Laws Impacting Students Who are Deaf or Hard of Hearing
Federal Laws Impacting Students Who are Deaf and Hard of Hearing
The following federal legislation protects the rights of students who are deaf and hard of hearing by ensuring they have equal access in public facilities and at school:
- The Individuals with Disabilities Education Act (IDEA) is a law that ensures that students who are deaf or hard of hearing receive an appropriate education. Included in this law is development of an Individualized Education Program (IEP) and an Individualized Family Service Plan (IFSP).
- Section 504 of the Rehabilitation Act of 1973 is a law that ensures that individuals with disabilities will not be excluded from participation in programs that receive federal financial assistance, such as public schools.
- The Americans with Disabilities Act is a law that ensures deaf children have access to state and local governments, public accommodations, commercial facilities, transportation, and telecommunications.
Individuals with Disabilities Education Act (IDEA)
First passed by Congress in 1975 as the Education of All Handicapped Children Act (Public Law 94-142), the IDEA legislation requires that all students with disabilities up to age 21 be provided with free, appropriate public education in the least restrictive environment and with accommodations.
Since the original legislation was passed, states and educational institutions that receive IDEA funds have been required to:
- provide full educational opportunities to children with disabilities within a specific timeframe;
- identify, locate and evaluate all children within their jurisdiction who are in need of special education and related services;
- ensure that all special education teachers are highly qualified;
- evaluate all children suspected to have a disability following the IDEA guidelines;
- develop annually an individualized educational plan (IEP) for all special needs children; and
- ensure a least restrictive environment for all special needs children, removing them from regular classroom environments only if they have severe disabling conditions that can be addressed in a more focused environment.
Eligibility for IDEA
To be eligible for IDEA services, a student must have one of 13 designated disabilities. When referring to students who are deaf or hard of hearing, the law uses the terminology “hearing impairment” or “deafness.” The disability must have an adverse impact on educational performance, and because of the disability, the student requires special education and related services. Eligibility is based on evaluations. Be aware that students do not have to fail or be retained in a course or grade in order to be eligible for IDEA special education and related services.
What is an Individualized Education Program (IEP)?
An IEP is a written document that describes what services the school will provide for a student who needs special education services. IEPs explain how students who are deaf or hard of hearing will be involved in three areas of school life:
- the general education curriculum,
- extracurricular activities, and
- non-academic activities.
An IEP must be developed within 30 calendar days after a student who is deaf or hard of hearing is found to need special education services. Every year after that, the IEP team meets to review the student’s progress toward the learning goals and set new learning goals.
The IDEA requires that the following people are part of the IEP team:
- the parents of the child;
- not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment);
- not less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child;
- a representative of the public agency who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; is knowledgeable about the general education curriculum; and is knowledgeable about the availability of resources of the public agency;
- an individual who can interpret the instructional implications of evaluation results;
- other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate (invited at the discretion of the parent or the agency); and
- the child with a disability (when appropriate).
For students who are deaf or hard of hearing, professionals such as audiologists and speech-language specialists are likely to be part of the IEP team. If the student has additional disabilities, other professionals may be involved. For example, an orientation and mobility specialist may attend the IEP meeting of a student who is deaf-blind, and a physical therapist may attend the IEP meeting of a student who is deaf with physical limitations.
IDEA requires that an IEP contain the following information:
- present levels of academic achievement and functional performance, including how the student’s disability affects his or her involvement and progress in the general education curriculum;
- measurable annual goals, including academic and functional goals;
- how the student’s progress toward meeting the annual goals will be measured, and when periodic progress reports will be provided;
- the special education and related services that the student will receive;
- program modifications or supports for school personnel that will be provided so the student can make progress towards annual goals, make progress in the general curriculum, participate in extracurricular and non-academic activities, and to be educated and participate with other students with disabilities and nondisabled students;
- an explanation of the extent, if any, to which the student will not participate with nondisabled students in the regular class and in extracurricular and nonacademic activities;
- individual accommodations that the student needs to measure the academic achievement and functional performance when the student takes state and district-wide assessments; (Note: If the IEP team determines that the child must take an alternate assessment instead of a particular regular state or district-wide assessment of student achievement, the IEP must include a statement of why the child cannot participate in the regular assessment and why the particular alternate assessment selected is appropriate for the child.) and
- the projected date for the beginning of the services and modifications, and the anticipated frequency, location, and duration of those services and modifications.
Each member of the IEP team shares their thoughts and concerns about the student. The team uses that discussion, along with data from evaluations and assessments, to decide what should be written in each of the areas of the IEP.
What is an Individualized Family Service Plan (IFSP)?
An IFSP documents and guides the early intervention process for children with disabilities and their families. The IFSP is the process through which early intervention is implemented in accordance with Part C of the Individuals with Disabilities Education Act (IDEA). It contains information about the services necessary to facilitate a child's development and enhance the family in facilitating their child's development. Through the IFSP process, family members and service providers work as a team to plan, implement, and evaluate services tailored to the family's unique concerns, priorities, and resources. An IFSP is developed for eligible children starting at birth, and applies to children until they become three. Some states have opportunities for the IFSP to continue through age 4. Each state has specific guidelines for developing an IFSP.
According to the IDEA, the IFSP shall be in writing and contain statements of:
- the child's present levels of physical, cognitive, communication, social or emotional, and adaptive development.
- the family's resources, priorities, and concerns relating to enhancing the development of the child with a disability;
- the major outcomes to be achieved for the child and the family; the criteria, procedures, and timelines used to determine progress; and whether modifications or revisions of the outcomes or services are necessary;
- specific early intervention services necessary to meet the unique needs of the child and the family, including the frequency, intensity, and the method of delivery;
- the natural environments in which services will be provided, including justification of the extent, if any, to which the services will not be provided in a natural environment;
- the projected dates for initiation of services and their anticipated duration;
- the name of the service provider who will be responsible for implementing the plan and coordinating with other agencies and persons; and
- steps to support the child's transition to preschool or other appropriate services.
