Advocacy Notes: The Right to an Appropriate Program of Special Education Support

The special education pendulum has swung away from segregated settings where students with special needs minimally mixed with ‘regular’ students in the 1980s to the current full inclusion model, where direct 1:1 instructional services are becoming rare. Students with hearing loss are already at high risk for ‘academic slippage’ due to their inability to completely access classroom communication without appropriate accommodations and supports. The move from pull-out services to provide intensive teaching in reading, language, and self-advocacy, places our students at even higher risk for developing increasing academic delays over time.

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Eligibility – Even with Good Grades

Tailored Assessment for Students with Hearing Loss: Identifying Needs to Support Eligibility for Specialized Instruction

A recent US court case1 made it clear that students with hearing loss must receive an eligibility assessment that identifies areas of suspected need secondary to hearing loss must be evaluated with sufficient intensity to satisfy in depth evaluation. The special factors considerations2 also need to be applied throughout the evaluation process. Furthermore, the LEAD-K3 movement has spotlighted the need for appropriate, tailored assessment of children who are deaf or hard of hearing.  The big question from the field of education for children with hearing loss is ‘What assessments should we be using?’

    Click here to read through the rest of the December 2019 Update
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Advocacy Notes: The Right to an Appropriate Program of Special Education Support

The special education pendulum has swung away from segregated settings where students with special needs minimally mixed with ‘regular’ students in the 1980s to the current full inclusion model, where direct 1:1 instructional services are becoming rare. Students with hearing loss are already at high risk for ‘academic slippage’ due to their inability to completely access classroom communication without appropriate accommodations and supports. The move from pull-out services to provide intensive teaching in reading, language, and self-advocacy, places our students at even higher risk for developing increasing academic delays over time. In light of this, I found a court case from 2002 that gave me pause, and hope. In Kevin T. V. Elmhurst Comm. School District No. 205 Kevin, who had a learning disability and ADHD, had received twelve years of special education (age 6-18). Kevin had average intellectual potential but his reading, math and writing skills were at the 3rd to 5th grade levels despite receiving special education services. Triennial assessments over 9 years showed that his IQ dropped nearly 20 points. Scores on academic achievement tests also decreased significantly over a 6-year period. The school was aware of his poor reading scores but did not make IEP changes to address his reading difficulties. It was stated multiple times that he should have been assessed for, and given, assistive technology (AT), but the district did not consider, let alone provide Kevin, with AT. Modifications or accommodations during state testing procedures were not included on his IEP. Although Kevin’s skills were deficient, at the end of his 12th grade year while receiving all Fs, he graduated with a high school diploma. Per this court decision, “Automatic grade promotion does not necessarily mean that the disabled child received a FAPE or is required to be graduated.” At the urging of the parents, the district transferred Kevin to a specialized day school where he received intensive instruction. In one year, Kevin made about 3 years of progress in reading, math, and writing. His parents then decided to bring the case to court. The court ruled that Kevin receive compensatory education. The school district was required to reimburse the parents for tuition paid to the specialized school and for his continued education at the school.

Where is the silver lining in this case?

First, schools can and should be held accountable when students with disabilities are not making sufficient progress. Indeed, the March 22, 2017 US Supreme Court decision rejected the standard of minimal progress. For children fully integrated in the regular classroom, the IEP should be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Second, a free and appropriate public education (FAPE) for students with disabilities includes specially designed instruction to meet the unique needs of the child. Present levels of performance and continuous performance monitoring are critical elements for determining student needs, and also identifying if the specially designed instruction is truly meeting the needs of the child. Children who display hearing loss as their only disability do not have a learning disorder. Issues in education are related directly to the access barriers caused by the hearing loss. These barriers must be accommodated per ADA and an IEP be suitably designed to close the existing gaps in learning and support the student’s ability to keep pace in the classroom. Third, intensive instruction by persons who truly understand the unique learning needs of the specific disability is likely to result in substantial progress to close achievement gaps. If our students are 1+ years delayed in their achievement, it is unlikely that they will close this gap nor keep up with the current pace of learning UNLESS an appropriately intense program of specialized instruction – by a teacher of the deaf/hard of hearing – supports this progress.   Services need to be appropriate if a child with hearing loss is to receive FAPE. Appropriate:                Accommodations to optimize access to school communication                               Assessment to identify the learning needs unique to students                               with hearing loss                                          Intensity of specialized instruction tailored to meet these                                          unique needs by a knowledgeable teacher with specialty                                            in working with students with hearing loss                                                      Continuous progress monitoring to measure                                                                    progress in closing learning gaps                                                               Revising IEP services                                                                                                                and accommodations/supports to support                                                                        GROWTH.   Click here to download this Article
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Eligibility – Even with Good Grades

Tailored Assessment for Students with Hearing Loss: Identifying Needs to Support Eligibility for Specialized Instruction

