1. 1
Special Education in the Modern Age:
The Shifting Categories of ED, OHI and
SLD

2. 2
Overview
 ED Eligibility
 (Attempting) to define OHI
 Factors related to SLD

3. 3
What is an Emotional Disturbance?
 Federal Definition
 A condition exhibiting one or more of the
following characteristics over a long period of
time and to a marked degree that adversely
affects educational performance

4. 4
What is an Emotional Disturbance?
 CA definition
 Because of a serious emotional disturbance, a
pupil exhibits one or more of the following
characteristics over a long period of time and to
a marked degree, which adversely affect
educational performance

5. 5
What is an Emotional Disturbance?
 The Five Factors
1. An inability to learn that cannot be explained by
intellectual, sensory, or health factors
2. An inability to build or maintain satisfactory
interpersonal relationships with peers and teachers
3. Inappropriate types of behavior or feelings under
normal circumstances
4. A general pervasive mood of unhappiness or
depression
5. A tendency to develop physical symptoms or fears
associated with personal or school problems

6. 6
Diagnosed Mental Illness and ED
 Mental Illness Defined
 Medical condition that disrupts thinking, feeling,
mood, ability to relate to others, and daily
functioning
(National Institute of Mental Health)

7. 7
Diagnosed Mental Illness and ED
 Not required to find student eligible under
category of ED
 Diagnosis does not automatically qualify
student for special education
 Symptoms may trigger Child Find obligations

8. 8
Student v. Saddleback Valley USD
(OAH 2011)

9. 9
Facts
 16 year-old diagnosed with mild depression,
ODD and mood disorder
 Private psychologist recommended
permission to make-up missed assignments,
but not special education assessment
 Parent requested assessment
 “Student Study Team” determined
interventions could be implemented in
general education setting
Student v. Saddleback Valley USD (OAH
2011)

10. 10
Facts
 Assessment postponed
 Dissatisfied parent unilaterally enrolled
student in RTC
 Student eventually assessed and qualified
under OHI and ED
Student v. Saddleback Valley USD (OAH
2011)

11. 11
Issues
 Violation of Child Find duties
 Parent alleged District should have
assessed
 Following receipt of psychologist
recommendation
 Following parent’s request for assessment
Student v. Saddleback Valley USD (OAH
2011)

12. 12
Decision
 No Child Find violation
 Psychologist email alone insufficient to trigger
Child Find
 Parent agreed to general education
interventions
 Parent did not notify school of dissatisfaction
before unilaterally enrolling student in RTC
Student v. Saddleback Valley USD (OAH
2011)

13. 13
What is ED?
Student v. Placentia-Yorba Linda Unified School Dist.
(OAH 2009)
 ED is not medical diagnosis (under DSM-IV)
 ED is “legal category created by Congress to
distinguish a narrow range of pupils with emotional
problems who are eligible for special education
services”
 Criteria regarding emotional disorders in medical
field are different than educational criteria for ED

14. 14
#1 - Inability to Learn
 Designed to rule out other reasons
 Student v. Lakeside Joint Elementary
School Dist. (OAH 2008)
 Student with “attachment disorder” (per parents)
 Declining STAR scores, but high average WISC
scores and no severe discrepancy
 Student asked for help when needed
 Student had ability to learn

15. 15
#1 - Inability to Learn
 Student v. Placentia-Yorba Linda Unified
School Dist. (OAH 2009)
 Student with (at least) mood disorder-NOS,
including significant depression
 Cognitively bright, capable of learning
 Lowered academic performance for two, short
isolated periods
 Not enough to show inability to learn

16. 16
#2 - Inability To Build Or Maintain
Satisfactory Interpersonal
Relationships Occurs in multiple settings with peers and
adults
 Lack of sympathy, empathy toward others
 Inability to establish, maintain friendships
 Excessive physical, verbal aggression, etc.
 Not an issue of getting along with others

17. 17
#2 - Inability to Build or Maintain
Satisfactory Interpersonal
Relationships Saddleback: Choosing friends who are a
bad influence does not satisfy criteria
 Lakeside: Positive relationships with
teachers show factor does not apply

18. 18
#3 - Inappropriate Types of Behavior or
Feelings Under Normal Circumstances
 Behaviors or feelings that are strange or unusual
(in comparison with others in same circumstances)
 Hallucinations or bizarre behavior not required
 Could be acting out or withdrawal behaviors
 Does not include willful and understood behaviors
(e.g., ODD or conduct disorders)
 Consider whether circumstances are “normal” . . .

