Laws/Regulation Deaf and Hard of Hearing Chapter 14-15

1. Laws/RegulationDeaf and Hard of HearingChapter 14-15 Perry C. Hanavan, Au.D.

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

3. 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.

4. 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.

5. 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.

6. 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."

7. ADA: Hearing Loss • Telephone, TTY, etc. may be required if related to the job description of the employee

8. 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.

9. 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 thatcommunication 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.

10. Auxiliary Aids and Effective Communication Include a broad range of devices, services, and methods of making aurally delivered information available to individuals who are deaf or hard of hearing, such as: • qualified interpreters (on site or through video remote interpreting services [VRI]); • speech-to-text services, i.e., Communication Access Real-time Translation (CART); • captioning of online and in-class videos; • notetakers and class notes, other written or printed materials; • ALDs and systems; • HAC telephone handset amplifiers, telephones, closed caption decoders; • voice, text, and video-based telecommunications products and systems, including TTYs, videophones, and captioned telephones; • printed materials, keyboard systems, or the exchange of written notes (in limited situations), telecommunications relay services; and • accessible information technology and electronic technology, in classroom settings and online

11. Key Points: Auxiliary Aids and Effective Communication • Choice of auxiliary aid is made on case-by-case basis, after an individual’s request • Institutions are to consult with person and take into account his or her usual or preferred method of communication • Public institutions specifically required to give “primary consideration” to expressed choice of auxiliary aids. • In other words, they must honor the person’s choice, unless they can demonstrate that another equally effective means of communication is available, or that the use of the means chosen would result in a fundamental alteration or an undue burden

12. What is Effective Communication? • A person with relevant experience and training must make this decision, with student involvement, and in time for the auxiliary aids to be in place as soon as they are needed (e.g., on the first day of class). The choice depends on several factors: • context or setting (including mode of presentation); • length, complexity, and importance of the communication; and • communication preferences of the individual (for example, whether they have used and prefer an interpreter rather than speech-to-text services.)

13. What is Effective Communication? • The individual is best source of information about his or her customary or preferred method of communication. For example: • Important to have good match between student’s preferred mode of communication (e.g. ASL or signed English) and skills of interpreter. A sign language interpreter will not be effective for an individual who is hard of hearing and does not know sign language. • A written transcript may not work well for a person who is deaf or hard of hearing and for whom English is a second language. A written transcript, produced after the fact, also does not provide immediate access to a meeting, class, or event; and one provided at the same time as the aural communication is difficult to read while trying to follow other activity in the room.

14. What is Effective Communication? (cont.) • The individual is best source of information about his or her customary or preferred method of communication. For example: • Many people who are deaf or hard of hearing, including those who are skilled lip-readers, may benefit from speech-to-text services such as CART. • Some people who are hard of hearing will use ALDs and assistive listening systems, which transmit an auditory signal such as a speaker’s voice from a transmitter to a person wearing a receiver.

15. What is Effective Communication? (cont.) • At times, effective communication will require two or more auxiliary aids or services for one individual. For example: • Video media shown in class will need to be captioned, even if student uses another in-class service; and • In a class with a high level of student and faculty interaction, or where more than one person talks at once, CART can be helpful in addition to interpreter.

16. What is Effective Communication? (cont.) • When meeting with student to plan for accommodations, ask student about preferred method of communication. Some questions one can ask are: • What is the student’s typical form of communication? • Have they used other forms of communication in the past? Was it effective? • Are there forms of communication they have not used but which may be effective? This may mean introducing them to different communication options. • Do the students’ communication needs change in different settings (large lecture hall, small classroom, one-on-one meetings)? • What is the most effective way for them to access multimedia or video-based content?

17. Section 504 of the Rehabilitation Act of 1973 • Federal law designed to protect the rights of individuals with disabilities in programs and activities that receive Federal financial assistance from the U.S. Department of Education (ED). • Section 504 provides: "No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ...."

18. Section 504 of the Rehabilitation Act of 1973 • OCR enforces Section 504 in programs and activities that receive Federal financial assistance from ED • Require a school district to provide a "free appropriate public education" (FAPE) to each qualified student with a disability who is in the school district's jurisdiction, regardless of the nature or severity of the disability.

19. Section 504 of the Rehabilitation Act of 1973 • Under Section 504, FAPE consists of the provision of regular or special education and related aids and services designed to meet the student's individual educational needs as adequately as the needs of nondisabled students are met.

20. 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

21. Section 504 • Protects all persons with a disability from discrimination in educational setting based solely on disability

22. 504 • Eliminates barriers that would prevent a student from full participation in programs/services offered to the general school population

23. 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.

24. 504 (IEP) • 504 Plan developed with parents, teachers, school personnel involved (for elementary/secondary students)

25. 504 Vs. IDEA • Student receiving Special Education (SPED) through IDEA (IEP) are protected under all Section 504 laws. • The opposite is not true. • Section 504 does require the school to come up with a system of safeguards such as: • Parental notice of evaluation or placement decision • Parental review of records • Impartial hearing for appeals

26. 504 Vs. IDEA • IDEA includes safeguards to protect the parent and child, such as: • Prior Written Notice of all evaluations, changes to IEP and placement changes • Right to an independent evaluation at the public school’s expense • Arbitration or mediation if the parent and school do not agree on the plan • Administrative Complaint Process • Due Process Hearing

27. 504 Vs. IDEA • A 504 plan includes only accommodations, modifications, and related services as needed. • Does not allow for direct or indirect services with the student, or consultation services regarding the student between the special education teacher and regular education teachers • IDEA provides for services through special education teachers with the student and consultation with the regular classroom teachers

28. Question Who decides on communication mode for preschool child who is deaf? • School • State • IEP team • Parents • Child

29. Question Placement of child with hearing loss in various school options or regular classroom is determined by: • School • State • IEP team • Parents • Child

30. 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.)

32. 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?

33. 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.

34. 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

35. 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

36. Question Specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability is: • IEP • Special education • Related services • IDEA • School curriculum

37. 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.

38. RELATED SERVICES The 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.

39. 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.

40. 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.

41. 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

42. Two (2) Categories • 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. • 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.

43. 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: • Communication needs and the child’s and family’s preferred mode of communication • Linguistic needs • Severity of hearing loss and potential for using residual hearing • Academic level • Social, emotional, and cultural needs, including opportunities for peer interactions and communication

44. 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)

45. 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.

46. 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.

47. Consideration of Special Factors • Language and communication needs • Opportunities for direct communication with peers and professionals • Academic level • Full range of needs • Direct instruction in the student’s communication mode or language

48. Question Shall schools ensure that assistive technology devices or assistive technology services, are made available to a child with a disability if required? • True • False

49. 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.

50. 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))