Federal Policy on Improving Outcomes for Students With Emotional and Behavioral Disorders: Past,Present,and Future

The IDEA, the Endrew Ruling, and Students With EBD

Since the passage of the EAHCA in 1975, the primary requirement of the law was to develop a program of special education and related services for all students with disabilities, including those with EBD, eligible under the EAHCA that conferred an FAPE. The definition of an FAPE, which has remained unchanged since 1975, is special education and related services that (a) are provided at public expense, under public supervision and directions, and without charge; (b) meet standards of the state educational agency; (c) include an appropriate preschool, elementary, or secondary school education in the state involved; and (d) are provided in conformity with the Individualized Education Program (IEP; IDEA, 20 U.S.C. § 1401 [a][18]).

Whether a student’s IEP conferred an FAPE became the grist of numerous disagreements between school district personnel and students’ parents, which lead to due process hearings and court cases. In 1982, in the first special education case heard by the U.S. Supreme Court, Board of Education of the Hendrick Hudson Central School District v. Rowley (hereinafter Rowley), the Court interpreted the FAPE requirement of the law and developed a two-part test. In subsequent FAPE cases, therefore, courts had to apply the two-part Rowley test to school districts’ special education programs.

In the years following the Rowley decision, when ruling on FAPE cases, lower courts had little problem applying the procedural part of the Rowley test (i.e., Part 1). Unfortunately, the second part of the Rowley test, whether a student’s IEP is reasonably calculated to enable a student to receive educational benefits, proved to be a more difficult determination for hearing officers and judges (Yell & Bateman, 2018). The majority of the appellate courts held that a school district would meet the FAPE standard of the IDEA if a district provided special education services that conferred slightly more than de minimis or trivial educational benefit. Two appellate courts, however, ruled that for a school district to meet the FAPE requirement, a school district has to offer special education and related services that conferred meaningful educational benefit. The split in the circuit courts made it much more likely that the U.S. Supreme Court would eventually hear another FAPE case that focused on the educational benefit standard.

In the 2017 case, Endrew F. v. Douglas County School District (hereinafter Endrew), the U.S. Supreme court issued its second ruling on FAPE. In this case, the high court specifically addressed the educational benefit issue. The question posed to the court was “(W)hat is the level of educational benefit school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act?” (SCOTUSblog, 2017). In this case, FAPE for Endrew involved both academic and behavioral programming.

In the decision, Justice Roberts wrote that in Rowley “we declined . . . to endorse any one standard for determining when (students with disabilities) are receiving sufficient educational benefit to satisfy the requirements of the IDEA . . . That more difficult problem is before us today” (Endrew, p. 1). The high court developed a new standard, which was “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” (Endrew, 2017, p. 11). According to the majority opinion, “whatever else may be said about it, this standard is markedly more demanding than the merely more than de minimis test” (Endrew, 2017, p. 14); and, “a substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act . . . The IDEA demands more” (Endrew, 2017, p. 11). Although future cases will help to clarify the new standard, the Endrew ruling clearly raises the educational benefit standard that school’s must meet to confer FAPE.

The case was returned to the lower court and on February 12, 2018, the district court judge ruled that the Douglas County School District had failed to offer Endrew an FAPE in accordance with the Supreme Court’s new standard. Moreover, the judge found the Douglas County school district’s failure to address Endrew’s behavior problems was an important factor in the district court ruling that the school district has failed to meet the FAPE requirement of the IDEA (Endrew, 2017).

The Endrew ruling was deemed so important by officials in the U.S. Department of Education that, on December 7, 2017, the Office of Special Education and Rehabilitative Services (OSERS) in the U.S. Department of Education issued a Q&A document that includes important guidance for addressing significant behavioral challenges based on this decision (OSERS, 2017). In issuing this document, officials at OSERS provided parents, educators, and policy makers with a description of the Endrew decision, and described how the Endrew ruling should inform school districts’ efforts to improve academic and functional or behavioral outcomes for students with disabilities. Officials at OSERS noted that IEP teams should conduct thorough and meaningful assessments of all of a student’s needs, craft ambitious and challenging goals and objectives, monitor student progress, and revisit a student’s IEP if expected progress is not occurring.

