The regulations fail to delineate either the duration or the severity of listed behaviors necessary to categorize a student as suffering from a “serious emotional disturbance,” leaving a great deal of discretionary latitude to school district teams assessing students’ eligibility for special education.8
Certainly, schizophrenic children are covered; however, other children who are deemed to be merely “socially maladjusted” may not be covered.9 As it has been noted:
A recent federal district court case, N.G. v. District of Columbia et al.,11 illustrates problems that may arise in the manner in which school districts address the needs of children with serious emotional issues.
The basic facts are as follows: N.G. progressed well in public school until junior high school when she began to exhibit behavioral problems. In the ninth grade, she began exhibiting low self-esteem, telling her parents that “everyone hated her.” She was reluctant to go to school and appeared sad. In the spring term of the ninth grade she attempted suicide by ingesting a bottle of aspirin and was hospitalized and diagnosed with clinical depression. She entered high school (2002-2003 school year) and after her first report card was issued, her parents discovered that her grades were extremely low and her attendance was erratic.
An evaluation done later that month by a clinical psychologist hired by her parents indicated that her intellectual abilities were superior but that she had “weaknesses in her organizational and attending skills, restlessness, inefficiencies in her perceptual organization, a tendency toward distractability, lack of attention to details and deadlines, poor coping resources, emotional ability, chronic irritability and mild anxiety.” The psychologist recommended individual tutoring and referred N.G. to a psychiatrist for possible medication; this report was furnished to the school.
The mother sought out another expert, Dr. Carol Robbins, who diagnosed N.G. with Attention Deficit Hyperactivity Disorder (ADHD) and major depression. N.G. began therapy with Dr. Robbins and also began seeing a child psychiatrist, who also diagnosed N.G. as having ADHD as well as a mood disorder and prescribed medication. In April 2003, Dr. Robbins determined that N.G. was severely depressed and evidencing suicidal intent and recommended immediate hospitalization. N.G. was hospitalized for 11 days and the discharge summary indicated that N.G. had suffered from a “major depressive order” since she was 12 years old.
The parents immediately notified the school district and asked for help in gathering her assignments and requesting support. Only one teacher responded and N.G.’s father requested a meeting with the school. In May 2003, Dr. Robbins wrote to the school counselor informing him of N.G.’s diagnosis of ADHD and major depression. In her communication, Dr. Robbins noted: “N.G. is currently experiencing severe clinical depression . . . . Upon discharge, she will need to have her handicapping condition addressed by the school with appropriate accommodations made to assist her in reaching her academic potential . . . . A very bright, talented and engaging young woman, she has been suffering emotionally and academically due to her untreated ADHD and depression. I will be working with her . . . and hopefully the school to make sure that appropriate accommodations are made for her . . . “
Dr. Robbins also specifically proposed certain accommodations, stating: “She would benefit greatly from some standard educational accommodations . . . such as being seated near the front of the classroom, being provided organizational assistance . . . . As a result of her current fragile emotional state, she may well also need to make use of a crisis counselor, or have a safe place to go if she becomes overwhelmed or upset during the school day.”
Further communications from Dr. Robbins were ignored by school officials. In May 2003, a so-called 504 conference was convened at the school. Four of N.G.’s teachers did not attend nor did the special education coordinator. None of the accommodations recommended by Dr. Robbins were discussed.
At the beginning of N.G.’s 11th grade semester, her mother’s attempt to secure some help for her daughter fell on deaf ears at the public school. Therefore, her parents, following up on consultations with Dr. Robbins, enrolled N.G. at the Saint James School in nearby Maryland for the 2003-2004 school year. Saint James is a highly-structured boarding school, with small-sized classes and close monitoring of a student’s life. N.G. made improvements at St. James but ultimately, her parents transferred her to the Buxton School in Massachusetts because St. James was too religious. Dr. Robbins approved of Buxton because it was even smaller than St. James and more responsive to the individual differences in the way people learned.
N.G.’s mother began the process to make N.G. eligible for special education reimbursement for the private school tuition incurred. A Multidisciplinary Team (MDT) of the local school district met and determined that N.G. was not eligible for special education. The MDT did not consider medical records submitted by N.G.’s parents that included a diagnosis of ADHD and a mood disorder.
A due process hearing followed. In 2006, the hearing officer found that the district had not violated the Child Find obligation by failing to identify, evaluate and place N.G. in 2003. Additionally, the decision separately upheld the MDT’s 2005 determination of ineligibility for special education, finding that N.G.’s disabilities did not adversely affect her educational performance.
A challenge by the parents was brought to the federal district court. The court reversed the determination of the hearing officer to the effect that the district had not defaulted on its so-called “Child Find” obligation. The court noted that the law is clear that the Child Find obligation extends to all children suspected of having a disability, not merely to those students who are ultimately determined to be disabled. The plaintiffs successfully argued that N.G. should have been evaluated because her clinical depression met the statutory definition of “serious emotional disturbance” and her ADHD qualified as an “other health impairment.”
