Need help interpreting IDEA.

[2boyzmama]

Is there a provision within IDEA that allows the state to further define or clarify a disability?

I went to a workshop today about 504. It was hosted by the Office for Civil Rights. It was very informative!

After the workshop, I spoke with the presenter privately about my issue with Connor (hearing impaired, argument with the school regarding his school placement, I want him out of district, school says they can't under Least Restrictive Environment and they won't because they are meeting FAPE). As I discussed the details with him, I mentioned that the State of Ohio defines Hearing Impaired differently than IDEA does, and that I believe that is the crux of this issue I'm having. (if he is labeled hearing impaired, he has different rights under IDEA). The state definition of hearing impaired is more restrictive than IDEA's definition, Connor does not meet the state definition but does meet IDEA's definition.

The presenter stopped and said "oh, well that might be your complaint." He said that I can file a complaint with OCR saying that the Ohio Department of Education is discriminating against Deaf children by imposing a regulation not in accordance with IDEA, thereby restricting their access to education.

*BUT*, here's the part where I need more information...he said that he doesn't know whether IDEA has a provision that might allow the state to further define a disability.

In this case, IDEA says on that a child qualifes as hearing impaired if they have hearing loss that "adversely affects a child's education performance." Which is very broad. Ohio State's definition specifies the degree of loss at specific frequencies. Which means that children like Connor, with fluctuating hearing loss, don't qualify according to the state.

Before I file a complaint, I want to know if there is any provision in IDEA that allows for this???

[khaoskat]

A federal regulation (like IDEA) provides the minimum qualifications that must be met. A state can broaden those, but cannot make it any more restrictive.

Ok, here is exactly what IDEA has to say, from the OCECD website...

http://www.ocecd.org/hearingImpDis.php

A hearing impairment is defined by the Individuals with Disabilities Education Act (IDEA) as "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. Deafness is defined as: 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.

I bolded and color changed the important words for you in this...

Here is Ohio Revised code definition for "hearing impairment" ...

Definition Sec.1, Sec. 3701.503
(F) "Hearing impairment" means a loss of hearing in one or both ears in the frequency region important for speech recognition and comprehension.

[2boyzmama]

I can't find my links!! The state definition you gave, khaoskat, is different than what I have read. But I can't find the stinking link. Let me keep looking.

[Aridel]

I'm getting the same definition khaoskat found. There is a link to a PDF from the Ohio Dept. of Ed website - it's called Operating Standards for Ohio Educational Agencies Serving Children with Disabilities and it's fairly lengthy.

[khaoskat]

http://www.edresourcesohio.org/ogdse...nt#requirement

I think this is what she is referring to:

3301-51-06
(J) Additional procedures for identifying children with deafness or hearing impairment
A group of qualified professionals and the parents of the child may determine the child has deafness or a hearing impairment if the child exhibits:

(1) An average pure tone hearing loss of fifty decibels or greater, according to the “American Speech-Language-Hearing Association (ASHA) Guidelines for the Audiologic Assessment of Children From Birth to Five Years of Age” (2004) for children from birth to five years of age or according to the "American Speech-Language-Hearing Association (ASHA) Guidelines for Manual Pure- Tone Threshold Audiometry" (2005) for children six through twenty-one years of age, for the frequencies five hundred, one thousand, and two thousand hertz in the better ear; [The guidelines referenced in paragraph (J)(1) of this rule are available at www.asha.org.]
(2) An average pure tone hearing loss of twenty-five decibels or greater (ASHA) for the frequencies five hundred, one thousand, and two thousand hertz in the better ear, which has an adverse effect upon the child's educational performance related to documented evidence of:

(a) A more severe hearing loss during the developmental years than is currently measured;
(b) A history of chronic medical problems that have resulted in fluctuating hearing, presently or in the past; or
(c) A delay in diagnosis, provision of amplification, or initiation of special programming.

(3) A hearing loss in excess of twenty-five decibels (ASHA) for the frequencies one thousand hertz through eight thousand hertz in the better ear, resulting in such poor auditory discrimination that it has an adverse effect upon the child’s educational performance.

[2boyzmama]

There we go...that's what I had read before. That definition limits it to decibels and frequencies, and puts qualifiers that IDEA does not. Connor meets the definition oh hearing impaired under IDEA, but not under 3301-51-06.

How is it possible that the state law can restrict the federal law?

[khaoskat]

I think the key word to argue is "average". If one test shows "more" and another test shows "less", then you come up with an average loss of what the two tests show....(or more as in your case).

So --

Test 1 - 20
Test 2 - 5
Test 3 - 35

Average would be 60/3 or 20.

I think you would need to look at J(2)(b) regarding your son. I would look at his test results for those areas and see what each area averages. If it is at least 25 dec on average, argue subjection (b) for the fluctation part.

