Laws/RegulationDeaf and Hard of Hearing

Chapter 14-15

Perry C. Hanavan, Au.D.

ADA

• Civil rights law to prohibit discrimination solely on the basis of disability in employment, public services, and accommodations.

ADA Qualifications

• Any individual with a disability who: (1) has a physical or mental impairment that substantially limits one or more life activities; or

(2) has a record of such impairment; or

(3) is regarded as having such an impairment.  Further, the person must be qualified for the program, service, or job.

ADA

• ADA protections apply to nonsectarian private schools– not to organization or private schools, or entities controlled by

religious organization;

• ADA provided additional protection in combination with actions under Section 504.  

• Reasonable accommodations are required for eligible students with a disability to perform essential functions of the job.  – This applies to any part of the special education program that may

be community-based and involve job training/placement.

ADA

• One of the services mandated by the law is that a qualified sign language interpreter be provided when a person with a hearing loss has to convey important information to a third party – for example, when communicating with a doctor or

other health care providers.

ADA: Hearing Loss

• "Assembly areas with fixed seating where audible communications are integral to the use of the space must have a permanently installed assistive listening system if they accommodate at least 50 persons, or if they have audio-amplification systems.

• The minimum number of receivers to be provided shall be equal to 4 percent of the total number of seats, but in no case less than two."

ADA: Hearing Loss

• Telephone, TTY, etc. may be required if related to the job description of the employee

ADA – Hearing Loss

• ALDs are required in public schools, courtrooms, state and local legislative hearing rooms and local, state and federal meeting areas. 

• Public facilities such as theaters, hotel conference rooms, museums, convention centers and nursing homes, etc.

Title II of the ADA

• A November 2014 policy guidance from the US Department of Education and US Department of Justice clarified that, under Title II of the ADA, schools are required to ensure that communication for students who are deaf and hard of hearing “are as effective as communication for others” [ADA Title II 28 C.F.R. 35.160

– (a)(1)] through the provision of appropriate aids and services “affording an equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others” [ADA Title II 28 C.F.R. 35.130 (b)(1)(iii)] and

– “to participate in and enjoy the benefits of the district’s services, programs, and activities” (DOJ-DOE p14). These requirements apply to all school-related communications for children ages 3 through high school in public schools, including charter and magnet schools.

Section 504

• Requires any agency, school or institution receiving federal financial assistance to provide persons with disabilities to the greatest extent possible, an opportunity to be fully integrated into the mainstream.

• Placement is in regular classroom with support services to eliminate barriers to the educational experience. (Elementary, secondary, college students)

Section 504

• Defines persons with disabilities who: – have a physical or mental impairment which limits one

or more major life activities

– have a record of such impairment

– or are regarded as having an impairment

Section 504

• Protects all persons with a disability from discrimination in educational setting based solely on disability

504

• Eliminates barriers that would prevent a student from full participation in programs/services offered to the general school population

504

• Requires that schools not discriminate based on student’s disability and must provide appropriate accommodations, but schools receive no additional financial support to provide support services or auxiliary aids.

504 (IEP)

• 504 Plan developed with parents, teachers, school personnel involved (for elementary/secondary students)

Question

Who decides on communication mode for preschool child who is deaf?

A.School

B.State

C.IEP team

D.Parents

E.Child

Question

Placement of child with hearing loss in various school options or regular classroom is determined by:

A.School

B.State

C.IEP team

D.Parents

E.Child

Definition

• A deaf or hard of hearing child is, to some degree, without hearing. And yet the term “disabled” may be a misnomer. That same child is fully capable of developing language—spoken or manual—and becoming a complete person. A communication difference is not the same as communication disability. (Lawrence Siegel, J.D.)

.• Deafness is a sensory difference. It only becomes

a “disability” when the educational system fails the child and family. (Christine Yoshinaga-Itano, Ph.D.)

Do You Know?Who decides the school placement of a

child who is d/hh?

Who decides the communication mode of a child who is d/hh?

Who decides whether the school or parents should pay for the HA or ALDS?

Can the schools require a cochlear implant for a child who is deaf?

Special Considerations

IDEA now requires the IEP teams to address “special considerations” in order to meet the unique communication needs of students who are deaf or hard of hearing.

