Emotional/Behavioral Disorders and Special Education: Recommendations for System Redesign of a Failed Category
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Students who are determined eligible for special education services because of their emotional or behavioral disabilities present a broad and complex range of disabilities, needs, behaviors, and challenges to the public schools that serve them. Unfortunately, even with special education, these students tend to have very poor school and post-school outcomes. This concept paper explores the implications of the category on school placement and programming decisions as well as the implications of having a category essentially based on behavior and not on a specific, recognized disability. After explaining the concerns, this paper offers recommendations to effectively address these issues, with the goal of improving both behavioral and academic outcomes for students.
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Background
Not all students with disabilities are eligible for special education and related services under federal and state special education laws.1 In order to be eligible for special education and related services under federal and state law, a student must qualify under one of the thirteen eligibility categories found in the Individuals with Disabilities Education Act (IDEA). Among the categories is emotional disturbance (ED), which is defined in 34 C.F.R. § 300.7(c)(4)(i) as,
Not all students with disabilities are eligible for special education and related services under federal and state special education laws.1 In order to be eligible for special education and related services under federal and state law, a student must qualify under one of the thirteen eligibility categories found in the Individuals with Disabilities Education Act (IDEA). Among the categories is emotional disturbance (ED), which is defined in 34 C.F.R. § 300.7(c)(4)(i) as,
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. (E) A tendency to develop physical symptoms or fears associated with personal or school problems.
Section 300.7(c)(4)(ii) provides that emotional disturbance “includes schizophrenia” and that “[t]he term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance.” Originally, the definition was created from descriptions of students made by E.M. Bower in the 1950’s. He and his colleagues collected academic, emotional, and social information on over 200 students who were identified by mental health professionals as being “emotionally disturbed”. Five factors were identified as separating these students from their peers. These five factors became the characteristics listed in § 300.7(c)(4)(i)(A–E). When the federal definition was originally created, it added the term serious, the stipulation that the problem adversely affected educational performance, the inclusion of schizophrenia, and the exclusion of social maladjustment unless SED was also present. The definition neither quantifies the “long period of time”, nor does it define the term “social maladjustment”. The 1999 federal regulations were revised to reflect Congressional intent to remove the connotation of the term serious but not to make any substantive change.
It is important to note that, although research in children’s mental health disorders has advanced significantly since the 1950s (e.g., childhood depression was not recognized as a disorder at that time), the criteria have remained essentially unchanged. While disorders from other special education categories may develop suddenly (traumatic brain injury, physical injuries resulting in the need for adaptive physical education, sudden hearing loss, etc.), the ED criteria continue to maintain the need for emotional problems having existed for a “long period of time.” In fact, some children’s mental health disorders such as post traumatic stress disorder, panic disorder, mania, etc. may have sudden onset.
In explaining its position on requested changes to the ED definition during IDEA’s 2004 re-authorization, the United States Department of Education (USDOE) comments to the final regulations state that,
It is important to note that, although research in children’s mental health disorders has advanced significantly since the 1950s (e.g., childhood depression was not recognized as a disorder at that time), the criteria have remained essentially unchanged. While disorders from other special education categories may develop suddenly (traumatic brain injury, physical injuries resulting in the need for adaptive physical education, sudden hearing loss, etc.), the ED criteria continue to maintain the need for emotional problems having existed for a “long period of time.” In fact, some children’s mental health disorders such as post traumatic stress disorder, panic disorder, mania, etc. may have sudden onset.
In explaining its position on requested changes to the ED definition during IDEA’s 2004 re-authorization, the United States Department of Education (USDOE) comments to the final regulations state that,
[h]istorically, it has been very difficult for the field to come to consensus on the definition of emotional disturbance, which has remained unchanged since 1977. On February 10, 1993, the Department published a "Notice of Inquiry" in the Federal Register(58 FR 7938) soliciting comments on the existing definition of serious emotional disturbance. The comments received in response to the notice of inquiry expressed a wide range of opinions and no consensus on the definition was reached. Given the lack of consensus and the fact that Congress did not make any changes that required changing the definition, the Department recommended that the definition of emotional disturbance remain unchanged. We reviewed the Act and the comments received in response to the NPRM and have come to the same conclusion. Therefore, we decline to make any changes to the definition of emotional disturbance.
The USDOE’s comment to the final regulations shows the stalemate over the ED definition in 2006. Yet, the problems identified in this paper, and in previous debates in the literature continue today. As such, it is time again to renew the debate in the current context to strive toward some consensus. We will first review Minnesota’s implementation of the federal ED definition and describe its policy, practice and outcome related concerns.
Minnesota’s EBD Definition and Criteria
States may, but are not required to, develop their own definitions and criteria to assist school districts in determining which students are eligible. States may not, however, create definitions or criteria that conflict with the federal definition. Minnesota, along with many other states, has chosen to create a definition, criteria and evaluation processes for the ED category. One of Minnesota’s changes is to the category name itself: “emotional or behavioral disorders.” Further, Minnesota’s law is broader than IDEA’s definition and includes criteria and evaluation requirements.
Minnesota’s EBD Definition and Criteria
States may, but are not required to, develop their own definitions and criteria to assist school districts in determining which students are eligible. States may not, however, create definitions or criteria that conflict with the federal definition. Minnesota, along with many other states, has chosen to create a definition, criteria and evaluation processes for the ED category. One of Minnesota’s changes is to the category name itself: “emotional or behavioral disorders.” Further, Minnesota’s law is broader than IDEA’s definition and includes criteria and evaluation requirements.
10Minn. R. 3525.1329 subp. 1 (2009).
Emotional or behavioral disorders" means an established pattern of one or more of the following emotional or behavioral responses: A. withdrawal or anxiety, depression, problems with mood, or feelings of self-worth; B. disordered thought processes with unusual behavior patterns and atypical communication styles; or C. aggression, hyperactivity, or impulsivity.