Although the Endrew case centered around a student with autism rather than EBD, the student’s behavior was a critical issue. The OSERS document posed a question of particular importance when addressing the behavioral needs of students with EBD: “Must IEPs address the use of positive behavioral interventions and supports?” (OSERS, 2017, p. 16). The answer, according to officials at OSERS, was as follows:

Where necessary to provide FAPE, IEPs must include consideration of behavioral needs in the development, review, and revision of IEPs. IEP Teams must consider and, if necessary to provide FAPE, include appropriate behavioral goals and objectives and other appropriate services and supports in the IEPs of children whose behavior impedes their own learning or the learning of their peers. (OSERS, 2017, answer to question 16)

In their answer to this question, OSERS reiterated some extremely important points previously made in a dear colleague’s letter from OSERS (2016). The purpose of the letter was to remind school officials that when a student with disabilities experiences problem behavior, the student’s IEP may need to include an individualized positive behavioral intervention and support plan to ensure that he or she receives an FAPE.

A federal district court case heard after the high court’s decision in Endrew, Paris School District v. A.H. (2017), shed light on how the new FAPE standard may be applied with students with EBD. The case involved a young girl, referred to as A.H. by the court. In 2013, A.H., a student with Asperger syndrome, moved into the Paris School District when she was in fourth grade. In addition to academic, speech, and language problems, A.H. had significant behavior problems. A year after she entered the district, a second IEP meeting was held to consider a behavior management plan that had been devised by the director of special education and other issues. The district also brought in a behavior specialist to help with the development of A.H.’s behavior support plan. The plan that was developed only addressed noncompliance. Other behavior problems that A.H. exhibited were not addressed in the plan. A.H.’s parents requested a due-process hearing, asserting that the school district’s IEP failed to confer an FAPE. The hearing officer ruled against the school district, reaching the following conclusions regarding the behavior plan: (a) the school district failed to develop A.H.’s behavior management plan in a timely manner, (b) the plan was deficient because it only addressed A.H.’s behavior problems as noncompliance, and (c) A.H.’s teachers were inadequately trained during the previous school years. The school district appealed the decision to the U.S. district court for the Western District of Arkansas. The district court judge, noting that A.H.’s behavior intervention plan was a “two-page typed document with no dates or signatures (that) was not attached to the IEP and was not referenced by the IEP,” held that the behavior plans “violated the IDEA because of their lack of substance” (Paris School District v. A.H., 2017, p. 7). Furthermore, the judge ruled for A.H. holding that the lack of substance in her behavior plan “did not inform A.H.’s teachers how to handle A.H.’s behaviors.” The judge also found that “the behavior plans were inadequate, especially in light of the higher standard of Endrew F. that must now be applied” (Paris School District v. A.H., 2017, p. 8). Similarly, in a 2018 case out of the U.S. District Court, Montuori & Bayard v. District of Columbia, the court held that the school district denied FAPE to a student with an emotional disturbance when it failed to implement his behavioral plan.

To ensure that students with EBD are provided with special education and related services that confer an FAPE and enable students to make progress appropriate in light of their circumstances, thus meeting the Endrew standard, it is critical that special education programs address students’ unique academic and functional needs, which include addressing a student’s behavior in his or her IEP if the behaviors interfere with a student’s learning. Thus, when a student with disabilities exhibits serious problem behavior, it is important that his or her IEP address those behavioral issues in assessment and programming. Failure to do so may result in a denial of FAPE. Moreover, even in situations when an IEP includes appropriate behavioral interventions and support, a hearing officer or court may find a denial of FAPE if the plan was not implemented.

These advancements in litigation address some the specific policy calls made by the PHWG (1991) by setting the stage for improvement of the delivery of long-term and sustained educational support for students with EBD. The recent litigation ensures that the behavioral needs of students with EBD are considered and included when developing and implementing his or her IEP. In addition, advocacy organizations have incorporated the higher FAPE standard when dispensing advice to advocates who work with students with disabilities. For example, a coalition of 15 nonprofit advocacy organizations, collectively referred to as Understood, recently released “the Endrew Advocacy Tool Kit,” which is a list of talking points and a worksheet based on the high court’s ruling in Endrew (Understood.org, 2017). Advocates and parents are to use the toolkit in the IEP meeting to develop students’ IEPs that meet the new FAPE standard. Furthermore, we expect the higher FAPE standard announced by the U.S. Supreme Court in Endrew should lead to a new definition of FAPE in the IDEA when it is reauthorized.

