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All Things Considered

Serving Students with Hearing Impairments

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What We’ll Cover . . . Legal Standards for Eligibility FAPE Requirements as Applied to Students with

Hearing Impairments Rowley and Additional Statutory Protections Consideration of Student’s and Parent’s Preferred

Communication Mode Provision of Assistive Technology Placement in the Least Restrictive Environment

“Effective Communication” Obligations Under the Americans with Disabilities Act (“ADA”)

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Some Background . . . “Low incidence” disability One child out of every 100 who receives special

education is classified as DHH Hearing loss can range in severity from mild to

moderate to severe to profound Does not affect student’s mental capacity

or ability to learn But may affect means by which student learns

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I . Legal Standards for Eligibil i ty

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Eligibility Definitions 13 IDEA eligibility categories include:

“Hearing impairment (including deafness)” “Hearing impairment”

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

“Deafness” 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

(34 C.F.R. §300.8; Cal. Code. Regs., tit. 5, § 3030(b))

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Need for Special Education

Meeting definition of “hearing impairment” does not, standing alone, serve to qualify a student as a “student with a disability” To be eligible, the results of the diagnosis or assessment

must show that the degree of the impairment is such that the student requires special education and related services as a result

(34 C.F.R. §300.8; Ed. Code, § 56026)

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I I . FAPE Requirements as Applied to Students with

Hearing Impairments

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IDEA’s FAPE Standard Established by U.S. Supreme Court in Rowley

decision First-grader with “minimal residual hearing” Excellent lip reader Placed in general education classroom Provided with FM system, instruction from a “tutor for the

deaf” one hour per day, three hours per week of language services

Parents desired a sign language interpreter to support her in academic classes

District disagreed

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IDEA’s FAPE Standard (cont’d) Supreme Court found in favor of the District Student was well-adjusted, advancing easily from

grade to grade, performing well academically and socially

In this factual context, the Supreme Court established what “FAPE” means

(Board of Educ. of Hendrick Hudson School Dist. v. Rowley (1982) 458 U.S. 176, 553 IDELR 656)

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IDEA’s FAPE Standard (cont’d) Rowley’s test of substantive FAPE

complianceDesigned to meet unique needsReasonably calculated to provide educational

benefitServices comport with IEPLeast restrictive environment

(Board of Educ. of Hendrick Hudson School Dist. v. Rowley (1982) 458 U.S. 176, 553 IDELR 656)

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IDEA’s FAPE Standard But in Rowley, Court recognized that

the IDEA is a “floor of educational opportunity, not a ceiling”; states mayadopt a more demanding standard of appropriateness than the IDEA

Does California have a higher standard of FAPE for students with hearing impairments? Consider . . .

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California Education Code 1994 Education Code amendments created

numerous “It is essential . . .” provisions applicable to children who are deaf or hard-of-hearing

Examples: “It is essential that hard-of-hearing and deaf children, like all

children, have an education in which their unique communication mode is respected, utilized, and developed to an appropriate level of proficiency”

“It is essential that hard-of-hearing and deaf children have an education in which [school personnel] understand the unique nature of deafness and are specifically trained to work with hard-of-hearing and deaf pupils”

(Ed. Code, §56000.5)

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But Rowley Remains the Standard Ed Code also says:

“It is also the intent of the Legislature that [state law] does not set a higher standard of educating individuals with exceptional needs than that established by [federal law].”

