2e and IDEA: The Right to Assessment and Services

By J. Mark Bade

May, 2015

Specific Learning Disabilities

Specific learning disabilities, number 10 in the list of IDEA disabilities, are defined in that legislation as: …a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.”

In April of this year, parents and advocates of twice-exceptional children got what many considered to be a “win” when a part of the U.S. Department of Education issued a “dear colleague” memorandum to state special education leaders. The memo’s purpose was to reinforce and clarify the federal government’s position regarding the evaluation and provision of special education services to 2e students. That position is that local education agencies (LEAs) — school districts — have an obligation “to evaluate all children, regardless of cognitive skills, suspected of having one of the 13 disabilities” specified in IDEA, the Individuals with Disabilities Education Act. Those disabilities include specific learning disabilities, or SLDs (number 10 on the list of 13), and ADHD, under the disability heading of  “other health impairments,” number 9.

What prompted this memorandum? There’s a story behind it — a long one — that illustrates the enormity of the task of advocating for twice-exceptional children.

2004: IDEA Reauthorization and RTI

In 2004, the federal government made some changes to IDEA. In addition, a new practice for dealing with lagging students came into use, Response to Intervention, or RTI. As it happened, neither of these changes really helped twice-exceptional students.

First, educators, for the most part, seemed to abandon a technique important for identifying gifted students not working up to their potential — the use of testing to identify discrepancies between achievement and ability, or between reasoning and processing skills. More on discrepancies later.

Second, RTI, while stressing early intervention, emphasizes performance to grade-level requirements to identify students in need of help or intervention. This, too, worked to the disadvantage of twice-exceptional students, who may be performing at grade level but capable of doing much more with proper support.

It took years for the ill effects from these changes to be noticed. In the meantime, perhaps thousands of twice-exceptional students were neither identified as candidates for services nor received services to cater to their strengths and address their weaknesses.

Psychologist Dan Peters, who serves and advocates for twice-exceptional children, described this shift in a blog posting at the site of the Huffington Post. He wrote, “About 10 years ago, everything changed.” Over and over, he says, twice-exceptional children and families he was advising would hear the words, “Your child does not qualify for an IEP or Section 504 Plan.” Why doesn’t such a child qualify? Read on….

Circa 2009: Why Are All these 2e Kids Coming in for Assessment?

The National Association for Gifted Children (NAGC) has a variety of networks and special interest groups (SIGs) where members find common cause with others who share their professional or personal interests. One SIG focuses on the assessment of gifted children. According to its co-chair, Barbara “Bobbie” Gilman, Associate Director of Denver’s Gifted Development Center, beginning around 2009 members of the assessment SIG were alarmed at the dramatic increase in the number of 2e children being brought for private assessment by worried parents. Rather suddenly, says Gilman, 2e children were being missed in schools under the new eligibility criteria for services spelled out in IDEA 2004.

Gilman says that the Gifted Development Center staff used to assess about 80 percent gifted children and 20 percent twice-exceptional. “My clients last year included 50 percent 2e,” she says, “and this has [remained] fairly stable.”

Falling Through the Cracks

Here’s an example of the type of student who is in danger of not being identified or served under current educational practices in the United States. This example is based on “Student A” in the article “Critical Issues in the Identification of Gifted Students with Co-existing Disabilities: The Twice- Exceptional,” of which Barbara “Bobbie” Gilman was lead author.

Student A is an eight-year-old girl who had shown advanced math abilities early in school. However, her reading skills were relatively weak. Loud sounds bothered her, and she had trouble focusing in a noisy classroom. Homework took her a long time to complete, and she could be the last one to finish in-class work. Despite her difficulties, her academic performance was in the average range. While she received some supports for her reading difficulties, she was not receiving any enrichment for her talent in math. She reported spending at least one full day of every weekend on homework; otherwise, she would lose sleep each night because of homework. She added, “If no one helps me in reading it will take me 24 hours!”

Testing showed the peaks and valleys characteristic of twice-exceptional children. The spread of subtest scores on the subtests of the WISC-IV was enormous — from the 9th percentile to the 99.9th. Furthermore, the tests revealed significant discrepancies between performance and ability.

The problem is, even though testing indicates learning disabilities in Student A, her reading and writing skills are about average, which means that under RTI she would probably not qualify for intervention. The article says about Student A:

If she can qualify for special education services based on a significant discrepancy between ability and achievement, with other evidence of a significant learning problem, an IEP could provide appropriate interventions and support. However, if her state bases eligibility solely on below-grade-level performance — regardless of ability — she will fail to qualify for either RTI or IDEA services. Even a 504 Plan, designed to provide classroom and testing accommodations, may be difficult to obtain if the student’s school believes there is no disability requiring accommodation.

