Jill Geary, Attorney at Law
jillgeary@jlgearylaw.com
Sacramento OAH Training
October 19, 2011
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
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
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
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
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
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
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
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
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
Identification: Types of TwiceExceptionality
 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
Identification: Types of TwiceExceptionality
 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
Identification: Types of TwiceExceptionality
 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
Identification: Types of TwiceExceptionality
 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
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
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
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. (2nd Cir. 1998) 142 F.3d 119, 131;
E.S. v. Independent School Dist, No. 196 (8th 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-CV3029-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
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
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
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
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
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 nonschool areas where consequences are not as high-stake.
 Use humor to divert attention from school failure or
discomfort.
22
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
Evaluation
 Case Note: Parents v. Brea Olinda Unified, OAH No. 2009050815








Student with ADHD since 4 years had received primarily only OT
services through 6th 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
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
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
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
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
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
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
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
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
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 SELFUNDERSTANDING and AUTONOMY: self-advocacy and goal
setting.
33
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
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
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
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
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
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
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
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
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
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
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
Reference
 Many of the education recommendations included herein
are from Twice-Exceptional Dilemma, published by the
National Education Association (2006).
45
Jill Geary, Attorney at Law
jillgeary@jlgearylaw.com
Sacramento OAH Training
October 19, 2011