The established pattern of emotional or behavioral responses must adversely affect educational or developmental performance, including intrapersonal, academic, vocational, or social skills; be significantly different from appropriate age, cultural, or ethnic norms; and be more than temporary, expected responses to stressful events in the environment. The emotional or behavioral responses must be consistently exhibited in at least three different settings, two of which must be educational settings, and one other setting in either the home, child care, or community. The responses must not be primarily the result of intellectual, sensory, or acute or chronic physical health conditions.
11Minn. R. 3525.1329 subp. 2a (2009).
A pupil is eligible and in need of special education and related services for an emotional or behavioral disorder when the pupil meets the criteria in items A to C.
A. A pupil must demonstrate an established pattern of emotional or behavioral responses that is described in at least one of the following subitems and which represents a significant difference from peers:(1) withdrawn or anxious behaviors, pervasive unhappiness, depression, or severe problems with mood or feelings of self-worth defined by behaviors, for example: isolating self from peers; displaying intense fears or school refusal; overly perfectionistic; failing to express emotion; displaying a pervasive sad disposition; developing physical symptoms related to worry or stress; or changes in eating or sleeping patterns;
(2) disordered thought processes manifested by unusual behavior patterns, atypical communication styles, or distorted interpersonal relationships, for example: reality distortion beyond normal developmental fantasy and play or talk; inappropriate laughter, crying, sounds, or language; self-mutilation, developmentally inappropriate sexual acting out, or developmentally inappropriate self-stimulation; rigid, ritualistic patterning; perseveration or obsession with specific objects; overly affectionate behavior towards unfamiliar persons; or hallucinating or delusions of grandeur; or
(3) aggressive, hyperactive, or impulsive behaviors that are developmentally inappropriate, for example: physically or verbally abusive behaviors; impulsive or violent, destructive, or intimidating behaviors; or behaviors that are threatening to others or excessively antagonistic.
The pattern must not be the result of cultural factors, and must be based on evaluation data which may include a diagnosis of mental disorder by a licensed mental health professional.
B. The pupil's pattern of emotional or behavioral responses adversely affects educational performance and results in: (1) an inability to demonstrate satisfactory social competence that is significantly different from appropriate age, cultural, or ethnic norms; or (2) a pattern of unsatisfactory educational progress that is not primarily a result of intellectual, sensory, physical health, cultural, or linguistic factors; illegal chemical use; autism spectrum disorders under part HYPERLINK "https://www.revisor.mn.gov/rules?id=3525.1325"3525.1325; or inconsistent educational programming.
C. The combined results of prior documented interventions and the evaluation data for the pupil must establish significant impairments in one or more of the following areas: intrapersonal, academic, vocational, or social skills. The data must document that the impairment:(1) severely interferes with the pupil's or other students' educational performance; (2) is consistently exhibited by occurrences in at least three different settings: two educational settings, one of which is the classroom, and one other setting in either the home, child care, or community; or for children not yet enrolled in kindergarten, the emotional or behavioral responses must be consistently exhibited in at least one setting in the home, child care, or community; and (3) has been occurring throughout a minimum of six months, or results from the well-documented, sudden onset of a serious mental health disorder diagnosed by a licensed mental health professional.
A. The evaluation findings in subpart 2a must be supported by current or existing data from: (1) clinically significant scores on standardized, nationally normed behavior rating scales; (2) individually administered, standardized, nationally normed tests of intellectual ability and academic achievement; (3) three systematic observations in the classroom or other learning environment; (4) record review; (5) interviews with parent, pupil, and teacher; (6) health history review procedures; (7) a mental health screening; and (8) functional behavioral assessment. The evaluation may include data from vocational skills measures; personality measures; self-report scales; adaptive behavior rating scales; communication measures; diagnostic assessment and mental health evaluation reviews; environmental, socio-cultural, and ethnic information reviews; gross and fine motor and sensory motor measures; or chemical health assessments.
B. Children not yet enrolled in kindergarten are eligible for special education and related services if they meet the criteria listed in subpart 2a, items A, B, and C, subitems (2) and (3). The evaluation process must show developmentally significant impairments in self-care, social relations, or social or emotional growth, and must include data from each of the following areas: two or more systematic observations, including one in the home; a case history, including medical, cultural, and developmental information; information on the pupil's cognitive ability, social skills, and communication abilities; standardized and informal interviews, including teacher, parent, caregiver, and child care provider; and standardized adaptive behavior scales.
12Minn. R. 3525.1329 subp. 3 (2009).
The evaluation findings in subpart 2a must be supported by current or existing data from: (1) clinically significant scores on standardized, nationally normed behavior rating scales; (2) individually administered, standardized, nationally normed tests of intellectual ability and academic achievement; (3) three systematic observations in the classroom or other learning environment; (4) record review; (5) interviews with parent, pupil, and teacher; (6) health history review procedures; (7) a mental health screening; and (8) functional behavioral assessment.
The evaluation may include data from vocational skills measures; personality measures; self-report scales; adaptive behavior rating scales; communication measures; diagnostic assessment and mental health evaluation reviews; environmental, socio-cultural, and ethnic information reviews; gross and fine motor and sensory motor measures; or chemical health assessments.
B. Children not yet enrolled in kindergarten are eligible for special education and related services if they meet the criteria listed in subpart 2a, items A, B, and C, subitems (2) and (3). The evaluation process must show developmentally significant impairments in self-care, social relations, or social or emotional growth, and must include data from each of the following areas: two or more systematic observations, including one in the home; a case history, including medical, cultural, and developmental information; information on the pupil's cognitive ability, social skills, and communication abilities; standardized and informal interviews, including teacher, parent, caregiver, and child care provider; and standardized adaptive behavior scales.
