April 6: Does a student with anxiety meet the ED criteria?

 Ask an Attorney:  Does a student with anxiety meet the ED criteria?

Franczek P.C.: Dana Fattore Crumley  & Kendra Yoch

Attorney answer: It depends. As with everything else in special education, decisions are individualized, so bright lines are hard to draw. Some students experiencing anxiety will qualify for special education as ED, others may not. Let’s dig into the ED criteria and work through some new challenges facing teams related to the pandemic and remote learning.

Under IDEA, a student is eligible for special education and related services as a student with a serious emotional disturbance if 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:

·         An inability to learn that cannot be explained by intellectual, sensory, or health factors

·         An inability to build or maintain satisfactory interpersonal relationships with peers and teachers

·         Inappropriate types of behavior or feelings under normal circumstances

·         A general pervasive mood of unhappiness or depression

·         A tendency to develop physical symptoms or fears associated with personal or school problems

Additionally, the student must need special education and related services as a result of the emotional disturbance. The ISBE rules incorporate the definition from IDEA.

As you can see, anxiety is not explicitly listed as a condition that falls under ED, however, a student experiencing significant anxiety my also demonstrate one or more of the characteristics that are listed. In this time of extended stress and uncertainty, many students may be feeling anxious and/or demonstrating some of the other characteristics above, like struggling to maintain relationships when in-person contact is limited, feeling unhappy or depressed, or developing fears related to school and school problems. When considering whether students should be identified for special education under the ED criteria, teams should look carefully at the underlined qualifiers above.

What is a long period of time? Of course, neither IDEA nor the case law give us a specific number of weeks or months, but typically we look at characteristics that continue beyond a situational difficulty. Older OSEP guidance suggests a period of 2-9 months, assuming preliminary interventions are implemented but ineffective. Given that the pandemic and related restrictions on our interactions have continued beyond that time, how should teams analyze whether a student’s difficulties are situational or signs of a disability? Teams must also consider the other qualifiers.

What is a marked degree? Another subjective term, teams should look at the student’s behaviors and responses in terms of frequency, duration, and intensity relative to peers in similar circumstances to identify significant discrepancies.

Finally, the team needs to determine if the characteristics are adversely affecting a student’s educational performance. As you know, educational performance is broader than grades and academic test scores; teams should look at class attendance and engagement as well. Again, while many students may not be participating and keeping up with assignments as much as in prior years, the adverse impact on a student with ED would be significant relative to peers in similar circumstances.

Finally, to be eligible, the student must need special education and related services as a result of the emotional disturbance. We have seen paperwork that includes a qualifier in the ED criteria that the characteristics persist despite intervention. While that specific language is not used in IDEA, it can help answer the question of whether the student needs specialized instruction. If the difficulties can be addressed using general education behavioral supports, school-wide social-emotional learning, and/or some sessions with the school social worker or counselor, the student does not demonstrate a need for special education and would not be eligible.

As we start to see an increase in requests for evaluations related to suspected emotional disturbance related to students’ anxieties and other struggles that may be related to the pandemic and extended remote or hybrid learning, teams should carefully look at each of the criteria to determine if the student’s difficulties are related to a disability (that may have been exacerbated by the pandemic) or if the difficulties fall within the broad range of expected responses to the extraordinary circumstances we are living through.

Critically, for those students who are not eligible, teams should identify appropriate general education supports and outside resources to help students build the skills they need to adapt and persevere through these challenges. Parents who feel that their child’s struggles have been ignored or not taken seriously are much more likely to file complaints, so ensuring that parents understand that special education is not the only way to get help at school is imperative. Indeed, Secretary Cardona recently stated that mental health services should become a core service of schools, and we expect guidance (and hopefully funding) related to providing robust social-emotional learning and mental health support to all students will be forthcoming. 

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