A recent US court case1 made it clear that students with hearing loss must receive an eligibility assessment that identifies areas of suspected need secondary to hearing loss must be evaluated with sufficient intensity to satisfy in depth evaluation. The special factors considerations2 also need to be applied throughout the evaluation process. Furthermore, the LEAD-K3 movement has spotlighted the need for appropriate, tailored assessment of children who are deaf or hard of hearing.  The big question from the field of education for children with hearing loss is ‘What assessments should we be using?’
If the creators of IDEA wanted to make it clear that good grades = no IEP they would have clearly done so – but they did not.
The IDEA law is consistent about looking at educational performance needs when considering a student’s eligibility for specialized instruction and support. Educational performance is not equivalent to academic performance. While academic performance needs to be considered, it is no more important to consider than the other areas specified by IDEA which are functional, behavioral, social needs and any other performance considerations relevant to the specific child. If a school team only considers grades for eligibility then they are using a sole criterion, which goes against the IDEA requirement that eligibility determinations be made with consideration of at-risk areas as determined by the suspected area of disability. Our students with hearing loss may ‘look fine’ in the classroom, yet we realize that there are usually subtle differences/needs that, added together, cause academic performance to erode over time. Even ‘good’ students with hearing loss can qualify IF there is someone on the multidisciplinary team who truly understands the impact of hearing loss on development AND uses appropriate assessments to use to tailor the evaluation process to the risk areas of students with hearing loss. Teachers of the deaf/hard of hearing and educational audiologists should have/receive the training needed to feel comfortable in assessment. The defined purpose of IDEA4: To ensure that all children with disabilities have available to them a free and appropriate education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living. Performance of the expanded core skills needed for full participation (self-advocacy, communication repair, knowledge about hearing loss, amplification independence, etc.) are necessary for a student to be fully prepared to function as an adult. These are NOT standard areas of evaluation for other students with special needs, but they must be considered as part of a tailored assessment for students who are deaf or hard of hearing.  
Download an updated version of Resources for Identifying DHH Student Needs: Eligibility Assessment and Beyond that reflects some of the information discussed in Steps to Assessment and additional recent tests not included in that book.
LIST OF RECOMMENDED ASSESSMENTS: The list includes recommendations for both functional and formal assessments for ages 3-5 years and school-age students. In evaluations, it is appropriate to look closely at social/emotional, self-advocacy, and the possibly subtle phonological/morphological awareness and ‘Swiss cheese’ language skills that impact comprehension and reading fluency. Low average language results reflect the impact of hearing loss, not capability. So often for our students, qualification for specialized instructional services hinges on the results of language assessment. A study5 found that 40% of students with hearing loss have a capacity for higher language levels beyond what test scores indicate. Further6, language learning for students with hearing loss occurs on average at 70%, or just above 2/3, of the rate of children with normal hearing. It is appropriate to anticipate that most children with hearing loss upon school entry will have some delay in expressive and/or receptive language, with greater degrees of hearing loss predicting greater levels of language delay. Also, the nature of hearing loss causes incidental language to be missed whenever a child is further away from about 3-6 feet of the speaker. This typically results in ‘spotty’ or ‘Swiss cheese’ language rather than solid overarching language delays. A student may therefore score higher than his or her actual functional language ability, based on the actual questions asked during the assessment and the individual’s particular vocabulary or conceptual knowledge. One strong finding from the robust 2015 Outcomes of Children with Hearing Loss Study7 was that normative test scores overestimate the abilities of children who are hard of hearing as they are unlikely to reflect the level of effort that students are expending to maintain competitiveness with peers. Although 80%8 of children born deaf in the developed world receive cochlear implants, the success rate with cochlear implants is highly variable and cannot be assumed to ever ‘fix’ all language development issues, even for children with the best outcomes. We must consistently communicate with our school teams that students with hearing loss are not language disordered. Language, social, and reading delays occur secondary to lifelong decreased access to communication.
Title II of the American’s with Disabilities Act requires that schools ensure that communication for students who are deaf and hard of hearing is as effective as communication for others through the provision of appropriate aids and services, thus 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.
