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2 ECLPR 172 State Educational Agency Summary A 3-year-old student was diagnosed as having severe to profound bilateral hearing loss. After the student had cochlear implant surgery, the district conducted an assessment and concluded that although she had at least average ability, her hearing loss had substantially delayed her speech and language skills. The district proposed placement in a special day class for students who were communicatively impaired and itinerant aural services two to three times per week for thirty minutes per session. The parents rejected the placement, claiming that their daughter needed more intensive speech and therapy services than the district had offered and instead requested placement in a state-certified nonpublic school for deaf and hearing impaired students. After the district refused the request, the parents placed her in a private school and requested due process. HELD: for the parents. The hearing officer found that the evidence established that the student needed intensive speech therapy and auditory therapy as part of her preschool program in order for her to learn to hear and speak with the use of the cochlear implant. He further found that the district did not present persuasive evidence that its personnel had sufficient training and experience educating students with cochlear implants to evaluate their needs or design appropriate instructional programs. Most importantly, the district's program did not include the daily one-to-one speech and language therapy and auditory training the parents had demonstrated that the student needed. Further, the district's program did not provide the parental involvement that parents' experts had stressed as being a critical part of the program. On the other hand, the hearing officer found the private placement appropriate because its program met the student's demonstrated needs in all respects, particularly in the provision of daily individual speech therapy and auditory training and the involvement of parents in the student's training. Because the district did not offer an appropriate program and the private placement did, the hearing officer ordered the school district to reimburse the parents for the educational costs they had incurred and to fund that private placement for the balance of the academic year. Counsel for Parents: Cynthia Ludvigsen, Esq. Counsel for District: Represented by school personnel. Hearing Officer: F. Richard Ruderman. Petitioner STUDENT was represented by Cynthia Ludvigsen, attorney. Also present on STUDENT'S behalf were her mother, PARENT, and father, PARENT. Respondent Redlands Unified School District (hereafter "District") was represented by Gail Lindberg, Program Manager East Valley SELPA. Also present on the District's behalf was Janis Billings, Director of Special Services. Evidence was received, the record was closed, and the matter submitted for decision. Issues
Background Facts: STUDENT is three years old and is eligible for special education services because she is deaf. STUDENT exhibited normal hearing and speech as an infant until the age of approximately twelve months. From twelve-to-eighteen months of age, STUDENT'S speech gradually diminished. In August 1994, at the age of twenty-six months, the Audiology Center of Redlands evaluated STUDENT'S hearing and found that she had a severe-to-profound bilateral hearing loss. (Testimony of PARENT; Respondent's Exhibit 5)1 In September 1994, STUDENT began receiving services from the San Bernardino County Superintendent of Schools Early Start Preschool Program (Early Start). In the Early Start Program, a speech therapist came to STUDENT'S home for one hour per week to work with her. The primary focus of the program was for STUDENT to acquire signing skills. STUDENT continued to receive services from the early start program until May 1995. From November 1994 through April 1995, STUDENT received private speech therapy services at her parents expense from the Truesdail Speech Center for Communicative Disorders at the University of Redlands. STUDENT received the private speech therapy services twice per week for fifty minutes per session. On February 13, 1995, STUDENT had cochlear implant surgery at Loma Linda University Hospital. A cochlear implant is an electronic auditory device that is surgically implanted inside the head. It stimulates the auditory nerve causing the electronic signal to be interpreted by the brain as sound. A brochure from the John Tracy Clinic describes a cochlear implant and states in relevant part: The multichannel implant is made up of external parts which are worn outside of the body and internal parts which are surgically implanted. The external parts include a microphone headset, external transmitter coil, and a speech processor. These parts are responsible for turning sound into electrical current. The microphone is encased in what looks like a typical behind-the-ear hearing aid case. . .. The internal parts of a cochlear implant include an internal receiver which is surgically implanted in the mastoid bone behind the ear. This receiver is magnetically attracted through the skin to the external transmitter coil described earlier. During surgery, an electrode array of up to 22 channels is inserted into the cochlea. This is a delicate wire made up of 22 platinum electrode rings. The entire electrode length is 25 mm. The electrode array can stimulate up to 22 different locations in the cochlea. . .. The cochlear implant is an auditory device which is meant to provide a child with the 'sensation of sound.'