Finally, Some Good News for Gifted and Disabled!

Boy Reading on GrassOne of the most challenging and infuriating areas in which I practice is advocating for the gifted and disabled (called “twice exceptional”) these days.  I feel particularly passionately about these cases because I fall into the category of twice exceptional (I suffer from multiple learning disabilities) and when I was a student in public school, I was left back in second grade and misdiagnosed as cognitively “slow.”

I am continually arguing to the school districts in South Florida that a gifted student should not be denied special education and related services soley because they are capable of performing at or above grade level.  I understand that the denial of special ed. services to the gifted is a national problem and not just limited to Florida.

Well, now for the good news! On December 26, 2007 the U.S. Department of Education’s Office of Civil Rights (OCR) issued a “Dear Colleague” letter to all public school districts in the country stating that students with disabilities who otherwise qualify for enrollment cannot be denied admission to challenging academic programs, such as Advanced Placement and International Baccalaureate classes.   Some school districts nationwide have made it a practice to deny students with disabilities admission to accelerated programs (even though they are cognitively capable of doing the work) or conditioning their admission to these programs on giving up their special education services.

For a variety of reasons, I see that problem less often than the situation where a gifted or high-achieving student is denied special education services because they are capable of performing at or above grade level despite their disability.  The OCR letter addresses that situation only indirectly, but I think there is language in the letter which could be helpful for a student who is being denied services.

Here is how the letter may be helpful to you in advocating for your twice exceptional child.  The OCR states the following:

a)  “Discrimination prohibited by these laws [Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act] includes, on the basis of disability, denying a qualified individual with a disability the opportunity to participate in or benefit from the recipient’s aids, benefits or services, and affording a qualified individual with a disability with an opportunity to participate in or benefit from the aid, benefit or service [i.e., the accelerated program] in a manner that is not equal to that offered to individuals without disabilities.”

b)”A public entity also may not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program or activity, unless such criteria can be shown to be necessary for the provision of the service, program or activity being offered.”

c) “Section 504 and Title II require that qualified students with disabilities be given the same opportunities to compete for and benefit from accelerated programs and classes as are given to students without disabilities. ”

In my opinion, one implicit interpretation of the OCR letter is: If your child is qualified to be in an accelerated program but their disability prevents them from competing fairly in that program, your child is entitled to receive special education and related services in that program (in the form of a 504 plan or IEP).

I know this is a complicated area and please feel free to email me at or call my office at 305-663 9233 if you have any questions.  Knock them dead in your next school meeting.  🙂


See our flyer here for more information on how high-achievers can get accommodations on standardized tests.


16 Replies to “Finally, Some Good News for Gifted and Disabled!”

  1. Janine C. Heizler

    I have read both of the current dilemmas. One, the plight of the gifted “learning disabled” child, and the other, learning disabled with behavioral “symptoms” of their disorders.

    First of all, the public school system in this country (in my opinion) is a place for children that can be made to fit into the “mold”. Learning disabled children, with mild symptoms of their disorder, can generally fair well with some modifications. Other learning disabled children, the ones that exhibit “behavior” issues, should be more closely examined by a highly qualified neuropsychologist. A majority of children diagnosed with ADD or ADHD, (approx 60% according to statistics) have some other comorbit disorder. In my opinion, the ones that have behavior issues, may need to be placed in a private school settings with highly specialized instructors. Some of these children may require other types of interventions which are not available from the public school. Teachers that have BA degrees in education, even ones with special ed training, are not qualified to employ the use of behavioral techniques in trying to change these types of childrens symptoms. And that is exactly what they are, they are symptoms. They are not purposely being “bad”. How are these children going to find their way in the world, if they aren’t given the proper training to be successful? With the over crowding of public schools, and large class sizes, these children can’t get the type of help that they need. Wasn’t that the whole point of creating IDEA…… because the United States government found that they were spending “X” amount of dollars, supporting all of these adults that were invloved in social services programs, becuase they couldn’t care for themselves?
    As for the “gifted” student that is learning disabled, and denied access to programs; that’s just deplorable! Could be that some of these public schools would not like to see one of their “learning disabled” students take the prize or limelight, from their star pupil. All these children still have a terrible stigma attached to them. They’re “slow”, “retarded”, “stupid”, “weird” or “corny”. I remember when I was a high school student, how most of the kids treated the children that were in special ed classes. I never liked it. I always talked to them, and found them to be very nice, and intelligent. That was in the 80’s. Things still have’t changed.
    The laws have been written. It doesn’t say that it has to be the Best available, but it does say that it has to be appropriate for the individual “case”.

