Eligibility Survival Kit

By Cheryl DeConde Johnson, Leeanne Seaver, & Sara Kennedy

According to the Individuals with Disabilities Education Act, (IDEA), eligibility for special education hinges on two things:  a qualifying disability plus the need for specialized instruction resulting from that disability.  Eligibility for services continues to surface as a problem for many children who are deaf or hard of hearing, (DHH). There are a variety of ways that this problem plays out. Let’s start with a list of scenarios:

1. Child is denied eligibility because there is insufficient evidence of “adverse effect” to meet a state’s eligibility requirements.
2. School says they have to implement Response to Intervention (RtI) strategies before proceeding with a special education referral.
3. Child exhibits social-behavior problems but is denied eligibility because academic performance is “on grade level.”
4. Physician writes a script for special education services because a hearing loss is present.
5. School makes child “eligible” under the category of services they will receive (e.g., speech-language) rather than by underlying cause of speech-language problem (e.g., deaf or hearing impairment).  For preschool children, schools might use category of “children aged three through nine experiencing developmental delays” rather than labeling according to specific disability area of eligibility.
6. Child was receiving special education services and now s/he’s “making the grade” so will be dropped from the caseload as “no longer eligible.”

Scenarios & Strategies

Do any of these situations sound familiar? Now let’s explore each a little further.

1.  A child is denied eligibility because there is insufficient evidence of “adverse effect” to meet the state’s eligibility requirements for a child who is deaf or has hearing impairment. 

This scenario sometimes reflects the success of early identification of hearing loss followed by effective early intervention services.  When combined with strong parental support, such a child can arrive at the portals of his/her public school years at age three with age-appropriate language development. As such, s/he may not qualify for continued support because there is no “adverse effect” (or language delay) usually associated with young children who are deaf or hard of hearing.  In many states, that means no further services will be provided because, by definition, the child doesn’t indicate the need for them as determined by assessments that show no deficits.  This is the paradox of early intervention: that its effectiveness could cost the child eligibility for continued support in the next stage of education (referred to as Part B in the law) which has a different system and legal obligation.

Questions to consider:

• Was the assessment sufficient in scope and intensity to identify gaps in language, communication, auditory, academic and social skills? Was the assessment a diagnostic tool versus a screening tool?
• Does the state follow federal definitions for eligibility? If not, do the state definitions of deaf or hearing impairment exclude some children/youth that might be eligible under the federal definition?
• Did the persons conducting the assessments have appropriate skills and experience to evaluate children/students who are deaf or hard of hearing?
• Was there at least one person at the eligibility meeting to interpret test findings and discuss performance and eligibility issues who had appropriate expertise in the education of children/youth who are deaf/hard of hearing?
• Were “Special Considerations” for children who are deaf or hard of hearing as required by the IDEA taken into account for this child?
• For children entering Part B (3-21) from Part C, (0-3) is there recognition of the benefits of early intervention services, and their impact on the child’s development and performance and how the school plans to sustain the current level of progress if special education services are not offered?
• For children found to be ineligible, was a process established to closely monitor the child’s progress?  Was a 504 Plan for accommodations discussed and/or developed? Is FM or other assistive technology available on a 504 Plan?

Discussion

Eligibility continues to be a growing problem with children transitioning from early intervention services (Part C) to preschool (Part B) who present with age appropriate, or near age-appropriate skills. In these cases, the challenge for the school program becomes how to sustain the progress made by the child in the early hearing detection and intervention (EHDI) programs. Progress has occurred because of the significant support given in the early intervention program. Critical development during the window of opportunity for language learning is still occurring that will differ markedly from how neurologically intact (hearing) children learn.  In other words, just because a DHH child has “met the bar” at preschool doesn’t mean that the bar stops moving.

Sidelined by “Low Incidence”

Even when children are eligible, the preschool services are frequently not specialized to the needs of these children due to the low numbers of children with these specific needs and the variety of communication modes used. These programming inadequacies often stagnate the growth afforded by the early intervention program resulting in children entering kindergarten with a greater gap than when they began preschool. If all attempts to qualify a child have been exhausted, a 504 Plan (more on that follows, and yes, preschool-age children are eligible for these, too) must be implemented to provide for appropriate accommodations as well as a system for careful tracking to monitor the child’s performance. Hearing assistive technology must be considered for these children as part of the accommodations as well.

