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April 26, 2006

Minnesota secretly screens preschoolers for mental health
ACTION ITEM
Call the Governor (651) 296-3391 and Commissioner Seagren (651) 582-8204. Tell them:          Relying on an obsolete state administrative rule, both the Departments of Health and Education have begun implementing
universal preschool mental health screening, in spite of its legislative defeat last year.
 
The statutory authority for this rule was repealed  in 1989,
but the Rule is being implemented with no legislative authority.

         Last year, Sen. Tomassoni (DFL-Chisolm) tried to insert vague and subjective universal mental health screening, thus expanding into routine preschool screening (SF 1365). The legislature wisely rejected it. This year, Sen. Hottinger introduced the same bill (SF 2841), described as, "Early childhood developmental screening expansion to socioemotional development screening." [Emphasis added.] Socioemotional means mental health.

         Accurately screening infants and preschoolers for mental health is impossible. Universal preschool mental health screening is not based on objective medical tests, as advocates would have us believe. It assesses ìbehaviorsî and leads to inaccurate and dangerous labeling of children for normal childhood behaviors. It increases already excessively high over-diagnosis and over-medication of children, especially of boys and minorities.

         Hottinger made a surprise revision of his bill in committee that assumed mental health screening already is the law and mandating instead ìapproved screening instrumentsî for socioemotional [mental health] screening. (See " Ethically Challenged Mental Health Screening Bill ") Hottinger used ìa slick political move," Renee Doyle stated, "that circumvents the entire process in order to insert government into a place that is clearly not its business -- the minds of our youngest children.î The Hottinger language is now in the Senateís monstrous omnibus finance bill, and on its way to conference committee. The House did not pass its companion (HF 3599), however, authored by Rep. Meslow (R-Northfield).

MENTAL HEALTH SCREENING ALREADY HAPPENING
         EdWatch has now discovered the shocking reason for Hottinger's revisions. In spite of the unexpected defeat of mental health screening last year, the Minnesota Department of Education has forged ahead with mental health screening for preschoolers anyway. In June, 2005, the Department of Education posted socialemotional [mental health] screening on its website and on official forms as one of the components of required 2005/2006 early childhood screening. In the absence of the failed law that would have authorized preschool screening for socioemotional development, the Department references an obsolete administrative rule as its legal authority. That rule is obsolete, because the statute authorizing it was repealed in 1989. 

         Hottinger's SF 2841 is an attempt, then, to quietly re-establish legal authority for a rule that the Department is already implementing. When the bill's ìfiscal noteî was belatedly released, it described "no fiscal impact," meaning no money was needed. In contrast, the fiscal note from last year's bill listed over $90,000 in state and local costs to implement mental health screening, including research and development, staff training, and reprinting new developmental screening brochures. Sometime between last session and this one, all of that must have already taken place. When did those activities occur, and how were they funded?

        This year's fiscal note said that SF 2841 ìcodifies in statute requirements that are already written in rule.î However, the law requires that administrative rules must be based on a specific statute. The fiscal note stated that, ìAll school districts are currently in compliance with Minnesota Ruleî for social-emotional [mental health] development. If a rule needs to be "codified," then no legal authority exists. Why are school districts "in compliance" with an unauthorized rule? Further, why, during the Senate hearing, did neither the Minnesota Department of Education nor Senator Hottinger speak up to members that a rule existed and was already being enforced?
        
        In summary, state government insiders are financing and enforcing an obsolete rule that has no legal authority and which is contrary to the express decision of the elected 2005 legislature not to begin mental health screening in routine preschool screening. Sen. Hottinger and some health and education bureaucrats have intentionally misled legislators by withholding that information. The Departments of Education is putting itself above the law .

CHANGES AND EXCUSES
         Having been discovered, a different statutory authority had to be found. The statement that the bill ìcodifies in statute" what is already in rule was quickly removed from the Senate website. The Department staffers came up with a new statute to hang their hats on, relating to special education. That presented problems, too, however, because the rule is not even in the special education section of state rules.

         Furthermore, if socioemotional screening is suddenly to be defined as special education, then every participating child is being treated as a "child with a disability."  At that point, districts are out of compliance with parental notification and informed consent requirements that kick in with special education assessments.

OUT-OF-CONTROL BUREAUCRACY
         We had hoped for swift and unequivocal action by the Governor and his Commissioner to halt these deceptive actions and out-of-control insider bureaucrats. Instead, frail, contradictory, and constantly changing alibis by the bureaucrats continue to be offered up. We have listed some of them for you at this link.

         MDE staffers have not produced records of the process for the establishment of the Rule. Minnesota Statutes require, for example, a " statement of need and reasonableness (SONAR)" which must be made available to the public and which should be easily accessible. The SONAR would explicitly state what statute was used to authorize the rule.      

        In a disturbing lack of leadership, and in spite of this massive deception of the public and of the legislature that is costing the taxpayers more than $90,000, this administration has yet to take corrective action. Instead, the policy remains in place after the two plus weeks since the Department of Education (MDE) and the Governor''s office have been notified.

        If there is any merit whatsoever to the arguments that the rule is legal and enforceable, why has this Rule never been mentioned? Why have mental health screening advocates in the legislature introduced bills to authorize it? Why, when they have testified to these bills, has the Department never once told the committees that they are already screening preschoolers for mental health based on Rule and statutory authority they think they already have? Why has the Department never stated that this bill is unnecessary? Why have we had this same debate for two years over mental health screening for preschoolers?

         The answer to all of those questions is that powerful insiders within the Departments have determined to move forward with their plan for preschool mental health screening in spite of its legislative defeat. They have demonstrated a willingness to deceive the public and the legislators about mental health screening of preschoolers. EdWatch is disturbed by the lack of adequate response by the Department leadership to rein in their staff and to end this invasion of the minds of our youngest children and the unauthorized expenditure of taxpayer dollars. We call upon them to immediately halt this unauthorized screening policy and to urgently resolve this most serious violation of the public trust.

POSTSCRIPT
       Today's EdAction alert was barely delivered to our subscribers' mailboxes before the initial link to social/emotional [mental health] developmental preschool screening requirements on the Department of Education website disappeared. We have substituted a different link in its place. Here's the initial e-mail as it was sent out at 1:48 pm April 26, 2006:
MENTAL HEALTH SCREENING ALREADY HAPPENING
         EdWatch has now discovered the shocking reason for Hottinger's revisions. In spite of the unexpected defeat of mental health screening last year, the Minnesota Department of Education has forged ahead with mental health screening for preschoolers anyway. In June, 2005, the Department of Education posted socialemotional [mental health] screening on its website and on official forms as one of the components of required 2005/2006 early childhood screening. In the absence of the failed law that would have authorized preschool screening for socioemotional development, the Department references an obsolete administrative rule as its legal authority. That rule is obsolete, because the statute authorizing it was repealed in 1989.
We sent a follow-up e-mail stating:
The Minnesota Education Department (MDE) link is suddenly broken. We hope this means that the Department is finally taking steps to put an immediate end to the illegal and costly mental health screening of preschoolers and holding those implementing it responsible. However, that information is still up on the MDE site at other locations. For example, their chart of " required components" of preschool screening still lists social-emotional [mental health] development, and it still references the same obsolete rule as we discussed in our previous alert.

The Department of Health also still has its link operating. This link lists the screening instruments for social/emotional [mental health] screening and it links to the same obsolete rule as its statutory authority. The statutory authority for this rule was repealed  in 1989.

Thank you for continuing to take action on this most serious violation of the public trust.


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