TEA DOCKET NO. -61-SE-1001
DECISION OF THE OFFICER
STATEMENT OF THE CASE
Petitioner, Jalen M. by next friend Mr. and Mars M (hereinafter Petitioner or Jalen), brings this action against Respondent Alief Independent School District (hereinafter Respondent or AISD) under the Individuals With Disabilities Education Act (hereinafter IDEA), 20 U.S.C. � 1400 et. seq.
Petitioner raises these issues pertaining to the Jalen's program and placement at the Brazoria-Fort Bend Regional Day School Program for the Deaf (hereinafter RDSPD):
For relief, Petitioner seeks full and proper implementation of his current IEP, reimbursement for expenses incurred by Jalen's parents in obtaining audio-verbal therapy for Jalen, and compensatory audio-verbal and speech therapy services to remedy prior violations and/or losses
Daniel McCall of Houston, Texas represents Petitioner in this proceeding. Respondent is represented by Erik Nichols of Houston, Texas.
Petitioner filed a request for due process with the Texas Education Agency on October 17, 2001, asserting claims against Alief ISD and Fort Bend ISD. A pre-hearing conference was held on October 30, 2001 at which time Fort Bend ISD moved for dismissal on the grounds that Alief ISD is Jalen's resident district with the responsibility for providing a free appropriate public education to Jalen under the IDEA. Alief ISD offered no objection, agreeing that it was, in fact, Jalen's resident district. As such, the Hearing Officer dismissed all claims against Fort Bend ISD by order dated October 31, 2001. The due process hearing was ultimately held on January 28-29, 2002. The parties filed post-hearing briefs on Februar4y 25, 2002 and the decision of the Hearing Officer is due on March 27, 2002.
FINDINGS OF FACT
Under IDEA, students with disabilities are entitled to receive a free appropriate public education meaning that the school district must comply with the procedural requirements of IDEA, and must design and implement a program reasonably calculated to enable the child to receive an educational benefit. The benefit must be meaningful, must offer more than a trivial benefit, and must be likely to produce progress and not trivial educational advancement. Hendrick Hudson Central School District v. Rowley, 458 U.S. 175 (1982). A presumption exists in favor of Respondent's program, placing the burden on the party attacking the IEP and placement. Christopher M. v. Corpus Christi ISD, 933 F.2d 1285 (5th Cir. 1991).
In Rowley, the Supreme Court established a two prong analysis to determine whether a school district has provided a free appropriate public education: 1) Has the school district complied with the procedures set forth in IDEA; and 2) Is the IEP developed reasonably calculated to enable the child to receive educational benefits?
As will be discussed more fully throughout this decision, the Hearing Officer concludes, based on the evidence and applicable legal standards, that an analysis of Respondent's legal obligations to Jalen and whether those obligations were satisfied differs from before Jalen obtained his cochlear implant and after. When Jalen received his cochlear implant, his needs and circumstances changed significantly: his severe to profound hearing loss became a moderate to mild hearing impairment; he became a clear candidate for developing clear spoken language as a mode of communication; and his needs shifted to require a greater emphasis on developing audition and spoken language in his educational program. The Hearing Officer finds this reality of Jalen's changed circumstances to be highly relevant to the legal analysis of this case.
Petitioner alleges procedural violations of IDEA based on Respondent's failure to inform the M's of the existence of an oral class at the RDSPD and the choices available for modes of communication. Petitioner relies on both federal and state law to argue that parents have a right to choose the communication mode for their child with a hearing impairment.
IDEA in general requires schools to involve parents in developing IEPs and placements for their children as active, equal participants in the process. Regulations interpreting IDEA detail numerous ways in which parents are to become involved in this process, but overall, parents have the opportunity to participate in ARDC meetings with respect to the identification, evaluation, and educational placement of their child, and the Regulations specifically require parents to be part of the group that makes decisions on the educational placement of their child. 34 C.F.R. � 300.501(a)(2). Regulations specifically require parents to be part of the group that makes decisions on the educational placement of their child. 34 C.F.R. � 300.501(c).
