Public Comment to Idaho Dept. Of Ed Regarding Special Education Manual Deficits
Dated June 7, 2024
Dear Idaho Department of Education,
As a concerned citizen, a parent of three children in the Boise School District (2 now living) and a proud supporter of education. I am writing to express my thoughts on the revisions to the Special Education Manual. I specifically want to address issues in the Special Education Manual regarding the identification, assessment, and provision of a Free Appropriate Public Education (FAPE) to twice-exceptional students in the great state of Idaho.
While I applaud the efforts to revise the manual in response to the federal inquiry, I must express my concern that the current revisions do not adequately address the unique needs of twice-exceptional students. These students, who are both gifted and have a disability, require a specialized approach to ensure they receive a FAPE that is “tailored to the unique needs of the child” that they are entitled to under the Individuals with Disabilities Education Act (IDEA). To provide FAPE it is of paramount importance that ANY children with disabilities are located, identified and assessed[1]. IDEA is a landmark civil rights and education law in the United States that ensures children with disabilities have access to a FAPE that is tailored to their unique and individual needs. This law was enacted to protect the rights of children with disabilities and their families, ensuring they have the same educational opportunities as their non-disabled peers and to prevent discrimination against a vulnerable population.
In my humble opinion, the revised manual should comply with federal and state law, and include specific guidelines and resources for educators and families to better identify, assess, and support all children, including those that are twice-exceptional students. This could include:
Comprehensive training for educators on the unique characteristics and needs of twice-exceptional students.
*The development of a clear and consistent process for identifying twice-exceptional students, including the use of appropriate assessments and evaluations, including those that have been missed in the earlier screening for disabilities.
The establishment of Individualized Education Programs (IEPs) that address the unique strengths and challenges of twice-exceptional students, ensuring they receive the appropriate accommodations and services to thrive academically, emotionally and socially. IDEA is not only about academics; an education includes the trifecta of academics, emotional and social development.
Twice-Exceptional is Both Gifted and Disabled
I believe that by addressing the needs of twice-exceptional students in the revised manual, the Idaho Department of Education can demonstrate its commitment to providing a high-quality education to all students, regardless of their unique abilities, disabilities and challenges and ensure compliance with federal and state civil rights law. Children with learning disabilities are a vulnerable class, with substantial evidence of increased risks of mental illness, disrupted life trajectories and suicide. The Idaho Department of Education has already done much of the work (apparently subsequently ignored) in its 2010 manual on the special challenges of twice exceptional students[2]. Further reference is the acknowledgement and challenges of being both gifted and having a disability in the 2022 report from the Superintendent of the Idaho Department of Education[3]. The report specifically highlights the unique needs and problems that twice exceptional students face:
“Under Chapter 20 of Idaho Education Laws and Rules, Education of Exceptional Children, a natural tie exists between those with disabilities and those who are gifted and talented. Those students who are twice exceptional, need services for disabilities and for gifts in one or more areas.”
“It is important that gifted and talented and twice exceptional professional development is available to all educators.”
“Gifted students present as a high needs’ population, who often require smaller class sizes, especially if the students are twice exceptional, students who are both gifted and have a learning disability (or disabilities) and who would be included in the gifted count and count of students with disabilities. In addition, gifted students often have unique emotional and behavioral needs not met in a larger classroom.”
Explicitly admits the endemic failure to train staffing due to a lack of funding “[S]tudents who are twice-exceptional (meaning they have high abilities and disabilities concurrently) are often excluded from gifted programs due to lack of services, qualified staffing, and understanding on this population of students.”
Therefore, since the Idaho Department of Education has actual knowledge of the deficits to provide sufficient support and FAPE for these “twice-exceptional” children, then surely it is reasonable to expect that the revisions of the 2018 Special Education Manual address these concerns? Unfortunately, the revisions do not. We look for twice-exceptional in the 2018 Manual (and revised) and the manual does define the term[4].