Federal Investments in the Education of Students With EBD

A key recommendation of the PHWG (1991) was the development of funding procedures to support demonstrations of the implementation of effective and socially valid practices. Since 1997, the IDEA has consisted of four parts, A through D. The overarching purpose of Part D programs are to support the implementation of the IDEA and to assist states in improving the education of students with disabilities. The activities funded by Part D have had a great effect on students in regular education and on the lives of persons with disabilities. For example, Part D includes discretionary grants that fund research into effective programming for students with disabilities. Moreover, Part D has funded technical assistance centers such as the Technical Assistance Center on Positive Behavioral Interventions and Supports (PBIS; www.pbis.org), the Collaboration for Effective Educator Development, Accountability and Reform (CEEDAR) Center (http://ceedar.education.ufl.edu/), and the National Center on Intensive Interventions (https://intensiveintervention.org), which provide assistance to states in adopting and implementing research-based practices. The Part D programs, even though they constitute a small amount of the total federal expenditure for the IDEA, help to ensure that the field of special education will continue to move forward by translating research to practice and improving the futures of students with disabilities (Yell, 2019). Moreover, we believe that researchers can use the new, higher FAPE standard announced by the U.S. Supreme in Endrew as a rationale for writing grants to the Office of Special Education Programs (OSEP) and the National Center on Special Education Research (NCSER) to improve educational programming and teacher training for students with EBD.

Federal Definition

One of the enduring challenges in providing services to students with EBD is regarding the federal definition of EBD (Forness & Knitzer, 1992; Forness, Sinclair, & Russell, 1984; PHWG, 1991). Scholars and educators are particularly concerned with the exclusionary clause regarding students with social maladjustments (Forness & Kavale, 2000; Maag & Howell, 1992; Nelson, Rutherford, Center, & Walker, 1991) and the subjectivity and ambiguity in the definition itself (e.g., long period of time, inappropriate feelings or behaviors), which may contribute to disproportionality in identification of students with EBD (Sullivan, 2017; Sullivan & Sadeh, 2014). The federal definition of EBD shapes states’ definitions and subsequent policy statements and rules, which, in turn, influence local practices to put those policies into action. However, states can have their own definitions for EBD (as long as they identify the same general population of students). The resulting variability in eligibility definitions and decisions observed nationally creates disparities in (a) who gets served; (b) the needs—emotional, social, and/or behavioral—for which services may be indicated and provided; and (c) the point in time when services are offered to students struggling with emotional, social, and/or behavioral needs. The process of operationalizing the current federal definition may simply create confusion and inconsistency at state and local levels (Merrell & Walker, 2004), sometimes hindering the likelihood and timeliness of educators’ responses to support individual students.

In 1992, Forness and Knitzer proposed a new definition of EBD to replace the IDEA’s definition of a student with an emotional disturbance, which was adopted by the National Mental Health and Special Education Coalition:

a disability that is characterized by behavioral or emotional responses in school programs so different from appropriate age, cultural, or ethnic norms that the responses adversely affect educational performance, including academic, social, vocational, and personal skills. Such a disability is more than a temporary, expected response to stressful events in the environment; is consistently exhibited in two different settings, at least one of which is school-related; and is unresponsive to direct intervention in general education, or the child’s condition is such that general education interventions would be insufficient. Emotional and behavioral disorders can co-exist with other disabilities. The term includes a schizophrenic disorder, affective disorder, anxiety disorder, or other sustained disorder of conduct or adjustment, where they adversely affect educational performance. (Forness & Knitzer, 1992, p. 14)

Continued improvement of services for students with EBD is dependent on the field clearly identifying students needing services. A definition such as the one proposed by Forness and Knitzer (1992) would remove the social maladjustment exclusionary clause as well as much of the ambiguity present in the current definition. In addition, this definition encourages a more proactive response from educators by requiring that schools demonstrate direct intervention in general education was ineffective (or would be insufficient) prior to identification. As conversations related to the reauthorization of the IDEA move forward, we encourage educators, advocates, professional organizations, and families to come together to demand that policy makers finally update the federal definition of EBD (see Algozzine, 2017).

