Gifted Issues Discussion homepage Forums Twice Exceptional Who defines "appropriate" in FAPE?

I apologize if this is a stupid question but who defines what is an "appropriate" education for a 2e kid? Is it the school? Is it the IEP? Is it the doctor? Is a kid in public school 5th grade who could do much higher grade work getting an "appropriate" education?

Any guidance would be appreciated.

Well, the snarky answer is that appropriate is whatever the school tells you they'll be providing.

On a more serious note, however, it does seem as though it is often the case that the burden of proof that it is NOT appropriate rests with parents who believe it's intolerably "inappropriate."

Appropriate, sadly, is a moving target. That isn't all bad news-- because it does mean that the right team, working together, can accomplish amazingly good-fitting schooling options for qualified children.

It also means that the opposite of that is nightmarish for parents to try to fight against, when for example the rest of the IEP team is stacked with yes-men/-women who nod at the ringleader (your nemesis) and look at you as though you're crazy for being "that parent" when the rest of them all see NOOOOOO problems.

Depends on the state. Those with a gifted mandate are more likely to define it in such a way that having an instructional level that matches the child's ZPD, and accommodations that match their disability needs, is appropriate. Those without are less likely to do so. Many states and districts also define it as, as nearly approaching or meeting grade level expectations as possible, which means, sadly, that 2e kids at nominal grade level have FAPE. Unless they have a really effective ed advocate.

With an IEP, it becomes much more likely that FAPE is defined by the IEP team, and, yes, what the district has available and cares to offer. See also above statement about ed advocate.

Laurie918, what's going on that's led to your question?I'm guessing your question comes because you're advocating for something and possibly running into opposition somewhere? Is it a situation where you are trying to get appropriately challenging leveled work (possibly ahead of grade level) for a 2e child, or is it a situation where you are having difficulty getting accommodations or remediation in place where needed for a 2e child? Or both? I ask because there are slight nuances in how you can approach each re the idea of "FAPE" when advocating. With accommodations that are not being accepted by the school team, you need to focus the conversation on the disability - show how denying the accommodation doesn't allow your child to demonstrate their full knowledge or access the class' learning etc. If the issue is access to gifted programs, focus the advocacy from a discrimination slant - if your child qualifies based on whatever the program entry requirements are, the school can't keep them out - that's a legal issue that would have them out of compliance with the ADAA. You don't have to have a lawyer to argue that, just let them know you know they can't legally do it. If it's an issue of the school thinking your child shouldn't be given access to appropriate curriculum (possibly above grade level) due to needing remediation in one area etc - I'd try to show examples from your child's work that illustrate that she learns better and remediation *works better* when she is working at the appropriate instructional level for her *cognition* rather than having to work at a lower level due to the restrictions of her disability. An example of this is - my ds has a disability impacting his written expression. He clearly needed remediation for written expression - but the remediation didn't work effectively until the subject material and level of discussion was at his cognitive "grade level". Hope that makes sense!

Best wishes,

polarbear

My state recently revised it's gifted education laws, but before that "appropriate" meant "at age-grade level."

Thanks everyone for the guidance.

Polarbear, I am prepping for our IEP meeting. We have a brand new team this year (prior Spec Ed teacher retired, school psych quit, etc.). We had the additional testing done this summer (previous was done incorrectly) and new psych laid things out on the table. Our school has not been very accommodating but I am, maybe naively, hoping that things will change. Thanks for the specifics. That will be helpful in what I put together for our meeting.

Lillie Felton, right? That's the reference for 2e children that suggests that "appropriate" for such children is a matter of their individual potential, rather than grade-level expectations.


Of course, that is really only about identification of the disabling condition-- it doesn't directly address what an appropriate educational setting is for those children, once identified. There are some references which do, however-- thinking that those are in VA and maybe NC? If memory serves, I mean-- and it's possible that it doesn't. There is one that directly states that a child with a LD can't be excluded from an otherwise appropriate gifted program just for lack of accommodations to allow the student to at achieve his/her potential in that program.

I'm thinking that Pemberley probably knows of several such references. Also-- check over at Wrightslaw. They have a real treasure trove of documentation and references that would probably be quite helpful.

Good luck in your meeting. I totally understand wanting to go in loaded for bear even though you hope that you won't need to use a bit of it.

This has been our experience, but it can backfire on the team if the ringleader doesn't give the orders out soon enough, like before teachers fill out inventories which indicate their concerns. It is very disconcerting/frustrating when teachers admit to concerns X,Y, and Z (or they were the ones that brought things up in the first place!) and then totally turn on you (actually, the child) at a meeting, clearly taking orders. Their jobs and professional relationships are more important to them than any particular kid/family.

