Final Regulations Finally Here!
While several months overdue, the final regulations for the 2004 Reauthorization of the Individuals with Disabilities Education Act (actually passed by Congress as the Individuals with Disabilities Education Improvement Act) were posted on the Federal Register August 14, 2006. A number of changes will impact children with hearing loss, most notable being a clarification of the responsibilities of school districts for managing cochlear implants and the addition of interpreting as a related service. Other areas for parents to watch are discussed within. We have developed a summary sheet that includes the most relevant language from the regulations, including the citations, with the new additions and changes highlighted. We suggest you put this in a plastic protection sleeve and keep it as a handy reference! Download it from handsandvoices.org/idea04regs
Below is a brief summary of the highlights of some of these provisions and what we think they may mean for parents.
There have been several legal decisions requiring school districts to provide mapping (programming) services for children's cochlear implants as an audiology service under Related Services and as part of Assistive Technology. We have written about the concerns associated with this requirement in a previous issue of The Communicator ("Has the IDEA been Interpreted Beyond all Reasonableness?" Spring 2003). As a result of multiple sources of input, Congress responded by excluding mapping services in the statute. Because the proposed regulations were found to be ambiguous, the Office of Special Education Programs at the U.S. Department of Education responded in the final regulations with language clearly defining its intentions.
While schools are exempt from "optimizing" cochlear implant functioning, including mapping and maintaining or replacing the CI, they are required to continue to provide other services as determined by the IEP team. These include other related services such as speech-language therapy, support for the child's communication development, and routine monitoring of the CI to make sure it is functioning properly.
What does this mean? Parents need to maintain responsibility for follow-up through their CI Center for their child's implant(s) and programming. Schools need to provide the necessary support services so that your children have full access in their primary mode of communication to their learning environment, and receive the special education and related service they need to make adequate progress (your goal is always at least one year's growth in one year). Implant centers and schools must have frequent communication to develop appropriate goals and to assure that the expected progress with the implant is occurring.
Routine Checking of Hearing Aids and Cochlear Implants
Schools have always been required to ensure that the hearing aids worn by children in school are functioning properly. The new regulations changed the previous wording from "shall" ensure to "must" ensure--adding some subtle strength to the requirement. In addition, a new section has been added that specifically addresses cochlear implants. It requires schools to ensure that the external components of the cochlear implant are working properly.
What does this mean? As part of your IEP you should include a specific plan with your school specifying who is checking your child's hearing aid(s) or cochlear implant(s), how often, the procedures involved, and what they will do when they find a problem. Parents should keep extra batteries at school and, for a cochlear implant, a back-up processor unit at home. If hearing aids need repair, make arrangements with your dispensing audiologist for a back-up hearing aid to use while the aid is being repaired. Schools should continue to provide the hearing assistance technology (e.g., FM system) to enhance classroom listening to fulfill their obligation to assure access to instruction.
Assistive Technology Used at Home
Your IEP team may determine that your child needs to use his/her assistive technology, e.g., FM system, at home or in other settings outside of school, in order to meet IEP goals. This is particularly pertinent with preschool children who may attend school for only three or four half days per week yet participate in other language-learning opportunities throughout the day.
What does this mean? If you believe that your child would benefit from their assistive technology at home or at another setting in the community, discuss your concern with your child's teacher and determine how use of the technology supports attainment of their IEP goals. Have specific examples of how the technology will be of assistance and if the district is reticent, ask to trial the unit while collecting data on your child's performance. Keep bringing the issue back to FAPE (a free and appropriate public education): would your child benefit from his FAPE by maintaining the auditory signal available at school while s/he's doing homework, or discussing new language and curricular concepts at home? (Answer: Yes) Then make sure this aspect of support is written into the IEP.
IDEA now identifies the function of interpreting services as a recognized Related Service. What does that mean? It means that educational interpreters now have a seat at the IEP table, and should be active participants in the development of the student's IEP-not as interpreters at the staffing, but as part of the IEP team itself.
IDEA also expanded the definition of educational interpreting to include computerized transcription and notetaking services (examples: Communication Access Real-time Translation- CART, C-Print, TypeWell). Educational interpreting is an official related services for the first time and include oral transliteration, cued speech transliteration and sign language interpreting.
What does this mean? Interpreting services have been provided to students based on their IEP requirements for several years. Transcription services have been less well defined and not consistently recognized nor provided. Parents should consider their child's access needs and discuss the availability of these services with their child's teacher and school administrators. Determine what resources are available in your community and your state. If they are limited or not available, consider remote interpreting and transcription services. The internet and video relay systems permit these services to be provided from many locations around the US . There are several companies who specialize in these services.
Parents should also be concerned about the qualifications of their interpreter. As a requirement of No Child Left Behind (NCLB) you have a right to know if your interpreter is highly qualified according to your state's criteria. Generally, for an educational interpreter to be considered highly qualified, he/she should have passed the Educational Interpreter Performance Assessment (EIPA) at the 3.5 level, or your state's assessment for educational interpreters, or be certified by the Registry of Interpreters for the Deaf (RID). Effective advocates are also going to push whether the interpreter is proficient in the child's primary mode of communication, how that has been demonstrated and whether their competency has been evaluated by a qualified individual.
Eligibility for Services
Eligibility for special education and related services no longer requires a child to fail! Section 300.101(c) states that "even though the child has not failed or been retained in a course, and is advancing from grade to grade" a free and appropriate public education (FAPE) must be available to any child with a disability who requires the services.
What does this mean? This provision is timely as we are seeing more children who are deaf and hard of hearing enter school with age-appropriate skills. Often, these children are being denied special education services and offered only 504 supports. Yet, we know that they can only continue to be successful if the appropriate supports are available to them. If eligibility for services has been issue for you, it is a good time to revisit your child's status.
It remains to be seen if state laws that have their own eligibility criteria-based on developmental deficits or a discrepancy model-will commit to any direct application of this new federal language. As often happens when states attempt to implement the "theory" of the IDEA, something gets lost in translation. It's going to require effective advocacy on the part of parents and well-informed educators to draw the spirit of Section 300.101(c) into the eligibility discussion. Families with kids who are being punted off caseloads because they are doing so well (thanks to early identification and effective support!) should raise this one like a flag and wave it anytime they're told their child is no longer eligible for special education services. But the mandate won't be enough to win the battle; it's still going to depend on a justified "need" for services. That means we still have our homework to do as parents and advocates. The Deaf and Hard of Hearing Special Considerations of the IDEA are a good place to start-this language remains intact in the 2004 Regulations.
Other provisions for instruction in the general education classroom may also have benefits for students who are deaf and hard of hearing. The Response to Intervention initiative requires the use of more scientifically-based strategies and programs to improve instruction. Better instruction will benefit all students, including ours. We'll discuss this provision of IDEA in the next issue of The Communicator.