The Legality/Illegality of Mental Health Treatment for Students in the Merrimack School District

Marge Chiafery, Superintendent of Schools;

I appreciate your response that you have provided and appreciate the open dialogue about data collection and social, emotional, and behavioral programming (SEL) in the state of New Hampshire. After reading the regulations for FERPA, it appears that personally identifiable information (PII) collected at the local school district level in the state of New Hampshire (i4See Data Collection system) can be shared without parents knowing about it. Knowing that social, emotional and behavioral programming is being initiated in the state, I believe the sheer magnitude of sharing sensitive, personal, and private data brings the legal issues of privacy, safety, and security to the front of my concerns. I’m sure you would agree.

Although it appears that schools and the New Hampshire Department of Education tell parents and communities that the Family Education Rights and Privacy Act (FERPA), 20 U.S.C. §1232g, is a Federal Privacy law designed to protect the privacy of students’ educational records. Regrettably, regulations were changed without Congressional authority where data mining of our children is permitted for research and development without the knowledge and consent of the parents. I believe it is important that parents are informed about this loophole in the regulations. Protecting children and families should be of utmost importance particularly if children are being used as research subjects. When you stated in your letter, “We have been, and will continue to be methodical in our research and in the application of research into practice….” your comment sheds light on exactly what is happening in our classrooms…methodical research into practice.

Professional ethical protocols require informed consent when researching, assessing and treating subjects.  In this case, children would need their parents or guardians to consent. Ignoring these ethical boundaries would result in forfeiture of license in the private sector. (http://www.apa.org/ethics/code/ Section 9 Assessment).

IRB approval is contingent on having a protocol which includes the data will be stored and secured. Parents need to see how their child’s personal data has been secured and the protocol if the data are compromised. IRB also requires individuals with diminished autonomy be entitled to protection, and that individuals enter into research voluntarily with adequate information. Children do not have the capacity to make those decisions, therefore, ethically, parental consent would be required. (https://hso.research.uiowa.edu/summary-belmont-report Summary of the Belmont Report)

Referring to your comment about FERPA, this very issue must be discussed and protections provided to students knowing that FERPA was weakened allowing PII to be distributed to 3rd party vendors without the knowledge or consent of parents. Knowing  that private and sensitive information is collected on New Hampshire children through the pilots and experimental programs of SEL to see if the data-based programs and interventions “work,” it would be in the best interests of parents and citizens to know that this private information is being shared and used to develop and/or create mental health curriculum to change the values, attitudes, and dispositions of New Hampshire children.

At first glance, your return letter appears to lead one to think that no social, emotional, or behavioral/mental health research or data collection is being done in New Hampshire. But further inquiries have directed my attention to the fact that many SEL grants and research projects were not only performed in New Hampshire, but we were in fact a leader in the implementation of many SEL research projects. New Hampshire schools have redirected the purpose of school, and the primary focus is not on academics. I have noted that New Hampshire is an Innovation Lab Network State in the implementation and forward movement of Common Core affective/non-cognitive/non-academic standards in the country. Teacher training in SEL is a vital portion of this movement. With this in mind I have several more questions that I will need clarified since your reported information conflicts with my research.

According to New Hampshire ESSA application and the grant from IES to expand our state longitudinal data system, New Hampshire is very much involved in collecting personally identifiable data with the merging of all data from all departments. The “Performance Tracker” and the teacher management dashboard appear to contain arbitrary teacher-collected personality traits in a student education record. It would appear that this is a violation of privacy rights and the Protection Of Pupil Rights Amendment. The fact that the private data released because of the weakened FERPA expands my concerns that psychological/mental health data collected and released to third party vendors include social, emotional, and behavioral data not in the realm of academics and is being shared without the knowledge of parents. We must clarify this issue immediately. With this in mind could you please answer the following groups of questions:

1. Please answer my concerns about SEL collected data in the classroom:

1. Does a teacher data management dashboard contain SEL sensitive and personal information about the personalities of New Hampshire children?

2. Is this data logged and connected to the state longitudinal data system?

3. Is FERPA being used for outside researchers, non-profits, universities, and/or businesses to access our children’s records?