Problems with Minnesota’s EBD Law
One fundamental problem with Minnesota’s law is that one of its criteria, Minn. R. 3525.1329, Subp. 1 C, allows eligibility on the basis of “aggression, hyperactivity, or impulsivity” and its corresponding sub-items, in Minn. R. 3525.1329, Subp. 2a A 3, which include,
One fundamental problem with Minnesota’s law is that one of its criteria, Minn. R. 3525.1329, Subp. 1 C, allows eligibility on the basis of “aggression, hyperactivity, or impulsivity” and its corresponding sub-items, in Minn. R. 3525.1329, Subp. 2a A 3, which include,
[a]ggressive, hyperactive, or impulsive behaviors that are developmentally inappropriate, for example: physically or verbally abusive behaviors; impulsive or violent, destructive, or intimidating behaviors; or behaviors that are threatening to others or excessively antagonistic.
Under this eligibility route, students can be determined eligible under the EBD category for developmentally inappropriate behavior, which is documented by standardized tests, observations, record review, interviews, health history, mental health screening and functional behavioral assessments.
We focus on this eligibility route for three primary reasons. First, in the practical experiences of the authors, the majority of children in Minnesota who are eligible under the EBD category demonstrate the “B” part of EBD. This is reflected by the aggression route rather than the only the “E” part of the EBD as addressed by the other eligibility routes. Second, the aggression eligibility route poses a number of policy, practical, and theoretical dilemmas that need exploration.
Lack of a Clearly Identified Disability
The aggression, hyperactive or impulsive EBD eligibility route has no specific requirement to identify a particular disability associated with those characteristics. A student need only demonstrate inappropriate behavior that is divergent from the behavior of peers. In other words, this becomes a tautological issue as the behavioral symptoms become the disabilities themselves.
There does not need to be a specific disability tied to the behaviors, and this is problematic. The EBD category does not lend itself to identifying the true nature of the student’s disabilities. Without a clear definition of the student’s needs and disabilities, it is difficult, and in some situations, impossible to develop and implement effective educational interventions. School staff members must try to reduce aggression, hyperactivity or impulsivity without knowing a disability-related cause or contributing factor to that behavior.
Even more distressing is that information about the reasons for a student’s aggression, hyperactivity impulsivity, or other behavioral difficulties may be available, as research indicates that the vast majority of students under the EBD category already have a diagnosed mental health disorder or have very significant evidence of having an undiagnosed disorder.
The basic problem is that the EBD eligibility process tends to stop short, and may point schools and parents in a direction that does not help in identifying appropriate approaches in the educational environment. While it is true that the Minnesota requires an EBD evaluation to include standardized tests, observations, record review, interviews, health history, mental health screening and functional behavioral assessments, those documentation sources do not delve into the detail necessary (and perhaps available) to formulate efficacious educational approaches. We are not suggesting that schools are solely responsible for addressing a student’s mental health needs, but we believe IDEA contemplates school roles and responsibilities to evaluate and address a student’s disability needs in the school context with related services, behavioral interventions and other program adaptations and modifications.
Implications
Given this lack of clarity in identifying the disability, the EBD category tends to encourage school personnel to view problems from a behavioral rather than from a clinical perspective. There are three likely consequences that result from a behavioral perspective. First, educational goals, services, accommodations and modifications will be based on behaviors, not on a clinically based disorder. This is because the psychiatric disorders may not be identified and factored into programming decisions. Thus, behavioral interventions may be based on externally demonstrated behaviors (that are the foundation of the EBD “aggression” eligibility route), with no or little attempt to understand how the behaviors may stem directly from a psychiatric disability. Further complicating this issue is the IDEA requirement that IEP teams have school staff who are knowledgeable about the student’s disability. Does this mean that the school staff need only know about “aggression, hyperactivity, and impulsivity,” rather than being aware of the nature and educational implications of a student’s Attention Deficit Hyperactivity Disorder?
Second, students may suffer if there is a misinterpretation of a functional behavioral assessment. For example, a functional behavioral analysis may result in conclusions that the student’s behaviors that actually stem from his or her psychiatric disorders are “functional” in nature, and are due to asserting control, attention seeking, gaining tangibles, and/or avoiding work, instead of being directly the result of the symptoms of the psychiatric disorder. In fact, there may not be a function to the behaviors any more than the irritable behavior of a diabetic experiencing a low blood sugar would be considered functional.
Third, many if not all Setting IV schools in Minnesota are filled with “B” students.. Once students demonstrate challenging aggressive behaviors, they may be placed on an EBD “track” that has the potential to lead to a Setting IV EBD school. These schools often are locked from the inside and outside, have seclusion rooms, metal detectors and police, and use restraints on students. Although there are students who require intensive behavioral interventions that address their behavioral problems, psychiatrically disturbed patients whose behaviors stem from disorders such as mood disorders, anxiety disorders and even psychotic disorders are not well served by this approach.
Issues with Mental Health Screening
Minnesota Rule 3525.1329, subpart 3 includes a mandate for “a mental health screening”. However, there are no recommended guidelines for what screening tool to use, or whether the tool needs to have adequate degrees of sensitivity, specificity, validity or reliability. There is no recommendation regarding what the evaluators should do if the screening is positive. Minnesota Department of Education does not gather information from school districts to determine the percentage of students who receive mental health screening as part of their assessment who have evidence of mental health disorders, the types of disorders that are identified as being potentially present, or the outcome (evaluation, treatment, etc.) in situations where evidence of disorders are identified. Comparing this to situations where a hearing screen identifies evidence of hearing loss, and the follow up that takes place, suggests a significant discrepancy in how mental health disorders are addressed in special education.
Can the EBD category Include Students with Mental Health Disabilities?
The last sentence of the second paragraph in Minnesota Rule 3525.1329, subpart 1 states that the student’s emotional or behavioral “responses must not be primarily the result of intellectual, sensory, or acute or chronic physical health conditions.” However, abundant research shows that psychiatric disorders such as Bipolar Mood Disorder or Major Depression (which are not specifically mentioned in the IDEA OHI section) are chronic health conditions with physical symptoms that could lead to the need for special education assessments. Does this mean that mental health disabilities cannot be evaluated in the EBD category?
