This article will cover Special Education law in the United States and how it relates to children with Conduct Disorder. Because people reading this will come with varying degrees of knowledge about the Special Education system, I have chosen to cover the basic workings of the system, laws, and IEP’s. I begin with a background on Special Education, then move onto what an IEP is, and then onto how to refer your child for Special Education services. I finally move onto how Special Education relates to Conduct Disorder, as well as a few other sections. If you feel you already have a basic understanding of Special Education, feel free to skip the first three sections. You can always come back to them if you don’t understand something.
In this article, you may encounter many new terms. It may look like what we love to call “alphabet soup”; that is, an endless list of acronyms that swim about the page like, well, alphabet soup. All of the abbreviations are used when dealing with Special Education. Therefore, to help you learn these terms as we use them, once I have briefly introduced each acronym, I use it exclusively throughout the rest of the document. You can find a glossary of all terms at the bottom of this article.
Disclaimer: Everything in this document is my own personal understanding of the laws and IEP process. This is an OVERVIEW. I am not a lawyer. These are my own personal recommendations. They are not a substitute for doing your own research and due diligence or consulting with an attorney. In other words (and because I hate disclaimers) if you follow these recommendations and things don’t go well, don’t sue me, m’kay?
Background on Special Education
Navigating Special Education (SpEd) can be trying at the best of times, even when you have an “easy” diagnosis that no one disputes and is clearly spelled out as qualifying for services under the federal law known as the Individuals with Disabilities Education Act (IDEA). But when your child has a diagnosis of Conduct Disorder (CD) this already difficult task can become downright Sisyphean in nature.
First and Foremost, you need to know that as crazy as it sounds, schools DO NOT use the Diagnostic and Statistics Manual (DSM) criteria when they are assessing a whether or not a child qualifies for SpEd services, and if so what they might be. Which means that your medical diagnoses mean exactly diddly-squat to the school district. The district does not care what the clinical definition of your child’s medically diagnosed condition is. They care only how they, the district, define your child’s needs in an educational setting.
The school district has a legal obligation to identify, locate, assess, and serve ALL children residing in their district who might qualify for SpEd services. This process is also known as Child Find or Search and Serve. It is the district’s responsibility to locate all children residing within their district and offer them SpEd services whether or not that child is attending a public school.
The school districts are responsible for providing support as it relates to the child’s education. They are not responsible for the child’s medical care. Therefore the definition of a child’s disability is not a clinical definition, it is an EDUCATIONAL definition.
The very nature of an Individualized Education Plan (IEP) is that each educational plan is individualized. It’s right there in the name (more on what, exactly, an IEP is later). The services provided and support given in the classroom are based on NEED, not diagnosis. For instance, just because a child has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) doesn’t mean they automatically get to sit up front to keep them being distracted. It is based on need alone. Not all children with ADHD need to sit up front in order to access their education.
One of the tenets of IDEA is the Least Restrictive Environment (LRE). What this means is that before we throw our SpEd students into a Special Day Class (SDC) and throw away the key (I can actually remember when this used to be done), we must exhaust all other avenues of support first. We must first start with a General Education (Gen Ed) setting (Gen Ed is a “normal” classroom setting). If the child is still not able to access their education in a Gen Ed setting (remember that term: “access their education”, because you will use it a lot when dealing with SpEd), the next step is to add in SUPPORT in the classroom, such as the Resource Specialist Program (RSP), which is a pull-out model wherein an RSP teacher will pull the child out for specialized instruction for a minimal amount of time during the week.
The very first thing that needs to be tried is Gen Ed, so in essence, if you are new to the IEP process, once your child has qualified for services, nothing should have changed except that your child will now have a legally binding document on his or her side. Once your child has an IEP, putting your child into another classroom such as an SDC is considered a change of placement, and that cannot happen unless you agree to it. If one party changes the placement of a student without the other side agreeing to it, it is called a unilateral change of placement. Only you can make a unilateral change of placement. This district cannot!
Students with CD are typically treated by school districts as Gen Ed students. There are a few different ways to go about getting services for your child with CD which we will go into in a little bit, but first I will explain what an IEP is.
What is an IEP?