Before determining a child is not eligible, review the testing that was the basis for the decision. Often the tests do not have sufficient scope or depth to identify the more subtle or underlying gaps in skills. Make sure that listening, auditory skill development, attention, pragmatic language, communication, and social and behavior skills are included in addition to an in-depth language assessment. Is there testing or parent observation in situations similar to the new school setting (noisy, multiple speakers, strange environment without a parent?)? These tests go beyond the typical “Child Find” cursory eligibility assessment. For school age children, be sure that academic areas, especially reading and writing, are thoroughly assessed. And finally, review the home situation to determine parent/caregiver support and subsequent needs. For transitioning children, consider they  are losing their home-based early intervention services at the same time. In these cases, is it really appropriate to deny the child-centered/school-based services as well? 

The bottom line: Is the school willing to take ownership for children who do not make adequate progress, defined as one year’s growth in one year’s time (1:1 rule) if not considered eligible for special education or supported through a 504 Plan?  That is the question, and for some parents, compensatory damages will be the answer.

Adverse Educational Effect

Eligibility decisions are based on the IDEA tenets of FAPE (Free and Appropriate Public Education) and adverse educational effect. The latter term is often subject to local definition and interpretation. For children who are deaf or hard of hearing, the definition of adverse affect for language and academic skills and other developmental areas should be determined by a child’s progress as well as their performance. The adequate progress rule of one year’s growth in one year’s time should be the measure of adverse effect. Therefore, if a child is not meeting the 1:1 rule, he/she should receive special education and related services.

Response to Intervention

2.  The school says they have to implement Response to Intervention (RtI) before referring to Special Education.  RtI is a system of a gradation of supports, strategies and progress monitoring now required by the IDEA in an effort to serve all children, and also assist those who may have learning issue. RtI requires documentation of “early intervening services” before referral to special education.

Questions to consider:

• Is there clear evidence that the child/youth meets special education eligibility, in this case, for deafness or hearing impairment?
• Have parents signed a referral for special education?
• Have IDEA regulations been reviewed regarding populations to which RtI directly applies?
• How will a “specialist” (e.g., audiologist or deaf education teacher) be involved to address the appropriate accommodations needed by a child with hearing loss to sufficiently evaluate the effects of the applied strategies?

Discussion:

RtI refers to a 3-tiered model of research-based interventions that are afforded all students to address reading instruction, behavior, or other areas under the premise that many students in special education are identified because they have not received appropriate instruction or support. The RtI model was first initiated with students with behavior problems and now has been applied to students who fall within the spectrum of learning disabilities. The intent is to integrate general, remedial, and special education to result in expanded prevention and early identification/intervention strategies so that all students can access and benefit general education (for more information on RtI, the NASDSE publication, Response to Intervention: Policy Considerations and Implementation (2005) is recommended).

The hallmarks of RtI, e.g., scientifically based instruction, progress monitoring, and use of data to make educational decisions, can improve the overall level of instruction in the general education classroom and subsequently the instruction for students who are deaf or hard of hearing.

IDEA only requires the use of the RtI paradigm as part of the learning disabilities referral process. With any new program, there is often an over-correction factor where the concept is applied to persons for which it was not intended. RtI should not prevent or delay children with specific cognitive, sensory, and physical impairments from receiving FAPE. Once a special education referral is signed by the parents/caregiver the 60 day rule applies.

Socially Inappropriate or
Communication Compromised?

3. Child exhibits social-behavior problems but is denied eligibility because academic performance is “on grade level”.  A typical scenario is the family who gets a call from the principal recommending that their DHH child be evaluated for attention deficit disorders even though the challenges of compromised communication access (both expressive and receptive) have not been explored.

Questions to consider:

• Has sufficient assessment been done to evaluate social and behavior problems?
• Does the IEP team have knowledge regarding the impact of hearing loss and resulting communication difficulties impacting social development and emotional-behavior issues?
• Does the IEP recognize that “adverse effect” on education includes these areas?