Further, since ADHD is identified as a physical health condition in the IDEA description of OHI, and since it is a chronic condition, then Minnesota’s EBD criteria should exclude students who have ADHD when their behavioral and emotional symptoms at school (distractibility, impulsivity, hyperactivity, etc.) are primarily caused by ADHD. Failure to do so would violate the state’s criteria-based method of categorical placement. Yet, distractibility, impulsivity, and hyperactivity are essential elements in the EBD category.
Is Another Eligibility Category Useful for Students with Mental Health Disabilities?
The federal definition of Other Health Impairment (”OHI”), and Minnesota’s implementing criteria for OHI, named Other Health Disability (“OHD”), mandate the identification of an acute or chronic medical disability as the first step in establishing the basis for the student’s special education eligibility. The USDOE did not rule out the use of the federal OHI category for mental health disabilities. In responding to requests to specifically list mental health disabilities into the federal regulations, the USDOE , although less than committal, commented:
The list of acute or chronic health conditions in the definition of other health impairment is not exhaustive, but rather provides examples of problems that children have that could make them eligible for special education and related services under the category of other health impairment. We decline to include dysphagia, FAS, bipolar disorders, and other organic neurological disorders in the definition of other health impairment because these conditions are commonly understood to be health impairments.
Despite the apparent availability of OHI/OHD to include mental health disabilities, it is unusual for districts to pursue both OHD and EBD eligibility for a student. There is also a lack of clarity for school districts in determining the ideal placement for a student who has a mental health disorder that manifests both emotional and behavioral symptoms. Although IDEA mentions the psychiatric disorder, ADHD, as an example of a health disorder, it does not imply that other psychiatric disorders such as Depression, Bipolar Mood Disorder, Obsessive Compulsive Disorder, etc. are not also health disorders.
Even when a student has a documented psychiatric diagnosis, OHD is generally not used in Minnesota if the student has significant behavioral problems. In these instances, districts tend to recommend the EBD category. This is highly problematic if the behavioral problems directly stem from the student’s disorder (e.g., irritability, grandiosity, agitation and combativeness as symptoms of mania). EBD can become a “catch-all” category for students who have behavioral problems, where generic behavioral interventions that ignore the underlying cause of the student’s behavior are utilized, often with poor outcomes.
Unlike in OHD, an EBD student who has a diagnosed mental health disorder does not necessarily have accommodations and modifications based on that disorder. This is because the psychiatric disorders in EBD students are not considered special education disabilities. This can result in behavioral interventions that are based on external behaviors, with no attempt to understand how the behaviors may stem directly from a psychiatric disability.
Other Implications
Given that IDEA’s “Child Find” requirement, 34 C.F.R. §300.111 (2006) mandates the identification of students who potentially need special education and related services, that students who are impulsive, distractible and hyperactive have evidence of ADHD (a disorder identified in IDEA as being covered by the OHD definition), and that a diagnostic evaluation is required for consideration for placement in OHD special education services, the question arises as to whether a district is required to perform or pay for a diagnostic evaluation of a student who manifests symptoms suggestive of ADHD. Because there is no clear mandate for a diagnostic evaluation for placement in EBD services, the potential financial consequences of performing or reimbursing a diagnostic evaluation (and the potential implications of schools being financially responsible for further mental health treatment) may be contributing factors in school districts’ apparent preference for the EBD category. Unfortunately, the lack of clarification of diagnosis, combined with the fact that many students in the EBD category have untreated, under treated or inappropriately treated mental health disorders, results in ongoing emotional and/or behavioral problems in the school setting that could have been prevented with appropriate diagnosis and treatment.
One additional potential unexpected consequence, at least on a theoretical basis, is apparent in Manifestation Determination proceedings, in which schools and parents must determine whether or not a student’s behaviors are directly related to the student’s disability. If there is such a direct and substantial relationship, the student cannot be expelled. If not, the school can move toward expulsion. The conundrum is that it would be theoretically impossible to expel a student for very same behavior that led to EBD/SED eligibility in the first place. In 2004, IDEA’s MD requirements were revised to focus on a direct and substantial relationship between behavior and disability, rather than on volitional behavior and the student’s recognition of the “wrongness” of the behavior. Thus, a student whose misbehavior was planned, with full recognition of its negative implications could theoretically not have those factors be used to argue against the behavior being due to his or her disability.
IDEA legal decisions have taken a more nuanced and practical view of this situation and have not given free passes to students to escape expulsion proceedings. IDEA hearing officers have rejected the notion that a particular category of eligibility is universally and presumptively exempt for expulsion. Instead, courts and hearing officers, with the advisement of expert witnesses, will examine whether the particular disability resulted in the behavior. For example, a hearing officer determined that a student with SED who planned and carried out an assault of another student over a conflict over a girlfriend, was not protected from expulsion. That hearing officer determined that the particular assault was not similar enough to other behaviors the student evidenced in school (which triggered his eligibility) and therefore the behavior in question was not a manifestation of his disability.
Bottom Line – Outcomes
These criticisms would be moot, however, if students served in this category had good outcomes. However, the opposite is the case. Research indicates that students served in this category of special education have the worst outcomes of all disabilities.
For example, 2006 data from Maryland indicate that ED students’ dropout rate was sixteen times (49% versus 3%) the dropout rate of students in regular education. Although ED students comprised only 8% of Maryland’s students in the various special education disabilities categories, they represented 52% of suspensions.
Mary Wagner’s research indicates significant problems in all areas of outcome measurements for this population. She notes that ED students had lower grade point averages, failed more classes, had more absences and had a higher dropout rate than students with other disabilities. ED students did worse than the general special education disabled population in post secondary education, employment and arrest rates. In fact, 58% had been arrested within three years of finishing high school, compared with 30% of the general special education students. She concluded that the major reason that ED students did not succeed in school was due to the fact that the “E” (emotional disorder) in EBD/SED is rarely effectively treated.
The authors note that the ED category is based on outdated concepts,;is tautological;lacks a connection to any specific disability; has no mandate to accommodate to mental health disabilities when they are present; is based on behavioral conceptualizations that are inappropriate for many psychiatrically disabled students; and has very poor outcomes. In short, it is a failed concept.