  2. clb

    Your blog looks wonderful. This is my first time on your site. Thank YOU. Your passion shows through. Best of Luck to your blog and all those he might benefit from it.

    With regards to your subject…it was a strange and difficult task of getting my very bright son placed in regular ed with accomodations. Amazing…I had no idea that in this day and age this would be so difficult. He has such a desire to learn and has an above avg IQ and since he begged to placed in regular ed and we felt he was due time we requested it. Not imagining it would be a difficult request. We did succeed but not easily. He is thriving and loves it. They tried so hard to refuse which makes it all the more sad this still difficult to achieve. We have so much to achieve as families with children with disabilies.
    So glad their are those like yourself.. that are there to help with the journey. Again …many thanks…GOOD LUCK!

  3. SS

    Great article! My son Bradley has a similar situation at school. Although his IQ score alone doesn’t qualify him for gifted level instruction, his total academic achievement score puts him in the 99.7 percentile, despite his difficulties associated with ADHD. Unfortunately, what many educators don’t realize is that attention deficits and impulsivity can depress the IQ scores that schools rely on to identify giftedness. Concurrently, high ability can mask ADHD symptoms and the child’s disability is often overlooked.

    Bradley is working above grade level in academic areas, but has difficulty following directions and staying on task, rushing through his work making lots of careless errors, not completing assignments, forgetfulness, and other executive function deficits. All of these symptoms impact his school performance and baffle his teachers. They don’t understand why this high-achiever is having such difficulty with seemingly simple tasks. His performance is variable from day to day, and although medication helps with many of the symptoms, it’s not 100%.

    We were finally able to get Bradley on a 504 plan a few weeks ago. Now the challenge will be to provide an intellectually stimulating environment at school which will allow him to advance academically, while implementing the appropriate interventions and accommodations in the classroom to address his underlying deficits in executive function. Thanks to school advocates like you, our children are getting the kind of representation and support our 2E kids need. Best of luck in your endeavors and keep up the good work!

  4. Pat Hoeg

    I am glad to learn that some parents have been successful in obtaining 504 plans for their ADHD and gifted children. Could you please explain how you were able to get 504 plans for your gifted ADHD children? My daughter was recently diagnosed with ADHD, Inattentive Type and is very bright. She works very slowly and also has graphomotor (handwriting) issues. The school has refused to give her a 504 plan “because compared to the average child, her grades are too good.” Any help would be much appreciated! Thank you!

  5. Sibyl V.

    Hi Paty,
    A very ingenious OT I work with, developed an “Occupational Therapy referral checklist”. It as a sheet for the teachers to check off from, which includes a long list of concerns or issues she sees in a child, i.e. “awkward grasp of pencil”, “overly active”, “disorganized”, “disruptive”, etc.
    The OT originally used the checklist to get an idea of the problems a child faces in class, further test those areas, and then develop a therapy program to address such issues.
    However, after many frustrating school meetings, she decided to bring this checklist to the meetings, previously filled and signed by the child’s teacher of course, and use it as proof that the child actually faces “barriers to learning”. She says that after shcowing the checklist, the school invariably starts giving services to her patients.
    I hope this helps.

  6. Adam S.

    Good Morning,

    I am a special educator and came across an old entry of yours regarding a ‘Dear Collegue’ issued in 2007 that attempts to clarify the involvment of SPED students in more advanced curriclums such as AP and IB.

    You highlight some important passages in the letter, but one word keeps sticking in my brain again and again–“qualified individual”. The term is used much but defined not at all.

    Specifically, the challenge facing many schools is how to include students with Autism in these higher level classes (such as IB) as their disability often impedes their ability to produce an adequate amount of work in an adequate amount of time to be prepared for the IB exams…

    …so, what makes a student ‘qualified’? Is it an IQ score? Scores on standarized tests? Grades? Given that there is no barrier into IB classes where I work, we sometimes find ourselves reluctantly allowing a student into such a program despite our professional opnions that the class(es) will be too demanding for the student thus setting them up for failure.

    I realize this is all an opinion-laced topic, but I wanted to get your input as you seem to be initimately involved with these tricky challenges.


