special education in the modern age: the shifting categories of ed

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Special Education in the Modern Age:The Shifting Categories of ED, OHI and SLD

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Overview

ED Eligibility

(Attempting) to define OHI

Factors related to SLD

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What is an Emotional Disturbance?

Federal Definition

A condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance

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What is an Emotional Disturbance?

CA definition

Because of a serious emotional disturbance, a pupil exhibits one or more of the following characteristics over a long period of time and to a marked degree, which adversely affect educational performance

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What is an Emotional Disturbance?

The Five Factors

1. An inability to learn that cannot be explained by intellectual, sensory, or health factors

2. An inability to build or maintain satisfactory interpersonal relationships with peers and teachers

3. Inappropriate types of behavior or feelings under normal circumstances

4. A general pervasive mood of unhappiness or depression

5. A tendency to develop physical symptoms or fears associated with personal or school problems

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Diagnosed Mental Illness and ED

Mental Illness Defined

Medical condition that disrupts thinking, feeling, mood, ability to relate to others, and daily functioning

(National Institute of Mental Health)

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Diagnosed Mental Illness and ED

Not required to find student eligible under category of ED

Diagnosis does not automatically qualify student for special education

Symptoms may trigger Child Find obligations

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Student v. Saddleback Valley USD(OAH 2011)

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Facts

16 year-old diagnosed with mild depression, ODD and mood disorder

Private psychologist recommended permission to make-up missed assignments, but not special education assessment

Parent requested assessment

“Student Study Team” determined interventions could be implemented in general education setting

Student v. Saddleback Valley USD (OAH 2011)

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Facts

Assessment postponed

Dissatisfied parent unilaterally enrolled student in RTC

Student eventually assessed and qualified under OHI and ED

Student v. Saddleback Valley USD (OAH 2011)

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Issues

Violation of Child Find duties

Parent alleged District should have assessed

Following receipt of psychologist recommendation

Following parent’s request for assessment

Student v. Saddleback Valley USD (OAH 2011)

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Decision

No Child Find violation

Psychologist email alone insufficient to trigger Child Find

Parent agreed to general education interventions

Parent did not notify school of dissatisfaction before unilaterally enrolling student in RTC

Student v. Saddleback Valley USD (OAH 2011)

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What is ED?

Student v. Placentia-Yorba Linda Unified School Dist. (OAH 2009)

ED is not medical diagnosis (under DSM-IV)

ED is “legal category created by Congress to distinguish a narrow range of pupils with emotional problems who are eligible for special education services”

Criteria regarding emotional disorders in medical field are different than educational criteria for ED

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#1 - Inability to Learn

Designed to rule out other reasons

Student v. Lakeside Joint Elementary School Dist. (OAH 2008)

Student with “attachment disorder” (per parents)

Declining STAR scores, but high average WISC scores and no severe discrepancy

Student asked for help when needed

Student had ability to learn

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#1 - Inability to Learn

Student v. Placentia-Yorba Linda Unified School Dist. (OAH 2009)

Student with (at least) mood disorder-NOS, including significant depression

Cognitively bright, capable of learning

Lowered academic performance for two, short isolated periods

Not enough to show inability to learn

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#2 - Inability To Build Or Maintain Satisfactory Interpersonal Relationships

Occurs in multiple settings with peers and adults

Lack of sympathy, empathy toward others

Inability to establish, maintain friendships

Excessive physical, verbal aggression, etc.

Not an issue of getting along with others

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#2 - Inability to Build or Maintain Satisfactory Interpersonal Relationships

Saddleback: Choosing friends who are a bad influence does not satisfy criteria

Lakeside: Positive relationships with teachers show factor does not apply

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#3 - Inappropriate Types of Behavior or Feelings Under Normal Circumstances

Behaviors or feelings that are strange or unusual (in comparison with others in same circumstances)

Hallucinations or bizarre behavior not required

Could be acting out or withdrawal behaviors

Does not include willful and understood behaviors (e.g., ODD or conduct disorders)

Consider whether circumstances are “normal” . . .