“Twice exceptional. Twice exceptional students are identified as gifted/ talented in one or more areas of exceptionality (specific academics, general intellectual ability, creativity, leadership, visual or performing arts) and also identified with a disability defined by State eligibility criteria (SLD, ED, Autism, Orthopedic Impairments,etc.) that qualifies the student for an IEP.”
It becomes obvious that the definition is hollow and false as there is nary a mention of the term “twice-exceptional” again in the manual. Why define a term and then not use it again throughout the manual? How is it intended that school districts identify, assess, and support these children when the Department explicitly admits that it doesn’t have the funding to allocate to proper supporting roles in its 2022 gifted and talented report? Moreover, the definition is wrong and is basically a circular carve-out from any normal person's reasonable expectation of what the term twice-exceptional would mean. As an example, the 2010 manual by the Idaho Department of Education on page 1 defines twice-exceptional as
“Students who are identified as gifted and talented in one or more areas of exceptionality (specific academics, intellectual ability, creativity, leadership, visual or performing arts) and also identified with one or more specific diagnosable conditions [which may not be diagnosed], such as learning disabilities, mental health problems, neurological disorders, physical handicaps, or the asynchronicity that occurs due to the discrepancy between mental age and chronological age that may or may not impede their progress in life.”
Revision Suggestion #1 - Insert the appropriate definition for Twice Exceptional that addresses the vulnerability of this group and risks to their basic human and civil rights. The definition should make it clear that it is imperative that they be first identified, and then supported appropriately for their disabilities and special challenges. The 2010 Diane Boothe, Twice-Exceptional: Students with Both Gifts and Challenges or Disabilities manual, signed by Tom Luna[5], is good policy and its recommendations are necessary to adequately support twice exceptional children. The 2010 Manual recommendations need to be methodically and intentionally incorporated into the 2024 Revisions of the 2018 Special Education Manual. It is clear that the current revisions are specifically designed to carve out these children that are both gifted and have a disability from its purview. This is violative of IDEA and specifically designed to deny a FAPE for any kids that are in this cohort. The Federal Department of Education also interprets that children with disabilities and giftedness are covered under IDEA[6] stating that “each LEA [has the] obligation to evaluate all children, regardless of cognitive skills, suspected of having one of the 13 disabilities outlined in 34 CFR §300.8[7]. This revision is imperative for compliance with federal civil rights law and the ADA.
Twice-Exceptional Identification (Child Find Obligations)
I hope that the failure to train personnel and provide meaningful guidance for the identification of disabilities is just an unintentional oversight, but it appears to be a willful ignorance brought about by budgetary expediency to the detriment of our children in Idaho. Once again, using the 2010 Manual guidance on twice-exceptional children, the Department of Education (page 9) states.
Where are students with Twice-Exceptionalities found?
Some have been identified as gifted only, some have been identified as having a learning challenge only. However, the majority of these students are in the regular classroom unidentified. These children’s needs are not being met.
Hidden disabilities may prevent students with advanced cognitive abilities from achieving their potential. The frustrations related to unidentified strengths and disabilities can result in behavioral and social/emotional issues (emphasis added). For some students who are Twice-Exceptional, behavior plans become the focus of their interventions when academic modifications may meet their needs and solve behavior problems. There are a variety of interventions for this purpose.
The behaviors may be managed, but the underlying issues (abilities or disabilities/ challenges) are seldom addressed. School can become a frustrating experience for students who are Twice-Exceptional, as well as their teachers, and parents. A collaborative effort among educational service providers, parents and students is needed to identify learners who are Twice-Exceptional and implement as well as their teachers, and parents. A collaborative effort among educational service providers, parents and students is needed to identify learners who are Twice-Exceptional and implement strategies to meet their diverse needs.
