? about legality of school disability criteria for eligibility

Discussion in 'Special Ed 101' started by Farmwife, May 14, 2010.

Thread Status:
Not open for further replies.
  1. Farmwife

    Farmwife Member

    Issue: School trying to use it's own criteria to exclude disability determination.

    Facts verified by state board of ed phone call: Schools can develop criteria to determine eligibility HOWEVER these MUST fall within state and fed law.

    Disability in question: Emotional disability that adversely effects education per state and fed guidlines.

    Issue becomes messy: School has several extra hoops and criteria that they feel must be met for child to be disabled per their own policy. I see this as questionable because there are 5 recognized legal criteria to prove disability the one we hit on the head is pervasive mood of depression. It absolutely does adversly impact education but the way the school adds on their opinion of how it must effect education it is very very hard to qualify. Their criteria is exclusionary on many levels not covered in IDEA their criteria is subjective to their agenda.

    I am not feeling comfortable with the way they elaborate on and interperate the law. Under their policy child is not eligible. Under federal and state policy child clearly should be. The only hurdle is their creative use of school policy.

    I am hoping to avoid protracted legal drama and filing complaints as that wasted time does not serve needs of child. I have several instances of the school violating law but my state (IL) is not parent friendly when it comes to due process.

    Put plainly, the school has been caught red handed several times but without money for a lawyer we are sunk...
  2. smallworld

    smallworld Moderator

    When my son qualified for ED classification under IDEA, there were four criteria he had to meet. I believe it is more stringent for ED than other classifications (that's what I recall our attorney and advocate telling me). You can ask the SD to see the regulations. I can also look through my IEP materials tomorrow if that would help you.

    You may also be able to get a free or low-cost educational advocate to accompany you to IEP meetings. Check these websites to find one in your community:
    www.nami.org (click on local/state)
  3. JJJ

    JJJ Active Member

    If you can get psychiatrist (must be the one with the M.D.) to write a letter similiar to the one below, you should be able to qualify him under OHI.

    Dear School District:

    difficult child Farmwife has been diagnosed with Cyclothymia, Adhd, rule out ODD, rule out CD, delayed motor skills, and learning difficulties. It is expected that a child with these diagnosis will have a negatively impacted education.

    Problems can be expected in many areas including but not limited to:

    * (list areas here where he is struggling already)


    Please evaluate difficult child for individualized support.


    Dr. psychiatrist

  4. Farmwife

    Farmwife Member

    JJJ: psychiatrist is incredible but was a nightmare to get the letter I did get. It was generic but did say cyclothemia. The majority of my *other* semi. diag. came from the neuropsychologist and they were sort of vague. Not really vague so much because they mentioned like 10,000 things but they never used a specific diagnosis, just suspicion of. I suspect this is due in part to it being done by a psychologist rather than md?? I can always get a second opinion though if that helps and request a re-evaluation. *sigh*

    smallworld: whatever info you have to help would be a miracle. I know there are like 4 or 5 criteria for emotional according to law but I thought they only had to get one. Advocates here have a 6 month wait to get on the waiting list, no exaguration...

    I think the school psychiatric, a nasty, scheming, two faced woman is trying to concentrate ONLY on emotional and is trying to "skip" other possibilities. She had a funny way of putting all her test results that showed difficult child doing well in front of the IEP determination draft and conveniently leaving out poor scores from neuropsychologist in an addendum waaay in the back after the check box for approved or not approved.

    Soooooo glad I saw this before hand. She likes to treat me like a dummy by flipping pages fast in front of me like she is helping explain things when she is really trying to take attention away from other less savory things...I am about to slap her.

    Anyway, a host of stuff like several very low scores in cognitive, very low on motor skills etc. are in the addendum, conveniently enough. She is trying to act like since difficult child has decent grades, NOW, that he is just fine on his own. Grrrrrrr. If you look at the neuropsychologist and ignore her line of junk he looks very bad off. She polishes the paperwork how she wants and tries to paint a pretty picture so she can deny services.