You will hear the term IEP bandied about. It stands for Individualized Education Plan. The term IEP can refer to a number of different things though as if the alphabet soup of Special Education wasn’t already enough to confuse you! An IEP can be the plan itself, arrived at and agreed upon by the school district and the parents, eg: “I don’t know what to do when X happens in the classroom.” “Are you following the IEP?”
IEP can also refer to the actual physical document that both you and district sign. THIS IS A LEGALLY BINDING DOCUMENT, SO DO NOT SIGN IT UNLESS YOU UNDERSTAND AND AGREE TO EVERYTHING IN IT. Eg: “I’m going to take the IEP home with me. I want to read it over and digest it for before I sign.” (Note: School Districts will often try to bully you into signing right then and there at the meeting by saying something like, “Remember, we can’t start services until we get your signature.” They may even tell you you cannot take the document home without signing it. DO NOT LET THEM BULLY YOU INTO SIGNING UNTIL YOU HAVE READ IT. They are banking on you wanting to get the services started ASAP because the process is so lengthy. Yes, the process takes too long. But I promise you, when it takes as long as it does, a few more days isn’t going to make an appreciable difference. And if your child is old enough to be in the room with you for the process, this is a great thing for them to learn. No one should ever sign a legally binding document without reading and understanding it.)
And finally, the term IEP can also mean the formal meeting where you sit down with the teachers, school psychologists, principal, RSP teacher, and/or district representatives (or any combination of these folks) to decide what will go into your child’s plan. Eg: “I plan on recording the IEP. Please make note that I am giving you more than 24 hours’ notice of my intention.” (Note: Nowhere in the law does it say that if a parent records the IEP meeting that the district also MUST record the meeting. I have, however, never come across a school district that did not also insist on recording if you do. My child has been through five different districts.) Always record the IEP meetings.
You might also hear the term IEP process, which will generally be referred to in exactly that way and therefore can be easily distinguishable from the other ways in which the term IEP might be used. This is used to refer to the process as a whole, from the first referral for services to the completed document and implementation of services.
Remember always that IEP’s are about an access to education issue. If you remember only one thing, remember to reframe every issue as an access to education issue. Your child has CD? Great! What is the issue affecting his or her education?
Another important piece of the SpEd puzzle is a Free and Appropriate Public Education (FAPE). It is what the school district MUST provide to all SpEd students.
- Free: Just what it sounds like. It cannot cost you money to educate your child.
- Appropriate: This is not so simple and is often where parents end up arguing with the district. Appropriate means what is appropriate to the child in question, not what is appropriate for other students. For example, it might be appropriate for a child to receive copies of a teacher’s PowerPoint presentation in certain circumstances.
- Public/Education: Both exactly what they sound like as well.
Always ask if the IEP constitutes FAPE. Always.
SpEd and IEP’s are not just about grades. They cover behaviors as well. (Note: This applies only to behaviors the child exhibits at school. If your child is a perfect angel at school and then comes home and is a holy terror, the district does not need to assess for behaviors.) Especially with children like ours who tend to have a myriad of negative behaviors, it is perfectly okay to ask early on in the process for Functional Behavior Assessment (FBA) if you have concerns about your child’s behavior as it relates to his or her education.
As with everything in the IEP process, you want to request the FBA in writing. You want a paper trail. Back when I was a Realtor, my old Broker used to say leaving a paper trail was just like potty training a dog: DO IT ON THE PAPER!
This is your new mantra with anything SpEd related!
DO IT ON THE PAPER!
If the school district tries to tell you you don’t need an FBA just yet (and they will!), make sure you request a denial in writing! They will likely have a very different approach once they have to put it writing. For a more in-depth look at FBA’s, check out this article from Behavior Advisor.com: http://www.behavioradvisor.com/FBA.html
Once you have submitted your request they will call in a Behavior Support Specialist (BSS) to complete the FBA to assess for and create a Behavior Intervention Plan (BIP). If they try to get you to agree to a Behavior Support Plan instead, don’t. You want the BSS to come out to assess the situation and create a BIP. They are specially trained to do this. Anything less is just the blind leading the blind. Because let’s face it, if the teacher knew how to handle your child’s behaviors in the first place, your child’s behaviors wouldn’t be an issue!
Now that you know the basics behind what an IEP is, let’s cover how you refer your child for services.
Referring Your Child for SpEd Services
Remember your mantra? DO IT ON THE PAPER!
