By Mariann Crincoli, Esq.
Pandemics can be stressful and COVID19 has proved no different. Fear and anxiety about the disease, feelings of isolation and loneliness, social distancing, drastic changes in lifestyle, socialization, and learning platforms can be overwhelming and can generate strong emotions, especially in children. While anxiety may not always look the same or feel the same for every child, the stress associated with anxiety during a pandemic can include:
• exacerbated fears or worries about one’s own health and the health of loved ones
• changes in sleeping or eating habits
• less opportunity for activity and exercise
• difficulty concentrating
• increased negative behaviors
• inability to participate virtually during the school day
• increased vulnerability to bullying and other violations of the code of conduct
If your child is experiencing any of these symptoms and they are impacting her ability to learn, help is available under Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities in Education Act (IDEA).
Under Section 504, a student with a physical or mental impairment (anxiety) that substantially interferes with one or more major life activities (ie. concentrating, learning, attending school, participating in class) is entitled to reasonable accommodations and a 504 Plan. The first key to entitlement under Section 504 (and the IDEA) is a diagnosis. If you suspect your child is suffering from anxiety or some other form of emotional impairment, you will need a diagnosis from a psychologist or medical doctor in order to present to your school district. You should ask your provider for suggestions as to what accommodations would be appropriate to assist your child in addressing the anxiety symptoms. Also, ask your child what might help and take note of what does or does not seem to work at home. For some children with anxiety, accommodations could include extra time on assignments, no penalty for not turning the camera on during virtual instruction, frequent breaks, modified work, clear and concise directions, copies of class notes, supplemental instruction, or counseling.
In addition, you will need to demonstrate how your child’s anxiety is impacting her educationally, so be prepared to present information with respect to impact. Without impact, your child will not be entitled to accommodations. Once you have a diagnosis and can demonstrate impact, you should request a referral to the 504 teams at your school district. The referral should be in writing and should include a letter/report from the provider who made the diagnosis and recommended accommodations. A meeting will be convened and, if the 504 team agrees, a 504 Plan will be provided with the necessary accommodations to level the playing field for your child. If, however, the 504 team does not agree and refuses to provide accommodations, legal recourse may be necessary.
If accommodations pursuant to a 504 Plan are not sufficient to alleviate your child’s symptoms, or your child’s anxiety is so severe that specialized instruction becomes necessary, a referral to the child study team should be made. In NJ, there are 14 categories of classification and in order for a child to be eligible for special education, she must have a disability that falls within one of those categories.
There is one category specifically applicable to students with emotional issues, namely, Emotional Regulation Impairment (formerly called Emotionally Disturbed). It’s 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 student’s educational performance due to:
i. An inability to learn that cannot be explained by intellectual, sensory, or health factors
ii. An inability to build or maintain satisfactory interpersonal relationships with peers and teachers
iii. Inappropriate types of behaviors or feelings under normal circumstances
iv. A general pervasive mood of unhappiness or depression
v. A tendency to develop physical symptoms or fears associated with personal or school problems.
Only one of the five criteria need to be present to qualify for classification under the category of Emotional Regulation Impairment.
Similar to the impact showing for a 504 Plan, under the IDEA the disability must adversely impact a student’s educational performance. This does not mean that only if a student’s grades suffer will she qualify for an IEP (Individualized Education Program). Education is a broad concept and includes not only academics but also social, emotional, behavioral, and other skills that a child requires in order to function appropriately in the school setting and beyond.
Once a child has a disability and you can demonstrate an adverse impact, there must also be a showing that the child requires special education. This hurdle is often the most challenging to overcome because many school districts apply an extremely narrow and legally incorrect definition of special education, which has the effect of precluding eligibility for students who really need it. The law is clear that special education is not limited to modified academic instruction. In fact, many students who are plagued by an emotional regulation impairment continue to succeed academically because they are typically high achievers with strong cognitive ability, aka, the perfectionist.
Specialized instruction can include instruction in all areas of deficit including, but not limited to, coping, motivation, self-regulation, social, behavioral, and executive functioning skills. Specialized instruction could include a change in a student’s learning environment to one that is smaller and more nurturing and more entrenched in therapeutics, such as a therapeutic day or residential therapeutic school. Often, when a school district refuses to declare a child eligible, parents are compelled to pursue legal remedies.
Sussan, Greenwald & Wesler has helped countless families obtain educational supports and services for students with special needs. If COVID19 has been difficult for your child and an emotional deficit is impacting her educationally but you are uncertain how to address this with your school district, please contact us.