Should I Stay or Should I Go?
The School, the Law, and the Child with a Brain Injury
Joanne M. McGee, Ph.D. & Cynthia A. Plotts, Ph.D.
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The Individuals with Disabilities Education Act, or IDEA, provides very simple guidelines for getting a child with a brain injury (or any disability for that matter) into school. It also provides the more complicated guidelines for getting the child out. This article is intended to shed some light on the process - from the beginning.

Part I: Child Find

The History
There was a time when the exclusion of children with disabilities (particularly those with severe or multiple impairments) from public education was standard procedure. The school district frequently required that a child meet admission standards such as being toilet trained, ambulatory, and having a mental age of 5 years or older. Children with behavior problems or who were too difficult to teach were typically expelled. So what did parents of children with disabilities do? Parents with the financial means would place their child in private schools while the children of other parents stayed home or were institutionalized.

The decade of the 1960’s was a time of court challenges to discrimination, not
only in regard to race and gender, but also to disability. In the domain of education, two landmark cases for children with disabilities represented a turning point. In Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania (P.A.R.C.) (1971, 1972), not only did parents win access to a public education for mentally retarded children, but the court broadened education to include training of children with disabilities to be as self-sufficient as they are capable. That is, the idea of special education beyond the 3 R’s was introduced. The court required the provision of home-bound instruction if appropriate and allowed for tuition grants if the child needed alternative school placements. Finally, parents had the opportunity for an impartial hearing if they were dissatisfied with the school’s placement recommendation (Jacob-Timm & Hartshorne, 1998). In Mills v. Board of Education of District of Columbia (Mills) (1972) the court repeated the requirements of P.A.R.C. with a few additional school responsibilities. The court’s decision also required the school to provide a “free and suitable publicly supported education regardless of the degree of the child’s mental, physical or emotional disability or impairment” (Jacob-Timm & Hartshorne, 1998, p. 97).

After a string of lawsuits that followed these two important decisions, in 1975 Congress passed the Education of All Handicapped Children Act assuring

that all handicapped children have available to them…a free appropriate education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of handicapped children and their parents or guardians are protected, to assist States and localities to provide for the education of all handicapped children, and to assess and assure the effectiveness of efforts to educate handicapped children (Jacob-Timm & Hartshorne, 1998, p. 99). In 1990 amendments to the law included a name change to Individuals with Disabilities Education Act (IDEA). The law was reauthorized in 1997 with improvements (Jacob-Timm & Hartshorne, 1998).

It appeared that the law was clear in regard to the requirement that all children with disabilities had a right to educational services regardless of the severity of their disability; however, in Timothy W. v. Rochester, New Hampshire School District the issue was raised again. In 1975 Timothy was born two months premature and weighed four pounds at birth. He was treated for respiratory difficulties and suffered intracranial bleeding, hydrocephalus (fluid on the brain), and seizures. He was later diagnosed as being “profoundly retarded, deaf, blind, spastic, and subject to convulsions” (Jacob-Timm & Hartshorne, p. 105). His mother was only fifteen years old at the time, which compounded this “heartwrenching” series of events. Beginning in 1980 (and lasting four years!) the school district conducted a series of evaluations prior to providing services. Due to Timothy’s “dishearteningly slow” physical and mental development, the school district questioned Timothy’s rights and opportunities to educational services since he was unable to benefit. It took an appeal, but the court recognized that a “‘zero-reject’ policy is at the core of the [Education of All Handicapped Children] Act,” that a child with a disability has a right to a public education “regardless of the level of achievement that such children might attain” (Bownes, 1989, p. 960).

What is Child Find?
Child Find has its roots in the evolution of the mind-set described above which represented a radical shift in the way that society dealt with individuals with disabilities. As mentioned, prior to the court decisions in P.A.R.C. and Mills, many disabled children and adults did not attend school or work in the community even if they were capable of benefiting or contributing. After federal legislation assuring children with disabilities of a free and appropriate public education (FAPE), the State Education Agency (SEA) had to actively seek and locate all children with disabilities within the state and provide an education. The search process itself is required by law, and is called “Child Find.”

Here’s how the law reads under IDEA:

§300.125 Child Find.

(a) General requirement.

