|
|
|
CI Case law #2 2 ECLPR 171
Summary For a 3-year-old student with profound hearing loss and a cochlear implant, the district provided for three, 30 minute sessions per week of individual speech and language therapy and placement in a special day class for preschool students with aural and communicative disabilities, as well as mainstreaming opportunities. The parents rejected the district's placement, and enrolled their child in a certified nonpublic preschool program for deaf and hearing-impaired children. They also filed for due process. HELD: for the parents. The hearing officer agreed with the parents that their son required an educational program using an auditory/oral approach and providing, among other things, daily intensive speech and language therapy and audiology services to teach him listening skills. The parents presented expert testimony establishing the likelihood of the student's success in speaking if he were provided with those services, and the district failed to rebut that testimony. Because the district's IEP included only limited speech and language therapy and no audiology services, it was inappropriate. The private preschool program, on the other hand, did offer appropriate services designed to meet the student's unique needs and help him learn to speak. Accordingly, the hearing officer ordered that the school district reimburse the parents for the costs they had incurred in the private placement and continue to fund the tuition and related educational costs at that facility for the balance of the academic year. Counsel for Parents: Cynthia Ludvigsen, Esq. Counsel for District: Represented by educational consultant. Hearing Officer: Mary L. Cote. Decision This matter was heard before Mary L. Cote, Hearing Officer of the California Special Education Hearing Office, McGeorge School of Law, in Hesperia, California, on September 14 and 15, 1995. Petitioner STUDENT was represented by attorney Cynthia Ludvigsen. Also present on behalf of STUDENT were his parents. Respondent Hesperia Unified School District (District) was represented by G. Robert Roice, educational consultant. Also present on behalf of the District were Jim Huckeba, director of special services, and Robert Parker, program manager for the Desert/Mountain SELPA. Evidence was received. The record was held open to allow the parties to submit written closing briefs, which were received on September 29, 1995. Thereafter, the case was closed and the matter was submitted for decision. Issues
Background Facts STUDENT, who is three years old, was born with a bilateral profound sensorineural hearing loss. He was initially found eligible for special education services on September 23, 1993, while living with his family in Fontana. Thereafter he participated in a weekly parent-infant program and also in a group program with several infants with varying disabilities. In January 1994, STUDENT entered the Hesperia District who provided him with weekly in-home parent-infant services through the San Bernardino County Superintendent of Schools (COE). In May 1994, STUDENT was fitted with hearing aids. The hearing aids did not significantly improve STUDENT's ability to hear. In March 1995, the COE completed a triennial assessment of STUDENT, which included psycho-educational, speech and language, and health evaluations. School psychologist Stan Pace found that STUDENT's cognitive abilities fall within the average range. Darlene C. Clements, language, speech, and hearing specialist, noted that at the time of testing, STUDENT was non-verbal and used sign language and gestures to communicate. (Respondent's Exhibits 9 and 10; Petitioner's Exhibit 6) On June 12, 1995, STUDENT received a cochlear implant at Loma Linda University Hospital. The implant was activated on August 1, 1995.1 STUDENT is now able to hear sounds sufficient to facilitate the teaching of spoken language. Loma Linda continues to monitor the functioning of the implant. STUDENT's current IEP, which was developed on July 13, 1995, includes goals and objectives to develop sound awareness, to acquire speech skills, and to develop pre-academic skills in reading and math. An additional goal is for STUDENT to wear his processor turned on to recommended voltage during all waking hours. The IEP calls for three, 30-minute sessions per week of individual speech and language therapy and "reverse" mainstreaming with age, cognitive, and language appropriate peers. STUDENT is eligible for extended school year services (ESY). The District offered to place STUDENT at Lucy Seigrist School in a special day class (SDC) for preschool students with aural and communicative disabilities. The SDC meets for four hours daily. The District proposed to provide mainstreaming opportunities with students attending a State-funded preschool program located at the school. (Petitioner's Exhibit 8) STUDENT's parents rejected the District's proposed placement and requested a special education due process hearing. On July 17, 1995, STUDENT's parents enrolled him at the Children's Choice for Hearing and Talking Center (CCHAT) in San Bernardino, California. CCHAT is a certified nonpublic preschool program for deaf and hard of hearing