Identifying, assessing and supporting these twice-exceptional (or suspected twice-exceptional) children would not only benefit the students themselves but also contribute to the overall success and reputation of Idaho's education system. All children are gifts, but these kids are as capable of greatness as they are vulnerable to destroyed life trajectories. The whole 2010 manual from this very Department of Education makes this clear and its recommendations should be specifically incorporated in the 2024 Revised Special Education Manual to provide appropriate guidance, training, and actual screening and assessments to identify both the giftedness and the disability. There appears to be a fundamental misunderstanding that IDEA and FAPE obligations only begin if there is a significant negative deviation from the average school child performance. This is false. The obligation to identify, locate and evaluate all children with suspected disability is the law[8] and is an important civil and human rights issue. The threshold for suspecting a disability is relatively low[9].
Mental Health and Emotional Disturbance
Revision Suggestion #2 - Page 49 changed in the 2017 manual “emotional disturbance” to “emotional behavioral disorder.” This odd revision is contrary to AND seems to conflict with 34 CFR §300.8[10] and case law in the Ninth Circuit[11].
(i) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(C) Inappropriate types of behavior or feelings under normal circumstances.
(D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
(ii) Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section. 34 C.F.R. § 300.8(c)(4)(i).
The 2018 Special Education Manual removes the definition of emotional disturbance and for some reason opts for the following definition:
6. Emotional Behavioral Disorder Definition:
A student with an emotional behavioral disorder exhibits one or more of the following characteristics over a long period of time, and to a marked degree, that adversely affects his or her educational performance:
a. an inability to learn that is not primarily the result of intellectual disability; hearing, vision, or motor impairment, or other health impairment;
b. an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
c. inappropriate types of behavior or feelings under normal circumstances;
d. a general pervasive mood of unhappiness or depression;
e. a tendency to develop physical symptoms or fears associated with personal or school problems; or
f. Schizophrenia.
The term does not include students who are socially maladjusted unless it is determined they have an emotional behavioral disorder.
It is unclear why the state would choose to opt for the broader term of emotional disorder over the specifically defined emotional disturbance in the IDEA statute. It would appear that the word 'disorder' requires the specific mental health diagnosis from professionals that the school may or may not actually have available. This morphs the eligibility to a higher requirement versus the definition that highlights symptoms of declining mental health that would benefit from identification, assessment and accommodations to treat and remove stressors and triggers from the environment. While an emotional disturbance specifically refers to a condition that affects a child's educational performance and interpersonal relationships, an emotional disorder is a more general term that encompasses a wide range of mental health conditions affecting mood, thinking, and behavior.
The 2018 manual pg 50-51 then goes on to restrict and dramatically limit those students that otherwise would be identified under the federal definition of emotional disturbance with the following administrative hoops and significantly more restrictive tests.
State Eligibility Criteria for Emotional Behavioral Disorder:
An evaluation team[12] will determine that a student is eligible for special education services as a student with emotional behavioral disorder when all of the following criteria are met:
a. An evaluation that meets the procedures outlined in Section 5 of this chapter has been conducted.
b. The student has been documented exhibiting characteristics consistent with the criteria (a-f in this section) by one or more of the following: school psychologist, licensed psychologist, psychiatrist, physician, or certified social worker.
c. The student has been observed exhibiting one or more of the six (6) behavioral or emotional characteristics listed in the definition of emotional –behavioral disability[13].
d. The characteristic(s) has been observed:
1) for a long period of time (at least 6 months); and
2) by more than one knowledgeable observer; and
3) in more than one setting; and
4) at a level of frequency, duration, and/or intensity that is significantly different from other students’ behavior in the same or similar circumstances.
e. The student’s condition adversely affects educational performance in the area of academics, peer and teacher interaction, participation in class activities, and/or classroom conduct.
f. The student needs specially designed instruction.
Revision Suggestion #3 - Strike the additional means test requirements for definition of what should probably be “emotional disturbance” and develop the training and school resources in the 2024 Special Education Manual to properly identify, assess and provide accommodations and support for those covered under the law and spirit of IDEA. Schools seem to take punitive actions against those with emotional disturbances, when their symptoms are often school resistance, defiance, behavioral outburst, or internal shutdowns.
