Federal/State Laws and Regulations Related to Service Provision for Children Who Are Deaf and Hard of Hearing (DHH)

Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973 prohibits the exclusion and discrimination of children who are identified as deaf and hard of hearing (DHH) by ensuring they have equal access to all school-based programs and activities that receive federal funding [34 C.F.R. § 104.4]. These individuals often have a 504 Plan, which outlines the classroom accommodations, modifications, and auxiliary aids and services necessary to give them full communication access. These may include qualified sign language interpreters, cued speech transliterators, Communication Access Realtime Translation (CART), captioning, assistive listening devices/systems, note-taking, extended time, classroom acoustic modifications, and specific seating arrangements. Tests must be nondiscriminatory (e.g., appropriate supports are provided to allow for the student’s full participation) and administered by personnel proficient in the child’s language or in the use of an interpreter (National Association of State Directors of Special Education [NASDSE], 2018; Section 504 of the Rehabilitation Act, 1973).

Education of the Deaf Act of 1986

This federal law supports the advancement of quality education for DHH students through the Laurent Clerc National Deaf Education Center at Gallaudet University and the National Technical Institute for the Deaf. Its intent is to ensure “early access to and acquisition of language, excellence in teaching, family involvement, research, identification and implementation of best practices, collaboration, and information sharing among schools and programs across the nation” (Szymanski et al., 2013, p. 2).

Americans With Disabilities Act of 1990

The Americans with Disabilities Act of 1990 (ADA) also prohibits discrimination and guarantees that children who are identified as DHH have equal access and opportunities to participate in all school- and community-based programs and activities. The ADA offers additional detail about communication access requirements [28 C.F.R. § 35.160]. Schools must provide auxiliary aids and services to ensure “effective communication” with students who are identified as DHH, their family members, and the public [28 C.F.R. § 35.160(a)(1)]. Auxiliary aids and services vary based on the language(s) used and the context of the communication; however, primary consideration must be given to requests of the individual [28 C.F.R. § 35.160(b)(2)]. The U.S. Departments of Justice and Education clarified the communication access rights of DHH children in its Effective Communication guidance document (ADA, 1990; Anderson, 2015; NASDSE, 2018; U.S. Department of Justice & U.S. Department of Education, 2014a, 2014b, 2014c).

Individuals With Disabilities Education Improvement Act of 2004

Many children who are identified as DHH are eligible to receive early intervention services under the Individuals with Disabilities Education Improvement Act of 2004 (IDEA) Part C (ages birth–3 years) and/or special education and related services under IDEA Part B (ages 3–21 years). In most states, Part C eligibility is automatically established for DHH infants and toddlers. Eligibility for Part B (ages 3–21 years) is governed by the requirements outlined in Section 300.306 of the IDEA regulations. See the American Speech-Language-Hearing Association’s (ASHA) resource on IDEA Part C: Implications for Audiologists and Speech-Language Pathologists Who Provide Services for Infants and Toddlers With Hearing Loss and Their Families and the Practice Portal page on Early Intervention. Also, please see ASHA’s resource on Individualized Education Programs (IEPs), Individualized Family Service Plans (IFSPs), and Section 504 Plans for a comparison of the different plans.

Part B of IDEA includes the following related disability categories. Although many of these terms are not preferred terms and may be considered offensive by some, these are the federal terms and definitions found in the regulations.

• Deaf-blindness: concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness. [34 C.F.R. § 300.8(c)(2)]
• Deafness: a hearing impairment that is so severe that a 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)(3)]
• Hearing impairment: 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. [34 C.F.R. § 300.8(c)(5)]
• Multiple disabilities: concomitant impairments (such as intellectual disability–blindness or intellectual disability–orthopedic impairment), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. “Multiple disabilities” does not include deaf-blindness. [34 C.F.R. § 300.8(c)(7)]

Please see ASHA’s Practice Portal page on Hearing-Related Topics: Terminology Guidance for further information. Both the level of hearing loss and the ability to access the educational curriculum must be considered when determining IDEA Part B services eligibility. However, the degree of loss alone does not determine a specific educational setting or service delivery model. According to IDEA, these decisions must be based on “a child’s language and communication needs, opportunities for direct communication with peers, and access to instruction in the language and communication mode the child uses, among other factors” (Scott, 2011, p. 12).

Schools must also ensure that comprehensive assessments are conducted by personnel with expertise in evaluating children who are DHH. IDEA requires that individualized program planning includes aids, services, and accommodations to support language/communication access and development in DHH children. These may include teachers of the Deaf, educational audiologists, speech-language pathologists (SLPs), American Sign Language English interpreters, cued speech transliterators, hearing assistive technologies, captioning, and preferential seating. See ASHA’s resource on IDEA Part B and relevant Issue Briefs.

DHH children who do not qualify for IDEA services may still be eligible for some of these aids and services under Section 504 of the Rehabilitation Act of 1973 and ADA—as long as they meet the necessary criteria. Please also see Protecting Students With Disabilities.

Every Student Succeeds Act of 2015

The Every Student Succeeds Act of 2015 (ESSA) is a federal law that addresses equal opportunity and accessibility to education for all students. Under ESSA, states are required to develop plans for professional learning, literacy, early intervention services, and assessments of children with disabilities. They must ensure that assessments are valid and reliable for the population and that appropriate testing accommodations are available in compliance with IDEA, Section 504 of the Rehabilitation Act of 1973, and ADA. See Every Student Succeeds Act: Key Issues for ASHA Members [PDF].

