Eligibility for Students With Emotional or Behavioral Disorders

Abstract

An ongoing challenge in serving students with emotional or behavioral disorders (E/BD) is the practice that may allow schools to exclude students from special education programs and services based on certain behavioral patterns. This review (a) examines the application of the exclusionary clause in recent judicial rulings and (b) provides practice implications in serving youth with E/BD.

Keywords

behavior disorders civil rights eligibility law/legal issues policy

Current estimates suggest that nearly 12% of the school population may be in need of mental health services (Forness, Freeman, Paparella, Kauffman, & Walker, 2011). Of these children, reasonable estimates of students with an emotional or behavioral disorder (E/BD) in need of special education and related services by experts range from 3% to 6% of the population (Costello, Egger, & Angold, 2005; Kauffman & Landrum, 2013; U.S. Department of Health and Human Services, 2001). The perplexing dilemma for many school systems across the nation is properly identifying those students who are in need of special education services. Unfortunately, determining eligibility for special education under the classification of emotional disturbance (ED) and ensuring the provision of a free appropriate public education in accordance with the Individuals With Disabilities Education Act (IDEA) has been persistently difficult given a host of controversial issues surrounding current eligibility criteria and the poor outcomes experienced by this population (Bradley, Doolittle, & Bartolotta, 2008; Forness, 1992; Maag & Howell, 1992; Sanford et al., 2011; Smith, Katsiyannis, & Ryan, 2011; Wagner, Kutash, Duchnowski, Epstein, & Sumi, 2005; Zhang, Katsiyannis, & Herbst, 2004).

One particularly thorny issue that many have argued is partially responsible for the under-identification of students with ED is the clause in the federal definition for ED that excludes students with social maladjustment from services under IDEA. The federal definition was based on a definition written by Bower for the State of California, with the addition of emotional disturbance includes schizophrenia The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section” (Bower, 1982; Merrell & Walker, 2004; 34 C.F.R. Section 300.8 (c)(4)(ii)). Bower (1982) and others (Maag & Howell, 1992) suggested that the definition may have been modified by lawmakers to distinguish between those with serious emotional disturbances (e.g., Autism, Schizophrenia) from “prelinquents” to appease traditional psychopathologists that are predisposed to limiting diagnoses to those with a morbid cause for dysfunction as opposed to including societal or external factors, and administrators concerned about budgetary considerations of providing services to all students with behavioral issues (see Kendell, 2002).

This exclusion has been labeled by prominent researchers in the field of special education as arbitrary and indefensible (Forness, 1992; Forness & Kavale, 2000; Kauffman & Landrum, 2013; Maag & Howell, 1992; Merrell & Walker, 2004; Nelson, Rutherford, Center, & Walker, 1991). Indeed, distinguishing students with social maladjustment from students with ED is problematic from both a theoretical (Forness & Kavale, 2000; Kauffman & Landrum, 2013; Maag & Howell, 1992) and practical standpoint (Costenbader & Buntaine, 1999). Forness and Knitzer (1992) concluded that the definition is neither complete nor comprehensive enough to determine eligibility in ED and suggested an alternative definition developed by the Workgroup on Definition of the National Mental Health and Special Education Coalition (which included about 30 professional mental health and education associations). This definition was originally developed from an earlier draft by the Council for Children with Behavioral Disorders (CCBD, 1989; see also CCBD, 1990). Unfortunately, the efforts by the coalition were not successful in convincing the U.S. Congress to change the federal definition.

The proposed definition addressed a number of limitations of the current definition (preferred terminology, considering disorders exhibited outside the school, allows for ethnic and cultural differences) and includes the full range of emotional or behavioral disorders thus eliminating arbitrary exclusions (see Forness & Knitzer, 1992). While the controversy over the definition and whether students with social maladjustment should or should not be served is still alive in academic circles and professional organizations (e.g., CCBD), an emerging body of case law on this issue may have important implications for the field. Therefore, the purpose of this review is to examine judicial rulings regarding the exclusionary clause and discuss implications of these rulings for improved practice.