Recommendations
This paper has identified a number of issues related to policy choices, programmatic decisions, and results surrounding children eligible for special education and related services under the ED category, with special emphasis on Minnesota’s EBD category. We now turn to a discussion on recommendations for each type of issue.
Policy
To address the fundamental weakness of the ED category in not assisting school staff to get to the heart of the child’s disability, the IDEA definition could be more specifically tied to a particular disability. Forness & Knitzer proposed a revision of the definition as follows:
i. The term Emotional or Behavioral Disorder[EBD] means a disability characterized by behavioral or emotional responses in school so different from appropriate, age, cultural, or ethnic norms that they adversely affect educational performance. Educational performance includes academic, social, vocational, and personal skills. Such a disability
(a) is more than a temporary, expected response to stressful events in the environment;
(b) is consistently exhibited in two different settings, at least one of which is school related; and
(c) is unresponsive to direct intervention in general education or the child’s condition is such that general interventions would be insufficient.
ii. Emotional and behavioral disorders can co-exist with other disabilities.
iii. This category may include children or youth with schizophrenic disorders, affective disorders, anxiety disorders, or other sustained disorders of conduct or adjustment when they adversely affect educational performance in accordance with section (i).
This change is a step towards improving an understanding of ED on a national level. However, it continues to identify the ED category as being the disability, rather than mandating the identification of the student’s actual disability and providing appropriate accommodations and modifications as are done within other disability categories.
The following recommendations are thus directed towards identifying students’ actual disabilities and addressing them appropriately within the educational setting:
Given the difficulties associated with changing federal laws and the practical reality that state laws may also be created or amended to be more specific about the nature and cause of behavior, Forness & Knitzer’s recommendations apply to state level changes as well. The bottom line is to ensure the student’s true disabilities are identified; once done, appropriate individualized programming can occur.
Practice
To support policy changes, we call for a return to the fundamental premise of individualized programming. In doing so, we recognize the creativity, professionalism, skills, and positive attitude of parents, school staff, community partners and students to set aside rigid, pre-formed, and cookie-cutter programming decisions made for groups of students. IDEA’s central planning document for students is the Individualized Education Plan, and its name purposely reflects its intent.
In practice, we believe this means the development and coordination of district-wide and school-wide PBIS efforts, school staff training on clinical disorders, school evaluation staff training on conducting functional behavioral assessments and recognizing their limitations, understanding and revisiting how students with EBD move through the school settings from being fully mainstreamed to landing in an completely segregated EBD only school, reviewing student files for evidence of treated and untreated mental health issues, developing appropriate community-based models for addressing student mental health, and above all, figuring out how to identify address, track and continually revise the student’s individual plan. Important components of this plan may include school to work transition plans, consideration of IDEA’s related services, planning for inclusion into school extracurricular and non-academic activities and other ways to make a school beneficial for an individual student. These activities could be supported by the Department of Education, school professional or district-led practice groups.
Outcomes
In order to ensure that a student’s plan is working, we strongly recommend schools and state departments of education develop a process to track student outcomes. It is already possible to create a basic outcome-focused tracking system based on statewide and districtwide test scores, graduation, dropout rates, and IDEA’s required individual progress reporting. With this existing information, districts could monitor the progress of students with EBD on individual student, school, and district levels. These outcome reports can also be used to create a statewide picture of overall success rates with EBD programming. Districts and schools with higher levels of success can assist others with lower rates and with program improvement strategies.
We focus on this eligibility route for three primary reasons. First, in the practical experiences of the authors, the majority of children in Minnesota who are eligible under the EBD category demonstrate the “B” part of EBD. This is reflected by the aggression route rather than the only the “E” part of the EBD as addressed by the other eligibility routes. Second, the aggression eligibility route poses a number of policy, practical, and theoretical dilemmas that need exploration.
Lack of a Clearly Identified Disability
The aggression, hyperactive or impulsive EBD eligibility route has no specific requirement to identify a particular disability associated with those characteristics. A student need only demonstrate inappropriate behavior that is divergent from the behavior of peers. In other words, this becomes a tautological issue as the behavioral symptoms become the disabilities themselves.
There does not need to be a specific disability tied to the behaviors, and this is problematic. The EBD category does not lend itself to identifying the true nature of the student’s disabilities. Without a clear definition of the student’s needs and disabilities, it is difficult, and in some situations, impossible to develop and implement effective educational interventions. School staff members must try to reduce aggression, hyperactivity or impulsivity without knowing a disability-related cause or contributing factor to that behavior.
Even more distressing is that information about the reasons for a student’s aggression, hyperactivity impulsivity, or other behavioral difficulties may be available, as research indicates that the vast majority of students under the EBD category already have a diagnosed mental health disorder or have very significant evidence of having an undiagnosed disorder.
The basic problem is that the EBD eligibility process tends to stop short, and may point schools and parents in a direction that does not help in identifying appropriate approaches in the educational environment. While it is true that the Minnesota requires an EBD evaluation to include standardized tests, observations, record review, interviews, health history, mental health screening and functional behavioral assessments, those documentation sources do not delve into the detail necessary (and perhaps available) to formulate efficacious educational approaches. We are not suggesting that schools are solely responsible for addressing a student’s mental health needs, but we believe IDEA contemplates school roles and responsibilities to evaluate and address a student’s disability needs in the school context with related services, behavioral interventions and other program adaptations and modifications.
Implications
Given this lack of clarity in identifying the disability, the EBD category tends to encourage school personnel to view problems from a behavioral rather than from a clinical perspective. There are three likely consequences that result from a behavioral perspective. First, educational goals, services, accommodations and modifications will be based on behaviors, not on a clinically based disorder. This is because the psychiatric disorders may not be identified and factored into programming decisions. Thus, behavioral interventions may be based on externally demonstrated behaviors (that are the foundation of the EBD “aggression” eligibility route), with no or little attempt to understand how the behaviors may stem directly from a psychiatric disability. Further complicating this issue is the IDEA requirement that IEP teams have school staff who are knowledgeable about the student’s disability. Does this mean that the school staff need only know about “aggression, hyperactivity, and impulsivity,” rather than being aware of the nature and educational implications of a student’s Attention Deficit Hyperactivity Disorder?
