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SPECIAL EDUCATION ELIGIBILITY - EMOTIONAL DISTURBANCE

Under the 2006 IDEA Part B regulations, 34 CFR 300.8 (c)(4)(i), Emotional Disturbance is specifically defined as "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.

The term Emotional Disturbance is noted to include schizophrenia. However, it does not apply to children who are "socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i)."

TWO KEY FACTORS must be considered when determining if a student is eligible under the definition of Emotional Disturbance:

1. The student only needs to exhibit one of the five above-mentioned criteria to possibly qualify for special education and related services under this classification; and

2. The student is required to exhibit at least one of these criteria to a "marked degree" and over a "long period of time".

NOTE: There is no specific legal definition of what "a long period of time" or "to a marked degree" means. However, there are some acceptable definitions of these terms per the federal Office of Special Education Programs (OSEP):

A LONG PERIOD OF TIME: "a range of from two to nine months, assuming preliminary interventions have been implemented and proven ineffective during that period (Letter to Anonymous, 231 IDELR 247, OSEP 1989)."

TO A MARKED DEGREE: "generally refers to the frequency, duration, or intensity of a student's emotionally disturbed behavior in comparison to the behavior of peers, and can be indicative of either degree or acuity or pervasiveness (Letter to Anonymous, 213 IDELR 247, OSEP 1989)."

Danielle Augustin is a founding partner of Augustin Egelsee LLP, a law firm representing children and families with special education needs. Danielle has been practicing law for nearly 20 years, first as a deputy district attorney in Orange County, California, then as a special education student attorney for the past 14 years. For more information about special education law, go to: www.OcKidsLaw.com or call 714-282-1242.

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