    • AllisonHertogAllisonHertog Post author


      This is a great question, and as you probably guessed, there’s no black and white answer. As I see it, a “qualified” individual in this case is someone who was able to meet the entry requirements of the IB program. Of course, some kids who get into an IB program met the criteria for admission with the assistance of accommodations, such as extended time. In your case, if there are no entry requirements, which I believe is unusual, then no one (disabled or not) is “qualified.” Perhaps you want to review that internal issue and set “qualifications” for entry.

      Disabled students in your program who need and are entitled to extended time under the Americans with Disabilities Act (which was amended to clearly include high-functioning disabled individuals in 2009), are entitled to get extended time when completing classwork and exams in your program. However, if your program legitimately gives the disabled students all the accommodations to which they are entitled under the law and they don’t meet the criteria to stay in your program, assuming you have criteria to remain in the program, then your program is allowed to dismiss them just as they would any non-disabled student who wasn’t making the cut.

      Hope this helps. It’s a complicated issue, which is difficult to discuss without referring to the specific facts of an individual student.

      Best Regards,

      Allison Hertog

  7. Alicia

    I have a 14 year old daughter diagnosed with ADHD/ADD combined at the age of 8 with an IQ of 135 who is about to be kicked out of private Catholic High School because she has had one too many emotional outbursts (melt downs) usually caused by a teacher giving her a 0 on a test or project due to her inability to be organized (forgot to hand in project on time or forgot ipad at home or brought home wrong ipad and could not study night before exam).

    We recieved the official letter about a week ago requiring us to get a very expensive psycho-educational evaluation for extra time on testing, proof from a Phsychaitrist that her Vyvanse and Aderall medication is the right treatment for her (10 seperate doctors from Pediatric Associates agree that she combined ADHD/ADD, plus we need to show proof that she is in therapy all by August 1st.

    Her last melt-down was a big one and there were extenuating circumstances that lead to her handing in a project late, that were not considered, leading her to get an F in a class that she was able to get a B in.

    We had her enrolled in a public gifted elemenatary school Kindergarten through 5th grade whcih she was able to get honor roll in almost every quarter. She had a perfect attendence record the entire time she was there, some goes for middle school/ She had always been an inattentive, hyper child but she never hurt anyone intentionally. She has had problems relating to children her age and has trouble making friends. She gets teased almost every day. She is 14 years old, weighs 92 pounds dripping wet and is about 4’11” so she is not only emotionally behind, she is also developmentally behind. She is a competetive gymnast, a figure skater, a dancer and member of the elite dance squad in high school, plays trumpet, was understudy for the lead in Drama this year and quite an avid chess player. She is involved in a lot of extra-curricular activities as she has a lot of interests. Exercise really helps her concentrate so it’s like therapy for her.

    We tried to get her an IEP or a 504 plan going into middle school but was denied because she was not only in the gifted program, and doing well enough, but she wasn’t “bad” enough. I guess the two in school suspensions had gotten wiped from her record and they had selective memory at the meeting in which they decided that there was nothing wrong with her and she didn’t need extra accomodations.

    As it turns out she has basically no organizational skills, has compulsive behavoir, perhaps OCD, has difficulty when the teacher gives questions verbally and asks the class to write down what has been said and answer the question, is failing French but gets top in her class in science and Geometry and gets A’s in all subjects other than English and French.

    We have had to sell our retirement 401 k’s to keep her in private school through middle and one year of high school. I am about to sell the rest of my assets to keep her in private school, and that’s only if she is allowed back, just to keep her safe. We did not qualify for financial aid yet tuition is over 25% of our take-home salaries. We could not get a Makay scholorship because they would not give her an IEP or 504 plan while she was at public school, but they certainly were able to suspend her for bad behaviour – often having other children round up and testified against her for something she did while other children who did the same thing or worse, got away with it because they were more liked.

    She has low self-steem because of her public school experience. The best thing we ever did was to enroll her in the inner city Catholic Middle school which was tiny but a great atmosphere for her. We are almost out of money and will have to enroll her at Lake Worth High School. We fear what will happen to her there. Can you please give us some advice as to what we should do? Should we hire an attorney with what little money we have left and pray that we get some kind of special assistance for our daughter?

    She is so bright. She wants to be a forensic anthropologist, work for the FBI or CIA and has so many dreams but she just can’t seem to get the simple things done to achieve those dreams.

    Looking forward to your input.