These general requirements for parental participation under IDEA are significantly heightened under Texas law in the case of parents of students with hearing impairments. The Texas Education Code guarantees students with hearing impairments and their parents an education in which their unique communication mode is respected, used, and developed. Tex. Ed. Code, Sections 29.302; 29.303. With regard to parental involvement in the education of a hearing impaired child, state law provides:
This provision, when read in conjunction with IDEA's general guarantees for parental participation, confers meaningful substantive rights up on parents for participation in and impact on educational programming for their child with a hearing impairment. These provisions recognize the importance to both the child and the family of all issues related to communication and stress the critical need in such situations for the school/home connection and a collaborative approach.
Based on the evidence presented, the Hearing Officer finds that the M's did not know of the existence of the oral communication class at the RDSPD or understand the range of communication choices offered Until September 2001. Although the RDSPD generally informs parents of the range of choices with the RDSPD upon enrollment, this did not happen with the M's. The question posed is whether this failure to inform the M's of the oral option constitutes a violation of the procedural guarantees of IDEA and accompanying state law?
Procedural Violation Prior to Jalen's Cochlear Implant
Jalen initially enrolled in the RDSPD in the 1997-98 school year. Upon enrollment, Jalen's hearing, even with amplification, placed him outside the range of normal conversational speech. In an environment with noise, such as a classroom, Jalen had severe to profound difficulty understanding speech. In addition, although Jalen had previously attended an oral school for a brief summer program, he did not have a defined communication mode. In fact, he had no organized system of communication at all other than gestures and pointing. Respondent reasonably relied on this information, as well as the assessment completed by Houston Independent School District to place Jalen in the total communication classroom at the RDSPD upon his enrollment.
At the time of Jalen's initial placement, the M's consented to the placement and took steps to support Jalen's acquisition of language- oral as well as sign- by themselves learning to communicate in sign language. The M's also continued to pursue their goal of Jalen becoming an oral communicator by pursuing the cochlear implant for him.
Clearly, a school is not required to review with a parent, or notify a parent of, every possible placement option that exists even if those options are not applicable to the child's needs. Under these circumstances, Respondent's failure to notify the M's of the oral class option at the RDSPD during the time period prior to Jalen's receipt of a cochlear implant made sense given his profound hearing loss, low level of auditory skill even with hearing aids, and the lack of clear commitment at that time to an oral mode of communication. As such, this failure to notify did not seriously impair the M's opportunity to participate in forming Jalen's program and did not constitute a denial of a free appropriate public education.
Procedural Violation After Jalen's Cochlear Implant
In spring 2000, Mrs. M. began discussing Jalen's receipt of a cochlear implant with the RDSPD, notifying them of the anticipated need for more speech and auditory therapy and discussing the move toward oral communication. When Jalen returned to school in August 2000 after implantation, the discussion continued, with Mrs. M. requesting additional speech therapy, expressing an ongoing desire for a greater oral emphasis, and communicating regularly with Jalen's teacher about his progress in developing audition and spoken language skills. In fact, Mrs. M. made a written request for an ARDC meeting to revise Jalen's IEPs based on the cochlear implant and to provide more speech therapy.
In spring 2001, when the ARDC met to develop Jalen's placement for the 2001-02 school year, the ARDC considered and discussed the option of mainstreaming Jalen with a sign language interpreter as a way to respond to Jalen's improving auditory and verbal skills and the M's goals of a greater oral emphasis. However, in exploring appropriate options for Jalen, the ARDC never considered or discussed placement in the oral class. Even in August 2001, after Mrs. M. reported Jalen's success in the oral AVT program over the summer and expressed concerns, both orally and in writing, about Jalen's continues progress as an oral communicator in an environment where the other students relied exclusively on sign language, the school failed to discuss and consider with Mrs. M. the option of the oral class for Jalen.
After implantation, Jalen's mode of communication began a steady shift towards a more oral mode, both because of his changing auditory skills and because of his parents' clear and stated desires. The M's repeatedly demonstrated their preference for oral communication for Jalen through their active involvement in his school programming and through the out of school support they provided, including obtaining a cochlear implant, providing a private summer program with intensive AVT training and providing private AVT therapy. The M's active efforts on Jalen's behalf were all aimed toward reaching their express goal of moving him toward a more oral environment. Respondent's total and unexplained failure to even notify the M's of the option for oral education at the RDSPD, much less to consider and deliberate about this option for Jalen, made it impossible for the M's to participate in designing Jalen's education in the manner contemplated by state and federal law.