Litigation Regarding Eligibility of Students With ED

In recent years, there have been several court cases addressing definitional/eligibility issues regarding students with ED. In our review of state-level hearings and court cases, we used the key phrase “social maladjustment” with an online data base (LRP Education Research Library). We reviewed case law in which social maladjustment was a substantive consideration in these cases between 2002 and April 2013. It should be noted that this query yielded 80 state-level hearings, 8 state court of appeal decisions, 10 District Court decisions, and 3 Circuit Court of Appeals decisions. In this section, we closely examine several of these rulings, specifically in regard to the reasoning of the hearing officer or courts in arriving at a particular decision. It should be noted that the following cases include examples of the “social maladjustment” issue being addressed at various levels of adjudication. The examples of state-level hearings are not binding beyond the particular case involved, while District and Circuit Court decisions hold considerable weight within their boundaries.

In the first case involving a student with a comorbid diagnosis of attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder (ODD), and signs of depression, a Pennsylvania district court ruled that the student was socially maladjusted rather than emotionally disturbed (Brendan K. v. Easton Area School District, 2007). The student had been displaying behaviors of concern over a four-year period of time, received various behavioral interventions (time-out and counseling), and was suspended for potentially violent behaviors (threatening to shoot a teacher and burn down the school). In this case, the Court seemed to be swayed by the evidence indicating the student was not experiencing any academic problems. The testimony presented also contained elements common in the review of such situations. For example, the student’s behavior was so serious that professionals reached a point of recommending homebound placement, rather than school-based instruction. Further, there were opinions shared with the Court, in this case, by the school psychologist, that the student’s unacceptable behavior was premeditated since the student had shown the ability to control his behavior during earlier periods of the school year. In supporting the district’s assertion that this student was socially maladjusted, and thus did not qualify for special education programs and services, the Court goes on to state what it believes to be the intent of such an exclusion:

This exclusion makes perfects sense when one considers the population targeted by the statute. Teenagers, for instance, can be a wild and unruly bunch. Adolescence is, almost by definition, a time of social maladjustment for many people. Thus a “bad conduct” definition of serious emotional disturbance might include almost as many people in special education as it excluded. Any definition that equated simple bad behavior with serious emotional disturbance would exponentially enlarge the burden IDEA places on state and local education authorities. Among other things, such a definition would require the schools to dispense criminal justice rather than special education. (p. 10)

This concern that our special education system would turn into a criminal justice system, echoes positions asserted by those involved in public policy discussions during the most recent amendments to the IDEA. For example, in an influential policy document developed to set the scene for the 2004 amendments to the IDEA (Finn, Rotherham, & Hokanson, 2001), the following is asserted regarding the continued eligibility for students with behavioral disorders who fail to respond to school- and system-wide interventions:

For those students who persist in defying rules despite such interventions, it is questionable whether they should be included within the framework of special education at all. It is a fine line between a psychiatric disorder that can be treated and criminal behavior that should be adjudicated . . . . (Horn & Tynan, 2001, p. 44; see also Scheuermann & Johns, 2002)

The two themes, impact of a student’s behavior on academic performance and whether the student’s behavior is deliberate, were also present in a due process hearing held in Missouri (Fort Osage R-1 School District, 2010). In this case, the student had been diagnosed with ADHD and had numerous disciplinary infractions including gang and drug-related incidents. While the parent asserted that the district had failed to meet its child-find obligations, the hearing panel asserted that because the student was doing well academically, special education eligibility was not relevant. This case is also interesting in that a number of general education interventions were cited, including the use of tutoring, counseling, and social skills instruction. In addition, there was reference to a “recovery room” used to help students process behavioral incidents, a behavioral support team, and a graduated intervention system of behavioral interventions. According to the testimony of a behavioral intervention specialist who worked with this student, she never considered referring him for a possible special education referral because she viewed him as displaying opposition to authority and certain rules that he did not want to follow. The district’s director of student affairs, who oversees at-risk and alternative programs, shared the following perspectives regarding this student’s behavior:

Student is socially maladjusted rather than a student with a disability . . . [defined as] possessing characteristics such as being attention seeking, manipulative and cunning in relationships to get what they want . . . the offenses that I’ve seen him for were calculated offenses, things he had to think about in order to do or get done. (p. 24)

