Deafness and Hearing Loss

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Click on Sped Resources/Deafness and Hearing Loss

Introduction:

For a  parent friendly Center for Parent and Information and Resources pamphlet, click here on Deafness and Hearing Loss .   Click here to access additional on-line resources on our Sped Resources/Deafness and Hearing Loss page.

NASP’s Position Paper can be accessed by clicking on  ServingStudentsWhoAreDeaf

For practitioners seeking accommodation advice, see Considering the Needs of Students who are Deaf or Hard of Hearing.

In general, students have a right to be educated in the least restrictive environment from which they can obtain a free appropriate (not necessarily ideal) public education.   The principles when applied to children who are deaf, however, become more complicated in application.   The notion that “deaf is different” is not a new one, and the fundamental underlying principle when applied to deaf students is that if their communication needs are not being met, then the “least restrictive environment” may not be really not least restrictive for them.   The latest OSEP letter we have on the subject was sent in 2011 when its long-standing principles, previously published by OSEP, are reinforced.  For a more detailed explanation of OSEP’s position, see the 2011 Letter to Stern (below).

Office for Civil Rights (OCR)

Complaints about services to the deaf are often filed directly with the Office for Civil Rights based on an allegation of discrimination under the Americans with Disabilities Act and Section 504.  (OCR, when conducting an investigation, does so under the authority of both acts.)    A major advantage to parents for filing under the ADA/504 is that by doing so, they gain direct access to the federal bureaucracy.  Complaints to OCR can even be initiated on-line, without so much as buying a postage stamp.  From October 1, 2013 to present (February 6, 2016), OCR had reached 21o resolution agreements with elementary and secondary schools regarding alleged Title II (discrimination based on disability) complaints alone.  Three of those involved children in elementary and secondary schools who were deaf or hearing impaired.

Seattle School District, August 25, 2015.   Specifically, it is alleged that the district:  discriminated against the student by requiring him to use a regular telephone with assistance;  discriminated against the student by failing to act on his parent’s request for an evaluation of the student’s need for assistive technology to access his education; and  retaliated against the student because of his parent’s advocacy for his disability-related needs by failing to act on his parent’s request for an evaluation of the student’s need for assistive technology to access his education.  The distict sought a voluntary resolution to the first issue.  OCR found sufficient evidence to establish that when the district failed to conduct the ATE between June and December 2012, the district failed to provide the student a free appropriate public education during the 2012-2013 school year, and concluded that the district violated the Section 504 regulations at 34 CFR 104.33 and 104.35 and thereby discriminated against him in violation of the Title II regulation at 28 CFR 35.130(a) with respect to issue No. 2.   OCR found no evidence of retaliation.

Dibble Public Schools, Letter to Redacted, October 2, 2014. Specifically, the Complainant alleged the District discriminated against his son on the basis of disability by: 1. failing to conduct a manifestation determination prior to a significant change in placement when his son was suspended from school in April 2014; 2. by disciplining him more harshly than students without disabilities for incidents occurring on February 19, February 24, and April 1, 2014; and 3. failing to provide him regular or special education and related aids and services designed to meet his individual educational needs, resulting in the denial of a free appropriate public education.  The letter went on to say with respect to allegations 1 and 3, The Agreement requires the District to: send a letter to the Complainant stating that within five days of receiving the Complainant’s consent to evaluate, the District will begin an evaluation of the Student to determine his eligibility to receive regular or special education and/or related aids and services pursuant the Individuals with Disabilities Education Act (IDEA) or Section 504, with the evaluation to include a functional behavior assessment (FBA) for use in developing an effective positive behavioral intervention plan (PBIP) for the Student; convene a team of persons knowledgeable about the Student to determine whether the Student’s actions on April 1, 2014, were caused by or had a direct and substantial relationship to the Student’s disability, and depending on that determination, determine whether the Student is entitled to educational services for any educational loss the Student suffered from April 1, 2014, through the end of the 2013-14 school year; draft and publish a notice of nondiscrimination in accordance with the implementing regulations of Section 504, Title II, the Age Discrimination Act of 1975 (Age Act), and Title IX of the Education Amendments Act of 1972 (Title IX) and a complaint and/or grievance procedure to provide for prompt and equitable resolution of complaints alleging discrimination, harassment, and retaliation on the bases of race, color, national origin, disability, sex, and age.   With respect to the second allegation, OCR found no evidence of disciplinary discrimination . . . but required the district to provide a very detailed report on which to base that finding.