You wouldn't believe the ludicrous comments coming out of the mouths of the yes-men/women. They basically argued with everything that I tried to say. One gifted teacher claimed that a lot of gifted kids are bad at writing and it will get better on it's own. Another teacher asked me what good it would do to have a sped teacher work with her, they can do just as well on their own in the classroom. Then the sped teacher piped in and said "Yeah, that's right, if I pull her out it would be in a group of about 6 kids anyway. What good would that do?" Meanwhile the sped director was sitting there silently. I wish I had had a tape recorder.

We had very similar experiences to blackcap when advocating. If you're anticipating the same, I have two pieces of advice:

1) Keep emotion out of your responses, and just keep your statements simple, straightforward, and focused on the facts. Repeat the same statement over and over if you have to until the arguing from the staff over it stops. For example from blackcat's note re the sped teacher who said "what good would that do anyway?" reply with a statement of what the purpose would be, what remediation it would provide, and why it's required by IDEA or ADAA etc. If something denies FAPE, just keep mentioning that. If they then argue what FAPE is, the conversation has moved on and you state what FAPE is and how it's impacted here. That probably sounds too simple, and nope, it won't always work, but it was the approach that was most effective for us, when we were faced with a school team that had clearly been instructed to claim there were no issues and our ds was "fine" and everything was "fine" and no services/accommodations were needed.

2) If past experience has you really concerned re the school trying to argue things that aren't really legal etc, find out what the laws re recording meetings are in your state, and then plan to record it. In some states you'll need to get written permission of all parties, in some states you don't need permission. We never actually recorded a meeting because I didn't want to put in a layer of the school team feeling we were coming in as adversaries (although they clearly were lol). I found that just letting them know we knew what we knew and that we weren't going to fall down and let them drive right over us made it unnecessary to record (although I've since occasionally wished I had a few of the things they said recorded!).

In your situation, with essentially a new school team and new data, I'd go in with optimistic hopes - and then if things don't go well, go from there.

Best wishes,

polarbear

I hesitate to mention this-- but-- in my experience, it may be useful in some situations to bring in a brightly colored file folder in your stack of materials...

just print out a few formal complaint forms, etc. and then hand-letter "OCR" onto the tab of that brightly colored file folder. (If you're in a situation where things are already starting to go south and it's contentious, label it "OCR/Complaint").

If things go south in that meeting, then you can splay your materials just slightly as a sort of very minor threat display...

long about the time you begin using statements like "perhaps YOU need some technical advice from someone OCR on this situation... they were VERY helpful as I was trying to understand this-- would you like that number?"

and

"I'm not sure that is in line with what OCR is thinking here,"

"When I called OCR about this..." also by the way, I very carefully rough out statements which are TRUTHFUL prior to meeting, but those which may imply to school administrators that OCR is much more enthusiastically behind my statements than is, um-- actually so in conversation with them-- they generally aren't super-duper helpful over the phone unless you get very lucky. But if you say to OCR "So, the school told me that X is just fine and I don't think that seems right because Y and Z-- am I reading that correctly on your website?" they may confirm that you're not reading it wrong. Good enough for me, at least in a meeting where I need federal backing. Generally, in phone calls, you'll get confirmation of things like procedural stuff, definitions of terms, etc. I did learn one very critical thing in one of those phone calls once, however-- that even if we as her parents WANTED to, we don't have the RIGHT to waive any of our DD's rights under federal law. We can't agree to an illegal accommodation for that reason. None of us can. Because her rights trump that, and they are hers alone. She can't waive them either, as a minor.

The very fact that you CALLED at all is an incredibly powerful threat display when you're dealing with an unruly room full of yes-men/-women who are behaving like petulant preschoolers, however. Particularly when you say things like, "Oh, I completely understand. Yes, let's DO consult with counsel about this. I think that really would be best."

Then smile wolfishly. It confuses them when you are SUPER confident that their attorney(s) will say the same things that you're telling them already. Remember, if you've done your homework, you KNOW what the law says-- and you're right. Own that.

I also have other meeting tricks-- like making sure that I have everyone's name and title spelled out fully in my own notes-- I make a POINT of it, in fact, and I ask if everyone is signing a signature sheet to document the meeeting-- "can I have a copy of that," that sort of thing.

It makes them very unsettled, generally speaking. Teachers and school staffers, I mean. It's out of their comfort zone, that kind of thing. Attorneys are unfazed by it, generally.

I am trying to find just the right article to describe what went on in Darien, CT a few years ago but haven't been successful. This one should give you an idea of why you are facing this at some of your IEP/504 meetings though:

http://www.darientimes.com/18417/complaint-against-darien-schools-gains-steam/

24 families ended up filing a lawsuit against this one high socio-economic status district when they got their hands on written documentation and PowerPoints training their staff in how to shut parents out of the planning for special Ed students. District staff was ordered to present "a united front" and get prior approval before entering any meeting where expensive items like OOD, 1:1 aides, iPads, etc were to even be considered. It was documented that all decisions were made prior to the meetings and parents were systematically excluded. No - sadly it's not your imagination...