Discussion:

IEP teams should consider the overall implications of hearing loss and specifically the links between hearing loss to social and behavior problems. Recognizing that the effects of the social problems can rapidly begin to undermine academic performance may be sufficient impetus for an eligibility consideration.  Unless the behavior problem is so significant that it cannot be explained by the hearing loss alone, it is unlikely that a child would be eligible under the emotional disability category.

When services are provided by learning and/or behavior specialists without expertise in deafness/hearing impairment, the deaf education or educational audiologist must be part of the intervention team to assure that the implications of the student’s hearing loss is understood and accommodated appropriately.

A Prescription for Special Education

4. Physician writes a script for special education services because a hearing loss is present.

Questions to consider:

• Have the local medical community, speech and hearing clinics and other entities been informed regarding school legal procedures for referral and services in special education?
• Does the school district/agency have a policy for how to address this problem when it occurs?
• Is there a clear definition of eligibility in the state law?

Discussion:

The problem with this practice is that it often sets up parents to expect something from the school that may not be appropriate. We know that the power of a physician’s recommendation or that of an outside “expert” is significant and that school specialists are often portrayed as less knowledgeable. However, the contention created from the lack of collaboration between schools and non-school entities can harm the relationship that both have with the family often leaving the family caught in the middle. This issue should be resolved through on-going discussions that educate about the policies, procedures, and practices of the local school system. The difference between having a hearing loss and being eligible for services should be emphasized. When this issue arises, parents should expect an assessment, if applicable, of the child, a simple explanation of the school’s findings, provided in writing, and a phone call to the physician or professional that made the recommendation.  Such a student may also qualify for a 504 Plan to ensure equal access to the curriculum, and would also benefit from the research-based instruction and progress monitoring within RtI systems.

Categorical Confusion

5. School makes child “eligible” under the category of services they will receive (e.g., speech-language) rather than by underlying cause of problem (e.g., hearing loss); for preschool children they may use category of “child with a developmental delay” rather than labeling according to disability area of eligibility (e.g., deaf or hearing impairment).

Questions to consider:

• Have discussions within the school district or agency occurred regarding the practices of eligibility categorization and the resulting implications for services?
• Have discussions been held regarding the implications of this practice on state and federal reporting?

Discussion:

This practice must be reviewed on a state by state basis, as it may be a state IDEA regulation interpretation issue. However, there is nothing in IDEA that requires that the specialty of the person providing the service has to match the disability area of the child. When children are not labeled by the hearing disability, the state and federal reporting statistics are misleading. The numbers within the category of hearing impairment in the U.S. Department of Education, Office of Special Education’s annual data collection have consistently under reported what is thought to be actual incidence figures. One way to increase the accuracy is to report all children who are deaf and hard of hearing by their hearing loss rather than the resulting problem. Also, a child identified in this generic way may not be afforded the protections of DHH specific laws at the state level, such as the Deaf Child’s Bill of Rights, as a staff oversight, or the student may not be included in a state’s outreach activities for deaf/hard of hearing students. The exception would be children with cognitive impairments who would then be reported under multiple disabilities or those were there is compelling evidence that indicates hearing loss is not the cause of the resulting learning or behavior problem.

Disincentive to Achieve?

6.  Child was receiving special education services and now s/he’s “making the grade” so will be dropped from the case load as “no longer eligible.”

Questions to consider:

• Are academic grades the only measure by which the child’s success is being evaluated?
• How long has the student sustained his/her academic success, and are the grades authentic?
• Is there an administrative directive to lower IEP caseloads?
• How will this child do without the special education supports in place that have led to his/her achievement milestones?

Discussion:

This one is really just another way of stating scenario #1, but it speaks to the notion of loss of eligibility as opposed to denial of eligibility. When a student “graduates” from special education, should we applaud or start to worry?  Ironically, because special education services are based on a model that rewards deficits (i.e., the child has to really be failing before the “reward” of special education support), the prize for student achievement is sometimes the loss of the special services that got him/her there. Certainly, not all special education students with disabilities remain in need of specialized instruction throughout their educational career. However, when an academically successful DHH student pays the price by being booted off the caseload, something of the spirit if not the intent of law is being violated.