. . . [I]t is not a 'cure' which will restore a child's normal hearing. A child must learn to interpret a new type of sound, an electrical signal, and attach meaning to it. . .. The ability to listen and make sense of what is heard must be developed over time. Many adult implant users describe what they hear through the implant as somewhat mechanical. Speech through the implant has been described as 'Donald Duck' talking underwater amidst 'popping' bubbles. In time, cochlear implant users report that speech becomes more 'natural-sounding.' (Petitioner's Exhibit 41) On April 4, STUDENT'S cochlear implant was activated.2 Immediately after the activation of the implant, STUDENT received regular audiology services from Loma Linda University to monitor and adjust the setting of the external speech processor. In June 1995, the District conducted an assessment of STUDENT. The assessment team concluded that STUDENT had at least average ability and was developing normally with the exception of her severe-to-profound hearing loss. STUDENT'S hearing loss resulted in her speech and language skills being substantially delayed. The assessment team noted that STUDENT had mastered approximately fifteen signs. (Respondent's Exhibit 6) On June 22, an individualized education program (IEP) team meeting was convened to determine STUDENT'S program for the 1995-96 school year. District staff recommended that STUDENT be placed in a special day class for students who are "communicatively handicapped." The special day class has a four-hour daily program and is taught by a speech and language therapist with one adult aide. In addition, the District offered the services of an "aurally handicapped itinerant" teacher two-to-three times per week for thirty minutes per session. STUDENT'S parents rejected the District's proposed placement because they felt it could not adequately address her needs. They stated that the staff was unfamiliar with cochlear implants and that STUDENT needed four hours per day of intensive speech and language therapy. STUDENT'S parents asked the District to place her at the Children's Choice for Hearing and Talking (CCHAT) Center, a State-certified nonpublic school. The District rejected their request. (Respondent's Exhibit 7; Petitioner's Exhibit 10) By letter dated June 22, 1995, STUDENT'S parents requested a due process hearing to resolve their dispute with the District. (Petitioner's Exhibit 11) On July 10, STUDENT'S parents enrolled her at the CCHAT Center and she has continued to receive special education services from the CCHAT Center until the present. At the hearing, Petitioner contended that STUDENT needs one hour per day of individualized speech therapy and auditory training in a class that uses an "auditory/oral instructional approach." Petitioner asserted that the District's proposed special day class uses three communication methods: spoken English, spoken Spanish, and signing. Petitioner asserted that such a class would be inappropriate for STUDENT because she would be confused by the numerous methods of communication used. Respondent contended that it has an appropriate program for STUDENT at either Crafton School or Beemis School. Respondent contended that STUDENT'S IEP goals and objectives could be met at either school's program. The Crafton School has a special day class for "communicatively handicapped" students that is taught by a speech therapist. Beemis School has a special day class for hearing impaired children. Respondent contended that Petitioner seeks to dictate the type of methodology used to teach STUDENT and that, under the law, that determination belongs to the District. Discussion:
Under the Individuals with Disabilities Education Act (IDEA) and State law, students with disabilities are entitled to a free appropriate public education. (20 U.S.C. § 1400(c); Education Code, § 56000.) A "free appropriate public education" is defined as special education and related services that are designed to meet the unique needs of the disabled student in a program that provides educational benefit to the student. Such services must be available to the student at no charge to the parent, must meet State educational standards, and must conform to the student's IEP. (20 U.S.C. § 1401(a)(16-18); Board of Education of the Hendrick Hudson Central School District v. Rowley (1982) 458 U.S. 176; Education Code § 56031.) Special education services for preschool children must meet the unique needs of the child and her family. Such services must include opportunities for active parent involvement. (Education Code, § 56441.2.) Group special education services for severely disabled preschool children, including deaf children, must not exceed an instructional adult-to-child ratio of one to five. (Education Code, § 56441.5.) Speech and language therapy, audiological services, and parent counseling and training are related services that must be provided when such services are necessary for a child to benefit from her education. (Education Code, § 56363, subdivisions, (b)(1), (2), and (11); 34 Code of Fed. Regs. § 300.16, (b)(1) & (13).) Audiology services may include the following: auditory training; monitoring hearing levels and amplification levels; planning, organizing and implementing an audiology program; and consultative services regarding testing findings, amplification and equipment. Such services must be provided by a person holding a valid credential to provide clinical or rehabilitative services