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This resource was prepared by Attorney Judith Saltzman, of councel to the Cleveland and Sheffield Village law firm of Hickman & Lowder Co., L.P.A., and is intended to provide broad general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.
Recently, several mental health professionals have complained to me about the shrinking availability and poor coordination of mental health services for adolescents. Children who are uninsured, or whose families cannot find affordable mental health services even with insurance, or who are resistant to outpatient counseling by virtue of their illness, are not growing into the independent and functional adults we want them to be.
One solution to consider is special education. Many parents do not realize that mental illness that adversely impacts functioning may qualify their children for an IEP that can provide a range of services, including counseling, behavioral supports, social skills training, and, if needed, a therapeutic school.
Under federal special education regulations [34 CFR 300.8(c)(4)] “Emotional Disturbance” means a condition exhibiting one or more of the five characteristics listed below “over a long period of time and to a marked degree that adversely affects a child’s educational performance:”
A “long period of time” can be a range of between two and nine months, and a “marked degree” refers to the frequency, duration or intensity of a student’s emotionally disturbed behavior in comparison to typical peers.
The adverse effects that may qualify a child for services apply to more than academics. Inability to learn is only one of the five qualifying criteria for an emotional disability. Adverse impact upon educational performance – which contemplates the range of skills that a child must acquire in order to become an independent functioning adult– is what is required. So, for example, if psychological conditions impede the child’s ability to interact appropriately with peers and teachers, or if the child’s emotional disorder impedes appropriate community behaviors, or if phobias prevent the child from attending school, the child is likely to be eligible for special education as a child with an emotional disorder.
There are two important limiting factors in the definition of emotional disturbance. First, where the sole cause of the mood, behavior or academic problems a child experiences is drug use, the child will not qualify. In some cases, this becomes a “chicken and egg” type problem, requiring the school district to determine whether the emotional disability caused the drug use (i.e. the child is self-medicating) or whether the reverse is true. Drug use will not disqualify a child who otherwise meets the criteria for an emotional disturbance. Second, “social maladjustment” — a disorder of conduct that is not caused by an emotional problem such as severe depression — will not of itself qualify a child for the category of “emotional disturbance.”
Once a child reaches adolescence, emotional problems have likely become intertwined with behavioral issues – such as drug use and defiance — that can make the eligibility determination for emotional disturbance a contentious process. Sharing your teen’s medical records, including mental health records, though invasive, may help in establishing eligibility. For its part, the school district will need to conduct observations and evaluations of the child and compare his behavior and interactions to that of typical peers.
This is a matter for determination by the IEP team, but generally the IEP should include some form of counseling and/or behavioral support to address the emotional problem that is adversely impacting your child’s functioning. This could be individual or group counseling in school, placement in a therapeutic day school, or, in the most severe cases, a therapeutic boarding school.
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