Transcript of Jill Geary, Attorney at Law jillgeary@jlgearylaw.com Sacramento OAH Training October 19, 2011.
- Slide 1
- Jill Geary, Attorney at Law jillgeary@jlgearylaw.com Sacramento
OAH Training October 19, 2011
- Slide 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
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- 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
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- 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 students 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
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- 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
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- 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
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- 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
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- 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 childs unique educational needs
are to be broadly construed to include the childs 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
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- 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
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- 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
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- 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
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- 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 childs 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
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- 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
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- 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 childs
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
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- 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 childs educational performance: Inability to
learn that cant 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
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- 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
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- Identification: Gifted with Emotional and/or Behavioral
Disorders The ALJ found: Courts typically analyze a students
educational progress not by comparing his performance to his grade
level peers, but by examining the students 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
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- 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
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- 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
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- 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 students performance outside of
school. Do not rely on educators to have identified and addressed
the dual issues correctly they are often overlooked. 20
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- 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
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- 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
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- 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 dont fit typical model for
either gifted or disabled students Poor social skills prevent
fitting in with typical peers 23
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- 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
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- 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 Students ability to access and benefit
from his education. In exiting Student, District relied heavily on
Students passing grades and his high standardized test scores, but
had not given appropriate weight to teachers 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
Students unique educational needs. 25
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- 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 childs 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
childs other educational needs stemming from his/her disability,
will be met. 26
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- 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
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- 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
- Slide 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
- Slide 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
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- 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 childs IEP. California: Family Empowerment
Centers on Disability 30 EC 56400. 31
- Slide 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 students needs.
Enrichment programs. 32
- Slide 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
- Slide 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
- Slide 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
- Slide 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 Students 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. Students 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
- Slide 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 Students
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
- Slide 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
- Slide 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 students 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
- Slide 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
- Slide 41
- Transition Pre-college/College Programs: But what about college
programs for high school students that dont 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 States academic standards, such
as a GED. 71 FR 46580. 41
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- 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
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- 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 wont be able to self-advocate in an effective way
- leading to misunderstanding as to abilities and expectations in
school or employment Wont 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
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- 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
- Slide 45
- Reference Many of the education recommendations included herein
are from Twice-Exceptional Dilemma, published by the National
Education Association (2006). 45
- Slide 46
- Jill Geary, Attorney at Law jillgeary@jlgearylaw.com Sacramento
OAH Training October 19, 2011