A Question of Automatic Eligibility:

Does My Deaf/HH Child Need an IEP?

By Leeanne Seaver

They're asking the question in Colorado . They're asking the question in Connecticut . Anyone who's not asking it, will be: What happens when schools tell us our kids aren't eligible for special education? This is happening more and more with pre-school kids, but it can occur at any age through the public school years.

The Scenario

Take a child who was identified deaf or hard of hearing at birth, give him effective early intervention services (an IFSP/Part C of the Inleftiduals with Disabilities Education Act/IDEA) right from the start until he is functioning with age-appropriate ability, and at age three enter him into the public school system (Part B) and be refused eligibility because the child isn't delayed significantly or at all, and, according to the school, won't qualify for special education services (an IEP). Or, let a child who was delayed catch up to her grade-level peers at any point in the public school years, and be subject to an "ousting" from the system because of that success.

This is happening in Colorado and elsewhere in the nation. it's happening with even more frequency for pre-school kids because we're seeing the first crop of babies who benefited from the Newborn Hearing Screening law's early identification and subsequent intervention turn three years of age (Colorado's age of transition) and move from that system into the public school system. The laws and service delivery function differently in Part B, and as inconceivable as this sounds, some families have been told their child's success will cost them their rights to continuing support in school.

Case in point

Recently, the McCloskey family of Douglas County, Colorado, took their three year old hard of hearing daughter to a Child Find screening to begin transitioning into public school services. They arrived prepared with audiograms (she's profound in one ear & 60 dB loss in the other) and current evaluations from her early intervention service provider indicating her age-appropriate developmental abilities. The social worker congratulated them with the news that their daughter didn't need an IEP. According to this professional, their little girl wasn't developmentally delayed enough and therefore wouldn't be considered eligible for specialized instruction or services with an IEP. Her parents were supposed to be thrilled to get the news...they weren't.

Over the next weeks, the McCloskey's pursued this unacceptable edict vigilantly because they knew their child needed support in school in order to remain successful. One professional they spoke to even suggested that they withdraw services for a little while and let their daughter slip behind so they could prove that she needed an IEP. They took their plea to a higher authority, Gail Whitman of the district's special education office. Whitman confirmed her Child Find team's decision and informed the family that because their daughter's hearing disability hadn't affected her development, she couldn't qualify her for special education services. As of this writing, the situation remains unresolved , but the district is responding to the parent's advocacy efforts and progress is expected.

Time for Some Understanding & Education

Let's assume that any district that would dismiss a child who was deaf or hard of hearing, and that child's family who wanted an IEP (there are those who don't), is stuck in a hard place. For one thing, it's a rather new phenomenon to see a deaf/hard of hearing child come to Part B without significant delays in language, so schools are being caught off guard. And certainly there is unbelievable pressure on school districts to keep expenditures down. We are living in a state whose legislature has seen fit to table the annual push for increased special ed. funding for yet another year. Sigh. The result of this unconscionable leadership pits schools against families, and nobody wins.

That said, the law is the law, and it supports the family's position in this case. While Part C & B laws work differently, a bit of common sense at the foundations is all that is really required to understand the fundamentals: what early identification and intervention (and later, effective IEPs) can accomplish must be maintained by school districts. A deaf/hh child who demonstrates age-appropriate development is the product of effective support. Hands & Voices president Janet DesGeorges says, "When schools conclude that a non-delayed child is a child who needs no help, they're not seeing the big picture. If they deny a student services, not only are they breaking the law, they are going against common sense. Good luck rebuilding any credibility with families after that."

So let's build some awareness of what the law actually says about this and improve everyone's efforts to make seamless transitions between Part C and Part B for children and families.

What the Federal Law Says

In 1973, a Federal Civil Rights law called the Rehabilitation Act was enacted to protect the rights of inleftiduals with disabilities in programs and activities that receive Federal financial assistance from the U.S. Department of Education. As it relates to public schools, Section 504 of that law automatically qualifies any student with a disability or impairment of functioning for a "504 Plan". A 504 Plan requires general education (not special education) to provide reasonable accommodations for equal opportunity and equal access in school. More on that to follow.

The Federal Education Law (IDEA -- originally passed in 1975) does not state that a disabling condition automatically qualifies a student for special education services. It does say that a disability must have an "adverse effect" on the child's ability to receive "reasonable educational benefit" in order for that child to be eligible for special education/an IEP. The state is then charged with the responsibility of defining what "adverse effect" means.

What the State Law Says

In Colorado , the Exceptional Children's Education Act (CCR 2220-R-1.00 - 7.07) is the law that provides the framework for special education services in this state. In the case of hearing disability, the criteria set forth in the law are spelled out in a state form called the "Determination of Disability" that must be included in each initial and triennial IEP. These instructions on qualifying our kids are also neatly and identically spelled out in CDE's instructional "Guidelines for Educators" booklet that should be on every Child Find, educational audiology, and special education office bookshelf for reference. It comes down to being able to identify special needs with a minimum of two check marks.