Early Hearing Detection and Intervention Act of 2021

Early Hearing Detection and Intervention (EHDI) programs offer early hearing screenings, diagnostic evaluations, and follow-up services to newborns, infants, and toddlers. This act ensures funding for statewide EHDI systems and programs for young children who are at risk of losing their hearing due to infection, noise exposure, or genetic causes. The act also focuses on education and training of professionals and families/care partners as well as improving access to effective and timely early intervention services for newborns, infants, and young children who are identified as DHH. EHDI systems must coordinate with IDEA Part C early intervention programs to ensure that infants and toddlers receive necessary supports and services (National Center for Hearing Assessment and Management, 2013; National Institute on Deafness and Other Communication Disorders, 2017). This act also mandates the federal government to conduct a study of state EHDI systems, including disparities in accessing programs. See ASHA’s resource on Early Hearing Detection and Intervention (EHDI) and ASHA’s page regarding the 2021 EHDI reauthorization.

State Legislation

Audiologists and SLPs remain informed of any state legislation or policies that impact Individualized Education Program (IEP) and Individualized Family Service Plan (IFSP) development and services in their state for DHH children. Some states have a Deaf Child’s Bill of Rights, which requires IEP teams to consider the language and communication needs of DHH students through the use of a formal Communication Plan that is part of the IEP (typically completed when the IEP team addresses special considerations). The Communication Plan identifies the child’s primary language and communication systems, describes how the school plans to support any access needs, and indicates opportunities for direct communication with peers and professionals in the child’s preferred language and communication systems (Hands & Voices, 2014; NASDSE, 2018; National Association of the Deaf, 2016).

Other states have enacted legislation establishing task forces to develop protocols and timelines for assessing language milestones (signed and/or spoken) in children ages birth–5 years.

Many of these laws, often referred to as Language Equality and Acquisition for Deaf Kids (LEAD-K) laws, also include mandates for tracking data and providing resources to families to help ensure that children who are DHH have a strong language foundation, regardless of modality, and are ready for kindergarten.

Audiologists and SLPs can obtain additional information about state-level legislation and/or advocacy efforts related to DHH children from their state boards, agencies, and speech-language-hearing associations. See also ASHA State-by-State

References

Americans With Disabilities Act of 1990, Pub. L. No. 101-336, § 2, 104 Stat. 328 (1991).

Anderson, K. L. (2015). Access is the issue, not hearing loss: New policy clarification requires schools to ensure effective communication access. SIG 9 Perspectives on Hearing and Hearing Disorders in Childhood, 25(1), 24–36. https://doi.org/10.1044/hhdc25.1.24

Early Hearing Detection and Intervention Act of 2021, Pub. L. No. 117-241, 136 Stat. 2332 and 2333 (2022). https://www.govinfo.gov/app/details/PLAW-117publ241

Education of the Deaf Act of 1986, Pub. L. No. 99-371, 100 Stat. 781 (1986). https://www.govtrack.us/congress/bills/115/s652/text

Every Student Succeeds Act of 2015, Pub. L. No. 114-95, 20 U.S.C. § 6301 et seq. (2015). https://www.congress.gov/bill/114th-congress/senate-bill/1177/text

Hands & Voices. (2014). DCBR revisited: The Deaf Child Bill of Rights six years later. https://www.handsandvoices.org/articles/education/law/dcbr_revisited.html

Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 (2004). http://idea.ed.gov/

National Association of State Directors of Special Education. (2018). Optimizing outcomes for students who are deaf or hard of hearing: Educational service guidelines (3rd ed.). https://www.nasdse.org

National Association of the Deaf. (2016). Bill of rights for deaf and hard of hearing children. https://www.nad.org/resources/education/bill-of-rights-for-deaf-and-hard-of-hearing-children/

National Center for Hearing Assessment and Management. (2018). Early Intervention Systematic Nationwide Analysis of Program Strengths, Hurdles, Opportunities, and Trends (EI SNAPSHOT). https://www.infanthearing.org/ei-snapshot/docs/2021%20EI%20Snapshot%20single(3_29).pdf [PDF]

National Institute on Deafness and Other Communication Disorders. (2017). New law to strengthen early hearing screening program for infants and children. https://www.nidcd.nih.gov/news/2017/new-law-early-hearing-screening-infants-and-children

Scott, G. A. (2011). Deaf and hard of hearing children: Federal support for developing language and literacy. https://www.gao.gov/new.items/d11357.pdf [PDF]

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; 34 C.F.R. § 104 (1973). https://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr104.html

Szymanski, C., Lutz, L., Shahan, C., & Gala, N. (2013). Critical needs of students who are deaf or hard of hearing: A public input summary. Laurent Clerc National Deaf Education Center. https://files.eric.ed.gov/fulltext/ED543356.pdf [PDF]

U.S. Department of Justice & U.S. Department of Education. (2014a). Dear colleague letter on effective communication. https://www.ada.gov/doe_doj_eff_comm/doe_doj_eff_comm_ltr.pdf [PDF]

U.S. Department of Justice & U.S. Department of Education. (2014b). Frequently asked questions on effective communication for students with hearing, vision, or speech disabilities in public elementary and secondary schools. https://www.ada.gov/doe_doj_eff_comm/doe_doj_eff_comm_faqs.pdf [PDF]

U.S. Department of Justice & U.S. Department of Education. (2014c). Meeting the communication needs of students with hearing, vision, or speech disabilities. https://www.ada.gov/doe_doj_eff_comm/doe_doj_eff_comm_fct_sht.pdf [PDF]