Second, students may suffer if there is a misinterpretation of a functional behavioral assessment. For example, a functional behavioral analysis may result in conclusions that the student’s behaviors that actually stem from his or her psychiatric disorders are “functional” in nature, and are due to asserting control, attention seeking, gaining tangibles, and/or avoiding work, instead of being directly the result of the symptoms of the psychiatric disorder. In fact, there may not be a function to the behaviors any more than the irritable behavior of a diabetic experiencing a low blood sugar would be considered functional.
Third, many if not all Setting IV schools in Minnesota are filled with “B” students.. Once students demonstrate challenging aggressive behaviors, they may be placed on an EBD “track” that has the potential to lead to a Setting IV EBD school. These schools often are locked from the inside and outside, have seclusion rooms, metal detectors and police, and use restraints on students. Although there are students who require intensive behavioral interventions that address their behavioral problems, psychiatrically disturbed patients whose behaviors stem from disorders such as mood disorders, anxiety disorders and even psychotic disorders are not well served by this approach.
Issues with Mental Health Screening
Minnesota Rule 3525.1329, subpart 3 includes a mandate for “a mental health screening”. However, there are no recommended guidelines for what screening tool to use, or whether the tool needs to have adequate degrees of sensitivity, specificity, validity or reliability. There is no recommendation regarding what the evaluators should do if the screening is positive. Minnesota Department of Education does not gather information from school districts to determine the percentage of students who receive mental health screening as part of their assessment who have evidence of mental health disorders, the types of disorders that are identified as being potentially present, or the outcome (evaluation, treatment, etc.) in situations where evidence of disorders are identified. Comparing this to situations where a hearing screen identifies evidence of hearing loss, and the follow up that takes place, suggests a significant discrepancy in how mental health disorders are addressed in special education.
Can the EBD category Include Students with Mental Health Disabilities?
The last sentence of the second paragraph in Minnesota Rule 3525.1329, subpart 1 states that the student’s emotional or behavioral “responses must not be primarily the result of intellectual, sensory, or acute or chronic physical health conditions.” However, abundant research shows that psychiatric disorders such as Bipolar Mood Disorder or Major Depression (which are not specifically mentioned in the IDEA OHI section) are chronic health conditions with physical symptoms that could lead to the need for special education assessments. Does this mean that mental health disabilities cannot be evaluated in the EBD category?
Further, since ADHD is identified as a physical health condition in the IDEA description of OHI, and since it is a chronic condition, then Minnesota’s EBD criteria should exclude students who have ADHD when their behavioral and emotional symptoms at school (distractibility, impulsivity, hyperactivity, etc.) are primarily caused by ADHD. Failure to do so would violate the state’s criteria-based method of categorical placement. Yet, distractibility, impulsivity, and hyperactivity are essential elements in the EBD category.
Is Another Eligibility Category Useful for Students with Mental Health Disabilities?
The federal definition of Other Health Impairment (”OHI”), and Minnesota’s implementing criteria for OHI, named Other Health Disability (“OHD”), mandate the identification of an acute or chronic medical disability as the first step in establishing the basis for the student’s special education eligibility. The USDOE did not rule out the use of the federal OHI category for mental health disabilities. In responding to requests to specifically list mental health disabilities into the federal regulations, the USDOE , although less than committal, commented:
The list of acute or chronic health conditions in the definition of other health impairment is not exhaustive, but rather provides examples of problems that children have that could make them eligible for special education and related services under the category of other health impairment. We decline to include dysphagia, FAS, bipolar disorders, and other organic neurological disorders in the definition of other health impairment because these conditions are commonly understood to be health impairments.
Despite the apparent availability of OHI/OHD to include mental health disabilities, it is unusual for districts to pursue both OHD and EBD eligibility for a student. There is also a lack of clarity for school districts in determining the ideal placement for a student who has a mental health disorder that manifests both emotional and behavioral symptoms. Although IDEA mentions the psychiatric disorder, ADHD, as an example of a health disorder, it does not imply that other psychiatric disorders such as Depression, Bipolar Mood Disorder, Obsessive Compulsive Disorder, etc. are not also health disorders.
Even when a student has a documented psychiatric diagnosis, OHD is generally not used in Minnesota if the student has significant behavioral problems. In these instances, districts tend to recommend the EBD category. This is highly problematic if the behavioral problems directly stem from the student’s disorder (e.g., irritability, grandiosity, agitation and combativeness as symptoms of mania). EBD can become a “catch-all” category for students who have behavioral problems, where generic behavioral interventions that ignore the underlying cause of the student’s behavior are utilized, often with poor outcomes.
Unlike in OHD, an EBD student who has a diagnosed mental health disorder does not necessarily have accommodations and modifications based on that disorder. This is because the psychiatric disorders in EBD students are not considered special education disabilities. This can result in behavioral interventions that are based on external behaviors, with no attempt to understand how the behaviors may stem directly from a psychiatric disability.
Other Implications
Given that IDEA’s “Child Find” requirement, 34 C.F.R. §300.111 (2006) mandates the identification of students who potentially need special education and related services, that students who are impulsive, distractible and hyperactive have evidence of ADHD (a disorder identified in IDEA as being covered by the OHD definition), and that a diagnostic evaluation is required for consideration for placement in OHD special education services, the question arises as to whether a district is required to perform or pay for a diagnostic evaluation of a student who manifests symptoms suggestive of ADHD. Because there is no clear mandate for a diagnostic evaluation for placement in EBD services, the potential financial consequences of performing or reimbursing a diagnostic evaluation (and the potential implications of schools being financially responsible for further mental health treatment) may be contributing factors in school districts’ apparent preference for the EBD category. Unfortunately, the lack of clarification of diagnosis, combined with the fact that many students in the EBD category have untreated, under treated or inappropriately treated mental health disorders, results in ongoing emotional and/or behavioral problems in the school setting that could have been prevented with appropriate diagnosis and treatment.