in audiology. (5 Calif. Code of Regs. § 3051.2.) Students with low-incidence disabilities, such as deafness, require highly specialized services, equipment, and materials. (Education Code, § 56000.5, subd. (a)(2).) "It is essential that hard-of-hearing and deaf children. . .have an education in which their unique communication mode is respected, utilized, and developed to an appropriate level of proficiency." (Education Code, § 56000.5, subd. (b)(2).) Furthermore, early intervention special education services for preschool children that involve active parent participation in the child's program leads to significant long-term benefits, including the following: reduction in societal dependence and institutionalization; reduction in the need for special class placement once the child reaches schoolage; and substantial savings to society and schools. (Education Code, § 56441, subdivisions (e)-(g).) In Bonnie Ann F. v. Calallen Independent School District (S.D. Tex. 1993) 835 F.Supp. 340, a federal district court in Texas concluded that a school district's program for a deaf preschool child with a cochlear implant was appropriate to meet her unique needs. In Calallen Independent School District, Bonnie was placed in a self-contained classroom with a total of five students who were instructed by a trained speech therapist and one adult aide. The class met for seven hours per day. Bonnie received daily individual auditory training and speech therapy, which was reinforced and integrated in her lessons throughout the school day. In addition, another speech therapist provided additional one-to-one speech therapy and auditory training for 45 minutes per week. Near the end of the school year, Bonnie's parents unilaterally removed her from public school and placed her in a private program for nine weeks. Bonnie's parents sought reimbursement for the cost of the private program. A Texas hearing officer and, on appeal, the court rejected their request for reimbursement. The Hearing Officer and the court concluded that the district had provided an appropriate placement. The facts in Calallen Independent School District calls attention to the weaknesses in the District's proposed placement. In Calallen Independent School District, the school district provided daily one-to-one speech therapy and auditory training. In this case, the District did not offer daily speech therapy and auditory training as part of STUDENT'S program. This proved to be critical. In this case, the evidence established that STUDENT needs daily intensive speech and auditory therapy as part of her preschool program. Petitioner presented four expert witnesses (Anne Yamashita, audiologist; Linda Dye, audiologist; Patricia Balthazor, speech therapist; and Kathleen Sussman, Executive Director of Jean Weingarten Peninsula School in Redwood City) who all convincingly testified that STUDENT needs intensive individual therapy to learn to hear and speak with the aid of her cochlear implant. All four witnesses had extensive experience with cochlear implant users and noted that cochlear implant users do not hear sounds the same way individuals with normal hearing hear the sounds. Thus, the cochlear implant user must be trained to understand the meaning of what she hears and to use that understanding when speaking and listening to others. Ms. Yamashita and Ms. Balthazor specifically recommended that STUDENT receive a total of one hour per day of individualized speech therapy and auditory training. Ms. Balthazor testified that STUDENT, with intensive training, could be ready to attend a regular education class, with minimal support services, by the time she reaches first grade. Respondent did not present persuasive evidence to rebut the opinion of Petitioner's expert witnesses. Although several District witnesses testified that STUDENT'S goals and objectives could be met by July 1996 in the special day class at Crafton or Beemis Schools, STUDENT'S goals and objectives were inadequate. Ms. Sussman estimated that STUDENT would meet her goals and objectives within two months in an intensive program. Ms. French testified that, in the program at CCHAT, STUDENT had already met some of the IEP goals and objectives. Furthermore, STUDENT'S IEP did not include adequate goals and objectives in the area of auditory training because the IEP team did not include an audiologist, and no one else on the team had the necessary training and experience to propose appropriate goals and objectives in that area. Moreover, the District's witnesses had little or no training or experience for working with students with cochlear implants. Thus, it was not clear that they were in a position to assess the appropriateness, or likelihood of success, of their proposed program for STUDENT. The District's proposed placement at Crafton was not designed to meet STUDENT'S need for intensive speech and language therapy and auditory training.3 The IEP called for STUDENT to be placed in a special day class for four hours per day with pull-out services two-to-three times per week for thirty minutes per session with an itinerant hearing impaired specialist. Although Cindy Baldwin, the itinerant hearing impaired specialist, had extensive experience with deaf and hearing impaired students, she had no experience or training for working with students with cochlear implants. Additionally, Ms. Baldwin is not trained as a speech and language therapist or audiologist. Furthermore, she testified that, at some point in the school year, an aide would be used to provide some of