In contrast to the situation before Jalen received his cochlear implant, these new circumstances- a surgical procedure to support oral communication along with a clearly stated preference by Jalen's parents for a move toward oral communication- created a situation where the RDSPD's failure to notify the M's of the option of an oral class deprived them of the right to be involved in determining the content and purpose of Jalen's program as guaranteed by Section 29.306 of the Texas Education Code. In addition, the M's could not, and did not, meaningfully participate in developing Jalen's IEPs and placement under IDEA given their lack of awareness of the continuum of placements that could serve his needs.
The importance of parental involvement is highlighted in a case like this one where the M's had unique, relevant, and important information about Jalen's condition and experiences that could have impacted his program. In September 2001, when the M's learned of the oral program, they immediately involved the ARDC in reviewing Jalen's program and secured the agreement of all members of the ARDC that placement in the oral class was appropriate. In addition, as a result of the M's more complete involvement, the RDSPD began to coordinate services between Jalen's in-school providers and his private speech therapist. This type of coordination and collaboration is a necessary ingredient of the provision of a free appropriate public education. Cypress-Fairbanks Independent School District v. Michael F., 118 F. 3rd 245 (5th Cir. 1997), cert. Denied, 522 U.S. 1047 (1998). Given the sequence of events that followed the M's learning of the oral program, it is reasonable to conclude that Jalen's programming would have been significantly impacted, either by an earlier move to the oral classroom or by increased speech therapy and auditory training, had the M's had all the information to meaningfully participate in the IEP and placement process.
Under these circumstances, the RDSPD's failure to notify the M's of the placement options for Jalen constitutes a procedural violation that seriously impeded the M's ability to participate in and have an impact on the development of Jalen's program and placement. "Procedural flaws do not automatically require a finding of a denial of a free appropriate education. However, procedural inadequacies that result in the loss of educational opportunity, or seriously infringe, the parents' opportunity to participate in the IEP formulation, clearly result in the denial of a free appropriate public education." W.G.; B.G., individually and as parents of R.G. v. Board of Trustees of Target Range School District, No. 23, 960 F. 2nd 1479 (9th Cir. 1992). IDEA, as well as State law provisions pertaining to students with hearing impairments, impose on school districts the duty to truly involve students' parents in developing their educational program. In the instant case, the RDSPD failed to satisfy that duty during the time period following Jalen's implantation by its lack of real communication with the M's about the possibilities for meeting Jalen's educational needs. As such, Respondent's actions caused a denial of a free appropriate public education to Jalen.
Petitioner alleges that Jalen's placement in the total communication classroom prior to September 2001 failed to provide Jalen with a free appropriate public education because it was not based on parental choice1 and did not meet his educational needs for an oral/aural setting.
Under the IDEA and Texas law, appropriate educational programs for students with hearing impairments must be designed around the students' unique mode of communication, and must respect, use, and develop that mode. 34 C.F.R. � 300.346; Texas Education Code, �� 29.302, 29.303. In addition, a student's IEPs and placement must meet the general requirements of IDEA that they be reasonably calculated to enable the student to receive educational benefits. In Cypress-Fairbanks Independent School District v. Michael F., 118 F. 3rd 245 (5th Cir. 1997), cert. Denied, 522 U.S. 1047 (1998), the court delineated guidelines to consider in assessing whether the IEPs and placement provide the requisite benefit: 1) whether the program was individualized and based on current and appropriate levels of assessment and performance; 2) whether the program was administered in the least restrictive environment; 3) whether the services were provided in a collaborative and coordinated manner by the key stakeholders; and 4) whether positive academic and non-academic benefits were demonstrated. In applying these guidelines to Jalen's program at the RDSPD, the Hearing Officer again makes a distinction between the period prior to Jalen receiving his cochlear implant and the period following implantation.