4. Is SEL data shared for research? Who receives it?

5. Are you aware of any written agreements, MOU’s or contracts with 3rd party vendors or researchers that have access to these data files? Could you please remit them?

6. Have you signed any FERPA written agreements, MOU’s, or contracts with outside vendors, researchers, universities, or foundations? Could you please remit them?

B.  An early grant, 2012, to New Hampshire from the Office of Special Education Programs Grant No. H323A070028, begins this process of Response To Intervention to train the teachers in “professional development and continuum of services” in the 3 tiers of universal screening for ALL children in SEL interventions. You state in your return letter, “parents are fully informed, and are full partners in any decisions”, yet it appears parents were not informed that their children would be receiving special education behavioral conditioning.

1. Since ALL children are used in the universal screening, are we to assume that ALL children are receiving special education services? Are all children assumed disabled since RTI, Response To Intervention, is used for an entire school?

2. Is Title I SchoolWide being used as the legal premise to access ALL children under the “universal intervention” process of RTI, PBIS, or MTSS? If not, what authority does the school have to access children who are not identified as special education?

3. Exactly when are parents of truly special education students notified by law under IDEA especially when their child should not be included in these RTI/PBIS/MTSS special education universal services prior to their IEP evaluations?

The CASEL FRAMEWORK Competencies you refer to in Second Step and PATHS are self-awareness, self-management, social awareness, relationship skills, and responsible decision-making skills. You replied to me, “These currently piloted programs serve as a foundation for success as pilots in multiple schools.” Let ME be clear: The PATHS program is grounded in social and emotional learning (SEL). The information explains that SEL helps children: resolve conflicts peacefully, handle emotions positively, empathize, and make responsible decisions.

When debate arose among House Education Committee members regarding assessing competencies, both Republicans and Democrats agreed, they did NOT want schools measuring subjective dispositions.  However, it appears measuring dispositions is what SEL is all about now. Competency Based Education in New Hampshire has morphed into an SEL education model, opposite of what legislators first supported.

These vague and subjective objectives are difficult to measure and difficult to decipher if a particular personality trait has been identified for change. Remediating “sticky” non-academic areas of personality could be defined by different people in different ways.

C.  Please explain to me how these goals are measured for improvement in these two programs.

1. What techniques are used in the SEL programming that would target a specific emotion, for example, emotion regulation?

2. How are teachers differentiating treatment for being unhappy? anxious? fearful? or stressed? What type of interventions are used for each emotion?

3. How are teachers recording these emotions?

4. Decisions that teachers are making on children about their feelings and emotions appear to be arbitrary. What is the protocol for advancing a child into a Tier 2 level? Tier 3 level?

5. What are teachers doing to intervene in these emotions?  Should children be expected never to show any emotion? What happens to a sensitive child?

6. How can teachers be sure these interventions do not spill into other human emotions like pain, anguish, disappointment, elation, sadness, anger, anxiety, love, hate, or fear? Is showing a strong emotion like, “I hate strawberry ice cream,” positive or negative? Should kids be forced to love strawberry ice cream?

7. How can teachers decide what is the difference in how a child might show extreme emotional sensibilities? How does a teacher know that a child is shielding their feelings or lying?

8. Should emotions and feelings that make us human be addressed as a mental health treatable disease?

9. What is the standard for behavior change in emotion regulation, for example how much is too much or not enough intervention?

10. How are teachers to gauge the intervention? What is the protocol for more intervention?

11. Who decided what particular intervention would be for a particular child?

12. Should every child be forced to make the same “responsible” decisions as other children in the class? Who decides?

13. Are opposing decisions allowed or is there only one proficiency standard in SEL?

14. How are these objectives taught if personal goals and parental taught beliefs are different from the standard? Should students be forced to change?

According to your reply you state that SEL PROGRAMS include, “no screenings, no diagnoses, and provide no treatment.” I disagree. Many contracts that I have retained say the opposite of your claims. For example, in contrast to your response to my letter of Sept., 2018, grants between SAMSHA and Antioch University called Project AWARE, and others, including Safe School, Healthy Students, GROW, New Hampshire Department of Education (NH DOE) Bureau of Special Education, and New Hampshire Office of Student Wellness, teachers are specifically being trained to implement behavioral/ mental health collection and behavioral/mental health interventions.  The contracts are very clear that the concept of social, emotional, and behavioral learning is completely mental health. The contracts specifically state that funds are used to build an effective and sustainable infrastructure for statewide cadre of trainers and coaches to support implementation of fidelity in “implementation science.” Thus it appears that these techniques are being described as intervention behavioral supports used throughout New Hampshire. This is opposite of your reply to me.

