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Jill Geary, Attorney at Law Sacramento OAH Training October 19, 2011.

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1 Jill Geary, Attorney at Law Sacramento OAH Training October 19, 2011

2 Introduction to Twice-Exceptional Children Who are 2E Children? Children who have disabilities and are academically gifted. They are frequently unidentified, and districts, parents and the students often have to choose which of their exceptionality to address, leaving them underserved. National Education Association estimates that six percent of the population served by the IDEA is also academically gifted. 2

3 The Purpose of the Idea To ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living. 34 CFR sec. 300.1 3

4 Hearing Officer's Role – Authority - 30 EC 56505.1 Because of difficult issues of identification, the hearing officer may need to use the extent of his/her authority in order to understand the extent and impact of the 2E student’s disability on education. Question a witness on the record prior to any of the parties doing so. With the consent of both parties to the hearing, request that conflicting experts discuss an issue or issues with each other while on the record. Visit the proposed placement site or sites when the physical attributes of the site or sites are at issue. 4

5 Hearing Officer's Role – Authority - 30 EC 56505.1 Call a witness to testify at the hearing if all parties to the hearing consent to the witness giving testimony or the hearing is continued for at least five days after the witness is identified and before the witness testifies. With the consent of both parties to the hearing, request that conflicting experts discuss an issue or issues with each other while on the record. Order that an impartial assessment of the pupil be conducted for purposes of the hearing and continue the hearing until the assessment has been completed. The cost of any assessment ordered under this subdivision shall be included in the contract between the department and the organization or entity conducting the hearing. (Consistent with 34 CFR sec. 300.502(d) re IEE). 5

6 Hearing Officer's Role – Authority - 30 EC 56505.1 In decisions relating to the provision of related services by other public agencies, the hearing officer may call as witnesses independent medical specialists qualified to present evidence in the area of the pupil's medical disability. The cost for any witness called to testify under this subdivision shall be included in the contract between the department and the organization or entity conducting the hearing. 6

7 Identification 2E Students often go unidentified due to the masking nature of disabilities on gifts, and visa versa. Options: Formally identified as gifted, but not as having a disability – gifted masks disability Formally identified as having a disability but not gifted Not formally identified as either – one masks the other 7

8 Identification Rules: CHILD FIND: The State must have procedures to ensure that all children with disabilities, regardless of the severity of their disability, and who are in need of special education, are identified, located and evaluated, 34 CFR sec. 300.111(a)(1) – even though they are passing from grade to grade, 34 CFR sec. 300.111(c)(1). A child’s unique educational needs are to be broadly construed to include the child’s academic, social, health, emotional, communicative, physical and vocational needs. Seattle Sch. Dist. No. 1 v. B.S. (9th Cir. 1996) 82 F.3d 1493, 1500. 8

9 Identification Who are these children? The child solely identified as GIFTED may: seen as underachieving due to laziness, poor motivation or low self-concept Competent at grade-level work – until the educational demands test the limit of their disabling condition (often in middle school or high school). Not be noticed with regard to having a disabling condition. 9

10 Identification Who are these children? The child solely identified as DISABLED may: Provided an IEP focused solely on remediating the identified condition; Be perceived as far less intelligent due to inadequate testing and subsequent low test scores Become bored in services because they are not tailored to their intellectual ability. Be misdiagnosed as having an emotional disability. See Twice Exceptional Dilemma, NEA (2006). 10

11 Identification: Types of Twice- Exceptionality Gifted with Physical Disabilities – Stephen Hawkings, Nobel prize-winning physicist Gifted with Sensory Disabilities – Helen Keller Gifted with Aspergers – Dr. Temple Grandin, Assistant Professor of Animal Science at Colorado State University - author and animal facility designer Gifted with ADHD Gifted with Special Learning Disabilities – Largest Group – (Albert Einstein struggled to read) 11

12 Identification: Types of Twice- Exceptionality A state must adopt criteria for identifying whether a child has a special learning disability. 34 CFR 300.307 Must not require severe discrepancy between intellectual ability and achievement; Must be based upon a child’s response to scientific, research-based intervention; and May permit the use of other alternative research-based procedures. Note: DOE comments re removal of discrepancy models: Discrepancy models are not essential for identifying children with SLD that are gifted. However the regulations clearly allow discrepancies in achievement domains, typical of children with SLD who are gifted, to be used to identify children with SLD. 71 FR 46647. 12