1 The Hearing officer finds no legal requirement that Respondent must offer a program and placement based solely on parental choice. As discussed above, federal and state law contain express mandates to meaningfully involve parents in developing a program and placement, and to develop and respect a student's unique communication mode; however, these provisions clearly do not allow parents to dictate a child's program and placement, or even methodology of instruction. Those decisions ultimately belong to the ARDC. Lachman v. Illinois State Board of Education, 852 D. 2d 290 (7th cir. 1988), cert. Denied, 488 U.S. 925 (1988); Sonya S. v. Spring Branch ISD, Docket No. 058-SE-1095 (TX SEA, 1995). As such, a program or placement cannot deny a child a free appropriate public education as a matter of law simply because it is not based on parental choice. Rather, the analysis of Rowley must be applied to determine if the school, in developing the program that was not based on parental choice, committed procedural or substantive violations of law that resulted in a denial of a free appropriate public education.
Substantive Violation Prior to Jalen's Cochlear Implant
For the 1997-98, 1998-99, and 1999-00 school years, prior to Jalen's implantation, Petitioner failed to establish that Respondent's program for Jalen as a student with a profound hearing impairment was not appropriate. The evidence showed that while Jalen entered the RDSPD with no system of language and communication, he progressed during these three school years in devloping a system of language and a dominant mode of communication- total communication. This communication mode enabled Jalen to progress academically and achieve the skills necessary to advance successfully through the pre-school curriculum and be adequately prepared for kindergarten. In sum, Petitioner failed to meet his burden of proof and establish any legally significant inadequacies to Jalen's program during this time period.
Substantive Violation After Jalen's Cochlear Implant
The real crux of Petitioner's complaint lies in the allegation that Respondent's continued placement of Jalen in a total communication setting with traditional speech therapy and auditory training after Jalen received a cochlear implant denied him a free appropriate public education by failing to develop the benefits and use of his cochlear implant. Respondent argues that continued placement in a total communication setting was appropriate as Petitioner did not yet enjoy sufficient oral comprehension to be able to succeed in an oral environment. Respondent argues that Jalen needed to remain in the total communication classroom as a transition bridge to an oral setting. Respondent further maintains that Jalen obtained the requisite educational benefit during the 2000-01 school year following his implantation, the Hearing Officer concluded that placement in the total communication setting with the services and instructions provided denied Jalen a free appropriate public education.
Individualized Program Based on Assessment and Performance
Jalen's program during the 2000-01 school year failed to reflect in any way that he received a cochlear implant during the summer of 2000 which significantly increased his ability to respond to sound and created new educational needs related to learning to hear and utilizing his cochlear implant. Although the ARDC planned in spring 2000 that it would revise Jalen's speech therapy IEPs following his cochlear implant, and Mrs. M . made a written request in August 2000 to do such a revision, the ARDC never actually made any changes at all to Jalen's IEPs or services during the 2000-01 school year. Even at the end of the 2000-01 school year, when the ARDC revised Jalen's IEPs for the following year, no changes were made in IEP goals and objectives related to oral communication skills to reflect his improving audition and changing communication mode. In addition to its failure to revise Jalen's program, Respondent also failed to obtain any additional assessments of Jalen, either through performing them within the RDSPD or by obtaining them from HERF, that would have allowed a more accurate measurement of Jalen's audiological and otological condition to guide his educational planning. For reasons that are not explained in the record, Jalen's ARDC failed to ever discuss, consider or address Jalen's changing needs following his receipt of the cochlear implant.
A program based on Jalen's unique needs and current levels of performance would have included, at a minimum, a revision of his speech therapy and auditory training IEPs to provide increased services and a systematic plan to teach Jalen the skills of audition and speech. Instead, the evidence showed that Jalen's program remained constant, except for slight modifications made by his total communication teacher on a random basis. Respondent developed no program or plan to teach Jalen oral skills or to move him toward an oral program. Each of the experts who testified at the due process hearing, Dr. Daniel Ling, Michael Douglas, and Jan Gilden, agreed that a transition to an oral environment was necessary following a cochlear implant; they did not agree on how quickly that should occur. Thus, the primary problem with Jalen's program during the 2000-01 school year is that no services or planning were provided to support such a transition, regardless of when it was to occur.
Due to Respondent's failure to make any revisions in Jalen's program following his cochlear implant given the substantial changes in the nature of his hearing impairment and his educational needs, the Hearing Officer finds that Jalen's program during the 2000-01 school year was not individualized and based on accurate assessment and performance.
