SES Fall 2012 The Shifting Categories of ED, OHI and SLD
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SES Fall 2012 The Shifting Categories of ED, OHI and SLD SES Fall 2012 The Shifting Categories of ED, OHI and SLD Presentation Transcript

  • 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