One additional potential unexpected consequence, at least on a theoretical basis, is apparent in Manifestation Determination proceedings, in which schools and parents must determine whether or not a student’s behaviors are directly related to the student’s disability. If there is such a direct and substantial relationship, the student cannot be expelled. If not, the school can move toward expulsion. The conundrum is that it would be theoretically impossible to expel a student for very same behavior that led to EBD/SED eligibility in the first place. In 2004, IDEA’s MD requirements were revised to focus on a direct and substantial relationship between behavior and disability, rather than on volitional behavior and the student’s recognition of the “wrongness” of the behavior. Thus, a student whose misbehavior was planned, with full recognition of its negative implications could theoretically not have those factors be used to argue against the behavior being due to his or her disability.
IDEA legal decisions have taken a more nuanced and practical view of this situation and have not given free passes to students to escape expulsion proceedings. IDEA hearing officers have rejected the notion that a particular category of eligibility is universally and presumptively exempt for expulsion. Instead, courts and hearing officers, with the advisement of expert witnesses, will examine whether the particular disability resulted in the behavior. For example, a hearing officer determined that a student with SED who planned and carried out an assault of another student over a conflict over a girlfriend, was not protected from expulsion. That hearing officer determined that the particular assault was not similar enough to other behaviors the student evidenced in school (which triggered his eligibility) and therefore the behavior in question was not a manifestation of his disability.
Bottom Line – Outcomes
These criticisms would be moot, however, if students served in this category had good outcomes. However, the opposite is the case. Research indicates that students served in this category of special education have the worst outcomes of all disabilities.
For example, 2006 data from Maryland indicate that ED students’ dropout rate was sixteen times (49% versus 3%) the dropout rate of students in regular education. Although ED students comprised only 8% of Maryland’s students in the various special education disabilities categories, they represented 52% of suspensions.
Mary Wagner’s research indicates significant problems in all areas of outcome measurements for this population. She notes that ED students had lower grade point averages, failed more classes, had more absences and had a higher dropout rate than students with other disabilities. ED students did worse than the general special education disabled population in post secondary education, employment and arrest rates. In fact, 58% had been arrested within three years of finishing high school, compared with 30% of the general special education students. She concluded that the major reason that ED students did not succeed in school was due to the fact that the “E” (emotional disorder) in EBD/SED is rarely effectively treated.
The authors note that the ED category is based on outdated concepts,;is tautological;lacks a connection to any specific disability; has no mandate to accommodate to mental health disabilities when they are present; is based on behavioral conceptualizations that are inappropriate for many psychiatrically disabled students; and has very poor outcomes. In short, it is a failed concept.
Recommendations
This paper has identified a number of issues related to policy choices, programmatic decisions, and results surrounding children eligible for special education and related services under the ED category, with special emphasis on Minnesota’s EBD category. We now turn to a discussion on recommendations for each type of issue.
Policy
To address the fundamental weakness of the ED category in not assisting school staff to get to the heart of the child’s disability, the IDEA definition could be more specifically tied to a particular disability. Forness & Knitzer proposed a revision of the definition as follows:
i. The term Emotional or Behavioral Disorder[EBD] means a disability characterized by behavioral or emotional responses in school so different from appropriate, age, cultural, or ethnic norms that they adversely affect educational performance. Educational performance includes academic, social, vocational, and personal skills. Such a disability
(a) is more than a temporary, expected response to stressful events in the environment;
(b) is consistently exhibited in two different settings, at least one of which is school related; and
(c) is unresponsive to direct intervention in general education or the child’s condition is such that general interventions would be insufficient.
ii. Emotional and behavioral disorders can co-exist with other disabilities.
iii. This category may include children or youth with schizophrenic disorders, affective disorders, anxiety disorders, or other sustained disorders of conduct or adjustment when they adversely affect educational performance in accordance with section (i).
This change is a step towards improving an understanding of ED on a national level. However, it continues to identify the ED category as being the disability, rather than mandating the identification of the student’s actual disability and providing appropriate accommodations and modifications as are done within other disability categories.
The following recommendations are thus directed towards identifying students’ actual disabilities and addressing them appropriately within the educational setting:
- Modify financial responsibility requirements in IDEA; The potential for school districts to have to pay for costly mental health treatment including residential treatment for problems that they identify is a major factor contributing to their reluctance to address mental health disorders in special education assessments;
- Eliminate the Social Maladjustment exclusion– a poorly defined concept which is difficult to delineate or apply in the educational setting;
- Require mental health screening for students who are evaluated for ED placement (e.g., Minnesota rules); Require that screening tools are reliable, valid, sensitive and specific, and require outcome assessments to determine on a statewide level, the percentages and types of disorders identified, the subsequent interventions that take place, and the academic and behavioral outcomes of those interventions;
- If mental health screening identifies evidence of a psychiatric disorder that has symptoms that reflect the student's emotional and/or behavioral problems in the classroom, then funding should be made available to provide a diagnostic assessment that will clarify the issue. This will require funding to schools beyond their present level of reimbursement, as well as modifying potential school financial responsibilities for mental health services. Upon clarification of diagnosis, accommodations and modifications will be able to be designed to focus on the student's underlying disability. In some cases, treatment will ameliorate the problems manifested in the classroom;
- For students whose parents refuse to allow a mental health diagnostic evaluation, even though they are manifesting significant emotional or behavioral problems, allow an exception to the diagnostic mandate;
- Exclude from ED students who have chronic health conditions (e.g., ADHD) that are the primary cause of their emotional and/or behavioral problems, and address these issues in OHI instead. Clarify methods of determining whether the problems stem from the chronic health condition;
- Specifically identify other psychiatric disorders (E.g., Bipolar Mood Disorder, Major Depression, Panic Disorder, Obsessive Compulsive Disorder, Post Traumatic Stress Disorder, etc.) as being chronic health conditions;
- Expand the OHI criteria to better reflect educational manifestations of psychiatric disorders that are chronic health conditions.