Section 504 of the Rehabilitation Act of 1973
About Section 504
The Rehabilitation Act (Public Law 93-112), first signed into law in 1973 and reauthorized in 2004, supports and promotes the rights of individuals with disabilities. Title 5 of this act is divided into eight sections. The section most relevant to students who are deaf or hard of hearing is Section 504 (Nondiscrimination under Federal Grants and Programs). It states that "no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under" any program or activity that either receives federal financial assistance. Section 504 also gives students who are deaf or hard of hearing the right to full access to school and public activities and events, including after-school events. Section 504 applies to all activities of the school. Section 504 also applies to post-secondary institutions, such as colleges. Section 504 does not require a written plan, although many school districts have developed a document for such use. Often this is called a "504 Plan."
Under Section 504, school districts are required to provide free and appropriate public education (FAPE), and make the classroom accessible. They are also required to provide non-academic and extracurricular services and activities in a way such that students under the protection of Section 504 have an equal opportunity to participate. Nonacademic and extra-curricular services and activities may include:
- counseling services;
- physical recreation, including physical education courses, interscholastic, clubs, or intramural athletics;
- health services;
- recreational activities; and
- special interest groups or clubs sponsored by the school.
Eligibility for Section 504
Students not eligible for an IEP may be eligible for protection and support under Section 504. In order to determine a child's eligibility under Section 504, school districts must perform an evaluation. Schools must establish standards and procedures for these evaluations, as well as periodic re-evaluations. To be eligible for a support under Section 504, an individual must be determined to:
- have a physical or mental impairment that substantially limits one or more major life activities; or
- have a record of such an impairment; or
- be regarded as having such an impairment.
The term "physical impairment" includes impairments affecting special sense organs. The term "major life activities" includes hearing. Since students who are deaf and hard of hearing are considered to have a physical impairment that substantially limits the major life activity of hearing, 504 protects these students. Children who are served through IDEA already have been determined to have a disability; therefore, these children are eligible for both IDEA and Section 504 protections.
In determining whether a student is eligible for Section 504 coverage, schools must not consider the ameliorating effects of any mitigating measures the student is using. The student’s hearing must be considered without regard to these devices or behaviors.
The term "mitigating measures" includes:
- hearing aids,
- cochlear implants,
- other implantable hearing devices,
- use of assistive technology,
- reasonable accommodations,
- auxiliary aids or services, and
- learned behavioral or adaptive neurological modifications.
American with Disabilities Act (ADA)
The ADA is a wide-ranging civil rights law that prohibits discrimination based on disability. The ADA has several sections, including one addressing state and local governments. Public schools are functions of state or local government, therefore are covered by Title II of the ADA. What this means in the educational setting is students with disabilities cannot be excluded from participation in services, programs, and activities because of their disability.
Whereas the IDEA focuses on progress in the curriculum, the ADA, similar to 504, addresses removal of barriers to access school programs and activities, and provision of effective communication. All programs of the school, including afterschool and summer programs, are included in ADA coverage. It is the school’s responsibility to remove barriers to accessing the curriculum, programs, and services. It is the school’s responsibility to take steps to assure that communications with deaf and hard of hearing individuals are as “effective as communications with others.” Schools must provide “auxiliary aids and services” to make that happen.
There are a variety of auxiliary aids and services covered by the ADA. The law leaves the door open for making sure that students who are deaf or hard of hearing have access to other effective methods of making information accessible that may not be included on the list. Covered services and auxiliary aids include:
- qualified interpreters on-site or through video remote interpreting (VRI) services;
- real-time, computer-aided transcription services;
- written materials;
- exchange of written notes;
- telephone handset amplifiers;
- assistive listening devices;
- assistive listening systems;
- telephones compatible with hearing aids;
- closed-caption decoders;
- open and closed captioning, including real-time captioning;
- voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices;
- videotext displays;
- accessible electronic and information technology; or
- other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing.
In determining what types of auxiliary aids and services are necessary, the school must give “primary consideration” to the requests of the deaf or hard of hearing individual. The ADA does not require the school to take any action that would result in a fundamental alteration in the nature of a service, program, or activity, or in undue financial and administrative burdens. In determining whether an action constitutes an undue burden, the overall financial resources of an entity must be considered. Since public schools are located in school systems, the resources of the school system should be looked at. The burden of proof is on the school to show that providing access would result in an undue burden.
Similar to 504, the ADA also applies to non-student members of the school community. For example, it applies to a parent or community member who is deaf and who plans to attend a school play or other event that is open to parents or community members. If an individual believes the school is violating the ADA, a complaint can be filed with the U.S. Department of Education.
Eligibility for ADA
Similar to 504, one of the categories of eligibility for protection under ADA is having a “physical or mental impairment which substantially limits one or more major life activities.” Hearing is considered a major life activity. Because of the definition under IDEA, all students who are eligible for IDEA are also eligible for a 504 plans and coverage under ADA.
Similar to 504, “mitigating measures” may not be used in determining eligibility. For example, a student’s hearing levels must be evaluated without use of a hearing aid, cochlear implant, or other listening technology. Some of these mitigating measures may be a part of the supports recommended for a student. Again, they should not be used when determining eligibility.
The mitigating measures include:
- hearing aids,
- cochlear implants,
- other implantable hearing devices,
- use of assistive technology,
- reasonable accommodations,
- auxiliary aids or services, and
- learned behavioral or adaptive neurological modifications (i.e. speechreading, following patterns of other students, guessing based on context)