    Like I said, I am ready to slap her.
    Last edited: May 15, 2010
  5. slsh

    slsh member since 1999

    As a general rule, states must at the very minimum follow federal law in terms of sped. I say as a general rule because in researching your problem I found an interesting (and new to me) tidbit re: developmental disability as a classification of children for sped. Basically, the feds have left it up to states as to whether or not to allow daughter to be a sped classification up to age 9 (or 11? - short-term memory issues here, call me Dory), and even if states allow daughter to be a sped classification, they can't force individual SD's to use that classification. Anyway, has nothing to do with- your situation but I found it interesting (and a bit concerning) that the feds seem to be giving more leeway to states and individual SDs.

    Anyway, to address your problem - the fed statutes very clearly define emotional disturbance. I know you like to review statutes - 30 CFR 300.8 is the reference. The underlining is my emphasis.

    (4)(i) Emotional disturbance means 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.
    (ii) 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.

    My understanding is that states (and SDs) have to abide by the definitions set forth in these regs. I do know that over the years I've seen a ridiculous number of parent who have kids who *clearly* meet at least one of these criteria, yet they keep getting denied services.

    Being in IL... well, you already know how much fun it is. The complimentary state definition is found here and basically regurgitates what is in the fed statute.

    Again, I don't believe the SD is allowed to throw in extra requirements, above and beyond state and fed regs, but of course that doesn't mean they won't and don't.

    Since they seem to be quoting district policy and *district* requirements - have you asked them for a copy of those policies and requirements? If it's not in writing, and approved by school board, it doesn't exist.

    You're right - due process with-out a shark of an atty is going to be a losing proposition in IL, and is going to take a huge chunk of time to say nothing of expense. However, perhaps an innocent letter to SD, with a cc: to ISBE and OSEP, requesting clarification of why SD's definition of emotional disturbance is so much more restrictive than state and fed definitions might get someone to perk up a bit and decided it's easier to accommodate you than risk (however unlikely) involvement by larger agencies (ISBE and OSEP).
  6. Farmwife

    Farmwife Member

    slsh, what is OSEP?

    Here is a copy of a response I got in a Special Education message board, soooo good and funny. I think a combo of this and your idea of a letter will make an awesome boat rocker.

  7. slsh

    slsh member since 1999

    Good letter!!!! I love it! (evil laugh here)

    OSEP - Office of Special Education Programs (the feds) http://www2.ed.gov/about/offices/list/osers/osep/index.html?src=mr

    I think you may have talked with them before, if I'm not confusing people. I always cc'd them when I was in the midst of my SD battles. They're the ones who are ultimately responsible for monitoring compliance with IDEA. They need to come to IL... soon! :rofl:
  8. smallworld

    smallworld Moderator

    Sue found the regs that were read at my son's IEP meeting. The reason my son had no problem qualifying is because he met every classification. We just went down the list and said yes to every one. In our SD, there was no further qualifier.

    Great letter, by the way! Good luck.
  9. pepperidge

    pepperidge New Member


    did you get the district to fund any of the out of district placement for your child? If a child is severely depressed and the school district has nothing remotely like a therapeutic setting for the child, what are chances of SD ackowledging that they cannot meet the child's needs (pick a number between 0 and 1%?!)

    Sorry to take this in a slightly different direction--I find it interesting and relevant!

  10. smallworld

    smallworld Moderator

    We did not get our SD to fund the out-of-district placement for J because we have a self-contained program for socially and emotionally fragile high schoolers. J was in that program for a year. We wanted him out of the program because we thought he wasn't making enough progress. The SD disagreed and said his placement would remain the same at his IEP meeting last June. We would have had to go to due process, which would have been a long protracted process and cost a lot of money, according to our attorney. Our SD, as you know, is litigious and will go to great lengths to win. Our attorney advised us to spend our money on treatment rather than fighting our SD. So that's what we did.
Thread Status:
Not open for further replies.