    • AllisonHertogAllisonHertog Post author

      Dear Alicia,

      This is a very complicated situation as you know. You first need to get your daughter the help she needs. She sounds like she may have an additional diagnosis causing significant behavior problems. You need to locate an excellent psychiatrist who can recommend the right help so that she can function to her potential whatever school she’s in. Second, you need to find a private school which will accept her – no small fest when a student has behavior problems. That’s why I recommend treatment first. If you need to place her in public school, at that time you may need an advocate or attorney to get her a 504 Plan or IEP.

      Best regards,

      Allison Hertog

      • Alicia

        I removed her in public school because she was teased and injured by other children more than once. One child tied her belt around her wrist and pushed her from the jungle gym on the playground in the aftercare program and we had to rush her to the hospital. What if it had been tied around her neck? Obviously, high school has its own issues and the last thing I want is having her abused in anyway. How do we get financial assistance if we are afraid of putting her back in public school?

        • AllisonHertogAllisonHertog Post author


          I don’t know of any scholarships to K-12 private schools other than the McKay Scholarship based on disability and the Step Up For Students Scholarship based on income status. Google Step Up For Students. But get your daughter help please or she may continue to have problems in school.


          • Anonymous

            We have set up appointments for all areas of concern and will have her evaluated next month but we have to pay out of pocket for everything. She was seeing a school counselor during the past year plus she was seeing her doctor quarterly. The public school system is not an option for her unless they can provide an IEP which they denied her in 5th grade because they saw no problems which was an obvious oversight. Do we have to enroll her in public school to get a McKay scholarship?

    • Anonymous

      I want to share with you that we had almost an identical experience as you. I feel your pain frustration and fears!
      My son went through those same issues caused by his ADHD and other similar set backs.
      Public school works fine for a lot of people, but if you don’t fit into that category and aren’t able to conform yourself, it doesn’t work for you! And with my son he became a huge target with bullies and such. On top of the ADHD/ADD and what comes with all that, he had an abusive teacher in the 4th grade, verbally & emotionally abusive. Upon discovering this fact we were also dealing with our sons ADHD. Hes extremely gifted and bright, he was in a program for gifted and talented, but his ADHD makes it almost impossible for him to control himself and to get tasks completed.
      We were at such a loss with what to do, he was failing and began to beg us not to go to school. He was “sick” all the time, anything to get out of school.
      His abusive teacher got other children to tease him and put my son on display for his behaviors that were associated with ADD/ADHD.
      The school recognized his intelligence and that he was gifted so when his problems began to get him into trouble they blamed it all on behavior. We had him seen by doctors as well as the schools physiologist and behavior specialists. They agreed he may have ADHD but didn’t think the section 504 plan would help. They suggested he simply express better behavior. WHAT???
      His abusive teacher that worsened this by a million, was let go and placed on early retirement. We found out that apparently the principal as well as faculty had been aware of that teachers past abuse and they had done nothing. He was so verbally abusive he would have 4th grade boys urinating themselves. He would place my son in front of class and call him names, and encourage other kids to make fun of him….etc.he did so many disgusting outrageous cruel acts. He didn’t care about my son, and the school only seemed to care about covering it all up. No one cared about what effects it all had on my son and all the other children effected by his abuse.
      however due to this terrible teacher, he refused to let us on the 504 plan we needed. I didn’t know our legal rights or what to do. But now that we have put my son in private school and hes doing wonderfully, we cant afford tuition, and because we never had the 504 plan we don’t qualify for financial help under the disabled/displaced act even though we actually should! Its hard on a short paragraph to describe our experience. For those who have had a child or children who’ve had to endure the suffering of going through this ordeal understand!!
      My son was suicidal, he hated life. He would come home from school in tears, begging me to help him. He asked me why he was born, why he had to be here. He told me once that he wished he could go back to being a baby forever and just be safe again. He was teased, bullied and ridiculed for being “different”. And now that hes happy and just being a kid, its all going to get taken from him because we don’t have enough money!
      we don’t know what to do, he won’t survive public school. As his mother I’m supposed to protect him, but I cant.
      If anyone knows what we can do, or has any advice it would be very appreciated!
      we have applied with the school for state assistance but it only covers a small amount. His school now promotes a peaceful environment, they are wonderful and loving.
      what can we do, I wish I had taken legal action against that teacher….Because of his abuse and refusal to help us we are forever set back


Leave a Reply

Your email address will not be published. Required fields are marked *