Coordination and Collaboration
One measure of a school district's provision of a free appropriate public education is whether special education services have been provided in a coordinated and collaborative manner by the key participants- parents, school officials, and any outside personnel serving the child's disability. Respondent's failure to fully collaborate with the M's has been previously discussed in connection with the procedural violations. However, in addition to, and perhaps as a result of that lack of collaboration, there was also a failure to coordinate and collaborate with HERF following Jalen's implant. Respondent never obtained records or testing from HERF pertaining to Jalen's surgery to determine how the implant was working, what his levels of hearing were following the implant, or how it might impact his educational programming. This lack of coordination with HERF directly impacted the school's ability to provide a free appropriate public education to Jalen during the 2000-01 school year.
Positive Academic and Non-Academic Benefits
Under IDEA, a student's program must produce meaningful and not trivial benefit, but it also need not maximize the educational benefit to the student. Hendrick Hudson Central School District v. Rowley, 458 U.S. 175 (1982). To analyze whether the requisite benefit has been provided, courts measure, in part, whether a child makes progress towards the goals and objectives of the IEPs. County of San Diego v. California Special Education Hearing Office, 24 IDELR 756 (9th Cir. 1996).
During the 2000-01 school year, Jalen made some progress towards the goals and objectives of his academic IEPs; however he did not make meaningful progress toward the acquisition of auditory comprehension and spoken language. Tests and assessments performed by school personnel, as well as Jalen's private AVT therapist and HERF personnel, all showed that Jalen made virtually no improvement in his auditory comprehension and oral language skills until he began steady work with the AVT therapist and moved into the oral program in the RDSPD.
Progress in the area of oral language acquisition is an important aspect of the educational benefit Jalen's program must provide. During the 2000-01 school year, his placement in the total communication classroom, coupled with the lack of increased or revised speech therapy and auditory training services, failed to produce the requisite progress and benefit in this area.
Educational Program That Uses and Develops Jalen's Communication Mode
State law emphasizes the importance of each student who is hearing impaired choosing the language and communication mode uniquely appropriate for that student. Texas Education Code, � 29.302. The law specifically recognizes that students with hearing impairments may choose to use a combination of oral or manual-visual language systems, or may rely exclusively on oral-aural language. Further, the law mandates that students with hearing impairments "must have an education in which their unique communication mode is respected, used and developed to an appropriate level of proficiency." Texas Education Code, � 29.303 (emphasis added).
Respondent argues that because Jalen's communication mode was total communication, its program during the 2000-01 school year satisfied these state law provisions. The Hearing Officer agrees that Jalen began the 2000-01 school year with a dominant communication mode of total communication; however, for reasons described in detail herin, the Hearing Officer finds that Jalen's communication mode began to shift immediately following his cochlear implant toward a more oral mode. In order to provide an education that developed Jalen's oral communication mode to an appropriate level of proficiency, Respondent would have needed to take the steps described above to ensure Jalen's progress toward becoming an oral communicator.
Analyzing Jalen's program and placement according to the guidelines above, reveals that it failed to provide a free appropriate public education to Jalen during the 2000-01 school year due to several deficiencies. Jalen's program is much like that analyzed in Duarte Unified School District and Alhambra City Elementary School District, 26 IDELR 351 (CA SEA 1997) where the special education hearing officer found that a child recently implanted with a cochlear implant was denied a free appropriate public education by her placement in a total communication classroom with 1.5 hours of speech therapy because it didn't allow progress in developing her listening and oral communication skills. The hearing officer emphasized that the student became a different child once she received the cochlear implant, giving rise to a need to modify her program accordingly. See also, Student v. Branford Board of Education, 36 IDELR 20 (CT SEA 2001); Apple Valley Unified School District, 2 ECLRP 170 (CA SEA 1995).
The Hearing Officer is mindful of Respondent's contention that placing Jalen in the oral class at the beginning of the 2000-01 school year would not have been appropriate given his level of auditory skills, and that retention in the total communication classroom was a necessary transition. The Hearing Officer agrees with Respondent that placement in total communication with a program to transition Jalen toward an oral environment would have been appropriate; however, Respondent's program did not do that. Had Respondent amended Jalen's speech IEPs as planned, provided increased speech therapy or auditory training, or adopted some other systematic plan to teach Jalen the necessary listening and speaking skills to make the transition to an oral classroom, then placement in the total communication class could very well have met Jalen's educational needs.