Everything, everything, EVERYTHING goes in writing. You want to create a paper trail in the event the school district does not do what they are supposed to do (and believe me, they will). If you have a conversation with your child’s teacher, send them an email reinforcing what you talked about earlier. Eg: “Thank you so much for taking the time to speak with me after school today. I appreciate your concerns about my child, and I agree. As we discussed, you will be keeping a closer eye on Ethan during lunch. I really appreciate your willingness to do that.”
I highly recommend picking up a composition book and keeping notes in it of every interaction with every school district employee, no matter how small, for your own records. NEVER tear a page out of it. If you need to cross something off, go ahead. Write everything front to back, in chronological order, dating and time stamping everything, leaving no blank pages. In the event you ever need to go to court, a composition book like that will hold up as evidence in a way that a computer document cannot (computer documents can be altered). I once had an issue settled almost immediately because I pulled out two composition notebooks containing over 160 pages of chronological notes!
When writing a letter requesting your child be assessed for SpEd services, keep it as simple as possible. You could even write simply: “Please assess my child for an IEP under IDEA.” This is not the venue to vent all of your upset. Do not turn this into your sob story! The less information you give them in the letter, the less they can use it against you later as reasons why your child is not performing.
If your child has behavior issues as well (and I’m guessing most of our children with CD will have behavior issues) you could keep it as simple as: “Please assess my child for an IEP under IDEA and perform an FBA to assess for a BIP.”
A 504 plan is like the little brother of an IEP. It’s not legally binding on the school district though, so I try to steer toward an IEP whenever possible. If your child is denied for SpEd services under IDEA, then a 504 Plan might be a second option. Because the process to determine eligibility under IDEA is so lengthy, it is best to request an assessment for a 504 at the same time as you request one for the IEP. Just add, “Please also assess for a 504 Plan” to either of the examples above. For more on 504 Plans vs. IEP’s, check out this link: https://www.understood.org/en/school-learning/special-services/504-plan/the-difference-between-ieps-and-504-plans
Your child may also receive SpEd services under 504 if the 504 team agrees. (This may or they may not happen with regularity, I don’t know how common it is, I only know that it is possible.)
If your child has ADD/ADHD, be sure to mention that in your referral letter. That will help to qualify them under OHI (we’ll talk about that in a minute).
Please remember that each child is unique and you want the district to assess ALL AREAS of your child’s suspected disability. These items will be individual to your child. Remember that what the district is looking for is a severe discrepancy between ability and achievement. If you know which IDEA category your child might fit into, list all of those categories when you refer. For example, if you know your child has a learning disability, you could include the category Specific Learning Disability (SLD). If you don’t know, that’s fine and you can just use the templates above, or use the sample letter at the bottom of the page, courtesy of Community Alliance for Special Education (CASE).
If you are using a doctor during this process, you need to have the doctor reframe his or her diagnosis toward eligibility for services. Get a copy of the SpEd eligibility criteria to your child’s doctor and have them go beyond a diagnosis of CD and address the issue of how your child’s behavior is interfering with his or her education.
You want them to frame the diagnosis as “The child has CD (or whichever other diagnoses you are referencing) which makes him unable to see how his actions affect others, THEREFORE, you need to…”
You need to connect the CD with SpEd and how it is impacting your child’s education.
Once you have given the school the letter asking them to assess your child, the district then has 15 business days in which to get you a written assessment plan. If 16 days pass and you still do not have a plan, you can choose to file a Compliance Complaint with your state Board of Education (Board of Ed). Usually, with something like this, the school district knows that even if you file a Compliance Complaint against them, the Board of Ed has 30 days in which to investigate the matter. And even if they are found to be out of compliance (and they will be) that is still 30 days to drag their feet, because if at day 29 they have given you the assessment plan to sign off on, the Board of Ed will consider it resolved and move on.
Once you have the assessment plan, do not just sign it and send it back. Read it, make sure you understand it, and feel free to add in anything you think they missed. I did this just a few months ago. They called and asked why I had added the other assessments, but in the end, they did everything I added.
The district is also legally required to give you a copy of the school psychologist’s reports detailing the results of his or her assessments of your child prior to the meeting. I have never been in or even heard of a district that did not take this to mean they could hand you the documents as you sit down to the meeting. The law only says they have to give it to you prior to the meeting, but it doesn’t define that term.