Columbia #93, Letter to Redacted, October 17, 2014,  Specifically, the complainant alleged the District discriminated against her son by: 1. failing to provide her son, a student with a disability (XXXXX XXXXX XXXXX), a free appropriate public education (FAPE) by failing to evaluate him and provide him regular or special education and related aids and services designed to meet his individual educational needs; and 2. retaliating against her son after she advocated on his behalf as a student with a disability when it: a. failed to address peer bullying during the 2013-14 school year; and b. disciplined him for an incident which occurred on XXXXX XXXXX, 2014.   With respect to the first allegation, The Agreement requires the District to: 1) notify the Complainant that if her son is reenrolled in the District, the District will initiate an evaluation to determine eligibility to receive special education or related services; and 2) develop, adopt, disseminate, train staff and implement a procedure (mitigation procedure) for identifying and evaluating students who currently have a physical condition which is addressed by an individualized health care plan or other mitigating measures to determine eligibility for special education or related services.  As in the letter above, OCR required the district to provide a ton of data before concluding that that the evidence did not support the claim of retaliation.

The guidance  from OCR on Deaf Students Education Services:  Policy Guidance is therefore entitled to a considerable amount of  deference in developing a program for a deaf child.

Case law

There have been numerous court case regarding services to children who are deaf or hard or hearing, only a few of which are listed below.

One of the very first landmark cases from the Supreme Court regarding the 1975 Public Law 94-142, Board of Ed. v. Rowley, 1982, was whether or not an education from which a very bright child was deaf was only achieving at an average level provided her with a free appropriate public education as envisioned by Congress.  A more thorough discussion of that case be found on our Landmark Case page by clicking on Board of Ed. v Rowley, US Supreme Court, 1982.

K.M. v. Tustin School District, Ninth Circuit, 2013   While in 99 percent of all cases compliance with the IDEA will also mean compliance with the ADA/504, the general rule does not hold in all cases.  This was one of those cases where the rule did not hold, because the Ninth held that the ADA imposed a higher burden on school systems to provide their students who were deaf with equal communications access.    The 34 page decision said in  part, First, the factors that the public entity must consider in deciding what accommodations to provide deaf or hard-ofhearing children are different. The key variables in the IDEA framework are the child’s “needs” and “opportunities.” When developing a deaf or hard-of-hearing child’s IEP for IDEA purposes, the IEP team is required to consider, among other factors, “the child’s language and communication needs,” “opportunities for direct communications with peers and professional personnel in the child’s language and communicationmode,” and “whether the child needs assistive technology devices and services.” 20 F.S.C. § 1414(d)(3)(B)(iv)&(v) (emphases added). Under the ADA effective communications regulation, a public entity is also required to “furnish appropriate auxiliary aids and services where necessary.” 28 C.F.R. § 35.160(b)(1) (emphasis added). But the ADA adds another variable: In determining how it will meet the child’s needs, the ADA regulations require that the public entity “give primary consideration to the requests of the individual with disabilities.”

(Note:  The case was appealed to the Supreme Court and declined on March 3, 2014.)