D.  You insist that social and emotional skills based programs are taught to all children universally in a Tier I concept. Taken from your reply, “This is not a program to diagnose or treat SEL issues or concerns.” However, the contracts are very clear that this Tier 1 mental health program identifies children and uses this level of screening to refer children to Tier 2 and to Tier 3 as “Intervention Integrity.”

1. Please clarify why your reply omits these practices as universal screening on ALL CHILDREN using Tier 1, and a recycling system of more intensive interventions for Tier 2, and Tier 3 using the techniques sometimes called Response to Interventions, Positive Behavior Intervention and Supports, and/or Multi-Tiered Systems Of Support.

2. Are these programs considered mental health? If not, what do you consider them when the project states that they are mental health?

3. Is this not identifying children with mental health or behavioral problems where

     private and sensitive data is collected on a child?

1. Please explain Intervention Integrity.

2. Please explain why your reply conflicts with the NH grant.

3. Please clarify why there is no information or transparency given to parents about data collection and mental health interventions.

Your comment that, “students are not flagged for needing additional support” doesn’t appear to be true. It appears the  school district has not been up front with parents. Their children are being used for research. Data is being collected on personality traits and mental health behaviors.

F.  Please refer to the following quotes taken from the Antioch University grant about the implementation of the SAMSHA Project AWARE  grant:

“Implementation of a Multi-tiered System of Supports

Implementing NH’s Multi-Tiered System of Supports for Behavioral Health and Wellness (MTSS-B) is an important part of the strategy in each LEA to improve school safety, climate, and behavioral supports in PA. MTSS-B uses a systemic framework for integrating school behavioral health practices across all school levels. The MTSS-B model blends research-based school mental health practices with the Positive Behavioral Interventions and Supports (PBIS) framework outlined by the U.S. DOE’s Office of Special Education Programs (OSEP; see http://www.pbis.org). PBIS is an evidence-based, multi-tiered prevention approach that teaches school-wide behavior expectations at the universal level (Tier 1), offers targeted group support for at-risk students (Tier 2), and provides intensive, individual services for the highest-need students (Tier 3).

We emphasized MTSS-B fidelity assessment this year. Fidelity has to do with intervention integrity – the degree to which a practice is implemented in a way that is faithful to the guiding model. Implementers tend to unwittingly “drift” from an intervention model in the absence of fidelity assessment. Assessing fidelity also helps make sense of outcomes. For instance, if project outcomes are poor, but fidelity is strong, we would tend to suspect that other factors were the prime contributors to the disappointing results (Schoenwald, Garland, Chapman, Frazier, Sheidow, & Southam-Gerow, 2011). We encouraged PA LEAs to assess implementation at all three tiers of the PBIS framework, to encourage adherence to the model and support reflection and quality improvement. We have reported our initial fidelity assessment results in the Findings and Results section, below.”

Source: https://www.antioch.edu/new-england/wp-content/uploads/sites/6/2017/11/2015-16PAEvaluationReport2-9-2017.pdf p. 18.

Based on what the Merrimack district is doing in terms of SEL:

1. What criteria are used to determine improvement of students in social, emotional, and behavioral techniques?

2. How are teachers monitored that they are doing the “right” interventions?

3. What does “faithful to the guiding model” mean?

4. If teachers are “drifting” from the Model, how can you be sure that no damage is being done to children?

5. What happens to teachers if they are NOT “faithful to the guiding model?”

6. What are the risks involved for this experimental mental health conditioning to fidelity? What do you think a disclosure should say to parents about risks involved?

7. Are teachers comfortable implementing techniques that change behavior/personalities outside of their subject area certification??

