Emotional Disturbancefrom a Legal Perspective

January 16, 2015

Presented by: Marcy Gutierrez, Esq.

California State UniversitySacramento

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Emotional Disturbance

Background InformationED Eligibility IssuesED Assessment IssuesED Services and Placement Issues

ED BackgroundInformation

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Sad Facts

About 1 in 4 special education students drops out of high school.43 percent of those who graduate remain unemployed three to five years after high school.Nearly one-third – primarily those with learning and emotional disabilities – are arrested at least once after leaving high school.

U.S. News: Separate and Unequal in Special Education Classes (Dec. 1993)

ED EligibilityIssues

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What Is ED?

I. The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance-

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

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

C. Inappropriate types of behavior or feelings under normal circumstances;

D. A general pervasive mood of unhappiness or depression; or

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

II. The term includes schizophrenia.III. The term does not apply to children who

are socially maladjusted, unless it is determined that they have a serious emotional disturbance.

NOTE:ED (state) and ED (federal) have slightly different definitions.

34 CFR § 300.7(c)(4); 5 CCR § 3030.

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ED Definition Issues

ED is purely a legal term of art created to establish special education eligibility. ED criteria have no DSM or other medical model equivalents.There is no clear, unambiguous understanding of when a student should be deemed ED.Distinguishing ED from social maladjustment, drug involvement, or unfortunate personal/family circumstances is difficult.

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Clarifying Important ED Terms

The law does not define any of the ED definitions important operational terms such as “long period of time,” “to a marked degree,” “adversely affects educational performance,” or “inappropriate behavior under normal circumstances.” Letter to Anonymous, EHLR 213:247 (OSEP 1989).A student needs to meet only one of the five criteria of the definition of SED to be classified as SED. Lapides v. Coto, 1987-88 EHLR 559:387 (N.D. Cal. 1988)

“Long period of time.”A generally-acceptable definition of a “long period of time’ is a range of time from two to nine months, with the application of preliminary interventions and documentation of the degree of their effectiveness. Letter to Anonymous, EHLR 213:247 (OSEP 1989)

“Marked degree.”To a “marked degree” generally refers to the frequency, duration or intensity of a student’s behavior in comparison to peers. Similar terms are acute, continuous or pervasive. Letter to Anonymous, EHLR 213:247 (OSEP 1989)The condition must be both pervasive (continuing over time) and intense (overt, acute and observable). Conejo Valley Unified Sch. Dist., 1985-86 EHLR 507:213 (SEA CA 1985).

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Clarifying Important ED Terms

“Adversely affects educational performance.”A serious emotional disturbance that adversely affects educational performance must adversely affect peer interactions, participation in class activities and ability to follow directions, as well as academic performance. Oakland Unified Sch. Dist., 1985-86 EHLR 507:191 (SEA CA 1985).ED characteristics must occur across a number of instructional settings, academic and non-academic. Knowledge of a student’s behavior and non-instructional settings (e.g., home or community) may be helpful but is not determinative. Letter to Anonymous, EHLR 213:247 (OSEP 1989).The elements of “adversely affecting educational performance” include assessment of the impact of the disability on the school’s specific educational concerns, reflected in the curriculum and subjected to some type of formal rating. Letter to Anonymous, EHLR 213:247 (OSEP 1989)

“Inappropriate behavior under normal circumstances.”“Inappropriate behavior under normal circumstances” may include behaviors that are psychotic or bizarre in nature or atypical behavior for which no observable reason exists. Letter to Anonymous, EHLR 213:247 (OSEP 1989)Inappropriate behavior does not include running away from a stressful situation or taking drugs or alcohol. Letter to Anonymous, EHLR 213:247 (OSEP 1989).

“Depression.”A student does not have to meet the DSM-IV criteria for major depression to have a general pervasive mood of unhappiness or depression. However, lack of such a diagnosis raises doubts that the student is depressed enough to qualify as seriously emotionally disturbed on the basis of having such a pervasive mood. Conejo Valley Unified Sch. Dist., 1985-86 EHLR 507:213 (SEA CA 1985).

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What ED Is Not:

Behaviors attributed to drug abuse do not establish a serious emotional disturbance. Child v. Sequoia Union High Sch. Dist., 1987-88 EHLR 559:133 (N.D. Cal. 1987)

Environmental stressers leading to misbehavior do not establish ED eligibility.