(1) The State must have in effect policies and procedures to ensure that—

(i) All children with disabilities residing in the State, including children with disabilities attending private schools, regardless of the severity of their
disability, and who are in need of special education and related
services, are identified, located, and evaluated; and

(ii) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.

(2) The requirements of paragraph (a)(1) of this section apply to—

(i) Highly mobile children with disabilities (such as migrant and homeless
children); and

(ii) Children who are suspected of being a child with a disability under §300.7 [e.g. Traumatic Brain Injury, Learning Disabled, Mentally Retarted, etc.] and in need of special education, even though they are advancing from grade to grade.

The IDEA’s Child Find requirement applies regardless of whether the student is officially “enrolled” in the district; includes children with disabilities attending private schools, both parochial and secular, as well as students placed in Department of Public Welfare licensed facilities and foster care, and students who are incarcerated; and it applies to early intervention programs for infants and toddlers. The SEA is required by this law to provide an accurate child count to Washington each year (Williams, 2004).

While the requirements apply to children attending private schools, the nature and extent of special education services may not be the same as if the child were attending public schools. The determining factors include whether the child is voluntarily placed in the private school by his or her parents, or whether the placement is made by the parent or public school for the purpose of providing FAPE to the child.

During the first few weeks of one of the author’s work in the public school setting as a school psychologist in training, the clinical team was gathering for the pre-school-year-orientation. It was noticed that Jan and Dale, two special education staff members, were missing: they were doing “Child Find.” If the term is new to you, then you must be experiencing the same emotions that the author felt when she heard it for the first time: what could be more wonderful than finding a child? True to form, Jan and Dale were doing something interesting. They were spending the day visiting nursing homes, jails, and hospitals searching for any child who was residing in the district and not enrolled in school.

What hasn’t yet been communicated in this article is the immediacy of action required by Child Find. About a year after the author’s introduction to Child Find, she was working in an elementary school with Kathy, a talented and dedicated special education counselor. One morning Kathy engaged 6 year-old Alfred in conversation and asked him how his brothers and sisters were doing. He had several, and she had known them all as they went through school. Alfred began rattling off information about his brothers and sisters and happened to mention Thomas, an older brother that Kathy had never met. Her curiosity raised, she called Alfred’s mother to inquire about this other brother. She was told that Thomas was 11 years old and that he was mentally retarded. When Kathy asked why he had never attended school, the mother replied that Thomas was not yet toilet trained, and that when he was trained he would be ready for school. Alfred’s mother did not realize that toilet training is not a requirement for enrolling in school (yes, special education professionals do diapers). Kathy went to their home that very day with enrollment forms.

Child Find and Brain Injury
So what does Child Find have to do with a child with a brain injury? Everything! Frequently, the child who has had a brain injury has never been in special education and parents are unaware of the school’s legal obligation to provide services to all children with disabilities.

Unfortunately, the following is an all too frequent series of events. The child with a brain injury is discharged from the hospital to home with no services, or therapies are provided on an outpatient basis for a limited period of time. This is the case for most families with private insurance, since insurance funding for inpatient services will probably have run out at the time of discharge from the hospital, and there is a cap to the length of time that home therapies are covered (a good policy may cover six months). This is hardly sufficient since the course of recovery from brain injury involves years not months. Furthermore, as only the indigent qualify for state Medicaid services (meaning that if either parent works for even minimum wage, the child may not qualify for Medicaid), many parents may think that they will have to pay for services out of pocket and don’t know where to begin.

Six year old Ruben was hit by an uninsured motorist and sustained a severe brain injury. Prior to the accident, he had done very well in school and had never needed special education support. When he returned home from the hospital, he was not able to walk, he could not speak and he required a g-tube for feeding. Both of his parents worked to make ends meet and rotated shifts in caring for Ruben (his mother worked days and his father worked nights). His parents’ paths crossed only to ensure that one partner or the other got some sleep. Ruben’s parents had seen him progress from being medically unstable to becoming stable, from being in a coma to regaining consciousness, and from being hospitalized to being discharged home.