children from birth to six years of age. CCHAT provides a daily four-hour program that employs an auditory/oral approach to learning. STUDENT's parents assert that STUDENT requires an educational program that employs an auditory/oral approach to learning, daily intensive speech and language therapy, intensive audiological support, daily checks of STUDENT's implant system to ascertain that it is properly functioning, and family counseling. Summary of Relevant Testimony MOTHER testified that the family's mode of communication is spoken English, which also should be the mode employed to teach STUDENT. MOTHER testified that STUDENT learned some signs before his cochlear implant. She testified, however, that it is inappropriate for STUDENT to now be exposed to signing for the following reasons:
In a letter dated July 21, 1995, William F. House, M.D., Hearing Associates, stated that the appropriate equipment and experienced staff are available at CCHAT. He noted that Linda Dye, audiologist at CCHAT, worked with him at the House Ear Institute in Los Angeles. Dr. House also stated that "There are numerous studies and documented evidence that these children [with cochlear implants] can develop excellent understandable speech and normal reading skills.. . . After a few years of training by experienced personnel, many of these children have been mainstreamed into regular classes with some resource help. Besides being so much better for the child this has made the education of these children, much less expensive than the former need to continue the children in specialized segregated classes." (Petitioner's Exhibit 23) In another letter submitted by the parents, Charles E. Stewart, M.D., ENT/Head and Neck Surgeon of the Loma Linda University Surgery Medical Group, Inc., made similar recommendations. In his letter of July 19, 1995, Dr. Stewart stated that "The CCHAT Center places emphasis on auditory/oral communication exclusively.. . . An exclusively oral communication program is the only type of program that makes sense to me in patients with a cochlear implant. I am behind Linda Dye and her emphasis on this type of program.. . ." (Petitioner's Exhibit 23) MOTHER testified that based on two observations of the District's SDC, she concluded that the program offered by the District is not appropriate and will not meet STUDENT's needs. MOTHER testified that the District's proposal of three sessions of speech and language therapy is not sufficient to allow STUDENT to learn sounds and their meanings, and to learn to speak. MOTHER testified that District personnel are not trained to work with cochlear implant students, to monitor the equipment, or to employ auditory/oral teaching methods. She also expressed concern that the preschool students at Seigrist may predominately be Spanish speaking, which would not provide good speech and language models for STUDENT. MOTHER asserts would be confusing for STUDENT as he is just beginning to learn to communicate in oral English. MOTHER also noted that a majority of the students in the class are communicatively handicapped. MOTHER's first visit to the SDC occurred in May 1995 when the class was located in a different classroom and had a different teacher. MOTHER testified that the SDC continues to be inappropriate for STUDENT for the reasons stated above and for the following additional reasons: the current teacher signs with one student in the class and during group activities; the teacher speaks in a loud voice and over-emphasizes words; the acoustics in the class are not good; and there are no other students with cochlear implants in the class. Anne Yamashita, audiologist at Loma Linda, has provided follow-up services to STUDENT subsequent to the activation of his implant. During the first week after the implant was activated she saw STUDENT daily and, during the second to tenth weeks, she saw STUDENT once each week to work on auditory rehabilitation and to map the speech processor. From weeks 11 and thereafter, Ms. Yamashita will see STUDENT at three months, six months, and then yearly to ensure that the processor is functioning appropriately and that the exterior part of the device fits. Ms. Yamashita testified that the goal is for STUDENT to be able to tell his parents and teachers when the device is not properly functioning. Ms. Yamashita noted that STUDENT should have daily access to a Dual Processor Interface (DPI) to check to make certain that the mapping is working. A DPI is available at Loma Linda. Ms. Yamashita also recommended one hour of daily individual speech and language therapy and the use of an auditory/oral approach to learning to allow STUDENT, as student with a cochlear implant, to learn to the meaning of sounds and to learn to speak oral English. Kathleen Daniel Sussman, director of the Jean Weingarten Peninsula Oral School, testified on behalf of STUDENT. Ms. Sussman has received significant training to work with students with cochlear implants, participated in clinical trials of persons with cochlear implants, and presently is director of a program that provides educational services jointly with Stanford to students with cochlear implants. Ms. Sussman testified that clinical data has