CURRENT LEGAL ISSUES AND PRACTICAL TIPS ABOUT GIFTED EDUCATION LAW 2015 PAGE CONFERENCE Montgomery Law

22 Pa. Code §§16.1 – provide an education to each identified student that is based upon the unique needs of that student district is required to identify eligible students acceleration and/or enrichment programs procedural safeguards Montgomery Law

Who is considered gifted under Chapter 16? Montgomery Law “A student who is exceptional under section 1371 of the School Code (24 P. S. § )” “A student with exceptionalities” What’s the test? The school district must take into account many variables No bright line rule So what can we rely upon …

Hearing Officer Decisions Montgomery Law The hearing officers find fact and interpret the law Law is only as good as the consequences for not following What are the consequences? What are the current trends?

A. M. – Ridley Township Montgomery Law Hearing Officer: Shawn D. Lochinger, Esq.  November 20, 2014 Issue:  “Should the Student be placed in a first grade classroom or in a kindergarten classroom with enrichment in order to receive an appropriate gifted education in the District?” Facts (as taken from Hearing Officer’s Decision):  The Student was taught at home by the Student’s Mother  The Student’s Mother is not credentialed in the state of Pennsylvania

A. M. – Ridley Township Montgomery Law Facts:  Mother homeschooled Student using [another state’s] curriculum standards  Parents made it clear to the District from the initial contact that they wished the Student to be placed in a first grade classroom due to the Student allegedly completing kindergarten curriculum at home.  District agreed to perform an evaluation on the Student to determine educational levels  GWR indicated that the Student was not gifted  Parents disagreed with the NORA and requested a due process hearing

A. M. – Ridley Township Montgomery Law Facts:  District agreed to perform further assessments  Following additional evaluations the District conceded that the Student was, in fact, gifted  District recognized the Student as gifted, the District deemed it appropriate to educate the Student within the kindergarten classroom with a plan of differentiating instruction as opposed to placing the Student into a first grade classroom at the District  Parents objected to the decision which brings us back to the issue:  Should the Student be placed in a first grade classroom or in a kindergarten classroom with enrichment in order to receive an appropriate gifted education in the District?

A. M. – Ridley Township Montgomery Law Discussion:  Burden lies with the party which initiated the request for due process.  “I am looking for the Parents to prove that the Student’s gifted education is more properly implemented in first grade than it is in the kindergarten setting.”  Parents contend that the Student learns and reacts better in a group setting.  Argument against pullout  Kicker: “District believes that the Student, while most likely intelligent enough to do first grade level work, is not socially or emotionally mature enough for a first grade classroom.”

A. M. – Ridley Township Montgomery Law Discussion:  Parents contend Student has mastered the kindergarten curriculum  ‘“mastery” - the Student scored at least 80% on the end of the year kindergarten testing that is allegedly part of the [other] state curriculum”  “no independent verification that the Student completed all the work without prompting or additional instruction by the Student’s Mother.”  “not clear from the evidence and testimony how the Student actually completed the work.”  Hearing Officer, “I cannot reasonably conclude that the Student has truly and clearly completed a kindergarten curriculum based upon the evidence before me.”  But that’s really not what it comes down to…

A. M. – Ridley Township Montgomery Law Discussion:  “Student’s kindergarten teacher testified at the hearing that the Student is one of the top five students she has ever had in a 17 year kindergarten teaching career”  However, “the teacher made it clear during her testimony that the Student is, at best, a “typical” kindergarten student in terms of the Student’s maturity level and in the Student’s emotional makeup.”  “Student has never been taught in a group learning environment and is still learning how to properly learn in such a setting.”  Lesson: Be careful with homeschooling …

A. M. – Ridley Township Montgomery Law Discussion:  What this case comes down to:  “the Student’s teacher and the District’s psychologist (who administered the various assessments in this matter) agree on the fact that the Student is academically capable, but socially and emotionally not ready to handle a first grade classroom.”  Academics v. Social / Emotional  Parents Argue:  Nobody has ever observed the Student in a first grade setting.  Child is a chameleon. Problem with this argument … Lesson:  It’s not all about academics  Experts matter  Pro Se?