Maybe they were waiting for Ruben to progress a little more, so he would be more like his old self when he returned to school. Maybe they were worried that the school would be unable to feed him. Maybe they thought that Ruben wouldn’t meet school admission requirements. Or maybe they didn’t know that the school was required by law to provide services (including those that the family could no longer afford through the medical system, such as speech, occupational and physical therapies). One thing for sure--the school did not know about Ruben. An individual who was providing guidance for the family encouraged them to contact the special education director in the school district. The special education director immediately responded and therapists/educational professionals descended on the home to provide services for the injured child. Services would be provided in his home until he could tolerate the stimulation of the school environment (where the same services would continue).

School Services and Brain Injury
Services that are considered part of the child’s “education and training toward self-sufficiency” include speech and language therapy, occupational therapy, physical therapy, social skills training, behavioral intervention, psychological testing and counseling, and parent training, as well as academic instruction and remediation. Furthermore, for
medically fragile children, the school’s health professionals work to ensure the child’s medical needs are met while at school (when possible).

Parents who have had no experience with special education in the public schools may not be aware of the services that are available, or how to access them. Their experience with special school programs may have included nothing more than extracurricular activities as their child progressed normally from grade to grade. Then the child has a brain injury. On occasion, a knowledgeable hospital case manager saves the day when the child is discharged from the hospital by mediating contact with the school district’s special education director to notify them of the child’s return to home and school and of the child’s need for services. In a small community, the district’s personnel may be aware of the injury, and the
special education staff knows to intervene. At other times, as in the example above, the child and parents return home with limited information regarding what the child’s needs will be, and even less information regarding how to access them through the school.

Lacking experience with special education, parents may question whether therapists in the school system would provide the same quality of service that the child would receive in a medical setting. There are no grounds for these questions. The professional license is an indication of standardized training, and it might be added, some of the most talented therapists seek placement in schools (maybe it’s those summers off and holidays!). There may be circumstances in which a therapist would not have had extensive experience in working with children who have had a traumatic brain injury (TBI), however, this is sometimes the case in private, as well as public settings. All therapists in public schools do have extensive experience working with children - children with organic brain dysfunction from various causes. While a small school district may not have experts in the area of TBI, they are able to obtain expert assistance from shared professionals/consultants that work out of regional education service centers. These professionals travel to various districts in the area and provide consultation as needed. Finally, each child with a brain injury is unique, and consequently, the parent becomes an expert in their child’s needs after brain injury. No matter how much experience a therapist or teacher may have in the area of TBI, close and supportive communication between the family and educational professionals is critical for ensuring that important information is relayed and that the intervention program is appropriate. The take home message? Schools are the largest provider of services for children with brain injuries. Don’t wait for the school to figure out that your child needs services—do School Find!

Part II: Manifestation Determination Review

OK, so your child with a disability is enrolled in public school and is receiving special education services. Is it possible for him or her to be removed from school as it is for children without disabilities? Yes, it is, but only under fairly extreme circumstances, and there are protections built into the law so that your child continues to receive an appropriate education even if removal should be necessary.

What are the behaviors that would get a student who is not in special education (a student without a known disability) removed from school (suspension or expulsion)? According to IDEA, discipline policies in public schools allow for automatic removal: 1) if a child knowingly possesses a weapon or illegal drugs at school, on school premises or at a school function; or 2) if a child has inflicted serious bodily injury upon another person while at school, on school premises or at a school function. The grounds for disciplinary removal vary from state to state and may include, in addition to the above, stealing or vandalizing property on school grounds, repeated use of obscene language, and persistent noncompliance with school rules. Students with disabilities, including brain injuries, can also be removed from school for these very serious misbehaviors, for their own safety and for the safety of others.

This provision in the law makes sense. We do not want our children, with or without disabilities, exposed to danger at school. However, the protections that are in place for students with disabilities are very important. In some instances the disability itself may contribute to the behavior that results in a violation of the student code of conduct. In all cases, the student with special educational and behavioral needs continues to require an individualized educational plan.

When Public Law 94-142 (Education of All Handicapped Children Act) was first enacted in 1975, one of the purposes was to prevent schools from denying services to children with disabilities when they have serious behavior problems. In the IDEA of 1990 there is a procedure called manifestation determination, which is intended to help parents and school staff decide if the behavior of a child with a disability was caused by the disability. If the answer to this question is no, the child can receive the same discipline as children without disabilities, except that educational services must continue. In other words, the child’s Individual Education Plan (IEP) is still in effect and must be implemented, even if the placement is in a different classroom, school setting, or outside of school.