shown that students with cochlear implants can successfully return to a regular school program with minimal support if they receive two to three years of intensive training to listen and speak. Ms. Sussman testified that to be appropriate for STUDENT, a placement must include the following: an enriched auditory/oral program; a small number of other students with similar needs, as well as children with normal hearing; a teacher knowledgeable about audition and who believes that students can learn to use their technological systems; enriched listening opportunities so that the student can develop speech, language, and hearing skills congruently; a strong parental component so that parents can support the instructional program at home; instruction and activities to meet age-appropriate cognitive, developmental, and social needs; good language models; and one hour daily of individual speech, language, and listening therapy. Ms. Sussman also testified that the speech and language therapist should have experience working with hearing impaired students so that the therapist understands how to integrate listening and speech production. Ms. Sussman stated that it is also advisable that the speech and language pathologist have specific training with students with cochlear implants. Ms. Sussman testified that it is extremely beneficial to have an audiologist monitor the mapping of the speech processor and that it is more efficient to have the equipment available at the school site. Ms. Sussman testified that the level of speech and language therapy offered by the District is not sufficient to teach STUDENT to listen and to learn to speak. Jodi Archer, who has been a resource teacher in another school district, testified on behalf of STUDENT. Ms. Archer has a cochlear implant. She testified that important parts of an appropriate educational program are a suitable acoustic environment, intensive therapy, and peers with similar needs. Ms. Archer testified that STUDENT's speech and language therapist should have familiarity with cochlear implants so that the therapist will know appropriate techniques to employ. Ms. Archer testified that STUDENT is not communicatively handicapped so he should not be placed with students who are. She noted that students with communication delays would not provide STUDENT with good speech and language models. Linda Dye, audiologist, is the co-director of CCHAT and is also employed at Loma Linda. Over the prior 11 years, Ms. Dye has worked with from 15 to 20 students with cochlear implants. Ms. Dye provides STUDENT with one-half hour daily of audiological services at CCHAT. Ms. Dye testified that STUDENT requires daily, intensive speech and auditory training. She also noted the importance of parental involvement in the program. Ms. Dye testified that successful cochlear implant students have daily access to DPI computer equipment to monitor their speech processors and to adjust mapping. Ms. Dye testified that the purpose of the instruction STUDENT receives at CCHAT is to empower him to use his hearing effectively and to produce speech. Ms. Dye testified that STUDENT is making progress vocalizing, differentiating vowels, and is responding to his name. Patricia Balthazor, speech and language therapist, is the director of CCHAT. Ms. Balthazor was previously employed by the San Bernardino COE and has been in private practice for 15 years. Ms. Balthazor provides STUDENT with daily individual and small group speech and language therapy. She also testified regarding STUDENT's need for daily, intensive speech, language, and auditory services. Andy Taylor, principal of Seigrist School, testified on behalf of the District. Mr. Taylor testified that the following changes regarding the SDC were made for the commencement of the 1995-96 school year: the class moved to a different classroom located in the back of the school and the general acoustic environment of the class has improved; a more experienced teacher was hired to teach the SDC; a speech and language therapist with knowledge regarding cochlear implants was hired to provide services to the students at the school; and a regular education preschool program was placed on the campus. Mr. Taylor testified that English is used in the preschool class. During the summer, all of the staff who would be involved with STUDENT participated in an in-service put on by the Cochlear Corporation. The participants obtained information regarding the device and how to check the wires and batteries to ensure that the system is properly operating. As to the parents request for counseling, Mr. Taylor testified that the counselors are available to meet with parents. Mr. Taylor testified that the IEP goals and objectives were written with the intent of utilizing an oral approach to teaching STUDENT. He noted that MOTHER and Ms. Balthazor participated in developing the IEP. Mr. Taylor stated that at the time the goals and objectives were drafted, STUDENT's implant had not been activated and it was impossible to know how he would respond. Mr. Taylor noted that goals and objectives can be revised as needed. Gwen Humphries, COE speech and language therapist, is working on her doctorate. At Wichita