Screening and Early Intervention

In part due to the barriers embedded in the current federal definition, a significant discrepancy exists between the numbers of students identified and receiving services as EBD and the number of students who we may expect to require such supports. Specifically, in 2014, a total of 5,944,241 students with various disabilities aged 6 to 21 years received services under the IDEA, whereas 350,710 received services under the disability category of Emotional Disturbance. Students with disabilities represented 8.7% of the school age population, with students classified under the category of EBD representing 0.5% of the school age population, which has been steadily decreasing over the years (OSERS, 2016). This percentage is viewed by experts in the field as a gross underestimate of those in need of specialized services under this category (Bradley et al., 2008; Gage et al., 2010; Kauffman & Landrum, 2018). Clearly, improving students’ access to proactive mental health and behavioral supports must be a top priority for policy makers. We echo the recommendation made by the PHWG and others (e.g., Gage et al., 2010; Maggin, Robertson, Oliver, Hollo, & Moore Partin, 2010) calling for a “move away from a reactive stance toward a position that looks ahead to meeting the needs of children and youth with emotional or behavioral disorders, their families, and the professionals involved in delivering services to them” (PHWG, 1991, p. 308).

Multitiered systems of support (MTSS; e.g., PBIS, response to intervention), when implemented appropriately, provide a way for schools and districts to organize practices, data, and systems to promote early identification of student need and alignment with effective supports. In an important clarification on the appropriate use of MTSS, the OSERS’ letter to the State Directors of Special Education clarified that MTSS frameworks are to be implemented in such a way as to ensure that students who do not respond to interventions, and may be eligible for special education, are referred for a timely evaluation, while also ensuring that students in need of short-term intensive intervention receive effective supports and progress monitoring (OSERS, 2011). That is, MTSS frameworks are not to be used to delay or deny an evaluation for special education services.

In addition, the emergence of effective, efficient, valid, and reliable screeners and processes (e.g., Oakes, Lane, & Ennis, 2016) offers an opportunity for policy makers to move from a reactive to a proactive policy by facilitating early intervention and support. Policies that strengthen the commitment to expand multitiered frameworks across K–12, as well as early childhood settings, that emphasize universal screening as a normal course of action could go a long way in promoting timely, actionable assessment and evaluation of children at risk of developing EBD. Numerous tools for early screening exist; what is lacking is the impetus to act when the identified problematic behavioral patterns are unresponsive to intervention efforts (Lane et al., 2015). When screening systems are not in place, students in need of emotional and behavioral support may not be identified until significant patterns of maladaptive behavior are in place, significantly complicating intervention efforts.

Cross-Agency Collaboration

The PHWG and others since (e.g., Gage et al., 2010; Maggin et al., 2010) have clearly identified a need to move toward the “development and refinement of integrated and collaborative programs involving an array of social service programs that offer sustained, long-term support,” and more specifically “the development of mechanisms for cross-agency cooperation and collaboration, particularly in case-management, sharing of costs, and intervention programing” (PHWG, 1991, p. 308). Systems-of-care initiatives such as Collaborative Care (Bruns et al., 2016; Lyon, Borntrager, Nakamura, & Higa-McMillan, 2013), Wraparound (Winters & Metz, 2009), and Rehabilitation for Empowerment and Natural Supports Education Network (RENEW; Malloy, 2013) are examples of promising cross-agency collaborations. An emerging multitiered framework for integrating PBIS with school mental health, the Integrated Systems Framework (Barrett, Eber, & Weist, 2013), offers particular promise for guiding implementation of effective and proactive mental health and behavioral supports. Based on the promise of these collaborative models, policy makers should maintain a focus on collaborative programing with increased attention to promoting research and demonstration of scaled (district- or statewide) integrated systems of support. Policy support is also needed to reduce barriers to such collaborations (e.g., privacy laws that prevent the timely sharing of information, policies that discourage cross-agency fund sharing). In addition, policy makers should prioritize identifying models for effective capacity building and bringing efficient and effective supports for students with EBD to scale at the district and state levels.

