Why is it so difficult for gifted students with disabilities (2e) to access gifted education, comprehensive assessment for disabilities, special education, standardized testing accommodations, or even 504 Plans? At what point does overlooking 2e students who meet grade level expectations constitute a civil rights issue? This session explores critical new clarifications from the U. S. Department of Education Office for Civil Rights and the U. S. Justice Department, delineating the rights of twice-exceptional students and the specific responsibilities of states, school districts, colleges, and testing companies to uphold the civil rights of these students in K-16 education and beyond.

Since the inception of the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004), gifted students with significant disabilities are often overlooked for Response to Intervention, special education services, or 504 Plans because their performance is at grade level. As a result, few gifted students receive services for specific learning disabilities, and may not even be considered for services for other disabilities (ADHD, Autism Spectrum Disorder, etc.) in states that apply performance criteria.

In this presentation, case studies of twice-exceptional students are discussed to familiarize participants with observable characteristics. A checklist designed for parents, teachers and counselors is presented to identify common symptoms of twice exceptionality that should be explored through comprehensive assessment (IQ/achievement and appropriate diagnostic measures). The need for such assessment to clarify complex patterns of strengths and weaknesses is explained. Current laws/regulations are explored as they relate to the inclusion of twice-exceptional students for services. A two-pronged approach is introduced, in which teachers emphasize and teach to the child’s strengths first, while secondarily applying interventions and accommodations (as gently as possible).

Resources

Changes in special education law with IDEA-2004 led to far fewer gifted children with disabilities being identified and provided IEPs. See the following for a history of these changes:

Critical Issues in the Identification of Gifted Students with Co-existing Disabilities: The Twice-Exceptional
Gilman, B. J., Lovecky, D. V., Kearney, K., Peters, D. B., Wasserman, J. D., Silverman, L. K., ...Rimm, S. B. (2013). This article provides both recommendations and case studies helpful for educators who wonder how a child maintaining grade level performance might also have a significant disability.

(October, 2013) NAGC issued a position statement, "Ensuring Gifted Students With Disabilities Receive Appropriate Services: A Call for Comprehensive Assessment" (see http://www.nagc.org/index2.aspx?id=10834). This position statement offers guidelines.

The Department of Education expected 504 Plans to serve most twice-exceptional students who no longer qualified for IEPs. Section 504 Plans are the alternative to IEPs for the provision of FAPE and should be created where applicable to provide consistent accommodations and some services. See https://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm for information a local Office for Civil Rights. OCR Attorneys are available to answer questions from schools and parents, and make informational presentations to groups whenever they are requested.

Department of Education clarifications of federal law are occasionally made to guide practice. These are available online (we have provided uploaded copies to the degree possible). The following relate to gifted students with disabilities and should be used to guide school policy.

1. Letter to Chandler (February 29, 2012) clarifies that “Each state must ensure that FAPE is available to any child with a disability who needs special education and related services, even though the child has not failed or been retained in a course, and is advancing from grade to grade.” 34 CFR §300.101(c). A State has an obligation to make FAPE available to an eligible child with a disability even if that child meets the State’s academic achievement standards.”
    
2. Letter to Anonymous (January 13, 2010) (55 IDELR 172) states: “…the IDEA and its regulations do provide protections for students with high cognition and disabilities who require special education and related services to address their individual needs.” Therefore, students with high cognition and disabilities such as Asperger’s Syndrome or Autism Spectrum Disorder “could be considered under the disability category of autism and the individualized evaluation would address the special education and related services needs in the affective areas, social skills and classroom behavior, as appropriate.”
    
3. Letter to James Delisle (December 20, 2013) states: “….it would be inconsistent with the IDEA for a child, regardless of whether the child is gifted, to be found ineligible for special education and related services under the SLD category solely because the child scored above a particular cut score established by State policy.”
    
4. Letter to Lybarger (September 14, 1990) (17 IDELR 54) states: It has been the Department’s longstanding position that the education needs of a child with a disability “include non-academic as well as academic areas.” The term “educational performance” as used in the IDEA “means more than academic standards as determined by standardized measures.”
    
5. Dear Colleague Letter: Access by Students with Disabilities to Accelerated Programs (December 26, 2007) The practice of denying, on the basis of disability, a qualified student with a disability the opportunity to participate in an accelerated program violates both Section 504 and Title II. Conditioning enrollment in an advanced class or program on the forfeiture of needed special education or related aids and services is also inconsistent with the principle of individualized determinations, which is a key procedural aspect of the IDEA, Section 504 and Title II.
   
    
6. Memorandum from Melody Musgrove, Director, Office of Special Education Programs (April 17, 2015), to State Directors of Special Education (OSEP Memo 15-08) states, “…I am requesting that you widely distribute Letter to Delisle to the LEAs in your State, and remind each LEA of its obligation to evaluate all children, regardless of cognitive skills, suspected of having one of the 13 disabilities outlined in 34CFR§300.8.”
    
7. Furthermore, the State must ensure that in evaluating each child with a disability under 34 CFR §§300.304 through 300.306, the evaluation is sufficiently comprehensive to assess the child in all areas related to the suspected disability, and must identify all of the child’s special needs, whether or not commonly linked to the disability category in which the child has been classified. 34 CFR §300.304(c)(4)and (6).
    
8. Dear Colleague Letter, July 26, 2016, Catherine E. Lhamon, Assistant Secretary for Civil Rights. Students with ADHD and Section 504: A Resource Guide. This letter provides substantial explanation of 504, in general.
   “In OCR’s investigative experience, school districts sometimes rely on a student’s average, or better-than-than-average, grade point average (GPA) and make inappropriate decisions. For example, a school district might erroneously assume that a student with an above-average GPA does not have a disability, or has no unaddressed needs related to the disability, and therefore fail to conduct a section 504 evaluation of that student, even if that student is suspected of having or has been diagnosed with ADHD and receives family provided academic supports outside of school.” “…it is critical to reject the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking.”

New 2016 ADA guidelines address twice-exceptional children specifically, requiring a reduction in periodic re-evaluations required for the continuation of accommodations, and testing accommodations designed to allow the student to demonstrate full potential.
http://www.dyslexicadvantage.org/dyslexia-and-accommodations-new-ada-guidelines-2016-for-school-and-work/

A person with a history of academic success may still be a person with a disability who is entitled to testing accommodations under the ADA. A history of academic success does not mean that a person does not have a disability that requires testing accommodations. For example, someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in one or more of the major life activities of reading, writing, speaking, or learning, because of the additional time or effort he or she must spend to read, write, speak, or learn compared to most people in the general population.

A testing entity must administer its exam so that it accurately reflects an individual’s aptitude, achievement level, or the skill that the exam purports to measure, rather than the individual’s impairment (except where the impaired skill is one the exam purports to measure).

Formal Public School Accommodations. If a candidate previously received testing accommodations under an Individualized Education Program (IEP)4 or a Section 504 Plan,5 he or she should generally receive the same testing accommodations for a current standardized exam or high-stakes test.

 

Kathi Kearney can be reached at kkearney@midcoast.com
Bobbie Gilman can be reached through the Gifted Development Center, Westminster, CO (303-837-8378 or gifted@gifteddevelopment.com).

Copyright © 2016 Kathi Kearney and Bobbie Gilman