in circles.  It only causes more stress to families and drains resources from schools which are facing shrinking budgets.

Review of Federal Litigation:

In the Second Circuit, which has more education law litigation than any other jurisdiction, litigation over children with emotional disturbances exceeds litigation over other types of disabilities.   Most litigation centers around whether schools provide a free appropriate public education to children under the IDEA, which is the most powerful statute available to students and families in ensuring appropriate services from school districts.   Much of IDEA litigation in the Second Circuit centers around tuition reimbursement after parents unilaterally remove their child from public school.

No matter which side is ultimately successful, case law only demonstrates failed attempts at addressing mental health issues. For example, in Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).   In this case, the student exhibited symptoms of anxiety, depression and social phobia, beginning in fifth grade and lasting for the next seven years throughout high school.  The parents finally removed the student from public school and initiated litigation to seek reimbursement for tuition at a supportive private school. The Southern District found that the District denied the student a free appropriate public education and awarded tuition reimbursement. But, the Second Circuit overturned the reimbursement award and ruled that the private school did not provide individually tailored services for the student’s unique needs.   This decision came five years after the litigation began. See also Eschenasy v. New York City Department of Education, 604 F. Supp. 2d 639 (S.D.N.Y. 20008). (Court found that student who cut class, took drugs, stole and engaged in hair pulling, cut herself, had attempted suicide and was diagnosed with a mood disorder and borderline personality features had an emotional disturbance under the IDEA and that the school district had denied her a FAPE and had to pay the parents tuition reimbursement as private school was appropriate).

Conclusion

Every parent and school professional must be aware of the impending mental health crisis confronting our youth and take steps to understand and advocate.  Parents and schools must act together to protect children become educated on risk factors and symptoms of mental health issues.

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