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

2. National Alliance on Mental Illness – July 8, 2011 Chicago, Il. 2

3. 3 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

4. 4 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

5. 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 5

6. 6 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

7. 7 IDEA Emotionally Disturbed  Emotional Disorder Must be Present: -Over a long period of time -To a Marked degree -Adversely affects a child's educational performance

8. 8 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

9. 9 “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

10. 10 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 problems  Adversely affects educational performance

11. 11 All IDEA eligibility categories require: Meet criteria for specific category Disability adversely affects educational performance Child requires special education intervention

12. 12 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

13. 13 Placement & LRE  Regular Classroom  Pull Out Services  Self-Contained  Public Therapeutic Day Schools  Private Therapeutic Day Schools  Residential  Home/Hospital Services

14. 14 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

15. 15 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

16. 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 16

17. 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 17

18. 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 18

19. 19 IDEA IEP Process Parents 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

20. 20 FBA/BIP Positive Behavior Interventions and Supports Can Include:  Exceptions to Discipline Code  Provision of Counseling  Use of a Positive Reinforcement System  Accommodations  Behavioral and social skills training  Staff support and/or 1-1 aides

21. 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 21

22. 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 22

23. 23 Section 504  Identified physical or mental disability  Substantially limits a major life activity  Failure to control behavior  Not limited to academic material  Requires special education OR related services

24. 24 Provisions of 504  Eligibility: non categorical  Special education or related services  History or perception of disability  Child find obligation  FAPE  Procedural Safeguard & Due Process – School Appoints Hearing Officer  No Stay Put!  Office for Civil Rights Complaints

25. 25 Advantages: IDEA v. 504  504-less stringent eligibility  Less cumbersome regulations  Less stigmatizing  Less involved evaluation  IDEA-more stringent evaluation  Easier access to full continuum  Greater/specific parent rights & procedural safeguards  Heightened due process safeguards

26. 26 Resources

27. 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.www.monahan-cohen.com 27