Who Pays For Audiograms Used In Schools?

Who Pays For Audiograms Used In Schools?

It continues to come to my attention that some school districts require parents to obtain audiograms for their children, including the arrangement for, transportation to, and payment of same. This began as a cyber-discussion with some teachers of the deaf from Wisconsin, who insisted that in WI, it is the responsibility of the parents to provide the audiogram for the initial IEP. My protests to the contrary were to no avail. In fact, this cyber-discussion branched out and disclosed further information:

1) Teachers report that their school system does not have educational audiologists, therefore the parents must bear the responsibility for obtaining the audiograms.

2) Teachers report that although there is a program audiologist, there is no audiology suite, so parents must take their children to a clinic for accurate audiograms, provide the schools with a copy of the audiograms, and pay for the audiograms, themselves.

3) Parents report that the school nurses send notes home that a child has failed a hearing screening conducted by the nurse. The parents are instructed to take their children for audiological and otological examinations at their own expense.

4) Parents report that after moving, news school districts insist that the parents obtain a current audiogram at their own expense, otherwise no educational services will be provided.

5) Parents report that they routinely receive notes from their children's HI programs advising them that it is time for the student to have a new audiogram, and that they should have it done, sometimes at their own expense, and provide a copy to the school.

This is truly mind-boggling! I know from my own personal experience in this regard that parents not only do not have to pay for the audiological services that are related to school, but they also do not have to make the arrangements and/or transport, either. Parents continue to report that they receive notes directing them to take their child for an audiological and/or otological evaluation, and they naively forfeited wages to take time off from work to do so, and pay for the evaluations, themselves. I was one of those parents, years ago, before I learned better.

I am upset that this continues to happen. Even when confronted, some school employees continue to insist that parents must provide schools with a copy of the child’s audiogram, obtained at the parents’ expense, some implying that the child will be declared ineligible for special education if the parents do not comply with the school’s directives in this regard. I believe that every parent who experiences this has an obligation to document it, in the form of a complaint, either to their state department of education or, if a specific school district makes this demand of all the parents of students with hearing loss, as a systemic complaint to the U.S. Department of Education’s Office for Civil rights. (See http://www.ed.gov/about/offices/list/ocr/qa-complaints.html for help with a complaint.)

I write this, however, to hopefully dispel the myth that parents must pay for audiograms that will be used in school, and to inform parents who have been victimized by this, that they have the right to file a complaint pursuant to IDEA, alleging a violation of FAPE, and also to seek reimbursement for their expenses.

Following is my lay analysis of why this is the case, pursuant to the requirements of the Individuals with Disabilities Education Act, [IDEA] (as amended in 1997) which regulates the provision of special education in every state. IDEA’s implementing regulations, issued in 1999, state:

Section 300.121 Free appropriate public education.

(a) General. Each State must have on file with the Secretary information that shows that, subject to ง300.122, the State has in effect a policy that ensures that all children with disabilities aged 3 through 21 residing in the State have the right to FAPE, including children with disabilities who have been suspended or expelled from school.

It should be noted that FAPE is an acronym that stands for FREE, APPROPRIATE PUBLIC EDUCATION. "Free" means at no expense to the parent. The regulations explain at ง300.13 Free appropriate public education:

As used in this part, the term free appropriate public education or FAPE means special education and related services that (a) Are provided at public expense, under public supervision and direction, and without charge;

(Authority: 20 U.S.C. 1401(8))

The concept of "free" is not limited to only prohibit parental out of pocket expense. IDEA provides that parents cannot be required to use their personal or public health insurance to pay for evaluations and/or therapy. Parent must consent each time a school proposes to use a parent’s insurance. Such consent is voluntary, and may be withdrawn at any time. The regulations, at ง300.142 provide:

(f) Children with disabilities who are covered by private insurance.

(1) With regard to services required to provide FAPE to an eligible child under this part, a public agency may access a parent's private insurance proceeds only if the parent provides informed consent consistent with ง300.500(b)(1).

(2) Each time the public agency proposes to access the parent's private insurance proceeds, it must——

(i) Obtain parent consent in accordance with paragraph (f)(1) of this section; and

(ii) Inform the parents that their refusal to permit the public agency to access their private insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.