When the determination is made that factors, such as the influence of environment, situational dynamics or volitional decisions, cause inappropriate behavior, the student will not be identified as seriously emotionally disturbed.Social maladjustment does not establish ED eligibility.

There is no definition of social maladjustment in the IDEA or state law. In addition, DSM criteria do not define the term “social maladjustment.”Social maladjustment is characterized by:

An inability to tolerate structure;Marked dislike of school;Behavior beyond control of parents;Drug abuse;Poor tolerance for frustration;Excessive need for immediate gratification;Disregard for or hostility toward authority figures;Lack of social judgment;Inconsistent performance;Positive behavior response when strong structure is instituted, andLack of pervasiveness.

ED Case Law

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School Districts Determine ED Eligibility

The Ninth Circuit Court of Appeals has held that only school districts have the authority to determine that a student is emotionally disturbed. The court found that County Mental Health could not challenge such a determination. County Mental Health’s role, according to the court, is limited to participating in the determination of whether residential placement is required once the student is found to be ED.

County of San Diego v. California Special Education Hearing Office (1996 9th Cir.) 93 F.3d 1458.

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ED Eligibility – DepressionSan Jose Unified School District

Facts:16-year-old student experienced deteriorating ninth grade performance. District referred student to district assistance program for regular education students.Parent unilaterally enrolled student in a residential school before assistance team met and then requested a special education evaluation.

Issue:Did student qualify for special education as ED based on a qualifying characteristic demonstrated over a long period of time and to a marked degree?

Holding:No. Student did not exhibit the necessary characteristics over a long period of time and to a marked degree to be considered ED.Hearing Officer discounted private psychologist’s opinion because the psychologist:

Did not calculate scores for a Rorschach test despite administering the test.Could not explain why he relied heavily on parent’s negative report of student’s behavior and discounted student’s more positive account.Failed to rely on scores from the Minnesota Multi-phasic Personality Inventory test that indicated student was not being dishonest and that his depression score was normal.

Student did not consistently demonstrate symptoms of unhappiness at school, even though he was unhappy at home. Depression at school was not “pervasive.” Student performed well academically in regular education.

San Jose Unified Sch. Dist., 29 IDELR 813 (CA SEA 1998)

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ED Eligibility – DepressionSierra Sands Unified School District

Facts:Following a rape incident, a 7th grade student was unable to attend school and attempted suicide twice. Her grandparents and private therapist had her hospitalized, where she was diagnosed with depression and post-traumatic stress disorder. Grandparents then placed her at a private, residential school. Then, the grandparents requested a special education evaluation.

Issue:Did student exhibit to a marked degree, and over a long period of time, a general pervasive mood of unhappiness or depression so as to be found eligible as a student with ED?

Holding:Yes. Student’s depression became more severe following the rape incident. There was evidence of her inability to attend school, her uncontrollable behavior at home, and her suicide attempts. Student was depressed at home and during therapy sessions.District psychologist had not seen student in person when she first concluded in a one-page memorandum that student was not eligible for special education. Psychologist’s determination was based on a review of the student’s records.District psychologist did not meet with student and administer psychological testing until nine and a half months after the rape incident. The psychologist did not believe the student was depressed.Student had spent six and a half months in a structured, residential placement before being assessed by District psychologist.Fact that student obtained some academic success in the residential placement did not mean her education was not currently adversely affected.

Sierra Sands Unified Sch. Dist., 30 IDELR 306 (CA SEA 1998)

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ED Eligibility – DepressionLos Angeles Unified School District

Facts:Parent of highly gifted student alleged he was eligible for special education services based on ED because he received psychological diagnosis of depression.Student became seriously upset on one occasion when his class was divided and his friends were moved to a different class.

Issue:Did student exhibit the necessary characteristics to be eligible for special education as ED for a long period of time and to a marked degree, so as to adversely affect his educational performance?

