POLICY LETTER: December 20, 2013 to Dr. Jim Delisle

Desktop/DOE_Logo_small.gif" * MERGEFORMAT United States Department of EducationOffice of Special Education And Rehabilitative ServicesDecember 20, 2013Dr. Jim DelisleDistinguished Professor of Education (Retired)P.O. Box 3550North Myrtle Beach, SC29582Dear Dr. Delisle:This letter is in response to your emails to me dated March 8, 2013 and April 4, 2013 asking for clarification of the Individuals with Disabilities Education Act (IDEA) and its implementing regulations as they apply to children who have high cognition and who may have specific learning disabilities (SLD). In your communications, you refer to these children as twice exceptional students or 2E students. The IDEA does not specifically address twice exceptional or 2E students. 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. See Letter to Anonymous, dated January 13, 2010 (55 IDELR 172). That is, under 34 CFR 300.8, a child must meet a two-prong test to be considered an eligible child with a disability: (1) have one of the specified impairments (disabilities); and (2) because of the impairment, need special education and related services. With regard to your first question, under 34 CFR 300.307, a State must adopt, consistent with 34 CFR 300.309, criteria for determining whether a child has an SLD as defined in 34 CFR 300.8(c)(10). In addition, the criteria adopted by the State: (1) must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has an SLD; (2) must permit the use of a process based on the child's response to scientific, research-based intervention; and (3) may permit the use of other alternative research-based procedures for determining whether a child has an SLD. Therefore, a State's criteria under 34 CFR 300.307 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. Regarding your second question, the regulations do not require or prohibit a State's use of cut scores when determining if there is a severe discrepancy between intellectual ability and achievement for determining whether a child has an SLD; rather, the regulations allow a State flexibility in establishing its criteria for determining whether a child has an SLD, as long as those criteria meet the requirements in 34 CFR 300.307(a). It is important to note that in determining whether a child has a disability -- whether an SLD or any of the other disability categories identified in 34 CFR 300.8 -- the IDEA requires the use of a variety of assessment tools and strategies to gather relevant functional, developmentLastly, you suggest that OSEP adopt specific language to clarify the use of discrepancy models and response-to-intervention models when determining if a child is a child with an SLD. We believe that further clarification is unnecessary at this time. Based on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented. I hope this information is helpful. If you have questions, please do not hesitate to contact Jennifer Wolfsheimer at 202-245-6090 or by email HYPERLINK "mailto:Jennifer.Wolfsheimer@ed.gov" Jennifer.Wolfsheimer@ed.gov.Sincerely,Melody Musgrove, Ed.D.DirectorOffice of Special Education ProgramsPage PAGE 3 Honorable Jason GlassPage PAGE 2 Dr. Jim DelisleDesktop/DOE_Logo_small.gif" * MERGEFORMAT United States Department of EducationOffice of Special Education And Rehabilitative ServicesDecember 20, 2013Dr. Jim DelisleDistinguished Professor of Education (Retired)P.O. Box 3550North Myrtle Beach, SC29582Dear Dr. Delisle:This letter is in response to your emails to me dated March 8, 2013 and April 4, 2013 asking for clarification of the Individuals with Disabilities Education Act (IDEA) and its implementing regulations as they apply to children who have high cognition and who may have specific learning disabilities (SLD). In your communications, you refer to these children as twice exceptional students or 2E students. The IDEA does not specifically address twice exceptional or 2E students. 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. See Letter to Anonymous, dated January 13, 2010 (55 IDELR 172). That is, under 34 CFR 300.8, a child must meet a two-prong test to be considered an eligible child with a disability: (1) have one of the specified impairments (disabilities); and (2) because of the impairment, need special education and related services. With regard to your first question, under 34 CFR 300.307, a State must adopt, consistent with 34 CFR 300.309, criteria for determining whether a child has an SLD as defined in 34 CFR 300.8(c)(10). In addition, the criteria adopted by the State: (1) must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has an SLD; (2) must permit the use of a process based on the child's response to scientific, research-based intervention; and (3) may permit the use of other alternative research-based procedures for determining whether a child has an SLD. Therefore, a State's criteria under 34 CFR 300.307 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. Regarding your second question, the regulations do not require or prohibit a State's use of cut scores when determining if there is a severe discrepancy between intellectual ability and achievement for determining whether a child has an SLD; rather, the regulations allow a State flexibility in establishing its criteria for determining whether a child has an SLD, as long as those criteria meet the requirements in 34 CFR 300.307(a). It is important to note that in determining whether a child has a disability -- whether an SLD or any of the other disability categories identified in 34 CFR 300.8 -- the IDEA requires the use of a variety of assessment tools and strategies to gather relevant functional, developmentLastly, you suggest that OSEP adopt specific language to clarify the use of discrepancy models and response-to-intervention models when determining if a child is a child with an SLD. We believe that further clarification is unnecessary at this time. Based on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented. I hope this information is helpful. If you have questions, please do not hesitate to contact Jennifer Wolfsheimer at 202-245-6090 or by email HYPERLINK "mailto:Jennifer.Wolfsheimer@ed.gov" Jennifer.Wolfsheimer@ed.gov.Sincerely,Melody Musgrove, Ed.D.DirectorOffice of Special Education ProgramsPage PAGE 3 Honorable Jason GlassPage PAGE 2 Dr. Jim Delisle