The article states, “Student A is in peril if she fails to qualify for services through either RTI or IDEA based solely on her grade-level performance.”

Why the change? Dr. Michael Postma, another member of the SIG, says that public school districts were missing 2e kids because of a lack of systematic assessments or due process interventions. As an educational consultant, Postma says that he sees in numerous districts a dearth of knowledge, resources, and willingness to identify and work with 2e children. From a personal standpoint, he has removed two of his twice-exceptional children from the public school environment.

One of the problems? Failure to consider a child within the context of his or her ability, which is crucial in determining whether a disability exists. Comparing a gifted student’s potential with actual performance and finding a discrepancy is a flag for possible twice-exceptionality. Postma says it’s essential to use discrepancy scores to identify and qualify 2e kids for services. Otherwise, these children appear average or above average to schools and, therefore, miss the opportunity for remediation or special services.

Postma notes the damage stemming from the lack of identification and services. Even with compensatory skills, unidentified twice-exceptional students can still struggle mightily to make the grade. “The academic, social, and emotional damage to our 2e kids can be great when their needs are not properly addressed by knowledgeable staff,” says Postma.

The level of risk to unidentified twice-exceptional students can be severe, says Gilman. It can lead to a loss of opportunities such as attending college or successfully participating in public or private schools.  

So not only are schools “refusing to assess 2e students,” states Postma, “in many cases the schools are even refusing to acknowledge professional assessments from knowledgeable psychologists and assessors.” The reason: a lack of state and school district guidelines requiring proper assessment followed by proper remediation and education.

2012: What to Do

Gilman says her special-interest group wondered if states might be interpreting federal law too narrowly. “Since the Department of Education occasionally issues ‘clarifications’ of federal law, we hoped DOE officials might be able to help.”

Postma recalls, “It was the disparity in assessment services as well as the lack of school resources that prompted us to request a meeting with Michael Yudin and Melody Musgrove in D.C.”

Musgrove has been the Director of OSEP since 2010. According to OSEP’s official website, “The Office of Special Education Programs (OSEP) is dedicated to improving results for infants, toddlers, children and youth with disabilities ages birth through 21 by providing leadership and financial support to assist states and local districts. OSEP administers the Individuals With Disabilities Education Act (IDEA).” It’s that last sentence that’s important.

Michael Yudin was, at the time, acting Assistant Secretary of the Office of Special Education and Rehabilitative Services (OSERS), of which OSEP is part.

How does one approach the OSEP for a meeting? Gilman says the group asked educator and gifted advocate Jim Delisle if he would serve as their “ambassador” and request the meeting with Musgrove and Yudin. He had met Michael Yudin previously. Musgrove and Yudin granted the group — Delisle, Gilman, Postma, and Dan Peters, co-chair of the NAGC assessment SIG — a meeting on Monday, December 17, 2012. There the group presented a white paper it was drafting for NAGC exploring the results of changes in federal law and state policies. (The white paper draft became an article published by 17 professionals in the field.) [Find it at this url: http://goo.gl/4v28ON.]

Part of the paper addresses changes in IDEA regarding the use of discrepancies. The paper states:

The use of ability/achievement discrepancies for the identification of children with learning disabilities was an important criterion for detecting SLDs under IDEA 1999 (34 C.F.R. 541, 543)....Through the comprehensive assessment process, gifted children who performed at the average level in areas of disability, well below expectations for their ability, were frequently identified and provided services for learning disabilities under IDEA 1999; today, these children may not be considered for services under IDEA 2004 as interpreted by states.

The paper also notes that IDEA does the following:

  • Says that states “must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability.”
  • Says that severe discrepancy can be used, which would be appropriate for students with “high cognition,” but only at the discretion of the school.

December, 2013: “Letter to Delisle”

About a year after the meeting in Washington, D.C., the group received the communique now known as the “Letter to Delisle.” [See http://goo.gl/9A5hOC.] While acknowledging that IDEA does not specifically address twice-exceptionality, the letter said, “It remains the Department’s position that students who have high cognition, have disabilities and require special education and related services are protected under the IDEA and its implementing regulations.” It went on to say that to identify children with Specific Learning Disabilities (SLDs), states must use criteria defined in IDEA, must permit RTI, and reiterates that states “may permit, but must not require, the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has an SLD.”

The letter also pointed out that there is no requirement to use a “cut score” in determining if a severe discrepancy between potential and achievement exists. (A cut score, or cut-off score, is the lowest score on a test that a student must achieve in order to pass.) On the other hand, states are not to rely on a single criterion — like a cut score — to determine eligibility for special education and related services. States are required instead to use “a variety of assessment tools and strategies.” However, the letter stated, discrepancies between achievement domains — between reading, for example, and some other domain, like mathematics — are allowable in identifying children with SLDs. In the letter, OSEP declined to provide further clarification of the use of discrepancy models and RTI to find SLDs.

