What if my child is gifted?

 

The child who is gifted and requires special education and related services is known as “2E,” meaning “twice exceptional.”  A child is gifted if the child’s IQ is at least 130, the 97^th percentile.  The mere fact that a student is gifted does not disqualify him or her from eligibility for special education and related services under the IDEA.  A student who needs special education because of a qualifying disability retains his or her rights under the IDEA, even if the student is intellectually gifted.   

See Letter to Anonymous, (OSEP 2010) (stating that a gifted student with Asperger syndrome could be eligible under the autism classification and require services to address behavioral or social challenges). See also Memorandum to State Dirs. of Special Educ., (OSEP 2015) (stating that high cognition is not a bar to eligibility).

 Most 2E students have Attention Deficit Hyperactivity Disorder (ADHD, for which they qualify under the eligibility category of Other Health Impaired, OHI), Autism, Emotional Disability (ED), Hearing Impairment, Specific Learning Disability (SLD) or Speech and Language Impairment (SLI).

Kirsch-Goodwin & Kirsch, PLLC, Arizona Education Lawyers

 

The Laws Impacting Students with Disabiities

 The key federal laws that affect students with disabilities are the Individuals w/ Disabilities Education Act (IDEA), Sec 504 of the Rehab Act of 1973 as amended (Section 504) and the Americans w/ Disabilities Act (ADA).

Three federal laws address the obligation of public district schools and charter schools to meet the needs of students with disabilities.  These three key laws that affect students with disabilities are the Individuals with Disabilities Education Act (IDEA), Sec 504 of the Rehab Act of 1973 as amended (Section 504) and the Americans with Disabilities Act (ADA).  These are federal statutes.  Federal statutes are enacted by Congress with, generally, the approval of the President.  The statutes are organized in the United States Code, or “U.S.C.”  The U.S.C. organizes the statutes by subject matter. 

Each of these federal statutes has a corresponding “implementing regulation.”  When Congress creates a statute, that is, passes a law, all the law does is outline general goal, principles and requirement.  But there need to be specifics of how the law will be applied and enforced.  That is what the federal regs do.  The Federal Regulations are written by the agencies that oversee the law.  The agencies write the regs to implement and enforce the Congressional statutes.   Because the IDEA is an education statue, federal regulations for the IDEA are written by the United States Department of Education (the DOE). 

The Individuals with Disabilities Education Act (IDEA)  The IDEA is the nation’s special education (SPED) Law.  It ensures services to children with disabilities throughout the nation.  The IDEA governs how states and public agencies provide early intervention, special education and related services to “eligible” students. (“Eligible” students are those identified by a team of professionals as having a disability that adversely affects performance in school and is in need of special education and/or related services.  According to the U.S. Department of Education's National Center for Education Statistics (NCES), as of the 2021-2022 SY, approximately 7.3 million students ages 3-21 had an IEP. This reps about 15% of all public school students.  The most common eligibility category was specific learning disability (SLD) at 32%.

The precursor to the IDEA was enacted in 1975.  It requires that children and youth with disabilities, ages 3–21 (22 in some states, including Arizona) be provided a Free and Appropriate Public Education (FAPE) in the Least Restrictive Environment (the LRE, also referred to as the “placement”) that emphasizes special education and related services designed to meet unique needs and prep them for further ed, employ and independent living.  Infants and toddlers with disabilities (birth to age 3 years) and their families receive early intervention services under IDEA Part C.  In Arizona, it is Arizona Early Intervention Services (AZEIP, pronounced “a-zip”).  Children and youth (ages 3 to 21 years) (22 in Arizona) receive special education and related services under IDEA Part B.   Schools receive federal and state monies to provide these school services.

Section 504 of the Rehabilitation Act of 1973 (Section 504, or simply, 504) is a national law that protects individuals with disabilities from discrimination in programs and activities that receive federal financial assistance, or are conducted by federal agencies.  It defines the rights of individuals with disabilities to participate in, and have access to, program benefits and services.  It set the precedent for subsequent legislation for individuals with disabilities, including the Americans with Disabilities Act (ADA) in 1990.

Section 504 contains a much broader definition of a student with disabilities than does the IDEA, and thus protects students with disabilities who may not qualify for an IEP by guaranteeing them access to necessary accommodations during both instruction and assessments.  Students with disabilities who do not qualify for an IEP may be able to qualify for a 504 which will provide them with accommodations through the development of a 504 Accommodation Plan (a “504 Plan”).

The Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008 (the ADAAA, or simply the ADA) was modeled after 504.  It prohibits discrimination and ensure equal access in public schools (ADA Title II) and private schools (ADA Title III), as well as in employment, state and local government services (including public district schools an charter schools) and public accommodations / privately owned businesses (including private schools – but NOT parochial schools, unless parochial schools receive federal funds, for example, for lunch programs). 

Kirsch-Goodwin & Kirsch, Arizona Education Lawyers

Manifestation Determination Reviews (MDRs)

The IDEA protects students with disabilities in disciplinary proceedings that may result in long term suspension or expulsion. Suspension over 10 days in a school year requires a Manifestation Determination Review (MDR) (see below). A student with a disability (with an IEP) may be suspended for up to 10 school days in a school year without FAPE being provided. Suspension for more than 10 school days is considered a long term suspension.

A disciplinary change of placement occurs for a student with a disability if: (1) The removal is for more than 10 consecutive school days; or (2) he student has been subjected to a series of removals that constitute a pattern because the series of removals total more than 10 school days in a school year; because the student's behavior is substantially similar to the student's behavior in previous incidents that resulted in the series of removals; and because of additional factors, such as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another. 34 C.F.R. § 300.536.