8. Are these programs initiated without giving parents full disclosures of risks involved?

9. What if parents disagree with these programs?

10. Why weren’t parents told about the impact on their children’s lives or given a choice?

When you raise the issue that “credentials do not apply” in your written reply concerning implementation of social, emotional, and mental health programming, perhaps the issue of truth, fairness, and transparency would be most important to the parents.  Perhaps we should also ask if it’s legal to access our children for psychological experimental research.

1. When teachers are being trained in “fidelity” to identify, track, and implement 3 tiers of mental health behavioral conditioning with NO written permissions and NO disclosures of the dangers involved, have any teachers questioned the appropriateness of these programs?

2. Are teachers able to opt out of the professional development in RTI, PBIS, OR MTSS?

3. Why has this experimental research been approved behind marketing policies  where parents were not given critical information?

4. Is this parent engagement or are you overriding parental influence and creating a psychological dossier for each child?

5. How do you know that these behavioral techniques are being applied appropriately?

6. Are teachers certified to identify children with serious mental health issues and then implement interventions without a professional license?

7. Why are parents not told about the mental health techniques used in the classroom?

8. These experimental teacher in-service  techniques appear to be glossed over with marketing “parent engagement” propaganda. Please explain why this step in protecting our children has been totally ignored.

9. How many SEL grants and how many millions of dollars for teacher training SEL programs have been ushered into New Hampshire?

10. Is it possible to consider that the federal government is collecting Psychometric Dossiers on families, exactly what Facebook is being sued for when using Cambridge Analytica to collect Psychometric Dossiers on Facebook users?

Your comment stating, “Merrimack School District does not and will not conduct research on children in the area of mental health,” is in contrast to multiple grants and contractors doing experimental research in mental health on Merrimack children.

The PBIS teacher training, Positive Behavior Intervention and Supports In the Office of Student Wellness describe the three tiered system that envelops ALL children through universal  screening also. The Wellness ToolKit screens and identifies all children to identify more children for intensive intervention through tier 2 and 3. The premise that prevention is used to screen all children for mental health problems is beyond comprehension. Normal children may be tagged with a mental health problem because of over-anxious teachers wanting to perform fidelity to the rules or more. Who knows? Are there protections for teacher overreach?

H.  In all fairness to parents and elected officials, we must ask why this is being done and how it will affect our children in the future.

1. What sort of coding is being placed on a child’s student education record that would identify a mental health or behavioral condition in an SEL program?

2. Are DSM V codes used to identify a child with a mental health problem?

3. Are schools in New Hampshire preparing to bill Medicaid for the social, emotional, and behavioral practices in mental health? Has it begun?

4. Is this the reason our children are being coded with mental health disabilities?

5. Will children be coded for serious emotional disturbance as a disability because of the social, emotional, and behavioral programming brought about by CASEL and SAMSHA?

6. What are the future implications of having a mental health disability on a child’s permanent record?

The recent passage of the amendment to the New Hampshire Constitution states,  “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential and inherent,” and applies to students attending public schools in New Hampshire.

I am also sending these questions  as well as my request for all FERPA written agreements, MOU’s, or contracts, to Commissioner Frank Edelblut, Governor  Sununu, and the Attorney General. I am requesting the names and purposes of the experimental mental health research from all researchers, universities, foundations, or businesses, or others.  My question to them would be to investigate why third party contractors have access and may receive personally identifiable information including personality profiles and personal Social, Emotional, and Behavioral data on our children in New Hampshire WITHOUT informed written parental consent. AND, why these contractors have access to our children in the classroom for experimental research without the knowledge or consent of parents.

I will be looking forward to your reply.

Ann Marie Banfield

Education Liaison, Cornerstone Action

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Sources:

https://www.nhstudentwellness.org/uploads/5/3/9/0/53900547/nh_mtss-b_decsription_osw_april_2017.pdf

https://www.samhsa.gov/data/sites/default/files/NSDUH-DSM5ImpactChildSED-2016.pdf

Wellness Innovation: https://www.nhstudentwellness.org/innovation.html

Wellness ToolKit: https://www.nhstudentwellness.org/toolkit.html

Wellness Checklist: https://www.nhstudentwellness.org/uploads/5/3/9/0/53900547/mtss-b_readiness_checklist__003_.doc

https://ies.ed.gov/ncee/pubs/20164000/