Even the use of public insurance is constrained. Again, ง300.142 addresses the issue:

(e) Children with disabilities who are covered by public insurance.

(1) A public agency may use the Medicaid or other public insurance benefits programs in which a child participates to provide or pay for services required under this part, as permitted under the public insurance program, except as provided in paragraph (e)(2) of this section.

(2) With regard to services required to provide FAPE to an eligible child under this part, the public agency——

(i) May not require parents to sign up for or enroll in public insurance programs in order for their child to receive FAPE under Part B of the Act;

(ii) May not require parents to incur an out-of-pocket expense such as the payment of a deductible or co-pay amount incurred in filing a claim for services provided pursuant to this part, but pursuant to paragraph (g)(2) of this section, may pay the cost that the parent otherwise would be required to pay; and

(iii) May not use a child’s benefits under a public insurance program if that use would——

(A) Decrease available lifetime coverage or any other insured benefit;

(B) Result in the family paying for services that would otherwise be covered by the public insurance program and that are required for the child outside of the time the child is in school;

(C) Increase premiums or lead to the discontinuation of insurance; or

(D) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures.

In any event, schools may not require parents to consent to allow the public educational agency to use their health insurance to pay, in whole or in part, the cost of evaluations or therapy, regardless of whether it is public or private insurance, particularly if doing so would reduce any lifetime coverage or benefit. Additionally, parents who consent to allow the school to access their health insurance may not be required to incur the cost of any deductible or co-pay. Section 300.142 also provides:

(g) Use of Part B funds.

(1) If a public agency is unable to obtain parental consent to use the parent's private insurance, or public insurance when the parent would incur a cost for a specified service required under this part, to ensure FAPE the public agency may use its Part B funds to pay for the service.

(2) To avoid financial cost to parents who otherwise would consent to use private insurance, or public insurance if the parent would incur a cost, the public agency may use its Part B funds to pay the cost the parents otherwise would have to pay to use the parent's insurance (e.g., the deductible or co-pay amounts).

The "free" in FAPE contains no hidden meaning or exceptions regarding special education evaluations, programs and services.

Every state in the nation accepts federal special education funding provided by IDEA. Thus, every state has an obligation to comply with the requirements of IDEA. One of the requirements is that the states have an affirmative obligation to identify, locate and evaluate children who are in need of special education and related services. This is required in ง300.125 Child find:

(a) General requirement.

(1) The State must have in effect policies and procedures to ensure that——

(i) All children with disabilities residing in the State, including children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated; and

(ii) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.

(2) The requirements of paragraph (a)(1) of this section apply to——

(i) Highly mobile children with disabilities (such as migrant and homeless children); and

(ii) Children who are suspected of being a child with a disability under งง300.7 and in need of special education, even though they are advancing from grade to grade.

In Attachment 1 to the implementing regulations, the U.S. Department of Education’s Office of Special Education Programs [OSEP] clarifies that this responsibility remains regardless of the age of the child or which agency is responsible under this part:

Note 3 provided needed clarification of long-standing statutory requirements, under Parts B and C regarding the respective responsibilities of the SEA and Part C lead agency for child find activities. In States in which the SEA and Part C lead agency are different, each agency remains responsible for ensuring that the child find responsibilities under its program are met, even if the agencies, through an interagency agreement, delegate to one agency the primary role in child find for the birth through two population. When different, the SEA and Part C lead agency are encouraged to cooperate to avoid duplication and ensure comprehensive child find efforts for the birth through two population.

In order to identify and evaluate students who have a hearing loss, an audiogram is necessary. Thus, the public education agency is required to provide the evaluation. As defined in IDEA’s implementing regulations at ง300.500(b)(2):

Evaluation means procedures used in accordance with งง300.530-300.536 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs;

The obligation of the public agency to evaluate students does not end after the initial evaluation. The IDEA statute, itself, is explicit:

20 U.S.C. ง 1414 - EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS.

(a) EVALUATIONS AND REEVALUATIONS-

(1) INITIAL EVALUATIONS-

(A) IN GENERAL- A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation, in accordance with this paragraph and subsection (b), before the initial provision of special education and related services to a child with a disability under this part.