If a student with a disability may be suspended for more than 10 school days due to a code of conduct violation, the public agency, parents, and relevant IEP Team members (determined by parents and district) must have a meeting to determine whether the student's behavior was a manifestation of his/her disability. At the meeting, all relevant information in the student's file, the IEP, teachers' observations and any other relevant information parents provide must be reviewed in order to determine whether the conduct was caused by or had a direct and substantial relationship to the student's disability, or whether the conduct was the direct result of the public agency's failure to implement the student's IEP. If either of the two conditions above were met then there should be a determination that the conduct was a manifestation of the student's disability. If it is determined that it was the public agency's failure to implement the student's IEP, then the public agency must take immediate steps to remedy those failures. 34 C.F.R. §300.530(e). When the determination is that the conduct was a manifestation of the student's disability, then the IEP Team must either conduct an FBA (unless the public agency already conducted one before the behavior violation occurred) and implement a BIP for the student or, if there is already a BIP in existence for the student, then the public agency must review the BIP and modify the BIP if necessary to address the behavior, and the student must be returned to the placement from which he/she was removed — unless the parents and public agency agree to a change of placement as part of the BIP or modification to the BIP.

Exception: The student may be placed in an interim alternative educational setting for no more than 45 school days without a manifestation determination review IF the student carried or possessed a weapon at school, knowingly possessed or used illegal drugs, sold or solicited controlled substances or inflicted serious bodily injury on someone else while at school or on school premises or at a school function. 34 C.F.R. §300.530 (f) and (g).

In cases where the behavior is determined to have NOT been a manifestation of the student's disability and the disciplinary changes in placement will exceed 10 consecutive school days, the same discipline may be imposed on the student with disabilities as a student without disabilities. HOWEVER, the student with an IEP must be provided with a FAPE; special educational services to enable the student to continue participating in the general education curriculum, even in another setting and make progress toward meeting the student's IEP goals. Additionally, if appropriate, the student is to receive a FBA, behavioral intervention services and modifications to address the conduct so that it does not recur. 34 C.F.R. §300.530 (c) and (d).

If parents disagree with the outcome of the MDR, they may appeal by filing file a due process complaint.

Students with Section 504 Plan: Students with 504 plans have similar protections to those students with IEPs. But there are some differences. The public agency may discipline a student with a disability under Section 504 just as it would a student without a disability if the student is currently engaging in the illegal use of drugs or use of alcohol, or in possession of illegal drugs or alcohol.

Additionally, the public agency is not required to provide educational services during a long term suspension or expulsion to a student with a 504 that committed a violation that was determined not to be a manifestation of his/her disability.

Arizona's Education Law Firm 

How to navigate the world of special education - VIDEO

Fron a recent presentation.

https://care4thecaregivers.org/courses/idea-a-legal-look/

Here’s what to do when your child needs help in school

By Hope Kirsch, Kirsch-Goodwin & Kirsch, PLLC

https://www.yourvalley

.net/paradise-valley-independent/stories/kirsch-heres-what-to-do-when-your-child-needs-help-in-school,288281

If your child is struggling at all — in school work (academics), making friends, teachers complaining about behavior, almost anything that concerns you or the teachers — the school should be notifying you and suggesting to meet to evaluate the child for a 504 plan (accommodations) or an IEP (special education).

But if the school has not contacted you, then you should contact the school. Do not hesitate because early intervention is key to addressing issues and leads to some of the best outcomes. Otherwise, your child’s difficulties increase, the gap in learning widens, and your child has not learned strategies to help him or her learn.

Emails are the best record of your communications. Even if you write a letter, attach the letter to the email and also cut and paste from the letter into an email.

Remember, if it is not in writing, (the school can say) it was never said! Who do you write to and what do you say? Email at least two, preferably three people so that your email doesn’t get “lost” (deleted or ignored or hanging out in one person’s spam).

Send to the main teacher and the school principal (headmaster if a charter school), and the special education coordinator for the school — you can find the person on the school’s website along with the email. For schools the don’t list emails, call the school for the emails.

On the subject line, write your child’s name and “concerns, request for evaluation.” In the email, say who you are in relation to your child, your child’s name and the reason you are writing is that you have “some concerns that include…” List them, and say there are other concerns, too.

Then ask for a meeting to evaluate your child for special education. The school then has 15 school days to either hold the meeting or send you a Prior Written Notice (“PWN”) that it refuses to meet.

If the school refuses to evaluate your child, keep a log of any increasing concerns and reach out to the school again when you have collected your own “data” — that is, the facts you have of increasing struggles, including emails from teachers about problems at school (not finishing work, not doing work, distractions, behaviors, etc.), report cards, standardized test scores, and also ask to see the “45 day screening report.”

Sometimes a school will say it is using or will use RTI, that is, Response to Intervention. That is when a child is not learning at the same rate, but a school cannot use RTI to delay the evaluation.

Regardless of the response to your request for an evaluation, the school must send you a PWN. Read it, and if inaccurate, email all the same people who you wrote to in the first place to ask that the inaccuracies be corrected.

Editor’s note: Hope Kirsch is a special education attorney with the firm Kirsch-Goodwin & Kirsch, PLLC.

When the school calls: Understanding individualized education programs (IEPs)

When the school calls: Understanding IEPs 

Parent Educational Event - Navigating Special Education for Your Child

 

https://www.dropbox.com/s/5fqprj3ztkycz3a/Navigating%20Special%20Education%20for%20Your%20Child.mp4?dl=0