Comparing Jalen's program to that reviewed in Bonnie Ann F. v. CalAllen Independent School District, 835 F. Supp. 340 (S.D. TX 1993), aff'd, 40 F. 3d 386 (5th Cir. 1994) underscores this point. In CalAllen, the court found that placement of a cochlear implant child in a total communication class provided a free appropriate public education where the teacher was a certified speech pathologist and therapist who provided daily individual auditory training and speech therapy, in addition to supplemental therapy for .75 hours per week, as well as integration of these skills throughout the day. In addition, the ARDC adopted changes to the student's IEPs to provide a smooth transition to an oral setting, including a provision that all one-on-one communication with the student would be oral only and that all speech therapy would be provided in an oral communication mode. In contrast, Jalen's ARDC did not provide any increase in speech or auditory services, his teacher had no specific training to enable her to effectively develop his oral communication skills, and the ARDC developed no plan at all to assist Jalen in a transition toward the oral class. Indeed, prior to September 2001 when Mrs. M. insisted on Jalen's move to the oral class, it appears that RDSPD personnel had never even considered that placement for Jalen.
Thus, the Hearing Officer's conclusion that Jalen's placement in the total communication class during the 2000-01 school year denied him a free appropriate public education is based not on mode of communication or methodology offered by Respondent, i.e. total communication or oral, but rather on the finding that Respondent's program did not satisfy Jalen's educational needs to develop his unique mode of communication and move toward an oral environment. This is not a case of which method should have been used to educate Jalen; instead, it is a case of whether Jalen's considerations of methodology are integrated into the ultimate question of whether reasonable progress has been made. CalAllen, supra; Broughham v. Town of Yarmouth 823 F. Supp. 9 (U.S.D.C. ME 1993).
For all the reasons set forth above, the Hearing Officer finds that Jalen's program for the 2000-01 school year was not reasonably calculated to provide the requisite educational benefit and denied him a free appropriate public education.
Petitioner alleges a denial of a free appropriate public education during this 2001-02 school year during his placement in the oral class at the RDSPD due to Respondent's failure to provide scheduled speech therapy, AVT therapy, and instruction by a properly certified instruction.
Speech and AVT Therapy
As to Petitioner's allegations concerning speech and AVT therapy, Petitioner has failed to meet his burden of proof. Although Jalen did miss some speech therapy sessions over the course of this school year, all but 1 week of sessions had been made up by the time of the due process hearing, with plans in place to complete the remaining sessions. This type of adjustment in scheduling does not constitute failure to implement Jalen's IEP. Houston Independent School District v. Bobby R., 200 F.3d 341 (5th Cir. 2000).
Petitioner's allegation that Respondent failed to implement his IEP by not providing AVT therapy fails as Jalen's IEP never specified that Respondent would provide AVT therapy. Further, Petitioner did not offer evidence to establish that Jalen's program and services during this school year were insufficient to meet his educational needs without the provision of AVT therapy; as such, Petitioner failed to prove a denial of a free appropriate public education on this basis.
Instruction By Properly Certified Personnel
Petitioner argues that he was denied a free appropriate public education because his teacher in the oral class, Ms. Blumberg, was not properly qualified as required by federal and state law. Respondent argues that although Ms. Blumberg was not a certified instructor of the deaf, she properly implemented Jalen's IEPs and she was assisted in significant part by a certified instructor, J. Reznicek.
Federal regulations pertaining to qualifications of special educational personnel provide that qualified personnel are those who meet the requirements of state law that apply to the area in which the individuals are providing special education services. 34 C.F.R. � 300.23. State law provides, in relevant part, that:
Qualifications of Personnel
(a) A student who is deaf or hard of hearing must have an education in which teachers, ... and others involved in education understand the unique nature of deafness and the hard-of-hearing condition. A teacher of students who are deaf or hard of hearing either must be proficient in appropriate language modes or use an interpreter certified in appropriate language modes if certification is available.
(c) Regular and Special personnel who work with students who are deaf or hard of hearing must be adequately prepared to provide educational instruction and services to those students.