A different conclusion was reached by a state-level hearing in Pennsylvania (Upper Merion School District, 2010). In this case, the student had a history of truancy and was having academic difficulties. The parents had not been informed of their rights to request an evaluation, and thus the hearing officer ruled that child-find obligations had not been met and the student was entitled to compensatory education. In addition, the school social worker contended that the student was manipulating the overall situation and “can pretty much get away with anything.” He went on to state that the student was developing a character-disordered pattern of behavior that was consistent with ways others have described the socially maladjusted. Further, the school psychologist cited the student’s truancy as indicative of social maladjustment. A particularly interesting element dealt with the finding that the school social worker and school were not credible witnesses. In describing the testimony of the school social worker, the hearing officer concluded, “He made sweeping generalizations and did not provide objective scientific support for his conclusions, basing his opinions on his experience rather than tests or inventories” (p. 11).

In another case from Pennsylvania (Waynesboro Area School District, 2010), the hearing officer agreed with the parents that the student needed an independent educational evaluation (IEE) because of the shortcomings of the evaluation conducted by the district, which did not include any data from the student’s teachers. As was the case previously in Upper Merion School District (2010), the school psychologist had asserted that the student was socially maladjusted and thus did not warrant consideration as a student with special education needs. The psychologist asserted that the behaviors were a result of modeling, learned behavior, and reinforced successful negative patterns equating this etiology as being indicative of social maladjustment.

Perhaps more egregiously, an Eighth Circuit decision (Hansen v. Republic R-III School District, 2011) addressed a challenge from a student’s parents that their son was eligible for special education. This student had been diagnosed with conduct disorder, bipolar disorder, and ADHD. He had numerous disciplinary referrals for threatening students and teachers, fighting with other students, and treating his peers and teachers with disrespect. In this case, the Director of Special Education offered the following testimony regarding the student’s behavior:

[He] described socially maladjusted students as the “kinds of kids that have difficulty taking responsibility for their actions. They have very little or no remorse. They know the rules but still continue to break them . . . Their behavior is by design, and they use their behavior to manipulate the situations to get their needs met . . . emotionally disturbed kids typically have things that are much more internalizing . . . They have faulty feelings. They have a lot of guilt and a lot of remorse. Sometimes they have delusions and hallucinations. (pp. 6-7)

The Court ruled in favor of the parents in this case, affirming the decision of the District Court. It should be noted, however, that a concurring opinion was rendered by Judge Gruender wherein he concluded that this student was socially maladjusted, based on the testimony cited above, and therefore not emotionally disturbed. He concluded, however, that the student was qualified under other health impaired (OHI) as a result of his ADHD, even though bipolar disorder is clearly not consistent with definitions of social maladjustment.

During this same time frame, a decision rendered by a U.S. District Court in New York (W. G. and M. G. v. New York City Department of Education, 2011) reached a different conclusion in a case involving a 10th-grade student who had been diagnosed with depression. In this case, the court upheld the decision of a State Review Officer who had reversed a previous hearing officer’s decision that found the student eligible for an emotional disturbance. The court was presented with several clinical descriptions of this student that used such terminology as “narcissistic personality tendencies” and “oppositional defiant disorder.” However, the court ruled the child did not qualify under the IDEA as a student with emotional disturbance, noting that the student was reported as making satisfactory academic progress and did not require special education services. As stated in the decision,

Here, the preponderance of the evidence indicates that the academic problems presented by K.G. in the fall and winter of 2008 were the result of his truancy—he failed his classes because he refused to go to school at all—and that the refusal behavior was principally the product of a conduct disorder, narcissistic personality tendencies and substance abuse rather than of depression, an emotional disorder from which he suffered to differing degrees from some time in 2007 . . . The evidence does not, however, demonstrate that he suffered during the time for which reimbursement is sought from an emotional disturbance manifesting itself in one or more of the enumerated criteria that was present to a marked degree and adversely affected his academic performance. (p. 23)

A salient issue that seems to emerge in these discussions of emotional disturbance versus social maladjustment is whether, in fact, educational performance encompasses more than academic performance alone an idea that was affirmed even before the IDEA was enacted in the case PARC v. Commonwealth of Pennsylvania (1972). However, in a recent New Mexico hearing (In re: Student With a Disability, 2012) an independent hearing officer (IHO) concluded that the district in question had failed to meet its child-find obligations because it did not evaluate a student who had (a) missed over 200 hr of instruction while in the nurse’s office, (b) poor interactions with peers, and (c) engaged in self-injurious behavior. As is typical in many such situations, this student had been diagnosed with several comorbid conditions including ADHD, oppositional defiant disorder, and communication disorder. After reviewing the case, the IHO concluded that the concept of adversely impacting a child’s educational performance was based on progress in academic, physical, emotional, and social domains and that these concerns should have led the district to initiate “child find” activities.