19. 19
#3 - Inappropriate Types of Behavior or
Feelings Under Normal Circumstances
 Student v. Ravenswood City SD (OAH 2008)
Serious behavior problems (sexual assault,
fighting, assault, defiance, profanity, and bringing a
gun to school) insufficient to meet criteria
 Torrance USD v. E.M. (C.D. Cal. 2008)
Inappropriate reaction to everyday events satisfies
criteria
 Student v. Los Angeles USD (SEHO 1999)
Expected behavior from a child of same age does
not satisfy criteria

20. 20
#4 - General Pervasive Mood of
Unhappiness or Depression
 Actual, chronic, persistent symptoms of
depression
 Observable in school setting (and other
situations)
 Not a natural reaction to a traumatic event

21. 21
#4 - General Pervasive Mood of
Unhappiness or Depression
 Saddleback: Diagnosis that presents with
unhappiness or depression does not
automatically fulfill criteria
 Student v. Los Angeles USD (OAH 2007):
Student need not meet the DSM-IV criteria
for depression to fulfill criteria

22. 22
#5 - Tendency to Develop Physical
Symptoms or Fears Associated with
Personal or School Problems
 Physical symptoms that are excessive and
chronic
 Could manifest as severe anxiety, phobias,
panic attacks, tics, headaches, etc.
 Not due to biologic or medical conditions

23. 23
#5 - Tendency to Develop Physical
Symptoms or Fears Associated with
Personal or School Problems
 Student v. Capistrano USD (OAH 2011)
”test anxiety” must impact ability to do well
on test to satisfy criteria

24. 24
What is a "Long Period of Time"?
 Letter to Anonymous (OSEP 1989)
 Two-nine months
 Student v. Capistrano USD (OAH 2007)
 Minimum of six months and with no response to
behavioral interventions

25. 25
What is “To a Marked Degree"?
Pervasive and Intense
 Student v. Capistrano USD (OAH 2007)
 Pervasive means exhibits across more than one domain
(home, school, community)
 Intense means must produce distress to student or
others and must be related to emotional disturbance
 Letter to Anonymous (OSEP 1989)
 Examine frequency, duration and intensity of student’s
behavior in comparison to behavior of peers and/or
school and community norms

26. 26
What is "Adversely Affects"?
 Condition must render student unable to
benefit from education regardless of degree
of intervention
 Document that poor performance not due to
attendance or lack of motivation

27. 27
Emerging Eligibility
Torrance USD v. E.M. (C.D. Cal. 2008)
 Facts
 Student in GATE program
 Classroom behavioral issues noted over several years
 Parents separated, was placed in foster home (Two-hour commute)
 In 6th
grade, punched another student and was expelled
 Issue
 Child Find
 Ruling
 Student’s behaviors initially coincided with stressful life events, but
 Continued to manifest in a variety of settings, over a long period of
time and were resistant to behavioral interventions
 District should have assessed for ED and found student eligible

28. 28
Practice Pointer
 ED eligibility may emerge over time
 Watch for behavioral issues that continue to
escalate and/or fail to respond to interventions
 Reassessment for ED eligibility may be
necessary

29. 29
ED and Young Students
 Sometimes, there is hesitation to label
young students as ED
 Makes sense to adjust period for young
students
 Cannot have “policy” of refusing to find
young students eligible as ED

30. 30
“Acting Out” may Indicate ED
Student v. Compton USD (OAH 2008)
 Facts
 Kindergarten student performing above grade level
academically, but exhibiting aggressive behaviors
 First assessment focused on ADHD, Student eligible
under OHI
 (At age 5) Student began telling teacher was going to kill
himself because he was “bad”
 Second assessment, found eligible under ED
 Ruling: District should have assessed Student for
ED as part of first assessment

31. 31
“Acting Out” may Indicate ED
Student v. La Mesa-Spring Valley SD (OAH 2010)
 Facts
 Student “kicked out” of daycare
 Hospitalized at age 3 for self-injurious & aggressive
behaviors
 Diagnosed with anxiety
 Enrolled in district preschool program:
 Exhibited hitting, kicking and scratching, using profanity
 Able to access preschool program
 Assessed and found ineligible

32. 32
“Acting Out” may Indicate ED
 Facts
 In kindergarten, behaviors included
 Crawling around, talking in strange voices, hitting
others, using profanity, scratching herself, banging
head on wall, stabbing self with scissors
 Behavioral interventions were ineffective
 District assessed and found eligible as ED
 Parent would not consent to SDC placement
 District filed due process complaint
Student v. La Mesa-Spring Valley SD (OAH 2010)