Holding:No. Student did not qualify as ED under the following characteristics:

Inability to build or maintain satisfactory relationships with peers & teachers– Intolerance of the poor classroom behavior of others does not support finding of

inability to build or maintain satisfactory relationships with peers or teachers.– Fact student was able to build satisfactory relationships was evidenced by his

serious reaction when some of his friends were moved to another classroom.– Law only requires students have an “ability” to have such relationships with

some peers and teachers, not all peers and teachers.Inappropriate types of behavior or feelings under normal circumstances exhibited in several situations.

– Isolated incidents are not evidence of inappropriate behavior to a marked degree. Fact that student had one or two short bouts of crying at school for a few minutes was evidence of the expected behavior of a seven-year-old who failed to get his way.

A general pervasive mood of unhappiness or depression.– Psychological diagnosis of depression under DSM-IV offered alone does not

support finding of eligibility under SED. Law requires:» Student suffer from unhappiness or depression for a long period of time.» Impairment be present during that time in most or all areas of the

student’s life.» That the impairment be exhibited in a marked degree.» That the impairment adversely affect the student’s educational

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

– A few instances of stomachaches or headaches do not rise to the level of a “marked” tendency to develop physical symptoms.

– Fact student scratched himself on the face and hand also failed to rise to level of marked tendency.

– No adverse affect on student’s academic performance.

Los Angeles Unified Sch. Dist., 31 IDELR 71 (CA SEA 1998)

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Facts:18-year-old specific learning disabled (SLD) student attended a nonpublic school at district expense. The NPS closed.District placed her at one of District’s high schools in a Special Day Class (SDC) with some mainstreaming and 1:1 aide.Student received private counseling for emotional problems and was referred for a mental health evaluation.Student’s condition deteriorated and she was hospitalized.District then conducted an evaluation and found her ED.District verbally offered residential placement but parent refused and unilaterally placed her at out-of-state residential placement.

Holding:School District and local mental health agency denied student a free appropriate public education (FAPE).

Rationale:Mental Health failed to conduct a timely evaluation after receiving the referral.District failed to hold a timely IEP meeting in response to the parent’s request for an IEP, failed to make a formal, written offer of residential placement and failed to design an appropriate transition plan.During student’s hospitalizations, the District never provided her with academic services.

Remedies:Reimbursement for 80% of the costs associated with the placement at the private out-of-state school through the remainder of the 1997-98 school year including ESY because (balance the equities):

District failed to make timely written offer; mother partially at fault because she failed to share information regarding student’s educational needs.

Main Point:Parents of 18-year-old ED student received 80% reimbursement for out-of-state residential placement because mental health failed to conclude a timely evaluation after receiving the referral and the District failed to hold a timely IEP, design an appropriate transition plan and offer a residential placement in writing.

ED Eligibility – Procedural IssuesSan Francisco Unified School District

San Francisco Unified Sch. Dist., 29 IDELR 153 (SEA CA 1998)

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Facts:17-year-old student whom District never found eligible for special education.1994-95 freshman year, 3.6 grade point average at a private college preparatory school, began experimenting with drugs (LSD and marijuana).1995-96 year, student transferred to public high school for sophomore year, 3.0 and 2.73 GPA.French teacher contacted parents in spring, 1996 because demeanor and class participation changed.Private individual and family therapy.Drug use continued, admitted into an inpatient drug and alcohol treatment program for the summer, 1996.1996-97 parental placement at CEDU (Junior Year).November, 1996 – a private Ph.D. concluded student suffered from Dysthymia, met special education eligibility.May, 1997 – district assessed student and IEP team concluded that she did not meet the special education criteria for SED.

Issue/Holding:Student is not ED pursuant to the educational criteria. The District appropriately denied student eligibility for special education services.

Rationale:Dysthymia diagnosis not per se special education eligibility; unhappiness or depression must be pervasive, to a marked degree, and adversely affect education performance.Student’s emotional condition almost exclusively manifested at home.Although student exhibits periods of unhappiness or depression, in relation to family issues, evidence does not support pervasiveness.Student’s educational performance not adversely affected to significant degree.