J. M. – Bensalem Township Montgomery Law Hearing Officer: Shawn D. Lochinger, Esq.  December 12, 2014 Issue:  “Should the District be required to perform a full Gifted Multidisciplinary Evaluation (“GMDE”) on the Student?” Facts (as taken from Hearing Officer’s Decision):  Student’s Parents suspected the Student to be gifted and informed the District of such  The District issued a “Permission to Screen” form to the Parents so that a screening test could be performed.  The Parents refused to sign it on the basis that they had requested a full evaluation, not just a screening.

J. M. – Bensalem Township Montgomery Law Facts (as taken from Hearing Officer’s Decision):  Mother sent an to the District objecting to the screening on the basis that a “screening is different from the evaluation as it is limited in its parameters and does not include an IQ test”  District’s screening process starts with a Permission To Screen form that would allow the District to administer the KBIT2 (the “Kaufmann Brief Intelligence Test”) to the Student  Plus classroom data that the District had on the Student  District threatened that “If the Parents did not sign the form, the District would deny the Parents request for a gifted evaluation due to a “lack of sufficient information” to allow the team to make a decision on whether a full evaluation was needed”

J. M. – Bensalem Township Montgomery Law Facts (as taken from Hearing Officer’s Decision):  Parents were not a part of the CST, nor were they invited to be members of the CST  The Parents cited 22 Pa. Code §16.22(b) and §16.22(c) to the District to support their request for a full evaluation  (b) Referral for gifted multidisciplinary evaluation shall be made when the student is suspected by teachers or parents of being gifted and not receiving an appropriate education under Chapter 4 (relating to academic standards and assessment) and one or more of the following apply: see website.website  (c) Parents who suspect that their child is gifted may request a gifted multidisciplinary evaluation of their child at any time, with a limit of one request per school term. The request must be in writing. The school district shall make the permission to evaluate form readily available for that purpose. If a request is made orally to any professional employee or administrator of the school district, that individual shall provide a copy of the permission to evaluate form to the parents within 10 calendar days of the oral request.  CST declared that student was not eligible for gifted status at the District  Seemingly based solely on teacher input  Parents filed for Due Process

J. M. – Bensalem Township Montgomery Law Facts (as taken from Hearing Officer’s Decision):  As part of the compliance monitoring, the District was required to put a screening process into place to locate its gifted students  The District was subject to gifted compliance monitoring beginning in 2012 Discussion:  “Gifted education in Pennsylvania is governed by Pennsylvania law as set forth at 22 Pa. Code §§ 16.1 – (“Chapter 16”). The purpose of Chapter 16 is to provide an education to each identified student that is based upon the unique needs of that student. This education can include acceleration and/or enrichment programs and services that are rendered according to the student’s intellectual/academic needs and abilities. Chapter 16 also provides for certain procedural safeguards as well as an obligation on the part of the school district to identify an appropriate program for students who are gifted and need specially designed instruction beyond that which is provided in the regular education program. Substantively, school districts must provide gifted students “with a plan of individualized instruction (an ‘appropriate program’) designed to meet ‘the unique needs of the child’.” Centennial School District v Department of Education, 517 Pa. 540, 539 A.2d 785 (1988). However, and importantly, a school district’s “obligation is not without limits....[T]he instruction to be offered need not ‘maximize’ the student’s ability to benefit from an individualized program.” Id.”

J. M. – Bensalem Township Montgomery Law Discussion :  “Sole issue in this case is whether the District has properly followed the procedural requirements of Chapter 16 concerning a Gifted Multidisciplinary Evaluation (GMDE).”  Problems: “very little evidence”  “The District’s policy clearly assumed that the Parents would consent to the KBIT2.”  “District had virtually no information on the Student except for a kindergarten readiness evaluation that was administered by the Student’s teacher in the first several weeks of school.”  Parents provided no information concerning the Student (nor were they invited to provide such information) to the District.

