When a Committee on Special Education (CSE) classifies a child as a student with a disability under the Individuals with Disabilities Education Act, the committee must place the student within one of thirteen classification categories: (i) Autism; (ii) Deafness; (iii) Deaf-blindness; (iv) Emotional disturbance; (v) Hearing impairment; (vi) Learning disability; (vii) Intellectual disability; (viii) Multiple Disabilities; (ix) Orthopedic impairment; (x) Other health impairment; (xi) Speech or language impairment; (xii) Traumatic brain injury; or (xiii) Visual impairment.
Over the years, the term “emotional disturbance” has been criticized for inappropriately stigmatizing children, especially young children. In some instances, parents have opposed classification and the receipt of special education services simply to avoid the “emotional disturbance” label.  As a result, approximately half the states have moved away from this term.
According to NYSED, at least six different terms for this type of classification are used by other states:
- “Emotional disturbance” or “serious emotional disturbance” is used by 27 states
- “Emotional disability” or “serious emotional disability” is used by 13 states
- “Emotional/behavioral disability or disorder” in various forms is used by six states
- “Emotional impairment” is used by two states
- “Behavior disorder” is used by one state
- “Emotional regulation impairment” is used in one state
In New York, efforts to make a change were put on hold due to the pandemic.  But in March 2022, NYSED formally proposed amendments to sections 200.1(zz) and 200.4(j) of the Commissioner’s Regulations to replace the term “emotional disturbance” with “emotional disability”. After the submission of written comments and public hearings, the Board of Regents at their July 2022 meeting approved and permanently adopted this amendment effective July 27, 2022.
Notably, despite this change to the name of this classification category, the eligibility criteria remain the same. More specifically, “emotional disability” shall mean:
[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:- an inability to learn that cannot be explained by intellectual, sensory, or health factors;
- an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
- inappropriate types of behavior or feelings under normal circumstances;
- a generally pervasive mood of unhappiness or depression; or
- a tendency to develop physical symptoms or fears associated with personal or school problems.
The term includes schizophrenia. The term does not apply to students who are socially maladjusted. 8 NYCRR § 200.1(zz)(4)
As a result, this amendment is not intended to change the coverage, eligibility, or rights of students with disabilities currently identified with the disability classification “emotional disturbance” or the responsibilities of school districts to serve these students.
Lastly, according to NYSED, CSEs are not required to amend IEPs that have already been developed for the 2022-23 school year that use the term “emotional disturbance.” However, CSEs must begin using the term “emotional disability” in place of “emotional disturbance” for student disability classifications for IEPs developed or amended on or after the July 27, 2022 effective date, as well as on other related documents (e.g., prior written notice, meeting minutes, etc.).
If you have any questions, please contact the Harris Beach attorney with whom you usually work.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.