33. 33
“Acting Out” may Indicate ED
 Ruling
 District showed was inappropriate to maintain
Student in general education setting even with
significant supports
 Student failing to derive any academic or non-
academic benefits
 Adversely impacted ability of other student to
learn and ability of teacher to teach
Student v. La Mesa-Spring Valley SD (OAH 2010)

34. 34
Social Maladjustment v. ED
 What Is Social Maladjustment?
 Not defined in law

35. 35
Case #1
 Torrance USD v. E.M. (C.D. Cal. 2008)
 “Student acts in deliberate non-compliance with
known social demands or expectations”
 Socially maladjusted students do not qualify as
ED based on “social maladjustment”
 BUT . . . socially maladjusted student could also
be ED

36. 36
Case #2
 Eschenasy v. New York City Dept. of Ed.
(S.D.N.Y. 2009)
 Facts
 Student privately evaluated and diagnosed with
mood disorder and borderline personality
disorder traits
 Student used drugs, cut class, and was
repeatedly suspended and expelled
 Attended three schools in 10th
and 11th
grades
 Parent placed Student in restrictive RTC

37. 37
Case #2
 Facts
 Parent requested special education assessment
 District refused to travel for assessment, closed
case
 Parent requested an IEP meeting, based on
private assessment and RTC placement
 District found student ineligible
 Behavior was delinquent, due to conduct disorder
Eschenasy v. New York City Dept. of Ed. (S.D.N.Y. 2009)

38. 38
Case #2
 Decision: HO found Student was socially
maladjusted, but also qualified under ED
due to unhappy/depressed mood and
inappropriate behavior
 Suicide attempts/self-injury
 Failing grades impeded learning
 Prevalence of behavior throughout high school
 District ordered to reimburse for RTC
placement
Eschenasy v. New York City Dept. of Ed. (S.D.N.Y. 2009)

39. 39
Social Maladjustment v. ED
 Look for the purpose of the conduct – is this
purposeful behavior?
 rebellious? deliberate?
 Don’t miss self-injury or suicidal ideation
 In the case of substance abuse, is it
masking behavior?
 Substance Abuse Subtle Screening Inventory
 Does student’s behavior/academic achievement
change when no access to drugs/alcohol?

40. 40
Substance Abuse v. ED
 Student v. Tamalpais Union H.S. Dist.
(OAH 2012)
 Facts
 Student in blended program with related
counseling services
 Student suspended for marijuana possession
and placed in juvenile hall
 Before release, parents requested residential
placement

41. 41
Substance Abuse v. ED
 Facts
 Psycho-educational assessment revealed no
identifiable mental illness, but characteristics of
ED and substance abuse disorder
 AB 3632 assessment supported placement in
blended program with therapy; primary issues
were related to oppositional defiance disorder
and substance abuse; no masking behavior
 District continued to offer blended program
Student v. Tamalpais Union H.S. Dist. (OAH 2012)

42. 42
Substance Abuse v. ED
 Ruling: District not responsible for
residential placement when primary issue is
substance abuse
 Progress in RTC and juvenile hall due to
lack of drug use in those settings
Student v. Tamalpais Union H.S. Dist. (OAH 2012)

43. 43
Are Bullies Emotionally
Disturbed? Bullying Behavior may Trigger Child Find
Obligations
 School Bd. of the City of Norfolk v. Brown (E.D.V.A.
2010). Repeated threats and harassment toward others
put District on notice of Student's suspected disability
 Bully may be Eligible as ED
 Birdville Independent School Dist. (SEA TX 2011).
Long-standing behavioral problems, including bullying
classmates, misinterpreting others, and threatening to
harm qualified student as ED

44. 44
Assessment/IEP Team Tips
 Directly addresses five criteria for ED
and aligns results to criteria in report
 Address emerging behaviors with general
education supports; document the impact of
those interventions, but do not delay in
assessing
 Look at functioning in variety of settings:
home, school, and community

45. 45
Assessment/IEP Team Tips
 Placement is IEP team decision; don’t
be concerned about placement in the
assessment process
 Consider inclusion of nurse on IEP team
 Do not limit yourself to a single possible
eligibility category

46. 46
Other Health Impaired (“OHI”)
What is OHI?
 Having limited strength, vitality, or alertness,
including a heightened alertness to
environmental stimuli, that results in limited
alertness with respect to the educational
environment, that
 Is due to chronic or acute health problems; and
 Adversely affects a child’s educational
performance
(34 C.F.R. § 300.8(c)(9).)

