ses fall 2012 the shifting categories of ed, ohi and sld
TRANSCRIPT
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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 settingStudent 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
assessedFollowing receipt of psychologist
recommendationFollowing 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 discrepancyStudent asked for help when neededStudent 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 depressionCognitively bright, capable of learningLowered academic performance for two,
short isolated periodsNot 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 EligibilityTorrance 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 timeWatch 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 EDStudent 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 EDStudent 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) Facts
Student 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
disorderEschenasy 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 behaviorSuicide attempts/self-injuryFailing grades impeded learningPrevalence of behavior throughout high
school District ordered to reimburse for RTC
placementEschenasy 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 InventoryDoes 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 ED
and 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’t
be 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 sufficeStudent 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 disabilityHome/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
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