13 Identification: Types of Twice- Exceptionality A child may be determined to have an SLD if (34 CFR sec. 300.309): The child does not achieve adequately for age or grade level standards for: Oral expression Listening Comprehension Written Expression Basic reading skill Reading fluency skills Reading comprehension Mathematic calculation Mathematic problem solving Note: DOE 2006 Comments to the IDEA re the proposed removal of reading fluency: No assessment in isolation is sufficient to indicate that a child has an SLD. Including reading fluency in the list of areas to be considered when determining whether a child has an SLD makes it more likely that a child who is gifted and has an SLD would be identified. Fluency assessments are very brief and highly relevant to instruction. We, therefore, do not believe that reading fluency should be removed from sec. 300.309(a)(1). 71 FR 46652. 13

14 Identification: Types of Twice- Exceptionality A child may be determined to have an SLD if (34 CFR sec. 300.309): The child Does not make appropriate progress for grade or age based on child’s response to scientific, research based intervention; OR The child exhibits a pattern of strengths and weaknesses in performance, achievement or both relative to age, grade standards or intellectual development, AND, this is not primarily because of: Visual, hearing or motor disability Mental retardation Emotional disturbance Cultural factors Environmental or economic disadvantages or Limited English proficiency 14

15 Identification: Gifted with Emotional and/or Behavioral Disorders John Nash, Jr., Nobel prize-winning physicist of “A Beautiful Mind” fame. Definition (34 CFR 300.8(c)(4): One or more of the following characteristics over a long period of time, that adversely affects a child’s educational performance: Inability to learn that can’t otherwise be explained by intellectual, sensory or health factors. Inability to build or maintain satisfactory interpersonal relationships with peers and teachers; Inappropriate types of behaviors or feelings under normal circumstances; A general pervasive mood of unhappiness or depression; A tendency to develop physical symptoms or fears associated with personal or school problems. 15

16 Identification: Gifted with Emotional and/or Behavioral Disorders Case note: Cloverdale Unified School District, OAH Case No. 2010081062. Child missed a third of the year due to suspensions for undesirable behaviors. District argued no or minimal educational harm from the loss, the Student remained at grade level and the Student “remained within the instructional level of the general educational classroom.” ALJ found, “Even a gifted and high-achieving student can be eligible for special education if his disability adversely affects his educational performance. The important question is not whether the Student had skills equal to other fourth graders; it is whether the Student himself suffered from missing so much instruction.” 16

17 Identification: Gifted with Emotional and/or Behavioral Disorders The ALJ found: Courts typically analyze a student’s educational progress not by comparing his performance to his grade level peers, but by examining the student’s own achievement over time. (See e.g., Walczak v. Florida Union Free Sch. Dist. (2 nd Cir. 1998) 142 F.3d 119, 131; E.S. v. Independent School Dist, No. 196 (8 th Cir. 1998) 135 F.3d 566, 569; Derek B. v. Donegal School Dist. (E.D.Pa. 2007, No. 06-2402) 2007 WL 136670, pp. 12-13; M.H. v. Monroe-Woodbury Central School Dist (S.D.N.Y March 20, 2006, No 04-CV- 3029-CLB) 2006 WL 728483, p. 4; Houston Indep School Dist v. Caius R. (S.D. Tex. March 23 1998, No. H-97-1641) 30 IDELR 578; El Paso Indep. School Dist. V. Robert W. (W.D.Tex. 1995) 898 F.Supp. 442, 449-450 [grade level comparison “irrelevant”]. Remedy: 175 hours of 1:1 academic tutoring in math and written language with a credentialed special education teacher; 100 hours of mental health counseling and individual and small group social skills training, and transportation to and from services. 17

18 Evaluation Rules: Evaluations: District must provide a full and individual evaluation before providing special education. 34 CFR sec. 300.301 Reevaluations (34 CFR sec. 300.303): When warranted or if requested by parent or teacher, but Not more than once a year, unless parent consents, Or less than every three years. Assessment: District must use a variety of tools and assessments to gather Functional Developmental, and Academic information 18