[2boyzmama]

Originally Posted by khaoskat

I think the key word to argue is "average". If one test shows "more" and another test shows "less", then you come up with an average loss of what the two tests show....(or more as in your case).

So --

Test 1 - 20
Test 2 - 5
Test 3 - 35

Average would be 60/3 or 20.

I think you would need to look at J(2)(b) regarding your son. I would look at his test results for those areas and see what each area averages. If it is at least 25 dec on average, argue subjection (b) for the fluctation part.

I have his hearing tests in front of me right now. Here's his average at each frequency, in each ear:

250, right: 31.6
250, left: 31.6

500, right: 25
500, left: 30.625

1000, right: 16.25
1000, left: 21.875

2000, right: 14.375
2000, left: 20

So no, he doesn't meet it.

But this should all be beside the point. IDEA doesn't specify decibels and frequencies. It is obvious that Connor's hearing loss effects him, mostly because of how severe it likely was before we started testing (during his EIS eval at 9 months old, they rang a bell inches from his left ear and he didn't blink...but the ENT said no sense in testing the hearing until after his first surgery because the CT scan was so horrible--the infection so severe and rampant--so we don't know what his hearing was during his first year of life) Plus he's had at least 10 ear infections in the two years that he's had tubes, and his hearing drops to about 50dB when he's infected (we have one hearing test when his left ear was infected to prove that)

So all of his drs and therapists will agree that his hearing loss effects his education, which is all that is required under IDEA. How can Ohio State require a higher degree of loss?

[khaoskat]

Sorry, I am not much help beyond what I have said. I do not understand or know how to interpret the numbers for his hearing test or how to determine how much of a loss he has for each area.

[2boyzmama]

Bumping to see if anyone else knows this info.

The issue is...the state of Ohio has imposed a stricter definition for Hearing Impaired than IDEA. My son, who has variable hearing loss (sometimes will be only 20 dB, sometimes as much as 50; and primarily at the lower frequencies, almost never at the higher frequencies) does not meet the definition according to the state, but does meet the definition according to IDEA.

We have chosen to use ASL with him (primarily because he also has Apraxia, but also because of his fluctuating hearing loss). If he is labeled hearing impaired (vs just speech and language impaired) then I have the right to choose his mode of communication (ASL) and he has the right to direct peer to peer interaction (meaning not through an interpreter). We are considering a different school placement for him, and having the label hearing impaired would give us that option.

It was suggested to me that I file a complaint against the state of Ohio claiming discrimination against hearing impaired children since the state is imposing stricter guidelines than IDEA. But I need to know if IDEA has a provision that allows a state to further define a disability.

Anyone?

[khaoskat]

Try contacting this group....

http://www.nichcy.org/Disabilities/S...aringLoss.aspx

The only thing I can think of, going back to both Constitutional Law and Conflicts of Law class is that the States are allowed to set up their own definitions of terms that are broad and general, to further assist in management/implementation of the law.

If I am reading/interpreting your numbers right, it seems he qualifies in 2 out of the 4 levels.

[tbone_kneegrabber]

I am in school to be a special ed teacher and was thinking about this thread today when reading one of my text books. The book talked about the fact that states can make their own rules to define the "13 cateagories of disability" described in IDEA. The example in the text was that a student could be in one state and recieve services for "mental retardation" in one state, but not in another because of different IQ limits.

Not that you shouldn't try to fight it that way, I just saw this thread the other day and then read the book this morning and thought of it

[2boyzmama]

Originally Posted by tbone_kneegrabber

I am in school to be a special ed teacher and was thinking about this thread today when reading one of my text books. The book talked about the fact that states can make their own rules to define the "13 cateagories of disability" described in IDEA. The example in the text was that a student could be in one state and recieve services for "mental retardation" in one state, but not in another because of different IQ limits.

Not that you shouldn't try to fight it that way, I just saw this thread the other day and then read the book this morning and thought of it

Did your textbook cite a source for that? A paragraph number within IDEA? This is exactly what the presenter cautioned me about, he said that it may be allowed, but he didn't know for sure, and I can't find anything about it.

[queencarr]

Have you checked at wrightslaw? There may be something there--I will go poke around and see...

[queencarr]

Ok, I can't find specifically what you are looking for, and kiddos are coming home any minute. But I did find this quote in reference to specific learning disabilities regarding state criteria:

(b) Consistency with State criteria. A public agency must use the State criteria adopted pursuant to paragraph (a) of this
section in determining whether a child has a specific learning disability. (Authority: 20 U.S.C. 1221e-3; 1401(30);
1414(b)(6))

from this part of IDEA at wrightslaw, pg 5 top. I thought the relevant codes at the end might be useful, but don't have time to look them up right now.