State, Ms. Humphries was the clinical supervisor of college students who provided services for children, some of whom had cochlear implants. Ms. Humphries did not directly provide services to the students. She acknowledged that the program at Wichita State employs an auditory/oral method of teaching students with cochlear implants. Ms. Humphries has been assigned to work with STUDENT. She testified that pursuant to information from the manufacturer, it is not necessary for the device to be checked daily on a DPI. Ms. Humphries stated that when she works with STUDENT, she will check to determine if his device is working. Ms. Humphries testified that she will begin to work with STUDENT to develop sound awareness and then will work on verbal speech production. Ms. Humphries testified that as far as she knows at this time, therapy three times per week will adequately meet STUDENT's needs. Ms. Humphries testified that her case load is very large and, after she has set up STUDENT's program, her speech aide would probably provide two of the three sessions per week to him. Ms. Humphries did not know the aide's qualifications or educational background. She stated that if STUDENT requires additional therapy, she would call for an IEP meeting. Ms. Humphries testified that there is not an audiologist at Seigrist; however, one is available within the county and routinely visits the school. Barbara Schultz has held the position of SDC teacher at Seigrist since July 1995. She worked with deaf and hard-of-hearing students in previous teaching positions in another school district. Ms. Schultz testified as follows regarding the class: there are six students in the class, a teacher and an instructional assistant; of the students in the class, two are hearing impaired and wear hearing aides and four have language delays; and one of the hearing impaired students uses sign language to communicate. Ms. Schultz employs several different teaching curricula including COE units designed to develop listening and communication skills, TOTAL (Teacher Organized Acquisition of Language), and Dazzle, a developmental curriculum. She also employs the LING method to teach sounds. Ms. Schultz described a typical school day: the students arrive and put away their belongings; the students engage in structured play; during a one-half hour morning circle, the whole group engages in name recognition, calendar, days of the week, and counting activities; the teacher then works with individual and small groups of children on their preacademic goals and objectives; the students have snack and recess; the teacher works on more goals and objectives with the students; the students go to lunch; the students participate in art, science, and structured free play; there is an afternoon circle; and the students prepare to go home. Ms. Schultz testified that three times a day she checks students' hearing aides to make certain they are functional. She stated that she would also check with STUDENT to make certain that his system is functioning appropriately. Ms. Schultz testified that the mainstreaming program with the regular education preschool students has not yet been organized; however, the students do have opportunities to interact during lunch and recess. Ms. Schultz stated that she understands that an audiologist comes to the school; however, she was uncertain whether it was every other month or twice yearly to conduct audiological examinations of the students. In any case, Ms. Schultz indicated that she has not seen the audiologists this school year. Ms. Schultz testified that she would not sign with STUDENT. She indicated, however, that she signs with one student and may sign when the whole class is together for group activities. Darlene Clements, language, speech, and hearing specialist, provided services to STUDENT in the infant program. Ms. Clements testified that per her discussion with a representative of the Cochlear Corporation, daily monitoring of STUDENT's speech processor is not necessary. Ms. Clements testified that the SDC is appropriate for STUDENT. She testified that during her observation of the class, students were involved in age-appropriate activities. She described the students as "verbal." Findings of Fact and Conclusions of Law
The following findings are made in accordance with this statute:
Right to Appeal this Decision The parties to this case have the right to appeal this decision to a court of competent jurisdiction. If an appeal is made, it must be made within ninety (90) days of receipt of this decision. Education Code § 56505(i). Order 1. Within 30 calendar days of receipt of proof, the District shall reimburse STUDENT's parents for the costs that have actually incurred since July 17, 1995, to the present for STUDENT's placement at CCHAT at the daily rate of $110.00 for tuition and for round trip transportation of 82 miles daily at the rate the District reimburses its employees as determined by the School Board. 2. The District shall continue to pay the tuition and transportation costs of STUDENT's placement at CCHAT through the remainder of the 1995-96 school year, including the extended school year program.
|
|
Copyright 2002 Itsy Bitsy Webs |