Courts and OAH agree: Inclusion of phrase “hard of hearing children, like all

children” reflect that California’s special statutes do not require districts to provide higher standard of education to this group of students

(Ed. Code,§56000; Poway Unified School Dist. v. Cheng (S.D. Cal. 2011) 57 IDELR 189)

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Specific DHH FAPE Issues

Let’s examine law and cases on threespecific issues that are subject of frequent litigation concerning provisionof FAPE to students who are DHH1. Consideration of Student’s and

Parent’s Preferred Communication Mode2. Provision of Assistive Technology3. Placement in the Least Restrictive

Environment

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1. Consideration of Preferred Mode of Communication – Background and Law

IDEA: In developing IEPs, districts must consider “the student’s and the family’s preferred mode of communication”

Ed. Code: Districts must ensure student’s unique communication mode is “respected, utilized and developed”

OAH: Districts must accommodate the preferred mode of communication of student and parents with respect to deaf and hard of hearing children

(34 C.F.R. §300.324(a)(2)(iv); Ed. Code, §56341.1; Los Angeles Unified School Dist. v. Student (OAH 2012) No. 2011100795, 59 IDELR 55)

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1. Consideration of Preferred Mode of Communication – Background and Law

However, accommodating preferred mode of communication of student and parents does not equate to requirement that district use parents’ preferred methodology

Choice regarding methodology to be used to implement the IEP is left up to district’s discretion

District is simply required to provide appropriate methodology; it is not required to provide “best” methodology

(M.M. v. School Bd. of Miami-Dade County (11th Cir. 2006) 45 IDELR 1; Los Angeles Unified School Dist. v. Student (OAH 2012) No. 2011100795, 59 IDELR 55)

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1. Consideration of Preferred Mode of Communication – The CasesStudent v. Glendora USD Facts:

16-year-old girl with profound hearing loss; highly intelligent; one cochlear implant, one hearing aid

Still had significant difficulty following voices, class discussions

Program included full-time sign language interpreter, audiological services (60 minutes/year), FM system, ESY support, accommodations

Student and Parent preferred oral learning Parent asked for CART

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1. Consideration of Preferred Mode of Communication – The CasesStudent v. Glendora USD Decision:

ALJ: IEP team “should have and did not consider Student’s and her family’s preferred mode of communication as an oral learner”

Sign language was inappropriate for an oral learner and not designed to meet Student’s unique needs

CART necessary for academic courses to address deficits in communication; also would help Student’s lip-reading skills

(Student v. Glendora Unified School Dist. (OAH 2007) No. 2006110090, 107 LRP 30256)

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1. Consideration of Preferred Mode of Communication – The CasesStudent v. Baldwin Park USD and Covina Valley USD Facts:

10-year-old girl with profound hearing loss in both ears; hearing aids at age 4; cochlear implant at age 8

IEP modified after cochlear implant to provide more aural rehabilitation therapy (“ART”)

Student placed in DHH auditory/oral program Following incident in which Student was inappropriately

touched, Parents moved her to private placement where Student received auditory verbal therapy (“AVT”)

Claimed District denied FAPE by not offering AVT

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1. Consideration of Preferred Mode of Communication – The CasesStudent v. Baldwin Park USD and Covina-Valley USD Decision:

District offered appropriate program that provided FAPE Program respected preferred communication mode

(recent cochlear implant recipient transitioning from sign language to auditory/oral expression)

Program was not deficient merely because it did not meet AVT standards of Alexander Graham Bell Academy

ART methodology “nearly identical” to AVT; District had discretion to select appropriate methodology

(Student v. Baldwin Park Unified School Dist. and Covina-Valley Unified School Dist. (OAH 2008) No. 2008040542, 109 LRP 30979)

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1. Consideration of Preferred Mode of Communication – The CasesStudent v. Covina-Valley USD Facts and Decision:

Similar to previous case: ART vs. AVT dispute involving first-grader with a cochlear implant

Different ALJ reached same result ART is “substantially the same” as AVT, except AVT

proponents point to use of certified therapists But certification is not mandated by either federal or

state law

(Student v. Covina-Valley Unified School Dist. (OAH 2008) No. 2008060957, 51 IDELR 115)

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1. Consideration of Preferred Mode of Communication – Practical Pointers

Tips to minimize potential disputes: Ensure everyone on IEP team is aware

of student’s and parent’s preferred communication mode Ensure parents understand assessment results and their

implications for learning in the school environment Familiarize parents with proposed methodology and

ensure student’s potential instructors attend IEP meeting to better explain their methods