Functional Behavioral Assessment Process

One area for future policy development and support should be expanding the capacity of the profession for effective use of the FBA process and the resulting programming that addresses student behavior through the IEP or Behavior Intervention Plan (BIP). Research has clearly indicated that the use of an FBA should be part of a comprehensive assessment process that informs the design of behavior programming in a student’s IEP or BIP (Horner & Yell, 2017). Unfortunately, federal law only mandates the use of an FBA or BIP in disciplinary situations. This mandate fails to leverage these evidence-based methods for the greater good of students with behavior problems. Educators who are supported through rigorous teacher training and well-planned professional development that emphasizes FBA and programming should be supported by policy directives to engage those capabilities through the use of FBAs to guide behavior support planning outside of the mandated discipline process. Certainly, the use of FBAs and the resulting behavior programming are essential components in designing comprehensive and individualized behavior support systems for students with EBD, but also may very well lead to positive student outcomes if used to guide more proactive intervention at the more intensive tiers of an MTSS (e.g., Tier 3) and may reduce the need for more specialized services. Models for FBA capacity building at the school level (e.g., Strickland-Cohen, Kennedy, Berg, Bateman, & Horner, 2016) offer promise for the effective implementation of FBA, and policy directives and related funding to expand such capacity-building models are potential catalysts to their use.

Building capacity for using FBA to develop effective IEPs and BIPs is an important first step; however, it is not sufficient to fully protect the right to FAPE for students with EBD. Certainly, the OSERS guidance document on providing FAPE (OSERS, 2016) and the Q&A document issued subsequent to the Endrew decision (OSERS, 2017) are foundational policy directives influencing the field to better support students with behavioral challenges. However, explicit state and federal policies that require the integration of a meaningful FBA into a carefully designed, individualized IEP or BIP are an important step to ensuring that these important evidence-based procedures become an accepted part of educational practice.

Personnel Development and Capacity Building

One of the most critical barriers to improving outcomes for students with EBD is the national shortage of qualified special education teachers. Enrollment in teacher preparation programs is declining nationally (U.S. Department of Education, 2016), and teachers are leaving the field at higher rates than in the past (Sutcher, Darling-Hammond, & Carver-Thomas, 2016). Policies that provide incentives for special education teachers to enter and stay in the field, especially for those pursuing careers working with students with EBD, will be essential for addressing the shortage. In working to address this issue, policy makers will need to strike a careful balance between shortening the time it takes to become a certified special education teacher and maintaining high standards for teacher knowledge and training.

Although evidence-based, effective practices (e.g., behavior-specific praise, Floress, Beschta, Meyer, & Reinke, 2017; high rates of opportunities to respond, Haydon et al., 2010; MacSuga-Gage & Simonsen, 2015) have been identified (Alberto & Troutman, 2013; Evertson & Weinstein, 2006; OSEP, 2015; Simonsen, Fairbanks, Briesch, Myers, & Sugai, 2008), in-service teachers for students with EBD struggle to implement these practices with sufficient consistency and intensity to lead to improved student outcomes (Reinke, Herman, & Stormont, 2013; Scott, Alter, & Hirn, 2011). Attention to improved preservice education is an important first step, but will fall short without the ongoing professional development and coaching supports necessary to improve implementation of effective practices for in-service teachers. Effective professional development includes not only content instruction but also follow-up coaching and performance feedback (Abbott et al., 1998; Noell, Witt, Gilbertson, Rainer, & Freeman, 1997; Simonsen, Myers, & DeLuca, 2010). Policy makers should consider requiring that a percentage of professional development funds be reserved for coaching and performance-feedback supports.

Within the Every Student Succeeds Act (ESSA), of 2015, districts receiving Title II funds must also “address the learning needs of all students, including children with disabilities, English learners, and gifted and talented students” (§2103[b](2)). Importantly, ESSA may help prioritize and incentivize important professional development related to MTSS models, in that, Section 2103(a)(3)(F) allows use of local funds to support efforts for “developing programs and activities that increase the ability of teachers to effectively teach children with disabilities, . . . which may include the use of multi-tier systems of support and positive behavioral intervention and supports.” In addition, Section 4108 of the law (Safe and Healthy Students) directs schools to use a portion of funds received to develop, implement, and evaluate school-based mental health initiatives and other services coordinated with early intervening services under IDEA when appropriate. Efforts to reduce bullying and harassment, and to improve instructional approaches for social and relationship building are mentioned also (ESSA, § 4,108[5](C)). Targeted funding to support effective preservice and in-service professional development and capacity building, including coaching and performance-feedback supports, for professionals supporting students’ emotional and behavioral development is critical to helping stem teacher attrition and ensuring students have access to appropriately trained and credentialed teachers and professionals.