Much like the federal inquiry that is driving this latest 2024 revision of the Special Education Manual, the state appears to take a definition and test from IDEA and then make it excessively restrictive with additional requirements to meet the test, AND, inserting AND tests rather than OR, that make meeting their definition of an emotional disorder nigh impossible to meet. This is even considering that there are actually any school psychologist, licensed psychologist, psychiatrist, physician, or certified social workers available to do any of these specific requirements that the manual requires. Idaho has chronically underfunded these positions in its school system. It seems grossly unfair to the struggling children who are specifically covered under IDEA to BOTH underfund school psychiatric and mental health AND make it a requirement for a child or their parents to get support. This State Department of Education should perhaps be reminded that IDEA and Child Find is an affirmative duty[14] and it IS NOT and SHOULD NOT, be the parent’s obligation to obtain independent diagnoses from doctors, and private pay psychiatrists in order to meet an arbitrary and capricious test that appears contrary to both the letter of the law AND the spirit of IDEA.
The court decision in L.J. v Pittsburgh Unified School District underscored the importance of considering a child's unique needs and the requirement for schools to provide special education services to children with disabilities, including those with severe emotional disturbances[15]. These severe emotional disturbances are often reflected in anxiety, school attendance issues, social and emotional deficits, suicidality and of course are often comorbid with other disabilities and conditions. It is unclear even what an “emotional behavior disorder” as defined in the manual is, but it does not appear to be the definition under IDEA. The focus of IDEA is on the unique needs of the child, not some arbitrary benchmarks and academic assessments. The United States has reiterated its position that IDEA applies to higher cognitive ability children in an amicus brief to the Supreme Court of the United States[16].
The first step in this process—typically referred to as the “child-find” obligation—is of “paramount importance.” Forest Grove Sch. Dist. v. T. A., 557 U.S. 230, 245 (2009). “States are obligated to ‘identify, locate, and evaluate’ ‘all children with disabilities residing in the State’ to ensure that they receive needed special-education services.” Ibid. (quoting 20 U.S.C. 1412(a)(3)(A)) (brackets omitted); see 34 C.F.R. 300.111. Local educational agencies (generally, school districts) share this affirmative child-find obligation with respect to the children within their jurisdiction. See 34 C.F.R. 300.200-300.201. The child-find obligation covers “all” children with disabilities, 20 U.S.C. 1412(a)(1)(A), including those with high cognitive skills. The Department of Education has thus emphasized that “a child suspected of having a disability” must be “considered in the child find process” even if she “is making academic progress” and “passing from grade to grade.” 71 Fed. Reg. 46,540, 46,584 (Aug. 14, 2006); see 34 C.F.R. 300.111(c)(1). And in response to concerns that some school districts were “hesitant” to evaluate “children with high cognition ,”the Department has “remind[ed]” districts of their “obligation to evaluate all children, regardless of cognitive skills, suspected of having [a qualifying disability].” Office of Special Educ. Programs, U.S. Dep’t of Educ., Memorandum to State Directors of Special Education, 65 IDELR 181, at 939 (Apr. 17, 2015).
School Test Anxiety is Real and We Should Not Force Children into Distress
It appears that much of school focus, the curricula, and measurements are now geared toward forcing all children to be assessed on a regular and almost pedantic basis. School resistance, anxiety, disruptions, shutdowns are clearly symptoms of growing issues with each child, some of which are caused directly by the school environment. As an example, Pg 85, Sect 2(G) put a series of items that make a child NOT eligible to be assessed based on alternative testing standards. Included in the list is “anticipated emotional distress”, “poor attendance or absence issues”, “anticipated disruptive behavior”. I am sure there are reasons to try and keep schools from trying to game the test results, but I am also sure that it isn’t fair to a child to expect them to “white-knuckle” it through another assessment despite it is deleterious to the child, anxiety producing, and leads to further mental health stress.