As with everything, DO IT ON THE PAPER. Submit your request in writing for a copy of the document prior to the IEP meeting. Be sure to include enough lead time for you to digest it. Eg: “Please provide me with a copy of the School Psychologist’s report no later than five days prior to our IEP meeting on X date.”
Do not assume that just because you are dealing with SpEd teachers they know the law and will follow it. I have never been in an IEP meeting with school district employees where I was not the one who knew the most about the law. Not even the heads of SpEd!
Conduct Disorder – How Does It Fit Into IDEA?
While there is no specific designation under IDEA for children with CD, there are a number of ways to look at it so that your child could qualify for an IEP. Remember that it is far less important why your child qualifies than it is that they do qualify.
If your child has any learning disabilities they may qualify under the Specific Learning Disability (SLD) criteria. For more in depth information on that, visit this link: http://www.asha.org/advocacy/federal/idea/04-law-specific-ld/
While it does happen that children with CD can have CD and only CD, it is far more likely that our children will some other type of designation as well (also referred to as comorbidity or comorbid conditions), so it’s okay to focus on getting them qualified for SpEd services under their other disabilities. A fairly large percentage of children with CD also have ADHD, as just one example. Remember also that children who act up in the classroom very well may have an underlying issue at work leaving them unable to process the information given to them in the classroom, so always be sure to assess for Learning Disabilities (LD). Again, each child is individual so you will need to engage in some detective work to find out which letters in the alphabet soup of SpEd apply to your unique child.
Other Health Impaired (OHI) is probably the most likely way your child will be qualified for SpEd services. It tends to be kind of a catch-all for qualification. This is a really great link to information about OHI, though I don’t know why they say there are 14 categories under IDEA. There are not. There are only 13. I will assume it is a typo: http://www.parentcenterhub.org/repository/ohi/
Notice that in section (i) of the OHI definition it says: “Is due to chronic or acute health problems such as…”
This makes the OHI category very broad. The inclusion of the term “such as” in the legal language opens that whole category up to interpretation, and you should feel free to make use of the broad, non-specific language in the law.
The other option for qualification for services under IDEA that might apply to a child with CD is the designation of Emotional Disturbance (ED). One of the criteria of ED is “inappropriate behaviors under normal circumstances”: http://www.naset.org/fileadmin/user_upload/Forms_Checklist_Etc/IEP_Committee/Eligibility_Criteria_Chklt_Emot-Disturb.pdf
The school district might argue that CD differs from ED based on our children’s conscious decision to engage in these behaviors (Eg: Rather than lashing out in the moment at another child they perceive has wronged them, our children might very well plot and plan their revenge for a later time.) I would actually argue that that constitutes “inappropriate behaviors under normal circumstances”. If you wanted to get right down to it, you really could argue that that is a perfect description of psychopathy in general. Pretty much everything they do (especially the children who have yet to develop any self-control) falls under the “inappropriate behaviors under normal circumstances” category.
The school district might try to tell you that you do not want to pursue an ED designation because you don’t want your children in a classroom with “those” children. This is nothing more than a scare tactic. Remember back to our Least Restrictive Environment (LRE)? A designation of ED does NOT mean your child will be placed in a Special Day Class (SDC) for ED children. In fact, the school district is required by law not to place them in an SDC unless all other avenues have been exhausted.
Congratulations! Your Child has Been Found Eligible for SpEd. Now What?
Now that your child has qualified for SpEd services, your job is not over. The IEP will need constant tweaking. Issues will come up. Behaviors will happen. When they do, remember to focus on the emotional side of the behavior PLUS the impact it is having on your child’s education. Always ask yourself, “What is the adverse effect this behavior is having on my child’s educational performance?”
Again, any unwanted behavior is the manifestation of an underlying emotional issue, so when looking at these behaviors you need to ask why the behavior is coming up. Is your child bored? Are they frustrated because they are having a hard time understanding the material and feel stupid? (This was a big one for my child, he would constantly ask why he was so stupid.)
If you frame it in that manner all of the time, the school district will have a very hard time indeed trying to convince you your child’s disability is not impacting his or her education and that therefore the school doesn’t need to do anything about it.