In situations where the student knowingly brings a weapon or drugs to school or a school function, or inflicts serious bodily injury upon another person while at school, school personnel may remove the child to an interim alternative education setting, regardless of whether the behavior is a manifestation of the disability. However, the child’s placement in this interim setting can be for no more than 45 school days. Further, if the school makes the decision to take such disciplinary action, the school must notify the parents on the same day the decision is made.

But how do we determine if the answer to the manifestation determination question is yes or
no? In other words, how does the school/parent team decide if a child’s misbehavior is caused by or related to the disability? Let’s look at what the law says.

P.L. 108-446 (2004 Reauthorization of IDEA). President Bush signed a reauthorization and revision of IDEA on December 3, 2004. This newest version of IDEA is called Individuals with Disabilities Education Improvement Act. Most provisions of this revision of the law went into effect July 1, 2005 (Appling & Jones, 2005).

§615(k)(1)(A) School personnel may consider, on a case-by-case basis, any unique circumstances when deciding whether to order a change in placement for a child with a disability who violates a code of student conduct.

In other words, schools must treat each case as unique, considering the disability and the circumstances, before changing a child’s IEP placement and schedule. Because the IEP is individually designed to enable a child to make progress toward educational goals, and because it is a binding document unless changed by the IEP team, any changes to the IEP, including placement changes, must be seriously considered.

§615(k)(1)(A) also stipulates that school personnel may order a change in the placement of a child with a disability who violates a code of student conduct to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are applied
to children without disabilities).

§615(k)(1)(C)(i) Within 10 days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the IEP Team shall review all relevant information in the student’s file, any information provided by the parents, and
teacher observations, to determine -

(I) if the conduct in question was the result of the child’s disability; or
(II) if the conduct in question resulted from the failure to implement the IEP or to implement behavioral interventions in the IEP.

If either I (the behavior resulted from or had a direct and substantial relation to the disability) or II (the behavior was the direct result of failure to implement the IEP) above is determined by the IEP team to be true, then the behavior is considered a manifestation of the child’s disability. The theory here is that the response of the school must be different when the behavior is related to the disability than when it is not.

Therefore, if the answer to the manifestation question is yes, certain procedures must take place according to the law. The IEP team must conduct a functional behavior assessment to try to figure out what circumstances triggered or reinforced the behavior. The team must also implement a behavior intervention plan based on the functional behavior analysis, if this has not been done before.

If there was already a behavior intervention plan, then it has to be reviewed and changed as needed to try to prevent the behavior from happening again. Unless the situation involves weapons, drugs, or serious bodily injury, the child typically returns to the placement from which he or she was removed unless the school and parents agree that a change of
placement will help the child.

So, to make a long story short, a child with a disability, including a child with a brain injury, can be removed from his or her school placement because of severe behavior problems, but there are numerous protections. Parents must be immediately notified if a change in placement is made, and a manifestation determination hearing must be held within 10 days of the decision. The removal to an interim educational placement is limited to 45 school days. Whatever the decision of the IEP team concerning violations of the student code of conduct, the child’s educational services must continue so that the child continues to participate in the general education curriculum, even though in another setting, and to progress toward meeting the IEP goals.

All of these procedures are intended to ensure that the child with a disability is not punished for behaviors resulting from the disability and that he or she continues to receive a free and appropriate public education (FAPE).

Parents should keep in mind that at every stage of the process of discipline for children with disabilities, the law clearly intends that they be involved. If a parent disagrees with any decision regarding placement or manifestation determination, or if the school believes that maintaining the current placement is likely to lead to injury of the child or others, either party can request a hearing.

Parents should also know that schools may legally report a crime committed by a student with a disability to the appropriate authorities. If a school does report a crime by a student with a disability, the school must transmit copies of the special education and disciplinary records for consideration by the law enforcement and judicial authorities.

There is one other provision in the law that should be mentioned. What about children who have not yet been identified for special education but may have disabilities?