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#3 - Inappropriate Types of Behavior or Feelings Under Normal Circumstances

Student v. Ravenswood City SD (OAH 2008) Serious behavior problems (sexual assault, fighting, assault, defiance, profanity, and bringing a gun to school) insufficient to meet criteria

Torrance USD v. E.M. (C.D. Cal. 2008)Inappropriate reaction to everyday events satisfies criteria

Student v. Los Angeles USD (SEHO 1999)Expected behavior from a child of same age does not satisfy criteria

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#4 - General Pervasive Mood of Unhappiness or Depression

Actual, chronic, persistent symptoms of depression

Observable in school setting (and other situations)

Not a natural reaction to a traumatic event

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#4 - General Pervasive Mood of Unhappiness or Depression

Saddleback: Diagnosis that presents with unhappiness or depression does not automatically fulfill criteria

Student v. Los Angeles USD (OAH 2007): Student need not meet the DSM-IV criteria for depression to fulfill criteria

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#5 - Tendency to Develop Physical Symptoms or Fears Associated with Personal or School Problems

Physical symptoms that are excessive and chronic

Could manifest as severe anxiety, phobias, panic attacks, tics, headaches, etc.

Not due to biologic or medical conditions

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#5 - Tendency to Develop Physical Symptoms or Fears Associated with Personal or School Problems

Student v. Capistrano USD (OAH 2011)”test anxiety” must impact ability to do well on test to satisfy criteria

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What is a "Long Period of Time"?

Letter to Anonymous (OSEP 1989)

Two-nine months

Student v. Capistrano USD (OAH 2007)

Minimum of six months and with no response to behavioral interventions

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What is “To a Marked Degree"?

Pervasive and Intense

Student v. Capistrano USD (OAH 2007)

Pervasive means exhibits across more than one domain (home, school, community)

Intense means must produce distress to student or others and must be related to emotional disturbance

Letter to Anonymous (OSEP 1989)

Examine frequency, duration and intensity of student’s behavior in comparison to behavior of peers and/or school and community norms

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What is "Adversely Affects"?

Condition must render student unable to benefit from education regardless of degree of intervention

Document that poor performance not due to attendance or lack of motivation

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Emerging Eligibility

Torrance USD v. E.M. (C.D. Cal. 2008)

Facts Student in GATE program

Classroom behavioral issues noted over several years

Parents separated, was placed in foster home (Two-hour commute)

In 6th grade, punched another student and was expelled

Issue Child Find

Ruling Student’s behaviors initially coincided with stressful life events, but

Continued to manifest in a variety of settings, over a long period of time and were resistant to behavioral interventions

District should have assessed for ED and found student eligible

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Practice Pointer

ED eligibility may emerge over time

Watch for behavioral issues that continue to escalate and/or fail to respond to interventions

Reassessment for ED eligibility may be necessary

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ED and Young Students

Sometimes, there is hesitation to label young students as ED

Makes sense to adjust period for young students

Cannot have “policy” of refusing to find young students eligible as ED

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“Acting Out” may Indicate ED

Student v. Compton USD (OAH 2008)

Facts Kindergarten student performing above grade level

academically, but exhibiting aggressive behaviors

First assessment focused on ADHD, Student eligible under OHI

(At age 5) Student began telling teacher was going to kill himself because he was “bad”

Second assessment, found eligible under ED

Ruling: District should have assessed Student for ED as part of first assessment

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“Acting Out” may Indicate ED

Student v. La Mesa-Spring Valley SD (OAH 2010)

Facts

Student “kicked out” of daycare

Hospitalized at age 3 for self-injurious & aggressive behaviors

Diagnosed with anxiety

Enrolled in district preschool program: Exhibited hitting, kicking and scratching, using profanity

Able to access preschool program

Assessed and found ineligible

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“Acting Out” may Indicate ED

