POLICY LETTER: December 20, 2013 to Dr. Jim Delisle
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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
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U
NITED STATES D EPARTMENT OF EDUCATION
O
FFICE OF SPECIAL EDUCATION A ND REHABILITATIVE
SERVICES
December 20, 2013
Dr. Jim Delisle
Distinguished Professor of Education (Retired)
P.O. Box 3550
North Myrtle Beach, SC 29582
Dear Dr. Delisle:
This letter is in resp onse 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 .”
T he 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 a n 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 alternat ive 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 wh ether 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 discr epancy 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, a s 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, developmental, and academi c information about the
child, and prohibits the use of any single measure or assessment as the sole criterion for
determining whether a child is a child with a disability and for determining an appropriate
educational program for the child. 34 CFR §300.304(b)(1) and (2). Therefore , it would be
Page 2 – Dr. Jim Delisle
in consistent with the IDEA for a child, regardless of whether the child is gifted, to be found
ineligible for special education and related service s under the SLD category solely because the
child scored above a particular cut score established by State policy. Further, under 34 CFR
§300.309(a)(1), the group described in §300.306 may determine that a child has an SLD if the
child ”does not achieve adequately for the child’s age or to meet State -approved grade level
standards … when provided with learning experiences and instruction appropriate for the child’s
age or State- approved grade level standards ” in one or more of the following areas: oral
ex pression; listening comprehension; written expression; basic reading skill; reading fluency
skills; reading comprehension; mathematics calculation; or mathematics problem solving.
In the Analysis of Comments and Changes in the 2006 final regulations implementing Part B of
the IDEA , the Department, in responding to public comments, recognize d that there will be some
students who are gifted but also need special education and related services . See 71 Fed. Reg.
46540, 46647 (Aug. 14, 2006) (“ Discrepancy models are not essential for identifying children
with SLD who 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 .”). In responding to a public comment specifically addressing students who are gifted and
who have difficulty with reading fluency, the Department stated as follows: “ 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.” 71 Fed. Reg. at 46652.
Lastly, 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 quest ions, please do not hesitate to contact
Jennifer Wolfsheimer at 202- 245-6090 or by email at Jennifer.Wolfsheimer@ed.gov.
Sincerely,
Melody Musgrove, Ed.D.
Director
Office of Special Education Programs
TOPIC: Twice Exceptional
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