J. M. – Bensalem Township Montgomery Law Discussion :  “under §16.21, a district is under an affirmative obligation to find gifted students within its student population. This is what most would term a “screening” process.”  Here: “the District refers students that appear to be gifted to the CST, which reviews pertinent information, including (assuming parental consent) a KBIT2 test result. The team then determines if the evidence is such that further evaluation is necessary. The District’s process would appear, on its face, to meet the general obligation set forth by §16.21.”  However, §16.22  “either a parent or a teacher must “suspect” that a student is gifted.  the parent or teacher must also “suspect” that the student is not receiving a proper education under Chapter 4  the request must be made by the parent in writing”  SO…  “the District’s attempt to push the Student into a screening process, instead of a GMDE, was improper if the three requirements of §16.22(b) were met.”

J. M. – Bensalem Township Montgomery Law Discussion :  “This implies that a GMDE and a screening are two separate actions. It also means that a full evaluation, not just a screening, must be given if the terms of §16.22(b) are met.”  Note: the Student had only been in school for 17 school days Can parents have “reasonably suspected that the Student failed to receive an appropriate education.” But … stipulation by district! “Student’s parents suspect [the Student] of being gifted and in need of specially designed instruction.” Why stipulate facts? Generally not a big deal … Don’t know the exact though process of the parties, but … Hearing Officer, “the stipulated facts of this matter tie my hands.”

J. M. – Bensalem Township Montgomery Law Order:  “The District should issue a Permission to Evaluate Form as soon as possible, but in no event later than five (5) days from the date of this decision and to perform a full GMDE on the Student within the proper timelines if and when the Parents execute and return the Permission to Evaluate to the District.” Lesson:  “While the District is required to screen students in an attempt to locate gifted students, different rules apply when parents request a full GMDE.”  Think twice before stipulating.

K.S. – Solanco School District Montgomery Law Hearing Officer: Shawn D. Lochinger, Esq.  February 20, 2015 Issue:  “Is the Student eligible for the District’s gifted program?” Facts (as taken from Hearing Officer’s Decision):  2010 – the Student was referred for a gifted evaluation  WISC-IV reported that the Student had a full scale IQ of 132  2011 – WISC-IV 135  2011 – GWR was issued by [other] School District indicating that the Student was eligible for the [other] School District’s gifted program  Student was given GIEP and moved a few times

K.S. – Solanco School District Montgomery Law Facts (as taken from Hearing Officer’s Decision):  Student moved back to Pennsylvania and to the School District for the start of the school year  District agreed to initially place the Student in the District’s gifted program (based on record review?)  Student presently attends the gifted program once per week for approximately 80 total minutes per session  District also indicated that it would perform a full evaluation on the Student to determine, inter alia, the Student’s “academic development”  Student’s full scale IQ score from the District’s 2014 WISC-IV assessment was 108 Re-test: full scale IQ score on the SB5 was 104

K.S. – Solanco School District Montgomery Law Facts (as taken from Hearing Officer’s Decision):  Other testing showed that the Student was performing at an “average” level for the Student’s grade  Psychologists Report: “In total, based on qualitative reporting, behavioral assessment results, and intellectual and academic achievement assessment results, it is suggested that [Student’s] current intellectual and academic development are appropriately matched to [Student’s] current grade level curriculum. As a result, it is suggested that [Student] is not a gifted student and [Student] is not in need of Specially Designed Instruction. It is recommended that [Student] continue within the general education programming”

K.S. – Solanco School District Montgomery Law Facts (as taken from Hearing Officer’s Decision): Notice of Recommended Educational Placement (“NOREP”) was issued on November 3, 2014 indicating that the Student was “not eligible...for gifted support services” (parent told for 1 st time at a meeting) Student’s grades for the first half of the school year were mostly A’s, with only several exceptions and Student was on the Honor Roll during the first marking period “Student admits to not working as hard as possible due to the fact that it is “easy” to get “A’s” and “B’s”” Student claims to be “bored” and uninterested in some classes Testimony from two teachers indicated that the Student performs in the “high average” range Testimony from the Student’s gifted teacher indicated that the Student performed at essentially the same level as about half of the teacher’s other gifted students