Given the difficulties associated with changing federal laws and the practical reality that state laws may also be created or amended to be more specific about the nature and cause of behavior, Forness & Knitzer’s recommendations apply to state level changes as well. The bottom line is to ensure the student’s true disabilities are identified; once done, appropriate individualized programming can occur.
Practice
To support policy changes, we call for a return to the fundamental premise of individualized programming. In doing so, we recognize the creativity, professionalism, skills, and positive attitude of parents, school staff, community partners and students to set aside rigid, pre-formed, and cookie-cutter programming decisions made for groups of students. IDEA’s central planning document for students is the Individualized Education Plan, and its name purposely reflects its intent.
In practice, we believe this means the development and coordination of district-wide and school-wide PBIS efforts, school staff training on clinical disorders, school evaluation staff training on conducting functional behavioral assessments and recognizing their limitations, understanding and revisiting how students with EBD move through the school settings from being fully mainstreamed to landing in an completely segregated EBD only school, reviewing student files for evidence of treated and untreated mental health issues, developing appropriate community-based models for addressing student mental health, and above all, figuring out how to identify address, track and continually revise the student’s individual plan. Important components of this plan may include school to work transition plans, consideration of IDEA’s related services, planning for inclusion into school extracurricular and non-academic activities and other ways to make a school beneficial for an individual student. These activities could be supported by the Department of Education, school professional or district-led practice groups.
Outcomes
In order to ensure that a student’s plan is working, we strongly recommend schools and state departments of education develop a process to track student outcomes. It is already possible to create a basic outcome-focused tracking system based on statewide and districtwide test scores, graduation, dropout rates, and IDEA’s required individual progress reporting. With this existing information, districts could monitor the progress of students with EBD on individual student, school, and district levels. These outcome reports can also be used to create a statewide picture of overall success rates with EBD programming. Districts and schools with higher levels of success can assist others with lower rates and with program improvement strategies.
References
1 34 C.F.R. § 300.7 (2006).
2 Id. 3 34 C.F.R. § 300.7(c)(4)(i)(A–-E) (2006). 4 34 C.F.R. § 300.7(c)(4)(ii) (2006). 5 Eli M. Bower, Early Identification of Emotionally Handicapped Children in School viii (Molly Harrower, 3rd ed. 1981); Charles C. Thomas & Eli M. Bower,.Defining Emotional Disturbance: Public Policy and Research, Psychology in the Schools, 1982, at 57). 6 Id. 7 64 Fed. Reg. 12542 (March 12, 1999) 8 71 Fed. Reg. 46550 (August 14, 2006) 9 See, e.g., Kenneth W. Merrell & Hill M. Walker,Deconstructing a Definition: Social Maladjustment Versus Emotional Disturbance and Moving the EBD Field Forward, 48(8) Psychology in the Schools (2004); Daniel Olympia et al., Social Maladjustment and Students With Behavioral and Emotional Disorders: Revisiting Basic Assumptions and Assessment Issues, 41(8) Psychology in the Schools (2004). 13 Minn. R. 3525.1329, Subp. 1 C 14 Minn. R. 3525.1329, Subp. 2a A (3) (2009). 15 Minn. R. 3525.1329, Subp. 3(A) (2009). 16 Id. See also Minn. R. 3525.1329 Subp. 1(A)–(B) (2009). This section includes separate EBD eligibility routes for children who show withdrawal, anxiety, depression, mood or self worth problems and disordered thought processes. Id. 17 See Minn. R. 3525.1329 Subp. 1(C) (2009). 18 See Minn. R. 3525.1329 Subp. 2a(A) (2009). 19 Minn. R. 3525.1329 Subp. 3(A) (2009). 20 A “Setting IV” or “Level IV” school refers to a public school setting that is populated with only students with disabilities. In contrast, Level I, II and III settings include both students with and without disabilities. Setting or Level IV schools are “more restrictive” placements. |
21 Minn. R. 3525.1329, Subp. 3 (A)(7) (2009).
22 We also note that although illegal chemical use is an exclusionary factor if it is the primary cause of the student’s difficulties, there are no guidelines for screening or assessment to clarify whether a chemical health disorder exists, and, if so, how it would be determined to be the primary cause of the student’s problems. 23 Minn. R. 3525.1329, Subp. 1. 24 34 C.F.R. §300.7(c)(9) (2006). 25 71 Fed. Reg. 46550 (August 14, 2006). 26 In re Student with a Disability, 106 LRP Publications 10784 (Conn. State Educ. Agency February 23, 2005) 27 Dr. Carol Ann Baglin, Maryland’s Children in Special Education with Emotional Disturbance: An Overview of Data and Current Outcomes 2008, http://www.msde.maryland.gov/NR/rdonlyres/5F4F5041-02EE-4F3A-B495-5E4B3C850D3E/16728/MeetingtheNeedsofStudentswithED.ppt (at slide 38)noting that the dropout rate for ED students was 49 percent compared with the 3 percent dropout rate for students in regular education. 28 Id. at 36. 29 Mary M. Wagner, Outcomes for Youths with Serious Emotional Disturbance in Secondary School and Early Adulthood, 5 Future of Child. Critical Issues for Child. & Youths 90 (Summer/Fall 1995). 30 Id. at 100-01. 31 Id. at 105. 32 Steven Forness and Jane Knitzer, A New Proposed Definition and Terminology to Replace “Serious Emotional Disturbancce” in Individuals with Disabilities & Education Act, 21 Sch. Psychol. Rev. 12, 13 (1992). 33 See supra note NOTEREF _Ref294884773 \h \* MERGEFORMAT 32 and accompanying text. 34 This includes services such as counseling, psychological, school health services, and social work. 34 C.F.R. §300.24(a) (2010). |