Abbreviations

• IDEA – Individuals with disabilities education act• FAPE --Free appropriate public education• IEP – Individualized Education Program• LEA --Local Education Agency• LRE -- Least restrictive environment• SEA -- State Education Agency

Participation in Regular Class

Each child's IEP include "An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in [extracurricular and other nonacademic] activities ..." This is consistent with the least restrictive environment (LRE) provisions which include requirements that:

(1) each child with a disability be educated with non-disabled children to the maximum extent appropriate;

(2) each child with a disability be removed from the regular educational environment only when the nature or severity of the child's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily;and

(3) to the maximum extent appropriate to the child's needs, each child with a disability participates with nondisabled children in nonacademic and extracurricular services and activities

Question

Specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability is:

A.IEP

B.Special education

C.Related services

D.IDEA

E.School curriculum

SPECIAL EDUCATION

• The term `special education' means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including--

• (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and

• (B) instruction in physical education.

RELATED SERVICESThe term `related services' means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.

IEP Team

• The IEP team must include at least one of the child's regular education teachers if the child is, or may be, participating in the regular education environment. The extent to which it would be appropriate for regular education teachers to participate in IEP meetings must be decided on a case-by-case basis.

IEP Team(1) The parents of the child;(2) At least one regular education teacher of the child (if the child is, or

may be, participating in the regular education environment);(3) At least one special education teacher of the child, or if appropriate,

at least one special education provider of the child;(4) A representative of the public agency who –

(i) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;(ii) Is knowledgeable about the general curriculum; and(iii) Is knowledgeable about the availability of resources of the public agency;

(5) An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in paragraphs (a)(2) through (6) of this section;

(6) At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

(7) If appropriate, the child.

IDEA Categories• Autism• Deaf-blindness• Deafness• Emotional disturbance • Hearing impairment• Mental retardation• Multiple disabilities• Orthopedic impairments• Other health impairments• Specific learning disabilities• Speech or language impairments• Traumatic brain injury• Visual impairment including blindness

Two (2) Categories

1. Deafness means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child's educational performance.

2. Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child's educational performance but that is not included under the definition of deafness in this section.

The Deaf Students Policy Guidance Report

(OSEP, 1992, p. 49274): The Deaf Students Policy Guidance Report intended to give direction to state and local education agencies on FAPE for students who were deaf or hard of hearing. It called for the consideration of certain factors in the development of an IEP for any student who was deaf, including:1. Communication needs and the child’s and family’s

preferred mode of communication2. Linguistic needs3. Severity of hearing loss and potential for using residual

hearing4. Academic level5. Social, emotional, and cultural needs, including

opportunities for peer interactions and communication

Communication Needs

• Any setting, including a regular classroom, that prevents a child who is deaf from receiving an appropriate education that meets his or her needs, including communication needs, is not the LRE for that child. Placement decisions must be based on the child’s IEP. Thus the consideration of LRE as a part of the placement decision must always be in the context of LRE in which appropriate services can be provided. Any setting which does not meet the communication and related needs of a child who is deaf, and therefore does not allow for the provision of FAPE, cannot be considered the LRE for that child. The provision of FAPE is paramount, and the individual placement determination about LRE is to be considered within the context of FAPE. (p. 49274)

The Deaf Students Policy Guidance Report

Recommended that children’s needs be identified by professionals who are – knowledgeable about the specific factors presented by the

“nature and severity” of their deafness relative to the content and method of delivery of the curriculum.

Subpart C• Consider the communication needs of the

child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode; and

• Consider whether the child requires assistive technology devices and services.

Consideration of Special Factors

1. Language and communication needs

2. Opportunities for direct communication with peers and professionals

3. Academic level

4. Full range of needs

5. Direct instruction in the student’s communication mode or language

Question

Shall schools ensure that assistive technology devices or assistive technology services, are made available to a child with a disability if required?

A.TrueB.False

Assistive Technology(a) Each public agency shall ensure that assistive

technology devices or assistive technology services, or both, as those terms are defined in §§300.5-300.6, are made available to a child with a disability if required as a part of the child's -(1) Special education under §300.26; (2) Related services under §300.24; or (3) Supplementary aids and services under §§300.28 and

300.550(b)(2).

(b) On a case-by-case basis, the use of school-purchased assistive technology devices in a child's home or in other settings is required if the child's IEP team determines that the child needs access to those devices in order to receive FAPE.

HAT• Hearing aids, personal and classroom sound field FM systems,

TTYs, closed-captioned TV sets, alerting devices (flashing alarms) and other assistive technology, and acoustical modifications must be considered by the IEP team.

• The audiologist along with the IEP team should determine which type of assistive listening device, if any, is most appropriate to meet the educational needs of the individual student.

• Parents can provide input into the decision but cannot demand a specific brand or type of equipment.

