The IEP Label Matters:

Revelations from a 2018 Ninth Circuit Court Decision

By Cheryl Johnson, H&V Headquarters Board of Directors

Scenario: Clarissa (not a real name) is a hard-of-hearing 3-year-old who is receiving services in a district preschool program designed for children who have speech problems. Her eligibility label is speech-language disability. The district acknowledges her hearing status but determined speech to be her primary need. She has not been assessed nor received services from the teacher of the deaf. She does not have any accommodations that address her listening and communication needs.

Is there a reason for parents to be concerned? Clarissa’s mother thought so on the premise that the IEP violated her educational rights under IDEA. When the district did not agree to her request to change Clarissa’s eligibility and placement, she filed a complaint with the California Department of Education. However, the Administrative Law Judge assigned to the case sided with the school district that Clarissa was receiving FAPE under her current eligibility label and placement. Clarissa’s mother then appealed her case to the Ninth Circuit Court of Appeals (S.P. v. East Whittier City School District).¹

Following testimony from the district and parent’s counsel, the Court of Appeal’s deliberations focused on two questions. First, were there any procedural violations under IDEA, and second, did the district meet its responsibility for providing FAPE? In June (2018), the Court reversed the district court’s decision on both questions and remanded the case back to the district court to determine the appropriate remedy.  The Court of Appeals found that the school district violated the Clarissa’s procedural rights under IDEA because she had not been appropriately labeled and that FAPE was denied because she had not received an appropriate evaluation of her hearing status.

Court of Appeals Rationale

In this nuanced case, the Court of Appeals first cited the school district for procedural violations for not including “hearing impairment” as one of the student’s disabilities. (Note that while the term “hearing impairment” is losing favor in social circles, it is still the term used within IDEA). The school district determined the student’s IEP eligibility as “speech and language disorder” based on its position that their evaluations did not reveal that the student’s permanent hearing loss impaired her ability to process information, which is a component of the federal IDEA definition of deafness.² However, the court ruled that the District erred in its use of deafness because her hearing status would place her in the category of hearing impairment,³ a definition that only requires the hearing loss adversely affect educational performance, a condition that was substantiated by the school district in its records that stated her speech and language problems were a result of her hearing loss.

Special Factors: Deaf Child’s Bill of Rights

Although the district court negated the impact of a disability label because they are required to provide FAPE regardless of label, the Court of Appeals noted that the special factors considerations⁴ for children identified as deaf or hard of hearing were not addressed which resulted in the IEP team only considering her speech and language delays. The ruling went on to say that without sufficient evaluation of the hearing impairment, the IEP team would be unable to reasonably develop a plan designed to provide reasonable education benefit.

The second part of the citation specifically addressed the assessment component noting that IDEA requires assessment in all areas of suspected disability.⁵   Although an audiogram was provided by Clarissa’s mother, the school district’s assessment only consisted of an auditory skills assessment obtained through observation and review of records. The Court of Appeals ruled that “such a limited review was insufficient to satisfy the District’s evaluation obligation.”

Implications for Parents

This case sets precedence in states within the U.S. Court of Appeals for the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA). Even with this limitation, it is a timely reminder to recognize the impact of any level of reduced hearing and the importance of identifying deaf or hard of hearing children appropriately by their sensory disability, whether alone or in conjunction with other disabilities.

All symptoms exhibited (e.g., speech, language, behavior, social, emotional) must be considered and evaluated appropriately.

The audiological evaluation must be more than just an audiogram. For children who use audition, it must include functional measures that address how a child hears and accesses information throughout the school environment. Language capacity, processing time, attention, listening skills, noise and reverberation levels, and visual access to the person speaking are examples of components that are part of an educationally relevant audiological assessment. When amplification is used, assessment should also validate the benefit of both personal hearing instruments (e.g., hearing aids, cochlear implants, bone conduction devices) and hearing assistive technology (e.g., remote microphone systems) in the educational setting.

Always ensure that, at a minimum, a teacher of the deaf and educational audiologist is present at IEP eligibility meetings so that all areas of your child’s functioning are considered appropriately.  ~

Endnotes:

https://law.justia.com/cases/federal/appellate-courts/ca9/16-56549/16-56549-2018-06-01.html

34 C.F.R § 300.8(c)(3) Deafness means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification that adversely affects a child’s educational performance.

34 C.F.R § 300.8(c)(5) Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but that is not included under the definition of deafness in this section.

34 C.F.R. § 300.324(2)(iv) Consideration of special factors

The IEP Team must- 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.

34 C.F.R. § 300.304(b)(1) Conduct of evaluation.

In conducting the evaluation, the public agency must—

a. Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, that may assist in determining—

(i) Whether the child is a child with a disability under § 300.8; and

(ii) The content of the child’s IEP, including information related to enabling the child to be involved in and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities).

H&V Communicator – Winter 2019