(B) PROCEDURES- Such initial evaluation shall consist of procedures --

(i) to determine whether a child is a child with a disability (as defined in section 602(3)); and

(ii) to determine the educational needs of such child.

(i) IN GENERAL- The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability as defined in section 602(3)(A) or 602(3)(B) shall obtain an informed consent from the parent of such child before the evaluation is conducted. Parental consent for evaluation shall not be construed as consent for placement for receipt of special education and related services.

(ii) REFUSAL- If the parents of such child refuse consent for the evaluation, the agency may continue to pursue an evaluation by utilizing the mediation and due process procedures under section 615, except to the extent inconsistent with State law relating to parental consent.

(2) REEVALUATIONS- A local educational agency shall ensure that a reevaluation of each child with a disability is conducted --

(A) if conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every 3 years; and

(B) in accordance with subsections (b) and (c).

(b) EVALUATION PROCEDURES-

(1) NOTICE- The local educational agency shall provide notice to the parents of a child with a disability, in accordance with subsections (b)(3), (b)(4), and (c) of section 615, that describes any evaluation procedures such agency proposes to conduct.

(2) CONDUCT OF EVALUATION- In conducting the evaluation, the local educational agency shall --

(A) use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the parent, that may assist in determining whether the child is a child with a disability and the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities;

(B) not use any single procedure as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and

(C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

(3) ADDITIONAL REQUIREMENTS- Each local educational agency shall ensure that --

(A) tests and other evaluation materials used to assess a child under this section --

(i) are selected and administered so as not to be discriminatory on a racial or cultural basis; and

(ii) are provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so; and

(B) any standardized tests that are given to the child --

(i) have been validated for the specific purpose for which they are used;

(ii) are administered by trained and knowledgeable personnel; and

(iii) are administered in accordance with any instructions provided by the producer of such tests;

(D) assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided.

The requirements of this part make it clear that the evaluation, in this case the audiological evaluation, be conducted a properly trained and qualified audiologist, using properly calibrated equipment. If the school does not have the appropriate staff or equipment, the obligation is not dismissed. The school must ensure that the proper evaluation is conducted by the proper professional, at public expense.

Public educational agency responsibility is not limited solely to the evaluation of a child’s hearing, through the audiogram. IDEA and its predecessor statutes have also historically required that schools maintain the hearing aids worn by students in school in proper repair:

ง300.303 Proper functioning of hearing aids.

Each public agency shall ensure that the hearing aids worn in school by children with hearing impairments, including deafness, are functioning properly.

(Authority: 20 U.S.C. 1412(a)(1))

In Attachment 1, OSEP explains:

Section 300.303 has been included in the Part B regulations since they were initially published in 1977. The note following ง300.303, which incorporated language from a House Committee Report on the 1978 appropriation bill, served as the basis for the requirement in ง300.303. That report referred to a study done at that time that showed that up to one-third of the hearing aids for public school children were malfunctioning; and the report stated that the [Department] must ensure that hearing impaired school children are receiving adequate professional assessment, follow-up, and services.

Section 300.303 was added to address that Congressional directive, and has been implemented since 1977. The Department has routinely monitored ง300.303; and when a violation has been identified, appropriate corrective action has been taken. Although it is important that ง300.303 be retained in the final regulations, the note is no longer relevant, and should be deleted.

Questions relating to damage of hearing aids are addressed in the analysis of comments on the definitions of assistive technology devices and services (see งง300.5 and 300.6).

As noted above, hearing aids are considered an assistive technology device. Addressing the issue of assistive technology, the regulations state at ง300.308:

(a) Each public agency shall ensure that assistive technology devices or assistive technology services, or both, as those terms are defined in งง300.5-300.6, are made available to a child with a disability if required as a part of the child's -

(1) Special education under ง300.26;

(2) Related services under ง300.24; or

(3) Supplementary aids and services under งง300.28 and 300.550(b)(2).

(b) On a case-by-case basis, the use of school-purchased assistive technology devices in a child's home or in other settings is required if the child's IEP team determines that the child needs access to those devices in order to receive FAPE.