The school district argued that since depression was not one of the enumerated disabilities listed in the IDEA, the fact that the school district knew of N.G.’s hospitalizations was insufficient to trigger its Child Find responsibilities. The court observed that N.G.’s diagnosis of clinical depression and history of suicide classified her as “emotionally disturbed” under the implementing regulations. The court added: “N.G. exhibited at least two of the five characteristics indicative of ‘emotional disturbance,’ i.e., pervasive depression and inappropriate types of behavior.”
The court further found that the school district should have examined N.G. after being informed of her ADHD condition which is covered as an “other health impairment” under IDEA’s implementing regulations.
The court pointed out certain procedural errors in the MDT process. It found that the hearing officer excluded a significant amount of relevant information pertaining to times before and during the 2004-2005 school years. In particular, the court chided the hearing officer for excluding evidence of N.G.’s poor performance at Woodrow Wilson High School under a restrictive and artificially narrow reading of the applicable statute.
The court said that “the Hearing Officer completely disregarded N.G.’s ongoing emotional and attention difficulties and the ways in which N.G.’s current placement assists her in handling them.”
Dr. Robbins testified that N.G. was “not a standard learner” and that N.G. would “fall apart” in a large public school without supports she has in Buxton and without the small student-teacher ratio. Incredibly, the court pointed out, the district’s own psychologist testified that because of N.G.’s “exceptional cognitive abilities,” she would expect N.G. to do well in an appropriate setting and went on to agree that evidence of poor academic performance would indicate that something was wrong.
The court also remarked that the school psychologist evaluating N.G. was unaware whether or not N.G. was medicated during her psychological testing and obviously did not consider the effects of medication on N.G.’s disabilities, which of course would constitute “relevant functional information.”
The reviewing court observed that in spite of the school district’s insistence that the MDT team considered only information from the 2004-2005 school year, the hearing officer also considered N.G.’s academic performance at St. James as evidence that her disabilities did not have an educational impact, even though her performance there fell outside the 2004-2005 school year. The court said that the hearing officer offered no explanation as to why the information from St. James was admissible but N.G.’s significant academic and emotional problems the previous year while in the public school system should not have been considered by the MDT.
The court then reached the substantive issue of eligibility. Having determined, contrary to the hearing officer, that N.G. suffered from “serious emotional disturbance” due to her diagnosis of depressive disorder, multiple suicide attempts, psychiatric hospitalizations and behavioral problems, and that in addition, the diagnosis of ADHD could qualify her as “other health impaired,” it remained to decide whether her disabilities adversely impacted her educational performance so that she needed special education.
The reviewing court said that the hearing officer engaged in an inadequate analysis by examining N.G.’s performance in the context of the small, highly-structural private schools that she was eventually enrolled in. If this was the test, disabled students who made progress in an appropriate program, would, in the court’s words, “be . . . disqualified from receiving the very services enabling their success.”
The sort of services that N.G. received in these structured settings had not been provided in the public school setting, which supported the court’s conclusion that without such supports, her disabilities would certainly adversely impact her educational performance. Her grades, attendance and emotional state from the 2002-2003 school year were conclusive evidence of the impact of her disabilities. And, as the court aptly concluded:
That N.G. can perform well in precisely the school environment recommended by her doctors does not mean she is not disabled or that her disabilities do not adversely impact her educational performance. To the contrary, it means that N.G.’s parents have successfully stepped in where . . . [the school district] failed and comprised an appropriate educational program for their daughter.
Accordingly, the court held that the parents had shown by a preponderance of the evidence that the determination of ineligibility for special education was inappropriate under the IDEA.
While this case presented what appears not even to be a close case for the disabled student, in some other cases involving the category of serious emotional disturbance, the facts do not so clearly preponderate in favor of one side or another. It will take a skilled advocate to marshal the evidence demonstrating the interrelationship between serious emotional disturbance and its affect on school performance.
Unless this is done, these children are likely to become casualties of our educational system, becoming drop-outs after hearing a message that they are not valued. In these times of austerity, the battle with school district officials will even be fiercer.
Phyllis K. Saxe is an attorney in New York focusing on the law as it affects people with disabilities, with an emphasis on special education.
Endnotes:
1. See, generally, Hensel, “Sharing the Short Bus: Eligibility and Identity Under the IDEA,” 58 Hastings L.J. 1147, 1151 (June, 2007) (hereinafter “Hensel”).
2. 20 U.S.C. §1412(a)(I)(A)(2004).
3. 20 U.S.C. §1401(3)(A).
4. See Hensen, supra note 1 at 1163.
5. Id., see also 20 U.S.C. §2401(3)(A)(2) (2004).
6. See, generally, Glennon, “Disability Ambiguities: Confronting Barriers to the Education of Students with Emotional Disabilities,” 60 Tenn. L. Rev 295, 302 (Winter, 1993).
7. Id. at 303; See also 34 C.F.R. §300.5(b)(8) (1992).
8. See Hensel, supra note 1 at 1165.
9. Id.
10. Id.
11. 556 F Supp 2d 11 (D DC 2008).