ED Eligibility –Fremont Union High School District

Student v. Fremont Union High Sch. Dist., SEHO SN 1246-97 (1998)

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Facts:16-year-old ED student enrolled in a special day class (SDC).1996-97 school year, ninth grade: behavior problems result in disciplinary action (12 incidents from Sept. 96-Sept. 97).IEP team recommended student be referred to County SED program but parents rejected.Parents agreed to recommence AB 3632 counseling and on-site counseling.February, 1997 – student threw lit firecracker; IEP team determined misconduct manifestation of student’s disability and student inappropriately placed. Referral to county SED program pending.Student on home instruction since February, 1997.August, 1997 – student had knife on campus; IEP determined manifestation of his disability and inappropriately placed.September, 1997 – district conducted functional behavioral analysis assessment.October, 1997 – IEP team, including parents, agreed to a positive intervention plan. Parents continue to refuse County ED program.

Holding:Behavioral intervention plan must be based upon a functional analysis assessment.The District failed to perform proper functional analysis assessment upon which to base a behavioral intervention plan.The District failed to implement a behavioral intervention plan while student in District’s Special Day Class.IEPs recommended County ED program is not least restrictive environment (LRE).District never incorporated behavioral management plan into IEP despite misconduct.

Main Point:District failed to implement a behavioral intervention plan based upon a functional analysis assessment for a 16-year-old ED student plagued with behavioral problems.

ED Eligibility – Behavioral InterventionsSouth Pasadena Unified School District

South Pasadena Unified Sch. Dist., 28 IDELR 1113 (SEA CA 1998)

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ED Assessment Issues

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Child Find Obligation

“The IDEA imposes an affirmative obligation on the school district to identify and evaluate children with disabilities.”

(Seattle School District No. 1 v. B.S. (9th Cir. 1996) 82 F.3d 1493.)

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Child Find - Opportunity

The Threshold For Suspecting A Student

Has A Disability is Low:

District must respond within a reasonable time after receiving notice of a potential disability.

District is deemed to have notice if student’s behavior or poor academic performance indicates a possible need for special education.

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Assessments Must Be Appropriate

Assess in all areas of suspected disabilityAdministered by trained personnelIn conformity with test instructionsConducted by “persons knowledgeable” about disability and competent and qualified to perform the assessmentMust be validated for purpose used

Age norms

Selected and administered so as not to be discriminatory

Larry P.

Provided in primary languageDeafELL

Use a variety of assessment toolsWritten report is required

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Variety of Assessment Tools

Standardized v. non-standardized measuresCriterion referenced ObservationsRating scales

ParentStaff

Records reviewInterviewsQuestionnairesWork Samples

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Assessments - Protocols

Assessments must be administered in accordance with instructions provided by the producer of the assessments.

Ed. Code § 56320, subd. (b)(3)

Parents may use protocols to try to show that assessments did not comply with the instructions.

Properly-completed protocols can be strong evidence supporting the district’s position.

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Assessments – Common Errors in Selection of Assessment Instruments

Outdated assessment instruments.Using same instrument less than a year after previous administration.Screening assessments, instead of full-scale, standardized assessments.Using instrument outside normed ages inappropriately.

ED Services and Placement Issues

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What Are ERMHS?

Counseling services (individual, group, and/or family);Psychological services;Medical services for diagnostic or evaluative purposes;Parent counseling and/or training; School health or nurse services; andSocial work services.

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Where Are ERMHS Services Provided?

Services in general education, RSP and special day classes Pull-out at schoolNPS placementAfter-school counselingServices at homeServices in the communityResidential placement

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Residential Placement

Authorized by IDEA; andIf placement in residential program is necessary, the program, including non-medical care and room and board must be paid for by the LEA, unless another agency places the student.

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When to Impose Responsibility for Residential Placement

Case law has identified three tests for determining when to impose responsibility for residential placement:

Where the placement is “supportive” of the student’s education;Where medical, social or emotional problems that require residential placement are “intertwined” with educational problems; orWhen the placement is primarily to aid the student to benefit from special education.

Clovis Unified School District v. California Office of Administration (9 th Cir. 1990)903 F.2d 635.

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Residential Placement

9th Circuit rejected the first two testsMere “supportiveness” is too broad to determine if a service is necessaryAlso “reject” the “intertwined” test

Clovis Unified School District v. California Office of Administration (9th Cir. 1990)

Compare: for education purposes vs. medical, social emotional reasons not related to educational purposes

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Conclusion

Conduct appropriate ED assessmentsAppropriately evaluate ED eligibilityAppropriately serve and place students in LRE