As the school year begins, parents of children with emotional and behavioral disabilities are struggling with the heart wrenching, time consuming task of finding or keeping an appropriate placement for their children. Often children are not identified as requiring special education services, or if identified, they are inappropriately placed in segregated classrooms for children with learning disabilities or mental retardation. If we are to advocate for the needs of our children, we must educate ourselves about laws that govern our schools; be aware of the process to request services, assure the implementation of those services and appeal decisions which we do not agree with; and finally, be aware of the tools available to help our children succeed.

A Great IDEA

In 1975 the Individuals with Disabilities Education Act (IDEA) mandated that children with special education needs have access to the same public school education as every other child. In 1997 IDEA was reauthorized and Congress added new rights and rules to the law. The changes made to IDEA included: ADD/ADHD eligibility, participation of special education children in statewide assessments, and mandated that special education students have access to the general curriculum. Changes were also made in procedures for children removed from school due to behavioral issues. IDEA is again up for reauthorization

Navigating the System

Under IDEA every school district has a legal responsibility to identify, locate and evaluate children who may need special education services. Children who qualify must be provided with special educational services in the least restrictive environment possible. The district is responsible for completing an initial evaluation with subsequent evaluations/ assessments every three years. The child’s educational placement is determined by his or her unique needs. Placement may vary from regular classrooms with support services, special classes, special public or private schools, residential programs or home instruction. Support services can encompass a wide range of services including psychological services, speech and language therapy, physical and occupational therapy, one-on-one instructional aides, assistive technological devices, or nursing care. Vocational and post secondary placement needs must be considered for children age fourteen and older.

Eligibility

Currently, to be considered eligible for special education services under IDEA “children with disabilities” between the ages of three and twenty-two, must be identified with one or more of the following conditions: mental retardation, hearing impairment, speech or language impairment, visual impairment, serious emotional disturbance, orthopedic impairment, autism, traumatic brain injury, specific learning disability, ADD (Attention Deficit Disorder), ADHD (Attention Deficit Hyperactivity Disorder) and other health impairment. In addition there must be evidence that your child’s disability adversely affects education performance.

Making a case for eligibility based upon Emotional Disturbance (ED) can be a difficult process since it is complex and vague. One of the major barriers to identification lies in the definition of Emotionally Disturbed (ED). Many children are deemed ineligible because of technicalities in the school definition of ED and a significant number may be misidentified in other categories of special education reserved for children with primary learning or language disorders. Under IDEA, an emotional disturbance is a condition that has existed over a long period of time, is significant and has an impact on your child’s educational performance. Conditions that qualify as an emotional disturbance include one or more of the following:

· inability to learn, not explained by intellectual, sensory or health factors
· inability to build or maintain satisfactory interpersonal relationships with peers and teachers
· inappropriate types of behavior or feelings under normal circumstances
· general pervasive mood of unhappiness or depression, or
· tendency to develop physical symptoms or fears associated with personal or school problems

It is important for parents to remember the purpose of acknowledging the ED label is to meet an eligibility category, not to sum up your child’s identity and reinforce stigma. Proving that your child qualifies for special education services so she or he may succeed is part of the process and does not define the unlimited qualities and characteristics that reflect his or her individuality and strengths.

Children are often denied eligibility based on the child’s passing grades. IDEA says nothing about grades. Under these circumstances the family must show that the child’s educational performance is adversely affected. This is often done by showing failure to progress, difficulties in cognitive areas, discrepancy between performance and ability, evidence of emotional or social difficulties or physical difficulties. Families preparing for the eligibility meeting should prepare by having copies of the child’s school file, copies of all school assessments, and know the school district’s position in advance.

Developing the IEP

Under IDEA, each child who qualifies is provided with an Individualized Education Program (IEP) developed by the Committee on Special Education (CSE). By law you are an equal partner in the IEP process—no part can be implemented without your approval. The first IEP meeting will determine eligibility and may also address program services, goals and objectives. Each year thereafter, the meeting will focus on program services and the development of goals and objectives to meet the unique educational needs of your child. You and the school district must sign the IEP. Once signed, the IEP is a binding legal contract and the school district must provide everything included in the document. You or the district can call for a new IEP meeting whenever you feel one is needed. If current services are not meeting the needs of your child or the implementation of actual services differs from what was discussed at the IEP meeting, parents should request in writing another IEP meeting.

If you disagree with the findings or recommendations of the CSE you can request an independent evaluation. Through an evaluation, the district will determine eligibility for special education services and with parental involvement during the IEP process, the programs and services to be provided. If you disagree with the recommendations, you have the right to mediation and due process or “fair hearing.” In mediation, the parents and the district meet with a neutral third party to try to reach an agreement. In a fair hearing the parent and the district present written and oral testimony regarding disputed issues before a neutral administrative judge who will make and impose a decision.

Section 504 of the Rehabilitation Act of 1973

Frequently children with emotional and behavioral difficulties who do not qualify for special education under IDEA will qualify for services under Section 504. Under Section 504 a school district which receives federal funds is prohibited from denying a handicapped person access to their programs or facility. Each school must have a “504 plan” to provide services to ensure accessibility. To be eligible under the 504 plan the child would need documentation of a history of physical or mental impairment which substantially limits one or more major life activity. This could be psychological or physiological disorders which impair the child’s ability to learn, take care of herself, walk, speak, work, etc. To enable an emotionally disturbed child with a documented diagnosis to have access to their educational program, the school district would agree to provide various support services.

TOOLS
Functional Behavioral Assessment (FBA)

Under IDEA school districts are required to schedule an IEP meeting within ten days and order a functional behavioral assessment and develop a behavioral intervention plan to address the behavior when a child’s behavior is viewed as an issue. If your child already had a functional behavioral assessment and a behavioral intervention plan, the IEP team should review and make necessary changes. Families report that many schools are neglecting to conduct FBA’s and even fewer are implementing positive behavioral interventions. Functional behavioral assessment is an approach that incorporates a variety of techniques and strategies to diagnose the causes and to identify the likely interventions intended to address problem behaviors. It goes beyond the behavior to the student’s underlying motivation to escape, avoid, or get something. Through a functional behavioral assessment an IEP team can develop a plan to teach the student more appropriate ways to behave to get what they want. Strategies may be developed to decrease or even eliminate opportunities for the student to engage in behavior that hinders positive academic outcomes.

Discipline Provisions

IDEA requires schools to develop positive ways to address student behavior. The educational program is to change so children with behavioral problems can succeed. Students may be eligible for related services such as psychological counseling. If a school system wants to discipline your child, it must tell you on the same day the decision is made and give you information on your right to appeal. Schools may suspend a student who has a disability for up to total of ten days in a school year. If a student is suspended for more than 10 days, however, a “no sessation” rule applies which means school systems must continue to provide a “free appropriate public education” called FAPE. This involves a full education program, not just a few hours of home tutoring. Suspensions cannot be used by districts to get rid of special education students.

Immediately after school officials decide to discipline a special education student they must conduct a “manifestation determination” where the IEP team with other school personnel determines whether the child’s behavior is caused by or related to his or her disability. This must be done within 10 days of the disciplinary action. If the IEP team decides the child’s behavior was not related to the disability, the student may be disciplined just like a student without disabilities, but the “no cessation” rule still applies. If the child is involved with weapons or drugs a student with disabilities can be placed in a temporary “Interim Alternative Educational Setting” (IAES)