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2. Provision of Assistive Technology – Background and Law IEP team must consider whether student requires assistive

technology devices and services in order to receive FAPE “Assistive technology device”

Item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability

“Assistive technology service” Any service that directly assists a child with a disability in the

selection, acquisition, or use of an assistive technology device

(34 C.F.R. §300.324(a)(v); 34 C.F.R. §300.5; 34 C.F.R. §300.6)

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2. Provision of Assistive Technology – Background and Law

Hearing aids Covered under definition of “assistive technology device” District must provide if determined to be necessary for

FAPE and specified in IEP If not necessary for FAPE, no obligation to pay for

hearing aid But districts have obligation to ensure hearing aids are

functioning properly

(34 C.F.R. §300.113(a); Letter to Seiler (OSEP 1993) 20 IDELR 1216)

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2. Provision of Assistive Technology – Background and Law

Cochlear implants Excluded from definition of “assistive technology device” Districts have no obligation to provide Districts also not responsible for maintenance,

replacement or programming (i.e., “mapping”) But must ensure that external components of cochlear

implant are functioning properly

(34 C.F.R. §300.113(b)(2); Ed. Code, §56345, subd. (d)(7))

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2. Provision of Assistive Technology – Background and Law Common forms of DHH assistive technology

“Augmenting” devices/systems Personal FM systems Soundfield systems Infrared systems

“Transforming” devices/systems Translation services (CART, C-Print, TypeWell) Captioning services Face-to-face communication systems

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2. Provision of Assistive Technology – The CasesPoway Unified School Dist. v. K.C. Facts:

15-year-old girl with profound hearing loss Heard approximately 52 percent of what was said in

“real-life” situations Difficulty hearing classmates and often misunderstood

instructions Parents requested CART when Student transitioned

from middle school to high school District provided numerous services and

accommodations, but offered TypeWell instead of CART

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2. Provision of Assistive Technology – The CasesPoway Unified School Dist. v. K.C. Decision:

District provided FAPE when it offered TypeWell District researched and investigated CART, considered

Parent’s preference Expert who had observed Student testified that TypeWell

would address her needs IEP also provided comprehensive plan to address

Student’s needs CART vs. TypeWell was methodology dispute

(Poway Unified School Dist. v. K.C. (S.D. Cal. 2013) 60 IDELR 249)

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2. Provision of Assistive Technology – The CasesStudent v. Glendora USD Facts:

15-year-old boy (brother of Student in previous Glendora case); received cochlear implant at age 3; unable to use hearing aids

Primary mode of communication: Oral-deaf District offered FM transmitter and note-taker Parent asked for AT assessment for CART Special ed director (not IEP team) denied assessment,

stating Student was succeeding academically and did not need CART

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2. Provision of Assistive Technology – The CasesStudent v. Glendora USD Decision:

District denied FAPE With FM transmitter, Student only able to hear portion of

class as presented by his teachers IEP lacked goals to facilitate class participation and

socialization Gen ed class was not LRE because Student was

isolated from peers due to limits of FM transmitter District ordered to fund 15 months of CART

(Student v. Glendora Unified School Dist. (OAH 2007) No. 2007080893, 49 IDELR 172)

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2. Provision of Assistive Technology – Practical Pointers Consider the following issues when

choosing an appropriate form of AT: How the device will address the student’s unique

needs and help the student achieve his or her communication and/or participation goals

Whether the student will need the device at home Whether the purpose of the proposed device is clearly

defined in the IEP Determine what type of training is necessary and who

(student, staff and/or parents) needs to be trained

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2. Provision of Assistive Technology – Practical Pointers

Don’t forget to address AT needs in designing transition goals and services

IEP team should consider: How will student communicate in postsecondary setting? What training might be needed for safe travel? Does student have self-advocacy skills to request AT? Can student maintain device or know what to do if it

stops working?