Another court decision affirming a district’s responsibility to assure educational benefit for a student with behavioral needs (in this case also having a diagnosis of bipolar disorder) was delivered by a U.S. District Court in Connecticut (Plainville Board of Education v. R. N., 2012). This case also involved the responsibility of the district to pay the cost of residential placement for the student. As stated by the Court,

When a child’s behavioral and emotional problems are so closely intertwined with his educational difficulties that he requires residential placement, the school board must pay for that placement as long as it is appropriate. (p. 11)

Critical Findings

Through this review of recent case law, the scope of which was described earlier, it appears that the question of whether unacceptable student behavior is the result of a disability or merely a manifestation of social maladjustment is a prevalent and critical consideration. Whether a court accepts these exclusionary criteria seems to be impacted by several factors. First, there is the interpretation a court takes regarding the intended exclusionary intent of our federal legislation regarding what some may consider too wide a swath of eligibility under the IDEA if one fails to exclude certain behaviors from possible eligibility. This is noted above in those court rulings that seem to suggest social maladjustment is the norm rather than the exception (Brendan K. v. Easton Area School District, 2007; Fort Osage R-1 School District, 2010). Second, it appears that the role of clinical diagnosis plays a critical role in some court rulings (W. G. and M. G. v. New York City Department of Education, 2011; Plainville Board of Education v. R. N., 2012). For example, as cited above, some courts have equated clinical diagnoses such as conduct disorders or narcissistic personality disorder with social maladjustment, thus justifying the exclusion of such students from IDEA eligibility. This is perhaps due to the inability to link these disorders to underlying morbid processes, and thus regard them as controllable behaviors.

Third, a major linchpin in several decisions hinged upon whether or not a student is experiencing academic difficulties. While at first glance, this appears forthright given the federal definition for emotional disturbance clearly states that to be eligible for special education services, the student’s behaviors must adversely affect the child’s educational performance. However, there is disagreement regarding whether educational performance is solely limited to academic measures. According to the Office of Special Education Programs in the U.S. Department of Education (Letter to Clarke, 2007), the term educational performance as used in IDEA and its implementing regulations is not limited to academic performance. While this may be the DOE’s position, there continues to be varying decisions reached in courts across the United States. For example, the First Circuit (Mr. I. v. Maine School Administrative District No. 55, 2007) affirmed the notion that educational performance extends beyond academic areas, while the Second Circuit (C. B. v. Department of Education of City of New York, 2009) held to the interpretation that grades and test scores are the determinants of educational performance.

In addition to the issue of “social maladjustment,” several recent cases have broached a serious concern that school districts are not properly satisfying their “child-find” obligations in accordance with IDEA, Federal law requires schools develop a system to locate, identify, and evaluate all children with disabilities from birth through age 21 (20 U.S.C. 1412(a)(3)). This process includes screening all children suspected of having a disability, including those receiving passing grades and advancing in grade level. The cases reviewed from across the nation highlight egregious instances in which a child’s educational performance was hindered due to a combination of social and emotional domains, and yet the school systems elected not to screen the student for special education eligibility.

To further delineate the magnitude of these concerns, Table 1 provides a summary of District and Circuit Court cases that our search yielded spanning the years from 2002 to 2012. As noted in Table 1, there have been 13 District or Circuit Court cases in which the question of social maladjustment was a predominant component. In most of these cases, the interconnected themes of eligibility either from a disability designation standpoint or impact on educational performance were present. In addition, there were 4 cases that also included issues of tuition reimbursement related to parental placement in a private setting. In those cases in which the parents prevailed (5), the court rules that the contention that the student was just socially maladjusted was rejected. Conversely, in those cases where the District prevailed (8), the social maladjustment contention put forth was confirmed!

