Published on March 21, 2014
1 Special Education in the Modern Age: The Shifting Categories of ED, OHI and SLD
2 Overview ED Eligibility (Attempting) to define OHI Factors related to SLD
3 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
4 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
5 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
6 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)
7 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
8 Student v. Saddleback Valley USD (OAH 2011)
9 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)
10 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)
11 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)
12 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)
13 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
14 #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
15 #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
16 #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
17 #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
18 #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” . . .
19 #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
20 #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
21 #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
22 #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
23 #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
24 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
25 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
26 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
27 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
28 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
29 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
30 “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
31 “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
32 “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)
33 “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)
34 Social Maladjustment v. ED What Is Social Maladjustment? Not defined in law
35 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
36 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
37 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)
38 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)
39 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?
40 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
41 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)
42 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)
43 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
44 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
45 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
46 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).)
47 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
48 OHI Mental illnesses qualify under OHI if they limit strength, vitality, or alertness Auditory processing disorder considered an OHI?
49 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
50 What is an “Adverse Effect”? Not defined by law Consider both academic and non-academic performance
51 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
52 Physical v. Psychological and “Feeling” Limited Forest Hills Public Schools (SEA MI 2012) No requirement that limitation be physical in nature
53 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)
54 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?
55 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
56 Determining SLD Eligibility Severe Discrepancy Observation Response to Intervention Inappropriate Instruction/Other Factors
57 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
58 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
59 Response to Intervention Permissive, not mandatory, method to establish eligibility under SLD Eligibility determinations cannot be based solely on RTI
60 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
61 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
62 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 . Fagen Friedman & Fulfrost LLP understands that the state's financial situation must not impede student access to educational opportunities. As advocates for excellent education, we offer a series of financial awards for students attending California public schools. For more information, visit www.fagenfriedman.com Celebrate Success Education Awards
Developed by Fagen Friedman & Fulfrost lawyers, ... Download the FALL 2012 SES Presentations: ... The Shifting Categories of ED, OHI and SLD.
2012-2013 BOARD Board Members: ... The Shifting Categories of ED, OHI and SLD ... CASP Fall 2012 Convention
SES Fall 2015: Legal Update. Cases, guidance, legislation, ... The Shifting Categories of ED, OHI and SLD . View Presentation. Seminars & Workshops April 2013.
The 2012 Ohio State Buckeyes football team represented The Ohio State ... Ohio State opened their fall camp on August 3 with ... 2012 Ohio State ...
... http://nichcy.org 1 Categories of Disability Under IDEA ... http://nichcy.org March 2012 Categories of Disability Under IDEA ... categories listed in ...
The 2012 phenomenon was a range of eschatological beliefs that ... author Daniel Pinchbeck popularized New Age concepts about this date in his book 2012: ...
... (National Center for Education Statistics). ... postsecondary institutions in fall 2012. ... ED Data Inventory ...
Pictures of the Future - Archive ... (PDF) Download Issue Fall 2012; Issue Spring 2012. The Next Economy; Mastering Complexity; Formulas for Efficiency