19 Evaluation Who is on the Evaluation Team? Should it include a school psychologist trained in the nuances of twice-exceptional identification? Should they have both the knowledge of the various disabilities that impact student learning and psychosocial functioning, as well as the knowledge of giftedness? 19

20 Evaluation How to Evaluate Use multiple data sources for gifted programming identification intelligence and achievement tests, teacher reports, creativity tests, student interviews, self-referral, portfolio and family or peer referral. Avoid combining multiple pieces of data into a single score; combining will: Depress total scores – thereby mask discrepancies and disqualify students from gifted programs; OR Mask low subtest scores – thereby masking problems and disqualifying students from IDEA. Get family input about the student’s performance outside of school. Do not rely on educators to have identified and addressed the dual issues correctly – they are often overlooked. 20

21 Evaluation What to look for in the results Cognitive processing difficulties cause student to struggle with some basic skills; High verbal ability but extreme difficulty in written language areas – may use language in inappropriate ways at inappropriate times Reading problems due to cognitive processing deficits Strong observation skills but difficulty with memory skills Excel in solving “real-world” problems and have outstanding critical thinking and decision-making skills having developed compensatory skills 21

22 Evaluation What to look for in the results Attention deficit problems but have strong concentration in areas of interest Strong questioning attitudes – at times appearing disrespectful when questioning information, facts, etc. presented by teacher. Display unusual imagination – original though – bizarre ideas – extremely divergent – may appear to be daydreaming. Unwilling to take academic risks, but take risks in non- school areas where consequences are not as high-stake. Use humor to divert attention from school failure or discomfort. 22

23 Evaluation What to look for in the results Appear socially immature – using anger, crying, and withdrawal as coping mechanisms. Require frequent teacher support and feedback, but highly independent in some areas. Sensitive regarding disability – highly critical of self and others (including teacher). Not accepted by other children and socially isolated – don’t fit typical model for either gifted or disabled students Poor social skills prevent fitting in with typical peers 23

24 Evaluation Case Note: Parents v. Brea Olinda Unified, OAH No. 2009050815 Student with ADHD since 4 years had received primarily only OT services through 6 th grade. Medication allowed him to exhibit average behaviors during the school day. Testing showed gifted in math and had been enrolled in gifted math class. However he was eventually removed from the gifted class because of his inability to keep up with the work. So he could sleep at night his parents were taking him off of his ADHD medication during the evenings, and due to his lack of focus, it was taking him twice to three times as long as expected to complete homework. Student also had difficulty in social interactions and making friends. Eventually, District exited the Student because his school behaviors were normal and he was passing from grade to grade. Parents appealed. 24

25 Evaluation Case Note: Parents v. Brea Olinda Unified, OAH No. 2009050815 At hearing: Student had not been assessed in all areas of suspected disability, including pragmatic language difficulties, social difficulties and difficulties completing his homework. The District had not given appropriate weight to Parents’ input on social adjustment and difficulties in completing homework – homework being “an important aspect of Student’s ability to access and benefit from his education.” In exiting Student, District “relied heavily on Student’s passing grades and his high standardized test scores,” but had not given appropriate weight to teacher’s accommodating Student outside of special education services in assessing his ability to progress from grade to grade. ALJ ordered compensatory education of “focused one-to-one homework assistance for 7.5 hours per week by a trained tutor [from November to end of school year] to address Student’s unique educational needs. 25

26 Programming Rules Districts must develop an IEP. 34 CFR 300.320. In part, it must include: Statement of present levels of performance, explaining how the child’s disabling condition impacts his/her ability to participate in the general education curriculum. (i.e.,the same curriculum as for nondisabled children – this should include gifted program.) Statement of measureable goals, both academic and functional, which state how the child will make progress in the general education curriculum, as well as how the child’s other educational needs stemming from his/her disability, will be met. 26

27 Programming Rules Districts must develop an IEP. 34 CFR 300.320. In part, it must include: Statement of the special education, related services, supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, to as to enable the child to: Advance appropriately toward meeting annual goals; To be in and advance in the general education curriculum; To participate in nonacademic and extracurricular activities; To be in activities with disabled and nondisabled children; 27