Revision Suggestion #4 - The assessment isn’t more important than the health of the child. Emotional distress and attendance issues should be a flag that the child needs additional supports, some of which should be that the assessment isn’t worth the risk to the child's mental and emotional well-being. Develop procedures for looking at school distress, test distress, outbursts, as unique signs that it MIGHT not be worth the benefit of having the child take the assessments.
Severe Discrepancy from Peers Test Should NOT be the only test for Special Education Eligibility
The Proposed 2024 Revisions to the Special Education Manual seem to acknowledge and bring in an optional eligibility test on 60-61 that states:
4) Option 2: Pattern of Processing Strengths and Weaknesses. Provide evidence of a pattern of strengths and weaknesses in psychological processing skills that impact learning.
Provide evidence that the student’s psychological processing skills are linked to the failure to achieve adequately in the academic area(s) of concern. Evidence must rely on standardized assessments. These assessments must be conducted by a professional who is qualified to administer and interpret the assessment results. The student’s performance on a psychological processing assessment demonstrates a pattern of strengths and weaknesses that help explain why and how the student’s learning difficulties occur. Such tests may include measures of memory, phonological skills, processing speed as well as other measures which explicitly test psychological processing.
a. Report and describe processing strengths and weaknesses.
b. Provide a description of how the identified pattern of strengths and weaknesses help explain learning difficulties in the area(s) of concern.
AND e. Adverse Effect. The disability adversely affects the student’s educational performance.
AND f. Need for Specially Designed Instruction. The student requires specially designed instruction.
Revision #5 - There needs to be a c, and d, or no e, and f.
Additionally, the term Adverse Effect is defined on pg xi of the Special Education Manual as
Adverse Impact (adverse effect). A determination made by the evaluation team that the student’s progress is impeded by the disability to the extent that their educational performance is significantly and consistently below the level of similar age peers, preventing the student from benefitting from general education. The phrases “adverse impact” and “adverse effect” are used interchangeably in this Manual and have the same meaning. See also “educational performance.”
Revision Suggestion #6 - benefitting is misspelled. Additionally this erroneously places a normative comparison to “average or 25th percentile” peers requirement that in order to qualify for special education the adverse impact is compared to only their peers and not based on their own unique circumstances and abilities. This is severely discriminatory to ANY children, ASD, ADHD, learning disability, multi-disability, etc that are above average cognitive ability and/or twice-exceptional.
Educational Performance is defined on pg xvii. as:
Educational performance. A student’s educational performance in achievement, developmental, and/or functional skills.
Revision Suggestion #7 - As a general rule, the definition of a term should not use the term itself to define it. This should make clear that social and emotional development are also part of the educational performance. Educational Performance should be geared for the individual student to develop academic, social, and behavioral skills, as well as preparation for further education, employment, and independent living. In other words, educational performance is more than meeting some 25th percentile level on a standardized test.
The pins that hold up eligibility for special education under the 2018 Special Education Manual and proposed Revisions thereof, fail to account for the “unique needs” of the children with disabilities. IDEA specifically says that a severe discrepancy model cannot be the “sole” method for determining eligibility, but doesn’t limit its use where applicable and necessary to assess for and diagnose the disability.
Must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability, as defined in §300.307;
Must permit the use of a process based on the child's response to scientific, research-based intervention; and
May permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability, as defined in §300.8(c)(10).
IDEA guarantees disabled students access to a FAPE, no matter their innate intelligence[17]. There despite the student not presenting as the paradigmatic case of a special-education student, “does not vitiate the District’s duty under the IDEA to provider her with a FAPE”[18]. The 8th Circuit then stated quoting the Supreme Court under Endrew as authority that:
The Student is eligible for special education and a state-funded FAPE like every other "child with a disability." 20 U.S.C. § 1401(3). This "specially designed instruction," whether "conducted in the classroom, in the home, in hospitals and institutions, [or] in other settings," id. § 1401(29), must be "reasonably calculated to enable [her] to make progress" and "appropriately ambitious in light of [her] circumstances," Endrew F. ex rel. Joseph F., 137 S. Ct. at 999–1000.
