Jill Geary, Attorney at Law WAETAG Conference October 18, 2014

Introduction to Twice-Exceptional Children Who are 2E Children? Have disabilities and are academically gifted. Frequently unidentified - masking Choosing leaves them under-served. NEA estimates that six percent of the population served by the IDEA is also academically gifted. 2 I.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

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

Identification 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 (a)(1) – even though they are passing from grade to grade, 34 CFR sec (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,

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 5

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. 6

Identification Who are these children? The child solely identified as DISABLED may: Provided an IEP focused solely on remediating the disability; Perceived as less intelligent due to poor testing and low scores; Become bored in services because they are not tailored to their intellectual ability. Be misdiagnosed as having an emotional disability. 7

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Types of Twice- Exceptionality Gifted with Physical Disabilities 9

Types of Twice- Exceptionality Gifted with Sensory Disabilities 10

Types of Twice- Exceptionality Gifted with Autism 11

Types of Twice- Exceptionality Gifted with Autism 12

Types of Twice- Exception ality Gifted with Mental Illness 13

Types of Twice- Exceptionality Gifted with Mental Illness 14

Types of Twice- Exceptionality Gifted with Learning Disability in Reading 15

Gifted with Learning Disabilities A state must adopt criteria for identifying whether a child has a special learning disability. 34 CFR 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. 16

Gifted with Learning Disabilities Response to Intervention Model, Michael P. Whether the child responds to scientific research-based interventions; A student who does not progress adequately after exposure to increasingly intensive and individualized instruction is deemed eligible for special education; Links identification to instruction; Favored because it identifies students with SLD before academic failure – whereas discrepancy model is conditioned upon it. 17

Gifted with Learning Disabilities 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. DOE comments to IDEA, 71 FR A 18

Gifted and Learning Disabled A child may be determined to have an SLD if (34 CFR sec ): 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 19

Gifted with a Learning Disability in Reading – 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 DOE comment, 71 FR

Gifted with a Learning Disability A child may be determined to have an SLD if (34 CFR sec ): 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 21

Gifted with Emotional and/or Behavioral Disorders 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. 22

Identification Summary Student’s may have been hidden to all Look carefully at behaviors Isolation socially Boredom with curriculum Inappropriate questioning Look carefully for discrepancies in performance in Grades Behavior Subtests on standardized tests NOT AN EXCUSE THAT CHILD WAS PASSING GRADES 23

Next step: Evaluation Evaluations: District must provide a full and individual evaluation before providing special education. 34 CFR sec Reevaluations (34 CFR sec ): 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 24

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? 25

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. 26

How to Evaluate Get family input about the student’s performance outside of school. Do not rely on untrained educators to have identified and addressed the dual issues correctly – they are often overlooked. Consider “outside or extra learning support provided to determine whether the child’s current achievement reflects the service augmentation, and not what the child’s achievement would be without such help.” OSEP Ltr. Dtd. 01/13/2010, attached. 27

Evaluation – What to Look for in 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 28

Evaluation – What to Look for in Results 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 29

Evaluation – What to Look for in 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. 30

Evaluation – What to Look for in Results 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. 31

Evaluation- What to Look for in 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 32

Bucher v. Dist of Columbia, US Dist. Ct. for D.C., Case No (2011). Child “intellectually gifted,” with problems in: Work production, fine motor control, visual motor integration Classroom behaviors: aggression, non-compliance, inability to accept any criticism Disabilities: ADHD, Auditory processing, sensory integration School District attempted a 10-day “wait and see” approach. Parents believed without support student would suffer trauma, HO ordered reimbursement for 3 years private placement. 33

What About Specially Designed Instruction? Pre-eligibility look for: -Extra time; -Modifying curriculum; -Teachers spending extra time with student; -Allowing the student to design their own education. 34

Next Step: Programming Districts must develop an IEP. 34 CFR 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. 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. 35

Programming: Developing the IEP 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; 36

Programming: Case Law Basic floor of opportunity.” Board of Educ. Of the Hendrick Hudson Central Sch. Dist. V. Rowley, 458 U.S. 106, 102 S.Ct (1982). Not maximizing. Id. 37

Programming: Case Law 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). 38

OCR to DOE: Gifted Classes are Regular Education OCR Letter (2007) to advise DOE re the issue of enrolling students with disabilities in challenging academic program such as Advanced Placement and International Baccalaureate. Denying a qualified student entrance violates Section 504 and Title II. The practice of conditioning entrance in to AP upon forfeiture of special education or related aids violates the law. 39

OCR to DOE: Gifted Classes are Regular Education (cont.) 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. 40

Programming: What is in IEP for 2E 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 in areas impacted by disability Address social/emotional needs Address behavior issues 41

Programming: What is in IEP for 2E (cont.) Supports for the educators: Additional professional development for the classroom teacher. Expert consultation for the classroom to support classroom Parent training. : 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. 42

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Programming: Specially Designed Instruction Studies have shown that many of the social and emotional difficulties experienced by gifted learners disappear when differentiated learning is applied. Anderson, K. M. (2007). Accommodating Strengths and Weaknesses Addressing Social and Behavior 44

Transition IEP Transition Services, 34 CFR (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. 45

Transition 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

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 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

Pre-college/College Programs: But what about college programs for high school students that don’t allow dual enrollment? FAPE is not available to children who have graduated from high school with a regular high school diploma. 34 CFR sec (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

Pre-college/College Programs Institutes of Higher Education are defined: institutions who “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 If educating students without diplomas, is the University/College acting as a public agency and subject to IDEA under 34 CFR 300.2? 49

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 50

Why Do We Care? 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

References Twice-Exceptional Dilemma, published by the National Education Association (2006). Twice-Exceptional Students, Gifted Students with Disabilities, Level 1: An Introductory Book, 2 nd Ed., Colorado Department of Education. 52

Cases Klein Ind. Sch. Dist. v. Hovem, No (5 th Circ, 2012). Michael P. v. Dept of Ed, State of Hawaii, No , (9 th Circ, 2011). Bucher v. Dist of Columbia, No (D.C. Dist Ct., 2011). Hood v Encinatas Union Sch. Dist, No (9 th Circ., 2007) (Pre-revision in IDEA) Parents v Hermosa Beach City School District (CA OAH 2012) 53

References – On line Twice-Exceptional Dilemma, published by the National Education Association (2006). Twice-Exceptional Students, Gifted Students with Disabilities, Level 1: An Introductory Book, 2 nd Ed., Colorado Department of Education. 54