Texas Education Code, � 29.304
The evidence showed that Ms. Blumberg, though a diligent and caring individual, did not have the experience, training, or knowledge necessary to capably deliver services to hearing impaired students in an oral setting. By her own admission, Ms. Blumberg does not understand how IEPs work or how to interpret the goals, objectives, and mastery levels contained in IEPs. In addition, although Ms. Blumberg had some limited coursework in sign language and other areas pertinent to some hearing impaired students, she had no coursework or training related to oral deaf education. Ms. Blumberg cannot fairly be characterized as someone who is "adequately prepared to provide educational instruction" to students in an oral deaf education class.
The Hearing Officer is not persuaded by Respondent's contention that J. Reznicek's presence in the oral class on a regular basis to teach language arts insured that Jalen's needs were being met. The purpose of being in an oral language class is to use and develop oral receptive and expressive language throughout the day, not simply during the language arts block of time. Students benefit from a teacher's specialized training in developing those language skills in every interaction throughout the day. Clearly, Ms. Blumberg did not have the preparation and experience to provide the specialized instruction needed by these students with special needs.
In reaching this conclusion, the Hearing Officer does not find that a teacher without a certification to teach hearing impaired students cannot provide adequate instruction as a matter of law; rather, the Hearing Officer finds that this particular teacher, given her lack of training and her professed lack of understanding of special education processes, did not satisfy the legal requirements pertaining to qualifications of personnel.
For relief, Petitioner requests reimbursement for expenses incurred by the M's in obtaining AVT from Michael Douglas, and compensatory speech therapy and AVT therapy to remedy prior violations. Compensatory relief is available under IDEA as an equitable device to remedy substantive violations. Burlington School Committee v. Department of Education, 471 U.S. 359 (1985). IDEA requires that relief be designed to ensure that the student is appropriately educated within the meaning of IDEA. Parents of Student W. v. Puyallup School District No. 3, 21 IDELR 723 (9th Cir. 1994). Thus, determining what compensatory relief is appropriate turns on a consideration of what services would be needed to provide a free appropriate public education in light of the extent of the denial.
During the 2000-01 school year, Respondent's denial of a free appropriate public education rests primarily on its failure to properly develop Jalen's oral skills through appropriate IEPs, speech therapy, and auditory training. Accordingly, appropriate relief for this violation involves providing additional services of this nature to Jalen. In this regard, Petitioner has requested reimbursement for the AVT therapy privately obtained as well as compensatory AVT therapy sessions. Petitioner provided some proof of the costs incurred in obtaining private AVT therapy, but not adequate proof to enable the Hearing Officer to determine a reimbursement award.
Based on the extent of the denial of a free appropriate public education for Jalen, the Hearing Officer finds that an award of 12 months of compensatory speech therapy and auditory training is appropriate, calculated at a service level of 2 hours per week for that time period. The therapy provided should be coordinated and consistent with the AVT therapy Jalen is already receiving from Michael Douglas. The ARDC, including the M's as equal participants, shall meet to determine who will provide the therapy and according to what schedule. The ARDC shall consider retaining Douglas to provide the therapy to ensure continuity of service and maximum benefit to Jalen.
The M's shall have the option of obtaining reimbursement for AVT therapy already received by providing appropriate invoices and documentation to Respondent and crediting the amount reimbursed toward the award of 12 months of therapy.
During the 2001-02 school year, Respondent's denial of a free appropriate public education rests on its failure to provide adequate instruction during the school day. Appropriate compensatory relief for this violation would consist of a summer program for Jalen delivered by a qualified, competent teacher of the hearing impaired who has experience and expertise in the oral/aural mode and who can provide instruction that will support the development of Jalen's listening and oral skills. A summer program similar to that provided by Barbara Baltizar would satisfy this award of compensatory education.
CONCLUSIONS OF LAW
After due consideration of the record, the foregoing findings of fact and conclusions of law, this Hearing officer hereby ORDERS that the relief sought by the Petitioner is hereby GRANTED as follows:
All other relief not specifically granted herein is hereby DENIED.
Finding that the public welfare requires the immediate effect of this Final Decision and Order, the Hearing Officer makes it effective immediately.
SIGNED and ENTERED this 1st day of April, 2002.