STUDENT'S itinerant services. Most importantly, under the District's proposed IEP, STUDENT would not receive the daily one-to-one speech and language therapy and auditory training that she needs. Dana Wood, the special day class teacher at Crafton, is a speech therapist. She testified that students "might" receive zero-to-fifteen minutes per day of one-to-one instruction from her. In other words, on some days students receive one-to-one speech therapy and on some days they do not. Given STUDENT'S need for daily speech therapy and auditory training, an off-again-on-again approach to individual speech therapy would be inappropriate. Indeed, even assuming that STUDENT received fifteen minutes daily of individual speech therapy, that would not meet her need for intensive services. In addition, there appeared to be a likelihood that the special day class at Crafton would at some point in the school year exceed the maximum classroom ratio of one adult to five students in classes for deaf children. During the 1993-94 and 1994-95 school years, the preschool special day class taught by Ms. Wood exceeded such a ratio by the end of the school year. Although Ms. Wood's class currently has eight students and one adult aide, typically new students are added during the school year as children reach three years old.4 The District's proposed IEP was also deficient because it contained no provisions for parent involvement in STUDENT'S program. It is critical that STUDENT'S parents be involved in her training. They need to know what auditory and speech skills are being worked on in school and to receive instruction on how they can reinforce those skills at home. When appropriate, the goal of preschool special education services should be to prepare a child to enter a regular education program by kindergarten or the first grade. In this case, that is precisely the goal that is appropriate for STUDENT. Although STUDENT currently requires intensive special education services, there is a substantial likelihood that if she receives appropriate services now, she will need minimal services in the future. Ultimately, this would result in a substantial savings to the District. Most importantly, it would give STUDENT the skills she needs to be mainstreamed with her regular education peers in grade school, instead of spending her grade school years in a restrictive setting. For all of the above reasons, it is concluded that the District did not offer STUDENT an appropriate program for the 1995-96 school year.
Nonpublic, nonsectarian school services must be available as placement options if no public school services are available. (Education Code, § 56365, subd. (a).) School districts are required to reimburse parents for their expenditures on private special education services for a child if it is ultimately determined that such services, rather than the services provided by the school district, were appropriate under the IDEA. In addition, the Supreme Court held that equitable considerations must be considered in granting relief. (Burlington School Committee of the Town of Burlington v. Department of Education of Massachusetts (1985) 471 U.S. 358). In this case, the evidence established that the program at the CCHAT Center is designed to meet STUDENT'S unique needs. The CCHAT Center is certified by the State to provide special education services. The CCHAT preschool class meets daily for four hours. The class has a teacher, an adult aide, and six students. Of the six students, four are hearing impaired. The other two have normal hearing and are in the class as peer role models. The school has a full-time speech therapist and audiologist who have extensive training and experience working with students who have cochlear implants. Students in the program receive thirty minutes per day of one-to-one speech therapy and thirty minutes per day of one-to-one auditory training. In addition, the first thirty minutes of the class is a group speech therapy activity in which parents participate. One purpose of the group speech therapy is for the parents to learn what is being taught in speech therapy so that they can reinforce the lessons at home. The critical components of the CCHAT program that meet STUDENT'S unique needs are the daily individual speech therapy and auditory training, and the involvement of parents in the students' training. Moreover, the skills STUDENT learns in speech therapy and auditory training are reinforced throughout the rest of her program and at home. Indeed, the CCHAT program is similar, in many respects, to the school district program approved by the court in Calallen Independent School District. Because the District did not offer STUDENT an appropriate program for the 1995-96 school year and her parents unilaterally obtained an appropriate private placement for her, under the standard in Burlington, they are entitled to reimbursement for the cost of that placement, including transportation costs.5 Furthermore, under Education Code section 56365, they are entitled to have the District pay the costs of STUDENT'S placement at CCHAT from the date of this decision through the remainder of the 1995-96 school year. Prevailing Party on Each Issue The hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided. (Education Code, § 56507, subd. (d).) The following finding is made in accordance with Section 56507(d). Petitioner prevailed on all issues heard and decided. Order:
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, subd. (i).)
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