47. 47
OHI
 Medical diagnosis not required
 Diagnosis of a chronic or acute health
problem alone will not suffice
 Student v. Konocti USD (OAH 2010)
 ADHD diagnosis alone not enough
 Student could control behavior and made educational
progress

48. 48
OHI
 Mental illnesses qualify under OHI if they
limit strength, vitality, or alertness
 Auditory processing disorder considered an
OHI?

49. 49
Does the Disability Actually Impact
Vitality, Alertness, Strength?
Placentia-Yorba Linda Unified School Dist.
(SEHO 1995)
 Student with chemical sensitivities did not
show diminished strength, vitality or
alertness
 Inquiry ended there
 HO need not consider issue of adverse
effect on educational performance

50. 50
What is an “Adverse Effect”?
 Not defined by law
 Consider both academic and non-academic
performance

51. 51
Adverse Effect
 Student v. Bonita USD (OAH 2006)
 Student with ADHD and declining grades not
eligible because no decreased vitality, strength
or alertness that impacted education
 Declining grades due to lack of motivation
 Student v. San Francisco USD (SEHO 2005)
 Student not eligible because limited vitality in
afternoons could be addressed with
accommodations in general education setting

52. 52
Physical v. Psychological and
“Feeling” Limited
 Forest Hills Public Schools (SEA MI 2012)
No requirement that limitation be physical in
nature

53. 53
When is it OHI? When is it ED?
 Mental Illness: May not meet the eligibility
requirements for ED, but if adversely affects
educational performance, student may be
eligible under OHI
(Student v. San Diego USD (OAH 2008)
 Impact of Disorder: Anxiety/panic attacks may
not meet the criteria for ED, but may tire child
out, leading to limited vitality and meeting the
criteria for OHI
(Student v. Poway USD (OAH 2009)

54. 54
OHI Assessment Tips
 Health condition (alone) is not sufficient for
OHI
 Is student exhibiting limited vitality, strength
or alertness?
 If so, is Student’s educational performance
adversely impacted
 Could impact be addressed in the general
education setting?

55. 55
Specific Learning Disability (“SLD”)
What is SLD?
 Disorder in one or more of the basic psychological
processes involved in understanding or in using language,
spoken or written, that may manifest itself in the imperfect
ability to listen, think, speak, write, spell, or to do
mathematical calculations
 Includes conditions such as perceptual disabilities, brain
injury, minimal brain dysfunction, dyslexia, and
developmental aphasia
 Does not include: Learning problems that are primarily the
result of visual, hearing, or motor disabilities, of mental
retardation, of emotional disturbance, or of environmental,
cultural, or economic disadvantage

56. 56
Determining SLD Eligibility
 Severe Discrepancy
 Observation
 Response to Intervention
 Inappropriate Instruction/Other Factors

57. 57
Severe Discrepancy
 Ford v. Long Beach USD (9th
Cir. 2002)
 Collaborative, data driven approach
 IDEA does not compel the use of specific
measures of either ability or achievement

58. 58
Observation
 IDEA requires observation of students in
learning environment, both before referral
and by member of IEP team after referral in
determining existence of SLD

59. 59
Response to Intervention
 Permissive, not mandatory, method to
establish eligibility under SLD
 Eligibility determinations cannot be based
solely on RTI

60. 60
Inappropriate Instruction/Other
Factors
 Consider whether the student’s under-
achievement is due to other factors
 Lack of motivation
 Can be manifestation of disability
 Home/transition issues
 Other disabilities (including ED)
 Inappropriate instruction

61. 61
Special Considerations
 ADHD can be SLD eligible if there is both a
processing disorder and a severe discrepancy
(Norton v. Orinda SD (9th
Cir. 1999)
 E.M. v. Pajaro Valley USD (9th
Cir. 2011)
 When valid tests produce conflicting scores consider all
relevant material to make reasonable choice in
determining whether a ‘severe discrepancy’ exists
 Student with processing disorder must still exhibit severe
discrepancy to qualify under IDEA

62. 62
SLD Assessment/IEP Team Tips
 Data! Collect data from classroom
observations, teachers, staff, parents and
providers
 Look for patterns of weakness
 Consider developmental history
 Consider having speech/language
practitioner on the IEP team

63. Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .
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