Know Your Rights: Disability Manifestation Determination for Your Child
It's well known that internationally adopted post-institutionalized children have more behavioral problems than children at large. It's not surprising: a wide range of typical for them disabilities is manifested in disruptive behaviors. Their problems are often difficult to understand and address, especially within school environment. For example, the symptoms of some neurologically-based impairments, such as Asperger's Syndrome, can be misinterpreted as purposeful misbehavior. Other children may have multiple disabilities or psychiatric conditions mixed with the learned institutional behavior, which makes the determination of the roots of their behavioral issues even more complex.
A disruptive and dangerous behavior at school typically results in serious consequences, ranging from the child's suspension from the class for several days to a full expulsion from the school. If the child with a disability had been determined to have committed an offense that violated school rules and could result in expulsion for longer than ten school days, the IEP team must meet to determine whether the misconduct resulted from the disability. This is referred to as manifestation of determination hearing. It must be done within the first ten days of child's suspension. If the behavior is a manifestation of the child's disability, the child must be returned to the current placement, unless the parent and IEP team agree otherwise. If a child has behavior problems that interfere with his or her learning or the learning of others, the IEP team must consider whether new strategies are needed to address the behavior.
If the IEP team determines that such services are needed, they have to be added to the IEP and provided. If the behavior is not a manifestation of disability, the child may be disciplined, suspended, or expelled to the same extent as a child without disability. As a result, no specific and necessary for a disabled child services will be offered. As you can see, it is very important for the parents of internationally adopted children with disabilities to understand what is at stake and how to approach this problem.
IDEA and the disability manifestation determination
The reauthorized Individuals with Disabilities Education Improvement Act known as IDEA 2004, was signed into law on Dec. 3, 2004; the provisions of the act became effective on July 1, 2005. This law is the basis of disciplinary proceedings and disability manifestation determination of students having educational handicapping condition. The provisions of the IDEA in regards to disability manifestation determination are described in the document that can be found at http://www.ed.gov/policy/speced/guid/idea/tb-discipline.pdf and clearly state several important things for the parents of internationally adopted children:
1. The determination of disability manifestation is done by the local education agency (LEA), the parent, and relevant members of the Individualized Education Program (IEP) team. If the child's parents disagree with the disability manifestation determination meeting decision, a due process hearing can be requested from a panel outside of the basic IEP team. At this meeting it is wise for parents to engage the services of an educational legal advocate, or a special education lawyer, who can help them make certain that the needed procedures are followed in the hearing.
2. The above members of the team must prove that the child's behavior was caused by, or had a direct and substantial relationship to the child's disability. The question is how to establish that the offending conduct was "caused by or had a direct and substantial relationship" to the child's disability. In the case of a child with a neurologically-based disability which involves impulsivity and uncontrollable acting-out behavior, finding a link between behavior and disability we need to focus on the neurological impediments to behavior control. The law directs schools to consider the use of Functional Behavioral Assessments and Positive Behavior Intervention Plans in the case of behavioral problems. However, relying on a commonly used reward and punishment model will not assist a child with a neurologically based disability. In fact, it frequently increases, rather than decreases, disruptive behaviors in students with neurologically-based disorders, such as Autism, Tourette Syndrome, or Bi-Polar disorder, because this behavior is stimulated and motivated by internal biological factors. Parents alone may not be equipped to prove the case; the help of a qualified professional, in some cases - a team of professionals consisting of a psychologist and educational law attorney - is needed.
3. If the child did not have an IEP and was not classified as disabled prier to the incident, he/she still may be considered a child with disability when:
The parent of the child expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services.
The parent of the child has requested an evaluation of the child.
The teacher of the child, or other personnel of the LEA, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency.
These provisions demonstrate that the parents can and should inform school in writing about their concerns and hire a relevant professional to participate in the IEP team to help monitor the procedures and/or help determine the real roots of their child's behavioral problem. Let us look at two case studies to better understand how important it is for the parent to have an experienced in international adoption issues professional to find the most appropriate solution for the child.
Case study: Jerome
Jerome is a 9-year-old child diagnosed with Asperger's Disorder, adopted at the age of 4 from Ukraine, currently placed in regular education class with supportive services. Here are Jerome's behavior patterns described by the parents; these behaviors are major concern for the parents and the school alike:
Jerome's behavior continues to be the most challenging item to deal with. We have seen Jerome go into spitting, blowing his nose without using a Kleenex; he has become physically aggressive (i.e. throwing chairs and turning over tables); he has hit and kicked others, he has verbally threatened to hurt others and himself (i.e. using words like kill, break their necks, etc.) and has had to be restrained at times to protect himself and those around him. Although it has been difficult to determine what is triggering some of this behavior at school, we suspect he perceives a threat and his anxiety level is high, and on numerous occasions he has told us that he wasn't safe at school.
It is my professional opinion that these behaviors are the manifestation of Jerome's major mental health condition, Asperger's Disorder, and are to be treated as such. By no means should these behaviors be understood as "emotional disturbance." It is true that Jerome demonstrates at least two prominent features usually associated with educational classification of "emotional disturbance," such as: an inability to build or maintain satisfactory interpersonal relationships with peers and teachers and inappropriate types of behavior or feelings under normal circumstances. However, the same exact characteristics are the core features of the Asperger's Syndrome, related to severe impairment in social interactions and to heighten level of anxiety. Regardless to similarities in manifestation, the placement and remedial methodologies are different for children with Asperger's Disorder and Emotionally Disturbed children. In complex cases as Jerome's, the role of an externally hired professional who can help establish the true roots of disruptive behavior and recommend the adequate remedies for the child within the school system, the role of this specialist cannot be overestimated.
Case Study: Max
Max is an 8-year-old boy who was diagnosed with ADHD and is known to have learning difficulties and emotional instability; he has an educational classification Other Health Impaired; he was adopted from Russia two years ago. He is provided with special education services in the regular education classroom. Max's classroom behaviors often upset his new, first year teacher. He would often ask that directions be repeated and he needed extended time on most assignments. He would also become agitated and frustrated when he could not follow the teacher's instructions. One day when he was agitated a peer grabbed the work with which Max had been struggling. Max was trying to figure out how to cut out and paste a picture onto his class assignment. He was using blunt end plastic school scissors. When the classmate pulled his work away from him, Max picked up the scissors he was using in a threatening manner to the child and told him he had better watch out. The teacher sent the child to the principal's office. This was not a first visit but it was the first for violent behavior. Under mandates for "zero tolerance for violence" the principal immediately suspended the child for the rest of the school year (practically, for one month). In Max's case, both a disability determination manifestation IEP meeting and a due process hearing were held. It was determined that his actions were due to his disability: ADHD. His IEP team was asked to reconvene to provide more support for his behavior problems in the regular education classroom. The parents had to hire an attorney to help them work through the steps of this process.
The disability manifestation determination for an internationally adopted child is a very complicated issue. The rights of both teachers and other students must be protected. Violence and the use of drugs put others at risk as well. The case examples presented in this article show how expulsion can quickly happen in situations where it is not justified. In many cases the expulsion is justified. When this happens, work with the IEP team to determine if alternative education programs can be put into place so that your child can continue the education.