children with emotional disorders left behind, left out or kicked out - strategies for protecting...

Children with Emotional Disorders

Left Behind, Left Out or Kicked Out - Strategies for Protecting Their Rights Under IDEA and Section 504*

by Matt Cohen, J.D.

Monahan & Cohen, Chicago, Il.mdcspedlaw@gmail.com www.monahan-cohen.com

disablethelabels.blogspot.com

*Copyright by Matt Cohen, June 14, 2011. May not be reproduced, other than for personal use, without author’s written consent.

National Alliance on Mental Illness – July 8, 2011

Chicago, Il.

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IDEA and Section 504

• IDEA is a funding statute requiring all states to comply with its conditions for funding special education

• Section 504 is a civil rights statute requiring all recipients of federal funds to provide non-discriminatory services, including reasonable accommodations

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Child Find: Early & Accurate Screening, Assessment & Evaluation

School is obligated to identify all children suspected of having a disability, including an emotional or behavioral disorder, per child find.

A parent or member of the school staff involved with the child may refer for evaluation

School must obtain written parent consent before conducting evaluation

School must inform parents if the school does not feel evaluation is appropriate and that parents have the right to challenge the refusal

IDEA 2004 Expands Scope of Evaluation

• IDEA now requires that schools evaluate the child in a manner and form:– Likely to yield accurate results– That identifies what the child

knows and can do– That assesses the child’s

developmental and functional progress as well as academic progress

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ED Criteria…..

Must Meet One of Following:-Inability to learn due to emotional factors

-Inability to build or maintain interpersonal relationships

-Inappropriate types of behavior or feelings under normal circumstances

-General pervasive mood of unhappiness or depression

-Physical symptoms or fears

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IDEAEmotionally Disturbed

Emotional Disorder Must be Present:-Over a long period of time-To a Marked degree-Adversely affects a child's educational performance

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ED Eligibility Based On….

Child’s functioning in school Child’s social relationships Child’s ability to complete work Child’s ability to conform to school

rules and classroom expectations ED includes both aggressive-

externalized behaviors and internalized behaviors

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“ED eligibility ruled out if behavior due to other causes….Need to Rule Out:”

Medication issues Physical explanation Drug and/or alcohol use Disability May Be More Appropriate

Under Another Disability Category LD TBI, Autism Communication Disorders Other Health Impaired:

ADHD Tourette Syndrome (effective 2006) Bipolar Disorder

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Other Health Impaired

Limited strength, vitality or alertness

Heightened alertness to environmental stimuli

Results in limited alertness in the educational setting

Chronic or acute health problemsAdversely affects educational

performance

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All IDEA eligibility categories require:

• Meet criteria for specific category

• Disability adversely affects educational performance

• Child requires special education intervention

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Right to Free Appropriate Public Education

• Defined by content of IEP• Includes Special Education

and Related Services Provided in the Least Restrictive Environment

• Requires necessary, but not best, services

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Placement & LRE

Regular ClassroomPull Out ServicesSelf-ContainedPublic Therapeutic Day SchoolsPrivate Therapeutic Day SchoolsResidentialHome/Hospital Services

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Related Services

• * List is non-exclusive• * Any non-medical service

necessary for child to benefit from education

• * Medical services are those services which can only be provided by a doctor

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Related Services for Kids w/ED

• School social work, psychology or counseling

• Social Skills Training• 1-1 aides to provide structure• Positive Reenforcement System• Parent Counseling• Medication Administration• Transportation if disability makes

walking unsafe

Additional strategies for children with emotional issues• Training programs for staff &

students• Monitoring strategies –

alertness coupled with privacy protection

• Services to address academic consequences of emotional and behavioral problems

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Special Considerations

• Variability of symptoms and manifestations may confuse staff

• Calling attention to problem may cause adverse reactions or stigmatize student with others

• Provide caring/trusted adult to provide support to student

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Special Arrangements

• Adjusted Class Schedules and Extended Time for Homework and Tests

• Possible Homebound Tutoring Plans As Needed

• Monitoring by school nurse or trusted staff person

• Provision for homework backup plans

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IDEA IEP ProcessParents have a right to participate! IEP reviews: annual or more! Role of parents – bring anyone you want PLOP, Goal/Objectives & Methods IDEA 2004 requires that IEP address

developmental and functional needs Requires that program be based on peer

reviewed research to the extent possible Still requires consideration of positive

behavioral intervention & supports IEP must specify starting date, frequency,

duration and location of all services IEP should list the supports the staff

needs, e.g., training on behavioral management or access to behavioral consultant

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FBA/BIP

Positive Behavior Interventions and Supports Can Include:Exceptions to Discipline CodeProvision of CounselingUse of a Positive Reinforcement SystemAccommodationsBehavioral and social skills trainingStaff support and/or 1-1 aides

Building a Behavioral Umbrella

• Use IEP process to clearly identify student’s behavioral challenges & needs• Build into IEP a hierarchy of positive behavioral

supports & interventions• Limit use/availability of

restrictive/punitive/exclusionary measures• Write behavioral goals• Find a trusted ally in the school• Build in training for staff about the child’s condition

and about proper intervention• Promote positive behavioral support school-wide

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Additional IEP Provisions

All modifications and accommodations must be listed in IEP

Transition Planning - now requires evaluation across all areas- academic, vocational, social, life skills

Must be based on appropriate post-secondary goals

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Section 504

Identified physical or mental disabilitySubstantially limits a major life activityFailure to control behaviorNot limited to academic materialRequires special education OR related

services

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Provisions of 504

Eligibility: non categoricalSpecial education or related servicesHistory or perception of disabilityChild find obligationFAPEProcedural Safeguard & Due Process –

School Appoints Hearing OfficerNo Stay Put!Office for Civil Rights Complaints

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Advantages: IDEA v. 504

504-less stringent eligibilityLess cumbersome regulationsLess stigmatizingLess involved evaluation

IDEA-more stringent evaluationEasier access to full continuumGreater/specific parent rights &

procedural safeguardsHeightened due process safeguards

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Resources

Advocacy Strategies

• A Guide to Special Education Advocacy: What Parents, Advocates and Clinicians Need to Know

• By Matt Cohen• Jessica Kinglsey Press, 2009• Call our office (312-419-0252)

or www.monahan-cohen.com to order.

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