As specifically acknowledged in the 2010 guidance on twice-exceptional children, children with higher cognitive ability can also have, and often do have, all manner of learning disabilities and often even multiple learning disabilities and diagnosis that are covered under IDEA[19]. Twice exceptional children are often undiagnosed and misdiagnosed for the following factors.
1. Their scores are compared to those of average children instead of to their own strengths.
2. Their lower scores may not be significantly below the norm. (The average range technically goes down to the 25th percentile.)
3. Their scores are averaged (e.g., Full Scale IQ scores and other composite scores), concealing both their gifts and their disabilities.
4. Their ability to compensate often inflates their lower scores.
5. The magnitude of the disparities between their strengths and weaknesses is not fully taken into account in diagnoses[20].
As it is common for individuals with ASD, ADHD etc. to have discrepancies between their strengths and weaknesses, comparing children only to the “norm” or average peer student specifically discriminates against those with higher cognitive functioning. A 30-point discrepancy in composite scores (2 standard deviations) or a 9-point discrepancy in subtest scores (3 standard deviations) suggest the need for further evaluation of a possible learning disability[21]. “While performance at the 25th or 50th percentile may be adequate for the average child, it is devastatingly inadequate for a child whose performance in areas of strength is at the 98th percentile. A gifted child with 50th percentile reading, mathematics, or writing usually feels like a dismal failure and experiences loss of self-esteem[22].”
In fact it is more dire than just the loss of self-esteem. The results from multiple large samples point toward elevated rates of suicidal thoughts in autism overall, with the highest rates being found in "twice-exceptional" or 2e individuals, i.e., those who were both autistic and/or ADHD and had high cognitive ability[23]. Trying to use compensation strategies that their strengths allow, in order to compensate for their weaknesses caused by their learning disability is akin to trying to drive a race car on ice, with the gas pedal stuck and no brakes. The twice exceptional child suffers, including, but not limited to the following:
1. Excessive baseline cortisol (think flight or flight adrenal response) linked to autism, it is likely that demonstration of exceptional cognitive ability raises parent, teacher, and peer expectations[24]. Any inability to meet these elevated standards could result in further activation of the hypothalamic-pituitary-adrenal axis, potentially explaining the higher rates of suicidal thoughts we observed in 2e children compared to other autistic children[25].
2. Compensation strategies employed by high cognitive ability such as "camouflaging", where individuals suppress less socially accepted behavior to fit in[26]. Camouflaging is a universal behavior that has been studied with particular interest in autistic individuals, who engage in this behavior more regularly[27]. Consequently, camouflaging in autism is correlated with increased suicidal behavior[28].
Revision Suggestion #8 - all categories of disability should also look for discrepancies that are unique to the child and ask to what extent does the discrepancy between this child’s strengths and weaknesses cause frustration and interfere with the full development of the child’s abilities?”
The question must be asked: Given the guarantee of a “FAPE,” is it ethical to redefine disability in a way that denies eligibility for special education services to children who cannot succeed in school without them[29]? Research indicates that gifted students with SLDs, ADHD, and ASDs are best identified by a complex pattern of strengths and weaknesses, detected through comprehensive assessment by psychologists and other specialists experienced with gifted children[30]. As an example, autistic individuals with exceptional ability are underserved and suffer disproportionately from high anxiety and low self-worth[31]. In addition, elevated IQ with a significant processing speed to verbal comprehension discrepancy appears to be 15x as likely to enter adulthood undiagnosed[32]. Clearly we are failing those children with higher cognitive ability that are also disabled.
Revision Suggestion #9 - Revise the definitions of Adverse Impact and Educational Performance to specifically acknowledge that children can be disabled and still have weaknesses that are above the norm, the average, the 25th percentile of their peers.