K.S. – Solanco School District Montgomery Law Discussion (as taken from Hearing Officer’s Decision): The gifted program for the Student consists mainly of completing a project for the gifted teacher that is generally “beyond” the regular curriculum. Gifted Teacher, “(Student) has the propensity towards higher order thinking, [although] it’s not something I’ve seen in the few weeks I’ve worked with [the Student]. I’m pretty sure [the Student] has the academic chops” However, present testing … “The Parent contends that the Student is gifted based upon past performance and that the Student clearly remains gifted, citing possible factors outside of the school setting as the reason for the drop in performance.” “The District, on the other hand, argues that the evaluations performed were done properly and that the clear findings of the Student’s IQ, achievement, and classroom diagnostic testing indicate that the Student is simply no longer eligible for gifted services.” The District concedes that the Student is bright, but strongly believes that the Student does not meet the eligibility standards and does not, in any case, require specially designed instruction beyond the normal curriculum at the District

K.S. – Solanco School District Montgomery Law Discussion (as taken from Hearing Officer’s Decision):  DISTRICT: “the recent testing appears to make it clear that the Student was not (at least on the testing days) performing at a level that one would expect from a gifted student. Moreover, the testimony of several teachers at the hearing indicated that the Student was likely above average, but not in the gifted range.”  PARENTS: “the Student did score (twice) above 130 on IQ testing given several years ago. Moreover, the written testimony of the same teachers (set forth in the evaluation report at S-7) indicated that the Student displayed skills that would lead one to believe that the Student was, in fact, gifted. Finally, the Student has been through some difficult times with a divorce, several moves (including one away from the Student’s father), and a new school virtually every year for the past 3 years) and admits to being “sad” and to not always being motivated to perform to the Student’s best ability on tests and in the classroom”

K.S. – Solanco School District Montgomery Law Discussion (as taken from Hearing Officer’s Decision):  Parents met their burden: 1. Student did, in June of 2010 and May of 2011 achieve scores of 132 and a 135, respectively, during IQ testing 2. Student did, in fact, achieve those IQ scores, and that the scores were achieved nearly one year apart from each other. The scores were thus not a “fluke” or lucky happenstance. They were genuine scores that must be taken into consideration. 3. “While such could be the case here, I find it highly unlikely that the early IQ scores were inaccurate or inflated. I base this on the Student’s actual performance over the past several years.” 4. “Many of the same teachers’ testimony changed after litigation was filed.” 5. Student testified that “the program causes the Student to be challenged and to think outside of the box”

K.S. – Solanco School District Montgomery Law Discussion (as taken from Hearing Officer’s Decision):  District’s Argument  “Students who achieve a high IQ score at a relatively young age sometimes attain that score due to influences outside of the Student’s actual, native intelligence.”

K.S. – Solanco School District Montgomery Law Discussion (as taken from Hearing Officer’s Decision):  Why the drop?  Unexplored behavioral issues  the Student has recently moved (again), this time away from the Student’s father and into yet another new school. “clearly emotional and psychological consequences to a child who is being raised in such circumstances.”

K.S. – Solanco School District Montgomery Law Discussion (as taken from Hearing Officer’s Decision):  Hearing Officer’s Question: Why did the District felt it necessary to complete a full evaluation in this matter in the first place? From the PA Dept of Ed FAQs Q: If a child has a break in service of a year or more, does the student have to be re- evaluated? A: Yes. For instance, if a student moves out of public schools and attends a private school for a year and then returns, a re-evaluation must be conducted. It is important to note that the student does not need a new psychological, the re-evaluation should be a review of records to assure that current present levels are used to develop goals in the GIEP. Funny motives on the districts part? Hearing Officer makes it a point that he is not going there, but leaves it out there as something to consider … “The District was within its rights to conduct a full evaluation. However, such a full gifted evaluation was not necessary in this case.”

K.S. – Solanco School District Montgomery Law Discussion (as taken from Hearing Officer’s Decision):  Hearing Officer, “I also strongly believe that it is in the Student’s best interest to remain in the gifted program at this time.” “a close and constant watch should be kept on the Student in this matter” Order:  the Student is eligible for gifted services and should remain in the District’s gifted program under the current GIEP developed for the Student.