28 Programming Rules “Basic floor of opportunity.” Board of Educ. Of the Hendrick Hudson Central Sch. Dist. V. Rowley, 458 U.S. 106, 102 S.Ct. 3034 (1982). Not maximizing. Id. Educational benefit is not limited to academic needs, but includes social and emotional needs that affect academic progress, school behavior, and socialization. County of San Diego v. California Special Education Hearing Office, et. al. 93 F3d 1458, 1467 (1996). Note: For 2E Students, where is the “floor"? 28

29 Programming Office of Civil Rights (OCR) “Dear Colleague Letter” to Department of Education December 26, 2007, OCR wrote to DOE to advise them regarding the issue of enrolling students with disabilities in challenging academic program such as Advanced Placement and International Baccalaureate. Points: Denying a qualified student entrance violates Section 504 and Title II. 34 CFR 104.4(a), (b)(1)(i), (b)(1)(ii); 28 CFR 34.130(a), (b)(1)(i), (b)(1)(ii). The practice of conditioning entrance in to AP upon forfeiture of special education or related aids violates the law. Provision of special education and related to services to students in AP must be consistent with the requirements of FAPE. Participation by a student with a disability in an accelerated class or program generally would be considered part of regular education or the regular classes referenced in the Section 504 and the IDEA regulations. 29

30 Programming Practically, for 2E students, what should you look for in the IEP? Clear differentiating in strategies and methods between areas of strength and weakness: Strengths – allow for the same creative, complex and challenging thinking; Weaknesses – direct instruction with appropriately tailored strategies Gifted and talented instruction - Enrichment for the student; Direct Instruction Address social/emotional needs Address behavior issues 30

31 Programming Practically, for 2E students, what should you look for in the IEP? Supports for the educators: Additional professional development for the classroom teacher. Expert consultation for the classroom to support classroom Parent training. 34 CFR sec. 300.34(c)(8), 30 EC 56363(b)(11); 5 CCR 3051.11, Related services: Parent counseling and training means assisting parents in understanding the special needs of their child; Providing parents with information about child development; and Helping parents acquire the necessary skills that will allow them to support the implementation of their child’s IEP. California: Family Empowerment Centers on Disability – 30 EC 56400. 31

32 Programming Accommodating Strengths Interdisciplinary curriculum to allow student to find connectedness between topics Allow opportunities for questioning of content – allow the student to CHALLENGE. Incorporate areas of passion for the student when possible. Rely on strengths to hook student into a topic and demonstrate understanding of concepts. When appropriate, provide student the advanced learning opportunities: Curriculum compacting; Acceleration; Differentiated instruction (tailored to individual learning needs). Alternate ways to meet the student’s needs. Enrichment programs. 32

33 Programming Accommodating Academic Weaknesses/Disabilities Opportunities for hands on learning Graphic organizers to allow student to see big picture Apply differentiated instruction techniques Direct instruction in skills that are affected by the disability: math, writing, organization, reading, test taking strategies Allow for use of assistive technology Make modifications that allow for success Provide accommodations: extended time, different environment, use of assistive tech Direct instruction in study skills and learning strategies Promote student self-determination to develop SELF- UNDERSTANDING and AUTONOMY: self-advocacy and goal setting. 33

34 Programming Addressing the Social/Emotional Issues Emotionally safe learning environment Assistance with developing a healthy self-concept Recognize emotional vulnerability Have occasions to interact with twice-exceptional peers Visualize positive personal future 34

35 Programming Addressing Behavior Issues Identify the function or purpose of behavior Provide consistent environment with limits and expectations Teach self-regulation skills Teach appropriate behaviors in place of inappropriate ones Provide positive behavioral supports not focused on negative consequences See Twice Exceptional Dilemma, NEA (2006) 35

