Advocacy Notes

504 Plans for Students with Hearing Loss

Question from the Field:

I work for a Co-op that has a number of teachers of the deaf/hard of hearing. Our team is having a discussion about when and if 504 plans are appropriate for students with hearing loss.

If a student has been identified with a significant hearing loss, but is academically at grade level with his peers, is it appropriate to give the student a 504 plan, as long as the student is able to receive direct services from a DHH itinerant for hearing and self-advocacy related skills? Are there legal protection differences that we should be considering?

If they are given an IEP initially, do you have suggestions for when a student is moved to a 504? Are 504 plans appropriate for students with hearing loss at the elementary and secondary level?

Can you respond for when students have hearing aids and use assistive devices and for those that do not use amplification?

All questions from the field are appreciated!

504 Plans are being implemented in different districts, which does make it confusing. The law, however, is clear:

1. All students with hearing loss qualify for a 504 Plan because hearing loss is considered a life limiting issue. The requirements of the Americans with Disabilities Act are usually addressed with a 504 Plan.

2. 504 Plans are appropriate for any age level.

3. IDEA provides specialized instruction. It also typically specifies accommodations and instructional modifications. 504/ADA provides accommodations, including auxiliary aids and services. If the IEP provides sufficient accommodations to support the student in having an equal opportunity to receive classroom communication and to reach the same level of achievement, then a 504 Plan is not necessary. In many cases the IEP team will set up a minimal program for the student to progress in school, but not necessarily have the level of accommodations for equal access as required by ADA. If this is the case then a 504 Plan is necessary. See #4 for more about level of support via IDEA.

4. As of March 2017, the level of support necessary via IDEA was clarified. The U.S. Supreme Court unanimously decided that full inclusion is the primary standard, with the “child progressing smoothly through the regular curriculum.” The Court held that “merely more than de minimis” progress is not enough. Chief Justice Roberts wrote, “…IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”  If a child is not fully included, school officials must look at the child’s unique needs and required level of specialized instruction before developing an IEP that is “pursuing academic and functional advancement.”  What does this mean for students with hearing loss? Yes, the decision can be understood as raising the bar for IDEA students. The Court was clear that this was the intent. However, many questions remain as to how this decision will apply in general, and definitively, as to how it will be applied to deaf and hard of hearing students.

5. The ADA requirements restate the principles stated under Section 504, which is often seen as the means used to fulfill the requirements of ADA. Per the U.S. Department of Justice2: C:\Users\Karen L Anderson\AppData\Local\Microsoft\Windows\INetCache\Content.Word\Depositphotos_129509528_s-2015.jpg

Public entities must not discriminate against, deny the benefits of, or exclude qualified individuals with disabilities from participation in any service, program, or activity. The aids, benefits, and services provided to persons with disabilities must be equal to those provided to others, and must be as effective in affording equal opportunity to obtain the same results, to gain the same benefit, or reach the same level of achievement as those provided to others. These requirements apply to all school-related communication for children with known hearing, vision or expressive speech impairments, ages 3 through 22, who are educated in public schools, including charter and magnet schools.

6. US Dept of Education, OSEP Policy Document, January 13, 2010 (Topic: Evaluation Procedures)-to an individual (personally identifiable information redacted), regarding “twice exceptional students,” students who have high cognition and who have a disability and may need an IEP. MS Word l PDF

C:\Users\Karen L Anderson\AppData\Local\Microsoft\Windows\INetCache\Content.Word\Depositphotos_128657040_s-2015.jpga. The letter states the Department’s believes IDEA does provide protections for students with high cognition and disabilities who require special education services.

b. “The IDEA is silent regarding “twice exceptional” or “gifted” students. It remains the Department’s position that students who have high cognition, have disabilities and require special education and related services are protected under the IDEA and its implementing regulations.”

c. My addition to a) and b) would be to say that even academically gifted children with hearing loss, or those achieving ‘good’ grades, require the expanded core curriculum skills – specifically individually designed special instruction in self-advocacy/communication repair skills. Full participation in the classroom requires these skills, especially since about 1/3 of class time is spent in group/discussion activities that are especially challenging for students with hearing loss. To reiterate what you may have heard me say before: IDEA considers educational performance needs broadly in the identification of special education needs. IDEA does not require academic delays. It requires adverse educational affect, or educational performance that is adversely affected. This can be obvious by functional assessment/observation of students with hearing loss, even if normative testing is within normal limits.

7. CIs and HAs are assistive devices. Hearing aids often show up on the IEP as being necessary for the student to receive FAPE. If the student refuses to use the amplification (FM too) then it needs to be removed from the IEP otherwise the district can be later held liable for not providing for this need. We can’t MAKE students use the amplification. We CAN teach them self-advocacy skills that should allow them to provide for the lack of amplification. Well, we know that there is not a replacement for being able to fully access communication from infancy. We have to keep in mind that sometimes students who are hard of hearing purposely stop using their devices so that they will ‘fit in better’ even if that means being educated ‘like the LD kids’ that are much more prevalent than students with hearing loss. Regardless, each situation in school should be reviewed for necessary accommodations, meaning auxiliary aids and services per ADA (and showing up on 504 plans). This worksheet was developed to assist in this process. For example, services for students who do not have IEPs can include teacher inservice, teaching use of amplification, monitoring functional classroom performance, even self-advocacy skill development – although self-advocacy is usually provided under an IEP.

8. Bottom line in my mind is – students with hearing loss require accommodations in school if they are not to be discriminated against. The IEP can provide these accommodations/auxiliary aids/services. If there is no IEP OR if the IEP does not provide sufficient accommodations to result in equal access to classroom communication, then a 504 Plan is appropriate. A student CAN have both an IEP and a 504 Plan.

If you have a question from the field, send it to karen@successforkidswithhearingloss.com!

NOTE: The information represents the opinion of Karen Anderson, PhD who is not an attorney. The information presented is not legal advice, may not be the most current, and is subject to change without notice.