Michael Postma’s reaction to reading the letter was “muted hope.” While he saw it as a beginning, Postma felt it certainly did not inspire confidence for any sweeping changes within the system as a whole.
Bobbie Gilman says, “We were pleased with the reference to the cut score, but it was so imbedded in a description of the requirement for ‘multiple assessments’ that a state might feel justified in using multiple assessments that all determine whether absolute performance is low enough.” In other words, will states do multiple assessments, all of the type that fail to identify twice-exceptional children?
Gilman explains further, “Assessments of SLDs have to establish ‘unexpected low performance,’ not just ‘low performance.’ Strong ability measures are needed to create a context for the decision.” Gilman is referring to the importance of discrepancy between ability and performance that marks twice-exceptional students.

2014: After “Letter to Delisle”

Did the “Letter to Delisle” enable practitioners like Gilman and Peters to influence school districts? “Not that I know of,” says Gilman. “I’ve seen no response to it in Colorado.”

In Colorado, home of the Gifted Development Center, a student must be performing below the 12th percentile in order to be considered for services. (That 12th percentile cut score means that 88 percent of students are performing better than the student in question.)

“Most 2e children compensate well enough that they would not perform that low,” says Gilman.

As for Postma, he says, “I have not heard of any case in which the letter helped.”

2015: Following Up on “Letter to Delisle”

Bobbie Gilman says that the NAGC assessment SIG decided to write again to Melody Musgrove and Michael Yudin in February of 2015. In part, the SIG’s letter read:

…states continue to interpret IDEA 2004 to mean that to provide services for any type of disability, academic performance must be below grade level. Schools appear even more steadfast in their refusal to include gifted 2e children in RTI or to consider 504 Plans. Parents are often unaware of having rights in these matters and of procedures to question them. Some schools ignore private comprehensive assessment that fully documents twice exceptionality, believing it is not the responsibility of the school to serve children with largely grade-level performance, regardless of the child’s struggle to maintain it or the professional’s conclusions about the child’s needs. 

The letter also forcefully noted the ill effects on twice-exceptional children who are denied services because they perform at grade level. “We believe schools have the responsibility to identify disabilities in gifted children who are performing at grade level, but experiencing frustration,” read the letter. And the group called current practices “discriminatory” against the twice-exceptional population.

The Office of Special Education Programs responded to the SIG group of prominent assessment professionals, saying:

The Department believes that Letter to Delisle adequately addresses your concerns, and that there is no need for further clarification from the Department regarding the identification of children with disabilities with high cognition.

It’s highly unlikely that response was what the SIG group was hoping to hear. But the letter continued:

However, we understand that you have concerns that these children continue to be under-identified. Therefore, in an effort to more widely distribute Letter to Delisle to reinforce IDEA requirements at the LEA level, we have sent a memorandum (OSEP Memo 15-08) recommending that each State distribute Letter to Delisle to its LEAs [local education agencies] and include the guidance provided in the letter at future trainings where eligibility for special education and related services is [sic] discussed.

It is this memorandum that constituted the “win” in April for the 2e community. [See the memorandum at http://goo.gl/wQSm5q.]

"Write, report, and advocate!”

Melody Musgrove, Director
Office of Special Education Programs
U.S. Department of Education
400 Maryland Ave., S.W.
Washington, DC 20202-7100

Telephone: (202) 245-7459

And Now?

Regarding the memorandum to LEAs, Bobbie Gilman says, “It’s a good baby step to send it directly to state SPED employees. I wrote immediately to see if they could send it to state gifted coordinators!”

Michael Postma says, “I am somewhat hopeful but am not holding my breath on this. I still think there are too many ways for states to skirt the issue. Funding is down and resources are few. I really do not expect impactful change in the near future. There is still much work to be done.…”

According to Postma, the SIG is pushing for more forceful language that would require states to recognize and act on this issue of identifying and serving twice-exceptional students, but he calls the process “agonizingly long.” In the meantime, Postma has a call to action: “We must continue to write, report, and advocate!”

You Figure out IDEA

§ 300.8Child with a disability.
(a) General. (1) Child with a disability means a child evaluated in accordance with §§ 300.304 through 300.311 as having mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as ‘‘emotional disturbance’’), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services. (2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is determined, through an appropriate evaluation under §§ 300.304 through 300.311, that a child has one of the disabilities identified in paragraph (a)(1) of this section, but only needs a related service and not special education, the child is not a child with a disability under this part. (ii) If, consistent with § 300.39(a)(2), the related service required by the child is considered special education rather than a related service under State standards, the child would be determined to be a child with a disability under paragraph (a)(1) of this section.

Special thanks to Barbara “Bobbie” Gilman and Michael Postma for their time and correspondence in the development of this article.   

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