Table 1.

District and Circuit Court Decisions (2002–2012).

Decision	Issue(s)	Prevailing party	Social maladjustment
Venus Indep. School Dist. v Daniel S., 2002 (Dist.-TX)	Eligibility	Parents	Rejected
	Educational performance
Lincoln County v. A. A., 2003 (Dist.-Oregon)	Eligibility	Parents	Rejected
	Tuition reimbursement
A. W. v. Fairfax County School Board, 2004 (Fourth Cir)	Stay put	District	Affirmed
	Manifestation determination
Mr. and Mrs. N. C. v. Bedford Central School Dist., 2007 (Dist.-NY)	Eligibility	District	Affirmed
	Educational performance
Brendan K. v. Easton Area School District, 2007 (Dist.-PA)	Eligibility	District	Affirmed
	Educational performance
Mr. and Mrs. N. C. v. Bedford Central School Dist., 2008 (Second Cir.)	Eligibility	District	Affirmed
	Educational performance
St. Joseph-Ogden Community High School Dist. v. Janet W., 2008 (Dist.-Ill)	Eligibility	District	Affirmed
	Educational performance
Student v. San Mateo Union H. S. Dist., 2008 (Dist.-CA)	FAPE	District	Affirmed
	Tuition reimbursement
Torrance Unified School Dist. v. E. M., 2008 (Dist.-CA)	Eligibility	Parents	Rejected
	Tuition reimbursement
R. C. and E. P. v. York School Dept., 2008 (Dist.-Maine)	Eligibility	District	Affirmed
	Educational performance
Eschenasy v. N. Y. City Dept. of Ed, 2009 (Dist.-N.Y.)	Eligibility	Parents	Rejected
	Educational performance
	Tuition reimbursement
W. G. and M. G. v. N.Y. City (Dist.-N.Y.) 2011	Eligibility	District	Affirmed
	Educational performance
Hansen v. Republic R-III School District, 2011 (Eighth Cir.)	Eligibility	Parents	Rejected
	Educational performance

Implications and Recommendations for Practice

The review of recent court decisions seems to suggest the ongoing ambiguity in determining who is and who is not eligible for programs and services under IDEA eligibility criteria. While this may make for interesting study in the academic arena, it holds significant and perhaps life-changing implications for the families and youth enrolled in our public education system. The dispute among the courts and among researchers regarding the current federal definition for ED, specifically regarding the eligibility criteria for students who are socially maladjusted, calls for further investigation as to whether the current definition is adequately meeting the needs of schools and the children they serve.

A recent study by the Council for Children with Behavioral Disorders (Peck et al., 2012) investigated several pertinent questions regarding educating students with E/BD, including (a) Who is currently being served in the field of special education for ED? and (b) Who should be served in the field? CCBD’s findings as well as those reported within this study demonstrate that reliance upon the traditional inclusionary/exclusionary criteria of the federal definition for identifying students with ED is insufficient and does not meet the current needs or demands of our nation’s public schools. Unfortunately, as stated earlier, efforts to influence Congress to change the definition over the years have been unsuccessful despite the endorsement of an alternative definition endorsed by 30 professional organizations, including the Council for Children with Behavior Disorders (see Forness & Knitzer, 1992) and prominent professionals (e.g., Kauffman & Landrum, 2013).

While it is unclear when and if the current definition in ED is going to change, there is consensus that it does influence eligibility, and it has been a contributing factor to the underrepresentation of this group in receiving services under IDEA (see Kauffman & Landrum, 2013). Given the lack of success in modifying the federal definition of ED over the last several decades, a potentially more promising solution for providing needed services to students with E/BD is through a modified screening process called Response to Intervention (RTI). RTI has received a tremendous amount of positive fanfare recently due to its ability to identify and provide needed services to students with learning disabilities (LD). RTI addresses the needs of students who exhibit academic or behavioral challenges in a proactive and preventive manner (Gresham, 2005; see also Maag & Katsiyannis, 2008). RTI is grounded in the construct of differentiated instruction that offer multiple levels of support that are systematically applied to students based on demonstrated need.