As a result of this decision, discussed on this website in slightly more depth under Guy’s Log for March 11, 2015, the Office for Civil Rights/ED and the Justice Department issued a Joint Memorandum detailing the differences and their implications for practitioners.  The matter may not be completely settled outside of the Ninth Circuit, as the National School Boards Association issued a Dear Colleague Letter response on March 5, 2015, also reported here in Guy’s Log on March 11.  That response said in part

It is our hope that through NSBA’s comments here, the Departments recognize and address some unintended legal and practical challenges arising from the DCL. First, the DCL puts forward an expansive view of the law when it states that all school districts must apply both an IDEA and a Title II effective communications analysis in determining how to meet the communication needs of IDEA eligible students with hearing, vision, and speech disabilities. Second, the DCL may dismantle the entire IEP process if the Departments do not clarify the issues with regard to the impact that the analysis of the Title II effective communications standard will have on that process. Finally, school districts need clear criteria regarding what kind of situations constitute a fundamental alteration in a program, service or activity, and/or constitute an undue administrative and financial burden sufficient to prevent them from having to provide a specific requested auxiliary aid or service.

What the National School Boards requested in terms of clarification has not to our knowledge come to pass; further court action appears inevitable.

OSEP Letters

Letter to Stern, September 30, 2011.  The Council of Educational Administrators of Schools and Programs  for the Deaf said they were ” concerned that the data reporting requirements for Indicators B5, B6 and C2 of the State Performance Plans and Annual Performance Reports (SPPs/APRs) submitted under Parts B and C of the Individuals with Disabilities Education Act (IDEA) operate as a mandate to increase the number of students in the “regular class” and “natural environment” regardless of whether that setting is appropriate for each child.”  In the six and a half pages that follow, OSEP says that the targets are not mandates and that ” there is no requirement, for example, that a State place a certain percentage of children in one educational environment as opposed to another, nor is there a specific regulatory requirement specifying a State’s SPP/APR target for the percentage of children in the regular classroom environment. Note also that in establishing targets for Part B Indicators 5 and 6 and for Part C Indicator 2, States set targets for the State as a whole based on the needs of all infants and toddlers and children with disabilities in the State, not only for infants and toddlers and children who are deaf.”

Letter to Bosso, August 8, 2010.  In this letter, the Council of Educational Administrators of Schools and Programs for the Deaf ” expressed concern with the comments regarding the education of students with disabilities in specialized educational settings under the Individuals with Disabilities Education Act (IDEA). Additionally, you provided information regarding the problem of unqualified sign language interpreters in general education settings and the benefits of schools for the deaf.”  OSEP’s response, in part, was “While speaking at the CEC conference, the Secretary noted that the vast majority of students with disabilities attend a neighborhood school. He also stated that students should not be sent to a separate school solely because they have a disability. The Department understands that for some students with hearing impairments a specialized school placement may be the appropriate way to address the child’s language and communication needs as identified in the IEP. However, for other students with disabilities, attending their home school with appropriate supports, including qualified related services personnel, would be the appropriate placement.”

Letter to Congressman Hinchey, August 30, 2004.   The Congressman was concerned about the department’s decision ” disallow funding for the captioning or video description of nearly 200 television programs.”  OSEP replied that “The Department determined that the most consistent way to implement the law is to support captioning and video description only for programming that clearly fits within the “educational, informational, and news” categories. ”  The letter goes on to describe the criteria that were applied and to reinstate several programs it had previously disallowed.

Letter to Redacted, June 30, 2003.  The writer had ” concern that your children and other students who are deaf or hard of hearing in the State of California are not being assessed to determine their proficiency and progress in American Sign Language (ASL). Neither the Individuals with Disabilities Education Act (IDEA) nor its implementing regulations at 34 CFR Part 300 have specific requirements regarding the assessment of ASL skills or proficiency.”  However, OSEP went on to write, “Section 300.346 requires that the communication needs of a child who is deaf or hard of hearing be considered in the development, review, and revision of the child’s IEP. Specifically, §300.346(a)(2)(iv) states that the IEP team must 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…” The IEP team may develop measurable annual goals, including short-term objectives or benchmarks in a particular student’s IEP to assess that student’s ability and proficiency in ASL. Further, the IEP team may specify in the IEP that certain assessment methods, such as teachermade tests and observational assessments, be used to assess the student’s proficiency in ASL.”