Follow the Money
Why not try to find, assess and support all the children with disabilities covered under the IDEA that is mandated by federal law? Cynically it is about the money. It is difficult to find any itemized cost data for how much money each student with different disabilities cost in Idaho, and how much is reimbursed to the school district from state or federal sources. Ohio did a cost study that indicates that doing a screening evaluation, part or full assessment costs $1,177[33]. Then if they are to provide their best practices, in order to support and provide FAPE to these disabled students then the cost to the school district ranges from $9,760 per speech or language impairment, $33,221 for emotional disturbance, and $38,769 for autism, to $59,098 for major other health impairment per year[34]. In other words, there is a monetary disincentive to look for, assess, identify and treat children that are disabled. Clearly they are more likely to find children that are significantly impaired, disruptive or violent in class, but that is to the detriment of the children with disabilities who learn compensation strategies and internalize and mask their distress to cope with the school environment to the detriment of their educational experience. This is specifically designed to discriminate against this class of children that have cognitive functioning to their detriment. This discrimination is costing their mental, physical and emotional health and derailing their life trajectories. In this way it is similar to the child in Perez v Sturgis[35] with a case summary from the Idaho State Bar[36]. Whether the child is deaf (as in Perez), autistic (as in Endrew), ADHDer, emotional disturbance (as in LJ v Pittsburgh and EMDH) dyslexic, blind AND also of higher cognitive ability shouldn't allow schools to fail these children in their federally mandated right to receive a FAPE.
We live in a world of finite resources, but it is clear that the obligation to provide FAPE under IDEA is not negotiable, it is an affirmative obligation. It would be much better if Idaho found itself able to provide FAPE without wasteful and tedious litigation that wastes the taxpayers resources and too often relegates children to needless suffering and severely impacted life trajectories.
Thank you for your time and consideration. I hope that my concerns and suggestions will be taken into account as the revisions to the Special Education Manual continue.
Sincerely,
James McCall
________________
[1] Forest Grove School Dist. v. TA, 557 US 230 (2009).
[2] Diane Boothe, Twice-Exceptional: Students with Both Gifts and Challenges or Disabilities, Fac. Staff Authored Books (2010), https://scholarworks.boisestate.edu/fac_books/343.
[3] Idaho Dept of Education, Idaho Gifted and Talented Report, https://www.sde.idaho.gov/superintendent/files/leg-priorities/reports/2023/Exceptional-Child-Education-Report-GT-33-1007.pdf.
[4] Idaho Dept of Education, Idaho Special Education Manual 2018 (2018), https://www.sde.idaho.gov/sped/files/shared/Idaho-Special-Education-Manual-2018-Final.pdf.
[5] Boothe, supra note 2.
[6] OSEP Memo 15-08 Letter to Delisle: Children with disabilities with high cognition (April 17, 2015), Individuals with Disabilities Education Act, https://sites.ed.gov/idea/idea-files/osep-memo-15-08-letter-to-delisle-children-with-disabilities-with-high-cognition/ (last visited May 24, 2024).
[7] (a) General—(1) Child with a disability means a child evaluated in accordance with §§ 300.304 through 300.311 as having an intellectual disability, 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.
[8] A.P. v Pasadena Unified School District, No 19-7965-MWF (MWJ) (Jan. 26, 2021), [https://www.courtlistener.com/docket/16197861/ap-v-pasadena-unified-school-district/](https://www.courtlistener.com/docket/16197861/ap-v-pasadena-unified-school-district/).
[9] Timothy O. v. Paso Robles Unified School, 822 F 3d 1105 (2016).
[10] (a) General—(1) Child with a disability means a child evaluated in accordance with §§ 300.304 through 300.311 as having an intellectual disability, 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.
[11]LJ v. Pittsburgh Unified School Dist, 850 F 3d 996 (2016).