What was effective for my DD and other 2E kids I know who got radical subject acceleration was a clear declarative statement in a neuropsych report that this acceleration was necessary. For my DD, who was crippled by school based anxiety at the time, the neuropsych stated that she *had* to have exposure to high level audio books twice a day. This took the form of "enrichment/anxiety" breaks while in 2nd grade at the public. Once these were in place it was easy for OOD spec Ed school to place her in 8th grade reading comprehension as a 3rd grader when their own testing confirmed the high level comprehension. That moved to 1:1 HS literature for 4th grade. Even though everyone now accepts it as necessary a new clinical director tried to throw a roadblock last spring because she "wasn't comfortable" with a 5th grader being around HS students when I asked about moving her into an actual classroom. Simultaneously, though, a friend's 2E 5th grader who is PG in math was approved to attend 12th grade math in the public HS. She used the same neuropsych who apparently has the magic touch for unlocking these types of things.

And as to to original question about who determines "appropriate"? I think it's supposed to be like the supreme court's definition of "obscenity" - I can't define it but I know it when I see it. I believe it's supposed to be determined on a case-by-case basis by the IEP team. As the case above points out, though, there are some serious issues there. And many people do think "at grade level" qualifies. For a non-disabled kid that's hard to fight against. As difficult as life is for a 2E kid as least the disabilities open up the discussion.

What did the report this summer say?

I can't begin to say thanks enough for all the feedback. You are all so helpful and I am so grateful for your willingness to share your experiences. They will help me be a proper advocate for my twins.

Pemberley, AEH was kind enough to help call out the correct score on the testing we had previously done a couple of years ago, thinking we were walking into testing for a dx of adhd, definitely not gifted. New psych who actually has tons of experience with gifted kids did fresh testing (IQ and achievement, and a boat load of other tests). IQ was even higher (171) but achievement testing confirmed another learning disability (thank you again AEH for mentioning the possibility of LD)so they tested some more and found she has dyslexia. So on top of the vision issues our dev optho and ped opthos confirmed this summer, she also has dyslexia to deal with. She also has a development hand issue which makes her have to use her non-dominant hand for writing (meaning a double whammy for writing). We are so grateful to finally have found the missing pieces but sad because our experience is that the school will focus on only on her disabilities and not that she was already studying cell reproduction and algebra in 4th grade.

Well, I am going to go in there with a positive, team working attitude...but will bring my back up arsenal..just in case. Thank you again for always being so supportive. I am so very grateful!

Laurie, I have the benefit of working with a school that gets 2e at least to a degree, and wants to do the right thing. Even so, it's difficult to get the appropriate education for complex kids. I've gotten a lot done by making very careful use of the prior levels of performance section on each goal.

Mine are both dx with dyslexia and dysgraphia, but with very high reading levels. I ensure that both associated goals include the reading levels and VIQ numbers alongside the lower spelling and writing scores. For each (sub)goal I look to have, I make sure there's a score in the PLoPs that show the potential, paired with a PLoP that shows the deficit. When the proposed goal hits grade level, I then have them rewrite to hit the reading level/VIQ percentile instead. As such, the spelling intervention that DD started in 5th grade had targets for high school level spelling, not grade level spelling. The use of vocabulary and sentence structure, targeted higher TOWL scores than grade level, but instead targeted her actual vocabulary and sentence construction scores.

YMMV, but it's worked famously for us.

I'd be interested in anyone's thoughts about how FAPE and LRE work together. Is LRE just meant to cover mainstreaming/inclusion, or could it also mean access to program/curriculum child would have without disability?

Could the same argument be made for acceleration for OP's very gifted child with several additional Es?

FAPE is primarily about instruction and access to curriculum frameworks.

LRE is primarily about settings, especially separation from the mainstream. This is why there are two primary signature pages on an IEP: one for the main plan (accommodations, goals, service delivery), and one specifically for placement, with the latter where one explicitly (in percentage ranges) defines and consents to the degree of separation from the general education setting.

So, hypothetically, a 2e child's FAPE could involve significant academic acceleration and remediation, but in a substantially-separate environment (very restricted). Among well-meaning districts promoting differentiation as the solution for GT students, the ideological balance prioritizes LRE over FAPE. Idealized GT schools prioritize FAPE over LRE. (Though these are rarely free or public.)

Relevant letter from OCR that specifies what FAPE can be for 2Es:

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-20071226.html