Facts

In kindergarten, behaviors included

Crawling around, talking in strange voices, hitting others, using profanity, scratching herself, banging head on wall, stabbing self with scissors

Behavioral interventions were ineffective

District assessed and found eligible as ED

Parent would not consent to SDC placement

District filed due process complaint

Student v. La Mesa-Spring Valley SD (OAH 2010)

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“Acting Out” may Indicate ED

Ruling

District showed was inappropriate to maintain Student in general education setting even with significant supports

Student failing to derive any academic or non-academic benefits

Adversely impacted ability of other student to learn and ability of teacher to teach

Student v. La Mesa-Spring Valley SD (OAH 2010)

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Social Maladjustment v. ED

What Is Social Maladjustment?

Not defined in law

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Case #1

Torrance USD v. E.M. (C.D. Cal. 2008)

“Student acts in deliberate non-compliance with known social demands or expectations”

Socially maladjusted students do not qualify as ED based on “social maladjustment”

BUT . . . socially maladjusted student could also be ED

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Case #2

Eschenasy v. New York City Dept. of Ed. (S.D.N.Y. 2009)

FactsStudent privately evaluated and diagnosed with

mood disorder and borderline personality disorder traits

Student used drugs, cut class, and was repeatedly suspended and expelled

Attended three schools in 10th and 11th grades

Parent placed Student in restrictive RTC

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Case #2

Facts

Parent requested special education assessment

District refused to travel for assessment, closed case

Parent requested an IEP meeting, based on private assessment and RTC placement

District found student ineligible

Behavior was delinquent, due to conduct disorder

Eschenasy v. New York City Dept. of Ed. (S.D.N.Y. 2009)

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Case #2 Decision: HO found Student was socially

maladjusted, but also qualified under ED due to unhappy/depressed mood and inappropriate behavior

Suicide attempts/self-injury

Failing grades impeded learning

Prevalence of behavior throughout high school

District ordered to reimburse for RTC placement

Eschenasy v. New York City Dept. of Ed. (S.D.N.Y. 2009)

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Social Maladjustment v. ED

Look for the purpose of the conduct – is this purposeful behavior?

rebellious? deliberate?

Don’t miss self-injury or suicidal ideation

In the case of substance abuse, is it masking behavior?

Substance Abuse Subtle Screening Inventory

Does student’s behavior/academic achievement change when no access to drugs/alcohol?

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Substance Abuse v. ED

Student v. Tamalpais Union H.S. Dist.(OAH 2012)

Facts

Student in blended program with related counseling services

Student suspended for marijuana possession and placed in juvenile hall

Before release, parents requested residential placement

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Substance Abuse v. ED

Facts

Psycho-educational assessment revealed no identifiable mental illness, but characteristics of ED and substance abuse disorder

AB 3632 assessment supported placement in blended program with therapy; primary issues were related to oppositional defiance disorder and substance abuse; no masking behavior

District continued to offer blended program

Student v. Tamalpais Union H.S. Dist. (OAH 2012)

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Substance Abuse v. ED

Ruling: District not responsible for residential placement when primary issue is substance abuse

Progress in RTC and juvenile hall due to lack of drug use in those settings

Student v. Tamalpais Union H.S. Dist. (OAH 2012)

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Are Bullies Emotionally Disturbed?

Bullying Behavior may Trigger Child Find Obligations

School Bd. of the City of Norfolk v. Brown (E.D.V.A. 2010). Repeated threats and harassment toward others put District on notice of Student's suspected disability

Bully may be Eligible as ED

Birdville Independent School Dist. (SEA TX 2011).Long-standing behavioral problems, including bullying classmates, misinterpreting others, and threatening to harm qualified student as ED

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Assessment/IEP Team Tips

Directly addresses five criteria for EDand aligns results to criteria in report

Address emerging behaviors with general education supports; document the impact of those interventions, but do not delay in assessing

Look at functioning in variety of settings: home, school, and community

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Assessment/IEP Team Tips

Placement is IEP team decision; don’tbe concerned about placement in the assessment process

Consider inclusion of nurse on IEP team

Do not limit yourself to a single possible eligibility category

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Other Health Impaired (“OHI”)

What is OHI?