• When an individual (in this case the family) requests a particular assistive technology device or service, a public entity “must honor the choice, unless it can demonstrate that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental alteration in the service, program . . .(Americans with Disabilities Act, 28 CSR Sec. 35.160 (B) (2))

Question

Does IDEA provide for a child’s cochlear implant if the IEP team deems it important?

A.True

B.False

Question

Does IDEA provide for a child’s hearing aid if the IEP team deems it important?

A.True

B.False

Medical Devices

• IDEA '04 includes a change to the definition of "assistive technology device".  – The Congress added an exception to the existing

definition as follows:  "The term [assistive technology] does not include a medical device that is surgically implanted, or the replacement of such device."  The same exact language was also added as an exception to the "related services" definition. 

• Existing IDEA language already restricts a school's responsibility for "medical" services to only those needed for evaluative and diagnostic purposes.  – Therefore, schools are already free of responsibility for

providing medical devices.  The new language in IDEA '04 adds the force of federal law to existing policy. 

CI & Mapping• If another health care provider can deliver the service/device, it is

not considered "medical" under IDEA.– Since medically implanted devices are specifically excluded from the

definition of assistive technology device, the IEP Team is not required to consider whether the child needs such a device or services related to such a device when the IEP is developed (Sec. 614(d)(3)(B)(v). 

• Programming surgically implanted devices is NOT prohibited in the law so that such services may be the school's responsibility if the IEP Team voluntarily decides that these services are needed for a child's free and appropriate public education. – Audiology continues to be a related service and as a result, cochlear implant

mapping done by an audiologist could still be provided under IDEA.• Medically implanted devices are excluded from the definition but,

Sec.  614(d)(3)(B)(v) requires that every IEP team consider whether a child requires assistive technology and states that each public agency must provide the necessary technology if necessary as part of the child's special education.  – Additionally, funds may be used to improve the use and support of

technology in the classroom to "maximize accessibility to general education curriculum for children with disabilities" (Sec. 611 (e)(2)(C)(iv) & (v)).

Considerations

• If the child is deaf or hard of hearing, the IEP team must consider the student’s language and communication needs

• This includes the child’s opportunities to communicate directly with classmates and school staff in his or her usual method of communication (e.g., sign language)

Sign Language Considerations

• The IEP team must make an individualized determination regarding – (1) how the child will be involved and progress in the general

curriculum and what needs that result from the child's disability must be met to facilitate that participation;

– (2) whether the child has any other educational needs resulting from his or her disability that also must be met; and

– (3) what special education and other services and supports must be described in the child's IEP to address both sets of needs (consistent with §300.347(a)).

Sign Language Considerations

• If the IEP team determines that in order for a child who is deaf to participate in the general curriculum he or she needs sign language and materials which reflect his or her language development– those needs (relating to the child's participation in the general

curriculum) must be addressed in the child's IEP. – In addition, if the team determines that the child also needs

to expand his or her vocabulary in sign language that service must also be addressed in the applicable components of the child's IEP.

– The IEP team may also wish to consider whether there is a need for members of the child’s family to receive training in sign language in order for the child to receive FAPE.

Sign Language Considerations

• (e) Use of interpreters or other action, as appropriate. The public agency shall take whatever action is necessary to ensure that the parent understands the proceedings at the IEP meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English.

Sign Language Considerations

• The IEP team may also wish to consider whether there is a need for members of the child’s family to receive training in sign language in order for the child to receive FAPE.

Subpart C

Each public agency shall ensure that the hearing aids worn in school by children with hearing impairments, including deafness, are functioning properly.– That report referred to a study done at that

time that showed that up to one-third of the hearing aids for public school children were malfunctioning; and the report stated that the [Department] must ensure that hearing impaired school children are receiving adequate professional assessment, follow-up, and services.

Hearing Aids

Hearing Aids

Hearing Aids

Hearing Aids

Subpart E

The public agency shall make reasonable efforts to ensure that the parents understand, and are able to participate in, any group discussions relating to the educational placement of their child, including arranging for an interpreter for parents with deafness, or whose native language is other than English.

(c) Native language. (1) The notice must be--

(i) Written in language understandable to the general public; and

(ii) Provided in the native language of the parents, unless it is clearly not feasible to do so.

(2) If the native language or other mode of communication of the parent is not a written language, the public agency, or designated service provider, shall take steps to ensure that-- (i) The notice is translated orally or by other means to the

parent in the parent's native language or other mode of communication;

(ii) The parent understands the notice; and (iii) There is written evidence that the requirements of this

paragraph have been met. (3) If a parent is deaf or blind, or has no written

language, the mode of communication must be that normally used by the parent (such as sign language, braille, or oral communication).