[12] This is defined as “[a] group of people, including the parent/adult student, charged with the responsibility to make decisions regarding evaluation, assessments, and eligibility. This team includes the same membership as the IEP team (although not necessarily the same individuals) and other qualified professionals, as appropriate.” This term should make clear that the evaluation team as a whole needs to have expertise and competent knowledge to be able to make a proper evaluation.
[13] It is unclear even what subsection c refers to with emotional - behavioral disability. It says it is a defined term, but not sure where it is defined.
[14] NB v. Hellgate Elementary School dist. ex rel. Board of Directors, 541 F 3d 1202 (2008).
[15] LJ v. Pittsburgh Unified School Dist, supra note 11.
[16] Roman Martinez et al., Brief for the United States as Amicus Curiae, p. 2, INDEPENDENT SCHOOL DIST. NO. 283 v. EMDH, (2020) 960 F3d 1073 2020 (2020).
[17] Independent School Dist. No. 283 v. EMDH, 960 F 3d 1073 (2020), 960 F 3d 1073 (2020).
[18] Id.
[19] Boothe, supra note 2.
[20] Linda K. Silverman, The Overlooked Role of Modalities in Multi-Exceptional Children, 46 Roeper Rev. 90 (2024), https://doi.org/10.1080/02783193.2024.2309137.
[21] Id.
[22] Id.
[23] Lucas G. Casten et al., The Combination of Autism and Exceptional Cognitive Ability Is Associated with Suicidal Ideation, 197 Neurobiol. Learn. Mem. 107698 (2023), https://www.sciencedirect.com/science/article/pii/S1074742722001228.
[24] Id.
[25] Id.
[26] Lucy Anne Livingston, Punit Shah & Francesca Happé, Compensatory Strategies below the Behavioural Surface in Autism: A Qualitative Study, 6 Lancet Psychiatry 766 (2019).
[27] Courtney Jorgenson et al., Social Camouflaging in Autistic and Neurotypical Adolescents: A Pilot Study of Differences by Sex and Diagnosis, 50 J. Autism Dev. Disord. 4344 (2020).
[28] S. A. Cassidy et al., Is Camouflaging Autistic Traits Associated with Suicidal Thoughts and Behaviours? Expanding the Interpersonal Psychological Theory of Suicide in an Undergraduate Student Sample, 50 J. Autism Dev. Disord. 3638 (2020), http://link.springer.com/10.1007/s10803-019-04323-3 (last visited Apr 30, 2024).
[29] Barbara Jackson Gilman et al., Critical Issues in the Identification of Gifted Students With Co-Existing Disabilities: The Twice-Exceptional, 3 Sage Open 2158244013505855 (2013), https://doi.org/10.1177/2158244013505855 (last visited Jun 3, 2024).
[30] Id.
[31] Jacob J. Michaelson et al., Autism in Gifted Youth Is Associated with Low Processing Speed and High Verbal Ability, medRxiv 2021.11.02.21265802 (2022), http://medrxiv.org/content/early/2022/03/02/2021.11.02.21265802.abstract.
[32] Id.
[33] Amanda Danks et al., Special Education in Ohio.
[34] Id.
[35]Perez v. Sturgis Public Schools, 143 Ct 81 (2022).
[36] Access Idaho, The Legal and Practical Implications of Perez for Youth with Disabilities by Abigael Schulz, State Bar (2024), https://isb.idaho.gov/blog/the-legal-and-practical-implications-of-perez-for-youth-with-disabilities-by-abigael-schulz/ (last visited Jun 3, 2024).
This is (more or less) the comment that I submitted to Idaho Department of Education on June 7, 2024 as it is revising its Special Education Manual. Formatting breaks happen as they only allow comments submitted by “Google Form”. The Idaho Dept of Education had a meeting on July 23-24, to revise, but it is not clear (to me) what the result of meeting is. Please let me know if there are any broken links to the materials, or if you want a resource that is cited.