One here - A:

  • The child in question has a deficiency in hearing sensitivity in one (1) of these areas (directly from the law):
  • An average pure tone hearing loss in the speech range (500 - 2000 Hz) of at least 20 dBHL in the better ear.
  • An average high frequency, pure tone hearing loss of at least 35 dBHL in the better ear for two or more of the following frequencies: 2000, 4000, or 6000 Hz.
  • A permanent unilateral hearing loss of at least 35 dBHL.

And one here - B:

  • The criterion for determining a "hearing disability" that prevents the child from receiving reasonable education benefit from regular education includes one (1) or more of the following (again, from the law w/my bold...)
  • Sound-field word recognition unaided of less than 75% in quiet as measured with standardized open-set audiometric speech discrimination tests presented at average conversational speech (50-55dBHL). Interpretation shall be modified for closed-set tests.
  • Receptive and/or expressive language delay as determined by standardized tests:
    1. under 3 years: less than one-half expected development for chronological ag e.
    2. 3-8 years: 1 year delay or more.
    3. 9-13 years: 2 years delay or more.
    4. 14-21 years: 3 years delay or more.
  • An impairment of speech articulation, voice, and/or fluency.
  • Significant discrepancy between verbal and nonverbal performance on a standardized intelligence test.
  • Poor academic achievement.
  • Inattentive, inconsistent and/or inappropriate classroom behavior.

For the deaf/hard of hearing student who is not delayed based on this discrepancy formula, (the one commonly used to determine IEP eligibility for deaf kids), parents who want IEP services will need to rely on other criteria. Even a mildly "hearing impaired" student (a checkmark in category 1 for a 20 dB loss) can become inattentive and perform inconsistently without specialized instructional support, or recognize less than 75% of the words without her hearing aids on. Hence the two category B items in bold: if even one of them applied to the deaf/hh student, an IEP is in order.

An IEP vs. a 504 Plan

So why would a family want an IEP? If their child was developmentally appropriate and everyone was happy with the accommodations secured with a 504 Plan, is an IEP necessary? Let's look more closely at the differences...

A 504 Plan can outline access support with accommodations for preferential seating, captions on films, interpreters, tutors, notetakers, and acoustical adaptations. Essentially, if it's an access-need, it could be in a 504 Plan because that is an access law. It sounds a lot like IEP services, but in fact, 504's regulations are not as clearly defined, as strong, or as financially empowered as IDEA. A 504 Plan can do a lot, and it may be exactly right for some students, but the services identified may not have to be delivered by schools if they can prove undue hardship. IDEA's special education services, however, must be delivered by mandate, and the money flows deeper for IEPs.

Another major difference is that 504 Plans cannot modify the content of what is being taught in school and they don't necessarily come with related services that many deaf/hh students seek in IEPs like speech/ language therapy and/or auditory training. Provisions for independent evaluations at the district expense? -- 504 Plan = no; IEPs = yes. Plus, initial placement requires parental consent on an IEP, whereas 504s view consent as "best practice" but not a requirement.

Also worth considering are these benefits of special education eligibility: district-provided transportation to center-based programs, "Communication Plans" (from the Deaf Child's Bill of Rights) with each IEP, and more & better quality control measures around plan reviews and progress reports. Finally, any student who qualifies for an IEP, is automatically qualified for a 504 Plan, but the reverse is not true.

How to Make Failure Out of Success

Writing an article like this won't lay all the questions to rest. Interpretations will vary based on which agenda is being forwarded - children's needs or budget constraints. Some optimistic service providers have for years predicted that an infant or toddler early ID'd and effectively served becomes a student who doesn't need special education. Is that day here? Maybe for some, but in the end, it always comes down to inleftidual need. Our new crop of successful toddlers should be viewed as the result of parental commitment and programs of support that work well. We cannot allow that success to be compromised. Indeed, Cheryl DeConde Johnson , PhD, the Colorado Department of Education's state consultant on audiology and hearing programs (& a Hands & Voices board member), theorizes that school districts that don't provide special education for these kids may be legally liable when delays start appearing during the Part B years. Surely nobody wants to go there. Let us hope that the strong foundations laid during the early years will be supported by good building materials during the school years. The successful outcome will be one that parents and schools can be proud of, and credit to all will be richly deserved.

Special thanks to Shirley Swope, Michael's mom and PEAK Parent Advocate, for her invaluable contributions to this article, and to Cheryl Johnson, Jennifer's mom, and professional-extraordinaire.

Copyright 2000, Leeanne Seaver for Hands & Voices -Cannot be used except in its entirety or reprinted without permission from the author.

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