EVERY student with hearing loss who is going through initial assessment needs to have cognitive testing in order to accurately and appropriately estimate if/how much the hearing loss has impacted development based on the student’s ability compared to peers with typical hearing.9 Students with hearing loss (DHH-only) experience delays secondary to access issues. It is important to know the cognitive ability of each student with hearing loss as their communication access needs must be accommodated so that they reach the same level of achievement as their cognitive peers. Although testing is performed in a few weeks’ time, evaluation isn’t just about a snap shot, it is about performance over time. Case in point, we received a call from a parent of a 5th grader who is hard of hearing. The child had an IEP in kindergarten and grade 1 and was then dismissed. By the end of grade 4 the reading scores had decreased. The school team wasn’t concerned because the student ‘wasn’t very bad yet.’  Time should be taken to consider the percentile scores on reading across time to see if there has been a decline.  When looking at eligibility, dig into prior testing and see if there is evidence of declining percentile ranking in test results over time. For example, in grade 2 did the child score at the 48th percentile in reading as compared to the 26th percentile in grade 4? A public agency must provide a child with a disability special education and related services to enable him or her to progress in the general curriculum. The fact that there is a decline indicates that there are special needs that have not been addressed for the student. Access needs and/or deficits in specific skills foundational to reading comprehension would then need to be identified. Sometimes administrators make the point that schools must provide educational benefit for students but do not have to guarantee that the student reaches his or her potential. Per the March 2017 decision of the US Supreme Court, schools may not settle for minimal educational progress by disabled students. Educational programs must be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. In the case of students with hearing loss, the expectation would be to provide full access to school communication and specialized instruction to fill in learning gaps PLUS support typical/expected levels of progress in the classroom. Therefore, evaluation must be tailored to identify the access, learning, and functional performance needs of every student with hearing loss so that they can progress equal to their cognitive peers.   References
  1. 1. Ninth Circuit Court of Appeals, June 1, 2018, S.P. v. East Whittier City School District: https://successforkidswithhearingloss. com/wp-content/uploads/2019/01/Court-case-RE-need-for-thorough-assessment-highlighted.pdf
  2. 2. IDEA section 300.324(2)(iv): 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.
  3. 3. LEAD-K: Language Equality and Acquisition for Deaf Kids. https://successforkidswithhearingloss.com/wp-content/uploads/2019/01/Court-case-RE-need-for-thorough-assessment-highlighted.pdf
  4. 4. The 2004 IDEA Commentary provides an overall ‘setting the stage’ for the IDEA law; on this webpage.
  5. 5. Language underperformance in young children who are deaf or hard-of-hearing: are the expectations too low? Journal of Developmental & Behavioral Pediatrics. September 19, 2017. Results2 focused on children with hearing loss who have language levels within the average range on standardized measures. Researchers identified a mismatch between the cognitive level children test at and the expectations for their language skills. In examining the abilities of their 152 young child subjects they found that at least 40 percent have a capacity for higher language levels – beyond what their language test scores indicate.
  6. 6. The Effect of IQ on spoken language and speech perception development in children with impaired hearing. Cochlear Implants International, (11)1, June, 370-74. A 2010 study3 found that children were learning language at approximately 2/3 of the rate (or 70% of the rate) of their normally hearing peers. Subjects were 62 children ages 5-12 years who used oral communication and attended oral early intervention or school settings. Children in preschool learned language at a faster rate than children attending primary school. On average, children attending preschool were learning at 0.78 of the rate for normal hearing children as compared to a rate of 0.67 for students in primary school. Speech perception scores did not plateau until children had, on average, the language ability of a typically hearing 7-year-old.
  7. 7. Epilogue: Conclusions and Implications for Research and Practice. Ear and Hearing, 36, 92S-98S. Sole reliance on norm-referenced scores may overestimate the outcomes ofCHH. When the children who are hard of hearing (CHH) were compared with the norm-referenced group on various measures, the differences were small. However, when compared the CHH to a sample of CNH who were matched on age and SES, the size of the effect of HL on language doubled to two thirds of a standard deviation. These results question the sole reliance on comparison to norm-referenced test scores for judging eligibility. Standardized test scores may overestimate CHH as they are unlikely to reflect the level of effort that students are expending (cognitive and perceptual resources) to maintain competitiveness with peers in secondary schooling, where the cognitive demands increase. We need to closely monitor the outcomes of CHH including comparing their performance relative to neighborhood grade-mates. Many CHH in the OCHL study represent the best-case scenario. We might expect that a sample with greater diversity on these dimensions would not perform as well as the OCHL cohort
  8. Language acquisition for deaf children: Reducing the harms of zero tolerance to the use of alternative approaches. Harm Reduction Journal, 2012, 9-16. Today, 80% of children born deaf in the developed world are implanted with cochlear devices. Due to brain plasticity changes during early childhood, children who have not acquired a first language in the early years might never be completely fluent in any language. If they miss this critical period for exposure to a natural language, their subsequent development of the cognitive activities that rely on a solid first language might be underdeveloped, such as literacy, memory organization, and number manipulation.
  9. Addressing the Need for Appropriate Use of Norm-Referenced Test Instruments. Supporting Success, December 2017.
  Karen L. Anderson, PhD, Director, Supporting Success for Children with Hearing Loss; 2019 Early March Update. This information is not intended as legal advice.  http://successforkidswithhearingloss.com Sign up to receive Bimonthly Updates from Supporting Success. Click here to download this article.
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