(Authority: 20 U.S.C. 1412(a)(12)(B)(i))

I contend, therefore, that hearing aids, FM systems, and soundfields are included under this part. At ง300.5, the implementing regulations state:

As used in this part, Assistive technology device means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability.

(Authority: 20 U.S.C. 1401(1))

IDEA is quite explicit that public schools have the obligation to provide assistive technology services, which includes the evaluation of child for the appropriateness of providing a specific assistive technology device or devices, as well as the provision, maintenance, repair and usage training for same. Section 300.6 provides:

As used in this part, Assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device.

The term includes

(a) The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child's customary environment;

(b) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;

(c) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;

(d) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

(e) Training or technical assistance for a child with a disability or, if appropriate, that child's family; and

(f) Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of that child.

(Authority: 20 U.S.C. 1401(2))

Attachment 1 provides some clarification regarding the provision of personal hearing aids:

As a general matter, public agencies are not responsible for providing personal devices, such as eyeglasses or hearing aids or braces, that a disabled child requires regardless of whether he or she is attending school. However, if a child's IEP team specifies that a child requires a personal device in order to receive FAPE, the public agency must provide the device at no cost to the child's parents. Consistent with section 612(a)(12) of the Act, public agencies that are otherwise obligated under Federal or State law or assigned responsibility under State policy or interagency agreement or other mechanisms to provide or pay for any services that are also considered special education or related services, including devices that are necessary for ensuring FAPE, must fulfill that obligation or responsibility, either directly or through contract or other arrangement.

In pursuit of OSEP’s reference, above, to related services, one should reference the implementing regulation’s provisions relating to same, which expressly includes audiology services. Section 300.24 Related services provides:

(a) General. As used in this part, the term related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training. [Emphasis added.]

(b) Individual terms defined. The terms used in this definition are defined as follows:

(1) Audiology includes

(i) Identification of children with hearing loss;

(ii) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing;

(iii) Provision of habilitative activities, such as language habilitation, auditory training, speech reading (lip-reading), hearing evaluation, and speech conservation;

(iv) Creation and administration of programs for prevention of hearing loss;

(v) Counseling and guidance of children, parents, and teachers regarding hearing loss; and

(vi) Determination of children's needs for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification.

Please do not allow anyone to pressure you into paying for things our tax money is to pay for. If a parent has already obtained an audiogram at personal expense and is willing to provide it to the school, that, of course, is the parent’s choice, which is voluntary. However, no parent should be told that it is the obligation of the parent to pay for an audiological evaluation and to provide the results of that evaluation - the audiogram - to the school. If one’s state’s rules require that an audiological evaluation be conducted in order to determine eligibility, it is the responsibility of the public education agency, not the parents, to provide it or to pay for its provision.

There are procedures for filing complaints if you believe your rights have been violated. IDEA requires that these procedures be widely disseminated. Section ง300.660 of the implementing regulation provides at ง300.660:

Adoption of State complaint procedures.

(a) General. Each SEA shall adopt written procedures for——

(1) Resolving any complaint, including a complaint filed by an organization or individual from another State, that meets the requirements of ง300.662 by——

(i) Providing for the filing of a complaint with the SEA; and

(ii) At the SEA's discretion, providing for the filing of a complaint with a public agency and the right to have the SEA review the public agency's decision on the complaint; and

(2) Widely disseminating to parents and other interested individuals, including parent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate entities, the State's procedures under งง300.660-300.662.

(b) Remedies for denial of appropriate services. In resolving a complaint in which it has found a failure to provide appropriate services, an SEA, pursuant to its general supervisory authority under Part B of the Act, must address:

(1) How to remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the child; and

(2) Appropriate future provision of services for all children with disabilities.

(Authority: 20 U.S.C. 1221e-3)

If you have paid for audiograms used by the school because you have been told that you must do so, you should at least request reimbursement. If reimbursement is denied, you have the right to file a complaint alleging a violation of IDEA and also to pursue reimbursement, as provided above. You can obtain information and assistance about the complaint process from the office of special education of your State Department of Education. A links to each state department of education is online at CCSSO.

ฉ Celeste Johnson, 2002

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