36 Programming Case Note: Downey Unified School District, OAH Case No. 2010031839 Primary issues were whether the District failed to provide an appropriate placement at a self-contained campus with self-contained classes small enough to minimize transitions which would address the Student’s unique needs with respect to class size, appropriate peers, learning and developmental challenges. Student qualified for autistic like behaviors. He had cognitive abilities in the normal to very superior range. District offered placement in the general education classroom, with supports including resource support once per week for 20 minutes and pull out SLP twice a week for 30 minutes each. Student’s behaviors deteriorated, becoming increasingly aggressive attributed by the SLP to frustration. His grades dropped. District implemented a behavior support plan. With little improvement, Parents placed Student in a partial hospitalization program. Student improved, but upon his return to the District, suffered anxiety, sadness and depression. His grades began to fail again. 36

37 Programming Case Note: Downey Unified School District, OAH Case No. 2010031839 Student was transitioning to middle school. District offered general education placement in a school with no special services for his disabling conditions. He was offered two hours of resource support per day, SLP once per week for 30 minutes in the speech room and an additional hour of SLP services. Parents placed Student at a private school specializing in social and communication deficits, small classes, limited transitions, anger management counseling. He began to fully participate in classes and was placed in gifted classes. ALJ awarded reimbursement for private placement. Bottom line: District was under-serving the Student’s communication deficits, which caused his frustration and behaviors to mask his abilities. When provided proper supports, he was able to achieve academically to his potential. 37

38 Transition Rules IEP Transition Services, 34 CFR 300.320(b): No later than 16, the IEP is to include Appropriate measureable postsecondary goals based upon age appropriate transition assessment related to training, education, employment, and, where appropriate, independent living skills, and The transition services (including course of study) needed to assist the child in reaching those goals. 38

39 Transition Rules IEP Team needs to include someone from the participating agency to be providing or paying for transition service. 34 CFR 300.321(b)(3). If participating agency fails to provide transition services, the IEP team needs to reconvene to discuss alternative strategies for meeting the IEP goal. 34 CFR 300.324 DOE Comments: Transition services are defined broadly to allow them to be tailored to a student’s individual needs, taking into account their strengths, preferences and interests – not to be based on their disability category or the severity of their disability. 71 FR 46579 39

40 Transition Pre-college/College Programs: Gifted children will be considered for these programs because they provide advanced educational opportunity and remove a socially awkward child from the general education setting. The State must ensure children with disabilities have available to them the same variety of educational programs available to nondisabled children in the same service area. 34 CFR 300.311 Disabled children the same right to participate in dual-enrollment programs in post-secondary settings, so long as offered to secondary, nondisabled students. 71 FR 46584 40

41 Transition Pre-college/College Programs: But what about college programs for high school students that don’t allow dual enrollment? Do disabled students get to participate? If so, are they acting as a college or a public agency? FAPE is not available to children who have graduated from high school with a regular high school diploma. 34 CFR sec. 300.102(3). DOE Comments: Necessary to define regular high school diploma so that it does not include alternative degrees that is not fully aligned with the State’s academic standards, such as a GED. 71 FR 46580. 41

42 Transition BUT, Institutes of Higher Education, sec 101 of the Higher Education Act of 1965, as amended 10 USCA 1021 et. seq., are defined as institutions who “admits as regular students having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such certificate.” See DOE Comments at 71 FR 46564. So when a college/university is providing education services to a disabled student who does not hold a regular high school diploma, could they be acting as a public agency subject to the IDEA? 34 CFR 300.2 Look for accommodations and services beyond the regular student population. 42

43 Why Do We Care? The Impact of Underachieving on the Student and Society: May underestimate abilities and forego college or other post-secondary education Without understanding strengths and weaknesses, they won’t be able to self-advocate in an effective way - leading to misunderstanding as to abilities and expectations in school or employment Won’t maximize their potential either currently in terms of school achievement, or in their post-school life More likely to drop out of school or remain dependent – costing society Note: Back to the purpose of the IDEA: it is the goal to educate children with disabilities so as to prepare them for further education, employment and independent living. 34 CFR 300.1 43

44 Why Do We Care? The Impact of Underachieving on the Student and Society: Back to the purpose of the IDEA: it is the goal to educate children with disabilities so as to prepare them for further education, employment and independent living. 34 CFR 300.1 44

45 Reference Many of the education recommendations included herein are from Twice-Exceptional Dilemma, published by the National Education Association (2006). 45

46 Jill Geary, Attorney at Law Sacramento OAH Training October 19, 2011

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