Having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that Is due to chronic or acute health problems; and

Adversely affects a child’s educational performance

(34 C.F.R. § 300.8(c)(9).)

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OHI

Medical diagnosis not required

Diagnosis of a chronic or acute health problem alone will not suffice

Student v. Konocti USD (OAH 2010)

ADHD diagnosis alone not enough

Student could control behavior and made educational progress

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OHI

Mental illnesses qualify under OHI if they limit strength, vitality, or alertness

Auditory processing disorder considered an OHI?

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Does the Disability Actually Impact Vitality, Alertness, Strength?

Placentia-Yorba Linda Unified School Dist. (SEHO 1995)

Student with chemical sensitivities did not show diminished strength, vitality or alertness

Inquiry ended there

HO need not consider issue of adverse effect on educational performance

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What is an “Adverse Effect”?

Not defined by law

Consider both academic and non-academic performance

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Adverse Effect

Student v. Bonita USD (OAH 2006)

Student with ADHD and declining grades not eligible because no decreased vitality, strength or alertness that impacted education

Declining grades due to lack of motivation

Student v. San Francisco USD (SEHO 2005)

Student not eligible because limited vitality in afternoons could be addressed with accommodations in general education setting

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Physical v. Psychological and “Feeling” Limited

Forest Hills Public Schools (SEA MI 2012) No requirement that limitation be physical in nature

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When is it OHI? When is it ED?

Mental Illness: May not meet the eligibility requirements for ED, but if adversely affects educational performance, student may be eligible under OHI(Student v. San Diego USD (OAH 2008)

Impact of Disorder: Anxiety/panic attacks may not meet the criteria for ED, but may tire child out, leading to limited vitality and meeting the criteria for OHI(Student v. Poway USD (OAH 2009)

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OHI Assessment Tips

Health condition (alone) is not sufficient for OHI

Is student exhibiting limited vitality, strength or alertness?

If so, is Student’s educational performance adversely impacted

Could impact be addressed in the general education setting?

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Specific Learning Disability (“SLD”)

What is SLD? Disorder in one or more of the basic psychological

processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, write, spell, or to do mathematical calculations

Includes conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia

Does not include: Learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage

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Determining SLD Eligibility

Severe Discrepancy

Observation

Response to Intervention

Inappropriate Instruction/Other Factors

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Severe Discrepancy

Ford v. Long Beach USD (9th Cir. 2002)

Collaborative, data driven approach

IDEA does not compel the use of specific measures of either ability or achievement

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Observation

IDEA requires observation of students in learning environment, both before referral and by member of IEP team after referral in determining existence of SLD

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Response to Intervention

Permissive, not mandatory, method to establish eligibility under SLD

Eligibility determinations cannot be based solely on RTI

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Inappropriate Instruction/Other Factors

Consider whether the student’s under-achievement is due to other factors

Lack of motivation

Can be manifestation of disability

Home/transition issues

Other disabilities (including ED)

Inappropriate instruction

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Special Considerations

ADHD can be SLD eligible if there is both a processing disorder and a severe discrepancy (Norton v. Orinda SD (9th Cir. 1999)

E.M. v. Pajaro Valley USD (9th Cir. 2011)

When valid tests produce conflicting scores consider all relevant material to make reasonable choice in determining whether a ‘severe discrepancy’ exists

Student with processing disorder must still exhibit severe discrepancy to qualify under IDEA

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SLD Assessment/IEP Team Tips

Data! Collect data from classroom observations, teachers, staff, parents and providers

Look for patterns of weakness

Consider developmental history

Consider having speech/language practitioner on the IEP team

Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.

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