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3. Placement in the Least Restrictive Environment – Background and Law IDEA and California law require districts to provide students

with a program in the LRE, with removal from the regular education environment occurring only when the nature or severity of the student's disabilities is such that education in regular classes with use of supplementary aids and services cannot be achieved satisfactorily

No exception to LRE requirements for students who are deaf or hard of hearing

(34 C.F.R. §300.114(a)(2)(ii); Ed. Code, §56040.1)

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3. Placement in the Least Restrictive Environment – Background and Law LRE factors

While gen ed placement may offer most opportunities for interaction, it can also be most isolating placement for students who are DHH

IEP team must consider Primary language mode Availability of peers of similar abilities Access to personnel proficient in total communication Services necessary for accessible instruction and

extracurriculars(Notice of Policy Guidance (ED 1992); 34 C.F.R. §300.324(a)(2)(iv); Ed. Code, §56345)

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3. Placement in the Least Restrictive Environment – The CasesJ.W. v. Fresno Unified School Dist. Facts:

Student with severe to profound bilateral hearing loss At age 2, parents chose oral method of

communication/instruction At age 4, cochlear implant in left ear Student attended aural/oral program, from pre-K through

third grade Parents requested move to full inclusion placement at a

school for the arts

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3. Placement in the Least Restrictive Environment – The CasesJ.W. v. Fresno Unified School Dist. Facts (cont’d):

District (reluctantly) agreed Provided RSP support, DHH services (480

minutes/month), speech therapy, cued-speech transliterator, and AT (including FM system)

Services intensified in fifth grade, but Student was behind in academics and language, and resisted school

In sixth grade, Parent placed Student at private school; argued that inclusion had been inappropriate

District then recommended DHH SDC

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3. Placement in the Least Restrictive Environment – The CasesJ.W. v. Fresno Unified School Dist. Decision:

District’s inclusion program was appropriate Student received some academic benefit (although likely

he would have received greater educational benefits from SDC placement all along)

Student had opportunity to develop language through communication with hearing peers

Socially, he adjusted well, made friends, had a positive impact on his classroom

(J.W. v. Fresno Unified School Dist. (E.D. Cal. 2009) 611 F. Supp. 2d 1097, 52 IDELR 194, aff’d, (9th Cir. 2010) 626 F.3d 431, 55 IDELR 153)

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3. Placement in the Least Restrictive Environment – The CasesLos Angeles USD v. Student Facts:

7-year-old boy with bilateral severe-profound sensorineural hearing loss

With cochlear implants, he could access speech and environmental sounds within a normal range of hearing

Student attended Oralingua (NPS), focusing on auditory/oral/aural instruction

District offered DHH program in auditory/oral SDC classroom with 20 percent mainstreaming (recess, lunch, science, computers, social studies)

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3. Placement in the Least Restrictive Environment – The CasesLos Angeles USD v. Student Decision:

Proposed program was appropriate SDC at elementary school campus offered opportunities

to interact with peers at recess, lunch, etc. Oralingua’s recommendation that Student be

mainstreamed in core classes was not based on Student’s unique needs

SDC classroom included students of approximately same abilities as Student

(Los Angeles Unified School Dist. v. Student (OAH 2012) No. 2011100795, 59 IDELR 55)

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3. Placement in the Least Restrictive Environment – The CasesStudent v. Redlands USD Facts:

Preschool girl, hard-of-hearing Following cochlear implants, only minor hearing and

speech delays Student solely used oral instruction Attended District’s “RSEED” classroom in 2011-2012

Program served 14 students with a range of disabilities Student progressed exceptionally well; at or above age

level in all academic areas at end of year

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3. Placement in the Least Restrictive Environment – The CasesStudent v. Redlands USD Facts:

Parents requested Montessori School placement at IEP team meeting

District offered RSEED with DHH itinerant consultation (30 minutes/month) and speech services (30 minutes/week)

Parents asserted that District failed to consider communication mode, LRE

,

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3. Placement in the Least Restrictive Environment – The CasesStudent v. Redlands USD Decision:

No evidence that District failed to instruct in Student’s primary mode of communication

Teacher used ASL hand signs on a “nominal” basis However, all witnesses testified that Student could

benefit from being fully mainstreamed ALJ rejected argument that RSEED was a general

education program (because 7 students were speech impaired only); ordered reimbursement for Montessori

(Student v. Redlands Unified School Dist. (OAH 2012) No. 2012060370, 113 LRP 882)

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3. Placement in the Least Restrictive Environment – Practical Pointers

Don’t allow preference for mainstreamingto blur overriding duty to provide FAPE

Any setting that prevents student who is DHH from receiving appropriate education that meets his or her needs – including communication needs – is not the LRE for the student

)

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I I I . “Effective Communication” Obligations Under the Americans with

Disabil i t ies Act (“ADA”)

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The ADA’s “Effective Communication” Obligation ADA (Title II) directive

No qualified individual with a disability shall, by reason of such disability, be excluded from participation in – or be denied the benefits of – the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity

(42 U.S.C. §12132)

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The ADA’s “Effective Communication” Obligation (cont’d) Title II’s “effective communication” regulation

Public entities must “take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others”

Public entities must “furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity”

(28 C.F.R. §35.160)

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The ADA’s “Effective Communication” Obligation (cont’d) “Auxiliary aids and services” defined to include:

Real-time computer-aided transcription services Videotext displays

“In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.”

(28 C.F.R. §35.104; 28 C.F.R. §35.160(b)(2))

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The ADA’s “Effective Communication” Obligation (cont’d)

However: A public entity need not “take any action that it can

demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens”

The public entity has the burden to prove that a proposed action would result in undue burden or fundamental alteration

(28 C.F.R. §35.164)

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The ADA’s “Effective Communication” Obligation vs. the IDEA’s FAPE Standard Districts must comply with both the IDEA and the ADA, but

the two laws differ in both ends and means IDEA sets only floor of access, but requires districts to

provide individualized services necessary to get student to that floor, regardless of costs, administrative burdens, or program alterations required

Title II requires districts to make services not just accessible, but equally accessible – but only insofar as doing so does not pose undue burden or require fundamental alteration of their programs

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The ADA’s “Effective Communication” Obligation – K.M. v. Tustin USD (9th Cir.) Facts:

16-year-old girl, deaf with cochlear implants; proficient at lip reading

Fully included throughout elementary school; good grades

Parent requested CART; District offered trials of CART, and TypeWell

Concluded that Student did not require transcription Student testified she could hear teachers, but not always

her classmates; teachers testified that she could hear and follow classroom discussions well

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The ADA’s “Effective Communication” Obligation – K.M. v. Tustin USD (9th Cir.) Decision:

OAH, District Court and 9th Circuit agreed Student received a FAPE under IDEA

But: 9th Circuit concluded that whether Student was provided appropriate access under the ADA is a different question

Given differences between the two laws, success or failure of an IDEA claim does not impact ADA Title II action

Returned case to District Court for factual findings(K.M. v. Tustin Unified School Dist. (9th Cir. 2013) 725 F.3d 1088, 61 IDELR 182)

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The ADA’s “Effective Communication” Obligation – K.M. v. Tustin USD (9th Cir.)

Impact: The K.M. decision does not mean that districts will have

to provide CART services to all students with hearing impairments

However, it does require courts evaluating claims under the IDEA and Title II of the ADA to analyze each claim separately under the relevant statutory and regulatory framework of both laws

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Take Aways . . . Recognize that needs of students with

hearing impairments can vary widely Consider unique needs carefully when

making services and placement decisions Technical compliance with law is

essential, but so is acquiring knowledgeabout nature of hearing impairments and developing skills in designing appropriate IEPs

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Information in this presentat ion, including but not l imited to PowerPoint handouts and the presenters ' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your spec if ic fac ts and circumstances .

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Information in this presentat ion, including but not l imited to PowerPoint handouts and the presenters ' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your spec if ic fac ts and circumstances .