IEP Team Members

IEP Must Include:

(1) A statement of the child's present levels of educational performance, including -

(i) How the child's disability affects the child's involvement and progress in the general curriculum (i.e., the same curriculum as for nondisabled children); or(ii) For preschool children, as appropriate, how the disability affects the child's participation in appropriate activities;

IEP includes(2) A statement of measurable annual goals,

including benchmarks or short-term objectives, related to -

(i) Meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum (i.e., the same curriculum as for nondisabled children), or for preschool children, as appropriate, to participate in appropriate activities; and(ii) Meeting each of the child's other educational needs that result from the child's disability;

IEP includes:

(3) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child—

(i) To advance appropriately toward attaining the annual goals;(ii) To be involved and progress in the general curriculum in accordance with paragraph (a)(1) of this section and to participate in extracurricular and other nonacademic activities; and(iii) To be educated and participate with other children with disabilities and nondisabled children in the activities described in this section;

IEP includes

(4) An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in paragraph (a)(3) of this section;

IEP includes:(5)

(i) A statement of any individual modifications in the administration of State or district-wide assessments of student achievement that are needed in order for the child to participate in the assessment; and (ii) If the IEP team determines that the child will not participate in a particular State or district-wide assessment of student achievement (or part of an assessment), a statement of -

(A) Why that assessment is not appropriate for the child; and

(B) How the child will be assessed;

IEP includes

(6) The projected date for the beginning of the services and modifications described in paragraph (a)(3) of this section, and the anticipated frequency, location, and duration of those services and modifications; and

IEP includes:(7) A statement of -

(i) How the child's progress toward the annual goals described in paragraph (a)(2) of this section will be measured; and(ii) How the child's parents will be regularly informed (through such means as periodic report cards), at least as often as parents are informed of their nondisabled children's progress, of -

(A) Their child's progress toward the annual goals; and

(B) The extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year.

Comparison IDEA, ADA, 504

Comparison

Online Resources

• Hands and Voices• Beginnings• NCHAM• Opening Doors: Technology and Communication

Options for Children with Hearing Loss• Raising Deaf Kids

Writing AR Objectives

• Handout (Word doc)

8 am Appointment

• Child was referred by a kindergarten teacher who has concerns about the child’s performance. You discover a hearing loss is likely. – According to the Omaha evaluation protocol, in

addition to the hearing evaluations, what other evaluations should be conducted?

– Would these evaluations be appropriate to meet the requirements of IDEA and preparing for the IEP?

9 am Appointment

• A kindergarten child completed Omaha protocol, had a bilateral moderately severe sensorineural hearing loss with no other disabilities and has been fit with binaural ITE hearing aids with telecoil and FM as a part of the IEP.– List 3 auditory analytic objectives– List 3 auditory synthetic objectives– List 3 synthetic and analytic lipreading objectives– List 3 Hearing aid objectives– List how the hearing aids will be monitored according

to IDEA to ensure they are performing appropriately– Case Study Example

10 am Appointment

• Kindergarten child was implanted with CI one year ago.– List 3 auditory analytic objectives– List 3 auditory synthetic objectives– List 3 synthetic and analytic lipreading

objectives– List 3 Hearing aid objectives– List how the hearing aids will be monitored

according to IDEA to ensure they are performing appropriately

11 AM Appointment

Jimi Hendrix is a 7 year old child in 2nd grade. He has a minimal to mild loss, but does not qualify for services under IDEA.

What recommendations would you make under Section 504 for his IEP?

(Review the Section 504 Individualized Plan handout)

Auditory & Speech Goals (IEP)• Student will improve vowel discrimination and identification at 70%

accuracy as measured by teacher made tests. • Student will discriminate and identify consonants and consonant

blends in the initial and final position of words at 70% accuracy as measured by teacher made tests.

• Student will do the above two skills in the presence of medium to loud background noise at 70% accuracy as measured by teacher made tests.

• Student will demonstrate measurable progress toward the acquisition of developmentally appropriate vocabulary and related concepts.

• Student will define target words chosen from specific vocabulary categories.

• Student will use target words in a sentence. • Student will demonstrate developmentally appropriate conversation as

needed for personal/social control. • The student will demonstrate developmentally appropriate auditory

discrimination, sequential memory, and/or recall. • The student will demonstrate measurable progress towards the

acquisition of developmentally appropriate phonological processes: articulation of phonemes.