RTI is a process for addressing the context of problem behavior through progressively more intensive evidenced-based interventions (Horner & Sugai, 2000). As reviewed by Mooney, Ryan, Denny, and Gunter (2012), RTI focuses on the design, implementation, and maintenance of primary, secondary, and tertiary interventions to reduce problem behaviors and support desired behavior for all students within a school. At the primary level, schools systematically teach and prompt desired behavior at a school-wide level and reinforce students who meet these expectations. The focus is for educators and staff to support all students in more appropriate school behavior and establish a process for screening students that require additional behavioral support (Lane, Gresham, & Shaughnessy, 2002). Students identified in need of secondary-level interventions through either multiple disciplinary office referrals or by exhibiting more extreme forms of behavior are provided an additional level of intervention. Potential interventions may include reteaching expectations, targeted social skill training, academic assistance, and self-management procedures. These secondary interventions include more frequent monitoring of student behavior to determine the impact of interventions on student behavior (Mooney et al., 2012). Students who continue to exhibit chronic or intensive behavioral challenges would receive tertiary-level interventions that are more intensive individualized system of support. These individualized interventions are developed using a team-based process, which are based upon the results of a systematic functional behavioral assessment. Students requiring tertiary-level interventions may require either academic (e.g., special education) or behavioral (e.g., behavior intervention plan) interventions that would enable them to succeed in the educational environment.

Maag and Katsiyannis (2008) recommend a three-phase approach for identifying students with ED consisting of (Phase I) screening, (Phase II) classroom wide interventions, and (Phase III) individual interventions. Phase I entails the use of a research-based screening tool such as the Behavioral and Emotional Rating Scale (BERS) or Behavioral Objective Sequence (BOS) to identify at-risk students. The BERS is a strength-based instrument with 52 items organized into five subscales: (a) interpersonal strengths, (b) family involvement, (c) intrapersonal strength, (d) school functioning, and (e) affective strengths (Epstein & Sharma, 1998). The BOS is a field-tested systematic instrument consisting of 233 developmentally sequenced and measurable social competencies that may be assessed through structured observation and by ratings of multiple sources. Phase II consists of two separate steps. The initial step entails having teachers emphasize catching students being good, rather than implementing punishment when students misbehave. They recommend using a five to one ratio of positive to negative comments to promote positive behaviors. During this second phase, teachers should also teach self-monitoring strategies to at-risk students. The last step of Phase II entails implementing a group behavior management system. Students who do not respond to either Phase I or II interventions be provided Phase III or individual interventions. Phase III interventions specifically target one to three of the student’s most frequently occurring maladaptive behaviors. These behaviors would then be the focus of a functional assessment.

In summary, RTI provides a proactive opportunity to avert school failure through the systematic application of evidence-based behavioral and academic practices. Through the systematic use of this multitiered approach the basic information needed to initiate the possible identification of a student with emotional disturbance would be derived using a data-driven approach as opposed to the more subjective approach currently used to differentiate patterns of emotional disturbance from social maladjustment. Just as importantly, RTI avoids the traditional “wait to fail” approach for identifying students with ED. Given the dismal social and academic outcomes of students with ED, early interventions offer a more promising approach for identifying and serving students in need.

Conclusion

This review of current policy and case law surrounding the impact of perceiving a student’s behavior as social maladjustment to the exclusion of other disability designations confirms the importance of what might initially appear as a mere academic debate. This differential diagnostic dynamic seems to be a true nexus point for policy biases, clinical and/or professional assertions regarding behavioral intent, and questions regarding what constitutes educational performance. We believe it is critical that professional steps be taken to address student behavior in an equitable and socially responsible manner. Replacing subjective decision making with more systematic data-gathering approaches such as the RTI process is one promising direction. This will need to be accompanied by more comprehensive training efforts illustrating the application of RTI to emotional and behavioral needs, particular at the Tier III level.

Further, more systematic study is necessary of the relative impact of various sources of data in state-level hearings and courts where the social maladjustment distinction is relevant. These data could assist in advocating for more systematic strategies to be required through legislative or regulatory actions. While such work is being accomplished, those involved in local decision making should pause in making absolute assertions based on presumptions regarding the intent of a student’s behavior.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

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