§615(k)(5) addresses protections for children who have engaged in a violation of the code of student conduct who are not in special education but the school had knowledge that this child was a child with a disability before the behavior that led to the disciplinary action occurred.

When would a school know that a child who was not in special education had a disability? The situations outlined in the law include:

1) the parent expressed concern in writing (unless the parent is illiterate or has a disability that prevents this expression) to the school administration or the child’s teacher that the child is in need of special education and related services;

2) the parent has requested an evaluation for special education; or

3) the teacher or other school staff has expressed specific concern about a pattern of behavior to the director of education or other school administrators.

If one or more of these conditions is met, then the child has the same protections under IDEA as other children with disabilities who are placed in special education. However, if a parent has refused to consent to an evaluation, or has refused services, or the child has been evaluated and found not to have a disability, then the school is not considered to have knowledge that the child is a child with a disability. In this case, the child is subject to the same discipline applied to children without disabilities.

Let’s take the example of one young man with a brain injury and his school experience regarding behavior and discipline problems. This student received a severe TBI at age 7 in a car accident. Following rehabilitation he returned to school with services including occupational and speech therapy, but was placed in regular education classes. His social functioning and behavior worsened as he approached middle school, and he was eventually classified as emotionally disturbed (depressed) and placed in special education. His behavior continued to worsen, with episodes of impulsive aggression, and suicidal and homicidal threats, eventually leading to residential placement.

At age 15 this young man enrolled in a public high school, while living in a residential treatment setting for children with brain injuries. He continued to be classified as emotionally disturbed for special education eligibility and, even though his TBI was known to the school, it had not been properly documented in past school evaluations. This young man was eventually expelled for several months for violations of the student code of conduct, when the IEP team determined that his misbehaviors were not related to the diagnosis of emotional disturbance (related to symptoms of depression in particular). After much effort, his classification for special education was changed to TBI, he returned to school, and appropriate and fairly simple interventions were implemented. He successfully completed a regular high school curriculum and graduated.

What is the problem here? Failure to correctly identify and document a TBI and its serious effects on learning and behavior led to years of special education services that lacked specificity and relevance for a child with a TBI. Misbehaviors were interpreted as malicious since they were not seen as related to his emotional disturbance (not a manifestation of the disability). For this reason, protections against removal from an appropriate educational placement were not recognized, and this young man was expelled and lost several months of educational progress.

We can all learn from this case experience and the law. Parents and educators must pursue appropriate and early identification of children with disabilities and must make the best use of public school services. School personnel, with involvement and advocacy of parents of children with disabilities, can design programs to minimize behavior problems that might lead to lost educational opportunity. If serious behavior violations occur, and they sometimes do, parents and schools working together can consider the circumstances of the behavior, apply appropriate discipline, and modify individual education plans to minimize the likelihood of such problems happening again.

Dr. Joanne McGee is the Clinical Director of ResCare Premier’s rehabilitation program for brain injury in San Marcos, Texas. She is a licensed neuropsychologist, licensed specialist in school psychology, and managing editor for Premier Outlook.

Dr. Cynthia Plotts is an Associate Professor in the School Psychology Program at Texas State University in San Marcos, Texas. She is a licensed neuropsychologist specializing
in children and adolescents with develop mental disorders and acquired brain injury.

References

Aplling, R. N., & Jones, N.L. (January 5, 2005). Individuals with Disabilites Education Act (IDEA): Analysis of changes made by P.L. 108-446. Congressional Research Service: The Library of Congress.

Bownes, Circuit Judge (1989). Timothy W. v. Rochester, New Hampshire School District, 875 F.2d 954 (1st Cir. 1989). Retrieved February, 2005, from http://wind.uwyo.edu/edec5250/assignments/TimothyWappeal.pdf

Jacob-Timm, S., & Hartshorne, T. S. (1998). Ethics and law for school psychologists. New York: John Wiley & Sons, Inc.

Williams, J. M. (2004). Guidelines: Fulfilling the child find requirements of the IDEA. Retrieved February, 2005, from Sweet Stevens Tucker & Katz, LLP Website at http://www.sweetstevens.com/CM/Special%20Education/special%20education45.asp

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