A strategy for avoiding this scenario is to build checks and balances into the IEP that tie achievement to a variety of indicators, not strictly to academic performance. Grades need not be the only success marker on a well thought out IEP. Crafting goals that include not only academic but functional achievement are not only a good idea, they are the very purpose of special education.  Functional achievement includes the variety of skills needed to advocate for oneself, appropriate use of an interpreter, knowing one’s own necessary accommodations and how to arrange for them, social skills, and perhaps, especially, the support needed to carry out a transition plan from high school to independent living or further education, or both. 

When grades are being used to measure achievement, the key is in knowing whether grades have been genuinely earned and not gratuitously given. Evidence of true assimilation and mastery should track to work samples. Teachers should be able to provide examples from the work of typical hearing peers that demonstrate comparable mastery (or a lack thereof) that results in the grade given. IEP teams should innovate with goal measurements like this and more that provide undeniable proof of learning.

How long the student has been able to sustain his/her academic success is an important part of the equation. Having a good semester or even a full academic year needs to be tested further to see if it can be maintained in a new classroom under different circumstances.

Administrative Agendas

The administrative “hidden agenda” is sometimes the elephant in the room when there is a push to get a student off the special education roster.  Legally, “administrative details” of any kind are not applicable to IEP discussions, including determinations of eligibility.  Is there an administrative directive to lower IEP caseloads? Limited funds and human resources make this an omnipresent possibility.  The antidote tracks back to the effectiveness of the IEP: can you rely on the data it creates proving the student’s goals have been accomplished? Are the parents invested enough in the development of it that they’d recognize when it was being “sidelined” in favor of an administrative agenda?

Progress Monitoring

Finally, in the situation where a student truly no longer requires any level of specialized instruction or extra support for general education teachers, the conscientious parent and teacher will continue to use progress monitoring with this child. It could be appropriate to hold him/her on the IEP for a trial period during which time a close watch is maintained on performance. Waiting a full academic year to decide if s/he sank or swam is obviously what you DON’T want to do. Rather, six weeks into the grading period, sit down and reevaluate his/her progress.  Is it on track with typical hearing peers? How do you know that? Vocabulary, language fluency, and reading comprehension should be consistently evaluated to assure that the rate of progress is comparable to that experienced with IEP support.  Who’s doing the monitoring?  During the final staffing where the IEP is closed out, individuals should be identified with specific tasks and responsibilities so everyone knows who is keeping track of this student.  At that time, schedule a follow up meeting at a near-future date to review how the student is doing.

Support via 504 Plan

For students who are deaf or hard of hearing but do not require specialized instruction or supports, and are therefore ineligible for Special Education, a 504 Plan provides another mechanism for accommodations. This law derives from the Rehabilitation Act of 1973, a civil rights act. Eligibility for its services is based on a physical or mental impairment that substantially limits at least one major life activity. Deafness or hearing impairment is a qualifying condition by that definition. 

Under this law, a student with a disability can expect to have a 504 Plan developed at school. This is usually done with a school professional who is the “504 Administrator.”  This plan will spell out the accommodations necessary for the student to have access to education. In the case of a DHH student, this could include a sign language interpreter or closed captioning or other access support accommodations.

Yet the 504 Plan lacks a lot compared to an IEP.  504 Plans do not come with a budget or local legislation to enforce them. Parents and students are essentially left without procedural safeguards other than filing a federal complaint with the Office of Civil Rights as might be done when a school refuses to build a ramp for a student using a wheelchair.  So shifting from an IEP to a 504 Plan is certainly not a lateral move, and represents a significant drop in support.  Be sure the support is no longer needed before you concede to a 504 Plan.

Sometimes “No” Isn’t Really “No”

It is critical when questions of eligibility come up that parents learn the law regarding their rights and their child’s educational diagnosis.  The difference between receiving special education support and going without could boil down to the effectiveness of the family’s advocacy efforts.

For more information on this topic, see these related articles/products:

A Question of Automatic Eligibility: Does My Deaf/HH Child Need an IEP?”
www.handsandvoices.org/articles/education/law/auto_elig.html

A Bridge to Preschool: Navigating a Successful Transition
http://cohandsandvoices.org/docs/Bridge-Revised2012.pdf