The school district may try to pull a fast one on you and tell you that your child is not holding up their end of the bargain. Do not let them do this to you. I have had to remind many a room full of district employees of this. “I am doing my best to get my child to hold up his end of the bargain. But whether or not he is doing what he is supposed to be doing, you are still required to follow this legally binding document.”
One last note about our children. For those of you who read my last blog post, No Quarter, remember that for our children it is imperative that consequences happen! Whatever the IEP says the consequences for behaviors are must be followed to the letter. Our children must learn early that their behavior has consequences. MAKE SURE THIS IS IN THE IEP!
If the school district does not follow through on consequences, file a compliance complaint. Do this every single time they do not follow through with what is in the IEP, in regards to following through on consequences. If our children learn they can behave any way they want and there will be no consequences, then they will behave any way they want.
If you have read No Quarter and don’t have time right now (I promise I’m not offended, it’s long) the basic gist is to never give our kids any slack. No second chances. Not ever. Our children can be manipulative and often worm their way into being given “a break”. Don’t let them. Just trust me on this one. You can go back and read No Quarter later for more information as to why that is.
A wonderful handbook, available for purchase, produced by the Community Alliance for Special Education (CASE) out here in California. They were kind enough to consult with me on issues of CD and IEP’s. Any mistakes in this blog are mine, I assure you. Their handbook got me through many an IEP meeting. I cannot recommend it enough. http://www.caseadvocacy.org/handbook.html
CASE Sample Letter
Director of Special Education
Local Unified School District
City, CA Zip Code
Re: Max Bleu
Dear Mr. Verde:
I am writing to refer my son, Max, for assessment to determine if he is eligible for special education services and support. He is not progressing in school. He is 7 years old and attends Harvey Milk Elementary School (child’s school of attendance).
**If you believe that your child may be eligible in particular categories, especially Other Health Impaired, Emotional Disturbance or Autistic-Like, you should specifically say so and ask that the assessment address those conditions. A standard special educational assessment looks at cognition, psychological processing, and academic achievement, none of which may be deficient in a student qualifying in one of the above three categories.**
(If you have specialized knowledge or know specific tests, you might add:
I request that the Local Unified School District (your District) conduct the following evaluations of my son:
(1) A psychological evaluation to determine his learning potential, using instruments designed for non-oral children such as the Leiter International Performance Scale-Revised or the Hiskey Nebraska Test of Learning Aptitude;
(2) An evaluation by a non-oral communications specialist. To my knowledge, the district does not have on staff any experts in this field. I have been recommended to Barbara Blanco, Ph.D. in non-oral communication, and unless the district has a comparable expert, I am requesting that you contract with Dr. Blanco to do the non-oral communication evaluation of my son.
(3) An occupational therapy assessment
Note: In every request for initial assessment, you should include a paragraph requesting that your child also be evaluated under the provisions of Section 504 for any “disabling condition” which would require service accommodations and/or services that will allow the child to benefit from public education to the extent that students without disabilities do. (However, do not agree to substitute a 504 assessment for a special education assessment.)
Such a paragraph might read as follows:
I also request that my son be evaluated under Section 504 of the Rehabilitation Act of 1973 for the presence of any educational service need which may require any accommodation or program modification not available under special education or if my child is not found eligible for special education. I also request that the Section 504 Coordinator for Local Unified School District be present at the initial IEP meeting to discuss the results and recommendations of the Section 504 Evaluation.
I look forward to receiving an assessment plan in 15 days. I hope that these evaluations can be completed promptly. Thereafter, we can have an IEP meeting to discuss the results of these evaluations and plan for John’s continued education. Please ensure that I get copies of the assessment reports one week before the IEP meeting.
Alphabet Soup – AKA Glossary
ADD: Attention Deficit Disorder
ADHD: Attention Deficit Hyperactivity Disorder
BIP: Behavior Intervention Plan
BSS: Behavior Support Specialist
CD: Conduct Disorder
DSM: Diagnostic and Statistics Manual
ED: Emotional Disturbance
FAPE: Free and Appropriate Public Education
FBA: Functional Behavior Assessment
Gen Ed: General Education
IEP: Individualized Education Plan
IDEA: Individuals with Disabilities Education Act
LD: Learning Disabilities
LRE: Least Restrictive Environment
OHI: Other Health Impaired
RSP: Resource Specialist Program
SDC: Special Day Class
SLD: Specific Learning Disability SpEd: Special Education