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):

1. Whether Respondent's failure to notify Petitioner's parents of a choice in the communication mode used to educate Jalen (total communication or oral/aural) prior to September 2001 constituted a procedural violation of the Individuals With Disabilities Education Act (hereinafter IDEA);

2. Whether Respondent's failure to notify Petitioner's parents of the availability of alternative communication classes prior to September 2001 constituted a procedural violation of the IDEA;

3. Whether Respondent failed to provide Jalen with a free appropriate public education during the 1997-98, 1998-99, 1999-00, and 2000-01 school years as a result of his individual education plans (hereinafter IEPs) and placement in the total communication setting. Specifically, Petitioner alleges that Jalen's IEPs and placement failed to provide a free appropriate public education because they were not based on parental choice and did not meet Jalen's educational needs which were for an oral/aural based educational setting; and

4. Whether Respondents have failed to provide Jalen with a free appropriate public education during the current 2001=02 school year by failing to properly implement his IEP. Specifically, Petitioner alleges that Respondents failed to provide appropriate audio-verbal therapy, speech therapy, and instruction by a properly certified professional as required by Jalen's IEP.

    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.

PROCEDURAL HISTORY

    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

1.     Jalen M. is a seven-year-old first grade student who resides within the jurisdictional boundaries of Alief ISD, a political subdivision of the State of Texas and a duly incorporated school district.

2.     Jalen attends (name deleted) Elementary, a campus within Fort Bend ISD, that is part of the Brazoria-Fort Bend Regional Day School program for the Deaf (hereinafter RDSPD). Alief ISD is one of approximately ten (10) school districts that participate in the RDSPD. Alief ISD is ultimately responsible for providing a free appropriate public education to Jalen under the provisions of the IDEA.

3.     Jalen is eligible for special education services as a student with an auditory impairment and speech impairment.

4.     Jalen lost his hearing due to pneumococcal bacterial meningitis at 9 1/2 months. Tests showed that Jalen had sensorineural loss of hearing, which was moderately severe to profound in his left ear and profound in his right ear. Functionally, this meant that without amplification, Jalen could not hear normal conversational speech or even shouted speech within a distance of 3-6 feet with his right ear. With his left ear, Jalen could detect shouted speech from a distance of 3-6 feet, but could not understand the speech. With amplification, Jalen had moderate to severe difficulty understanding speech in a quiet setting and profound difficulty understanding speech in a noisier environment.

5.     During the summer of 1997, Jalen attended the Memphis Oral School for six-eight weeks.

6.     In fall, 1997, at three years of age, Jalen entered the public school system. Due to confusion about his resident district, Jalen was initially evaluated by Houston ISD and found eligible for services. Relying on the Houston ISD evaluation, Alief ISD placed Jalen at the RDSPD in a total communication setting. When Jalen entered the RDSPD's program, he had no formal language or communication mode, he primarily used gestures and pointed.

7.     Although it is normally the policy of the RDSPD to review the choices of communication settings offered with parents when they enroll, this did not happen with Jalen's parents (hereinafter referred to as the M's). Rather, the M's were informed that Jalen would be placed in the total communication setting, learning to communicate via both sign and oral language.

8.     The communication choices and placements offered within the RDSPD include the total communication classroom, the oral classroom, and mainstreaming in a regular education classroom with a sign language interpreter for a student from the total communication setting and without an interpreter for a student from the oral setting.

9.     The M's did not know of or understand the existence of the oral class offered by the RDSPD until September 2001 when Mrs. M. learned of the class from Jalen's teacher.

10.     Total communication is a mode of communication that relies on the use of sign language, voicing, voice inflections, facial expressions, gestures, lip reading and any other visual aids or cues that could help communicate a point. The total communication class at the RDSPD relies heavily on sign language and the children use their voices primarily for vocalization rather than communication.

11.     Oral/aural communication is a mode of communication that relies primarily on the child's hearing with vocal input that is supported by gestures. The oral class at the RDSPD uses techniques based on audition, speech-reading, and the development of speech and language. Sign language is not used in an oral class. The oral program may not be appropriate for all hearing impaired students depending on their auditory listening skills and other factors.

12.     Jalen remained in the total communication classroom during the 1997-98, 1998-99, 1999-00, and 2000-01 school years.

13.     During the a997-98 school year, the M's learned of the cochlear implant and evaluated Jalen to determine if he was an appropriate candidate for implantation. In sprint 1998, the M's determined that Jalen could benefit from implantation and requested approval from their insurance carrier for this expensive procedure. The M's hoped that Jalen could receive the cochlear implant during the summer of 1998, but due to insurance delays, Jalen was not actually implanted until the summer of 2000.

14.     Beginning in the 1998-99 school year, and continuing, the M's periodically expressed their concerns to school officials at Admission, Review, and Dismissal Committee (hereinafter ARDC) meetings that too much emphasis was being placed on sign language communication and not enough on the development of Jalen's auditory skills and spoken language. At the end of the 1998-99 school year, the  M's requested consideration of moving Jalen to a regular education class within Alief ISD with an interpreter to create more of an emphasis on oral communication. This did not occur and Jalen continued in the total communication setting during the 1999-00 school year.

15.     During the 1997-98, 1998-99, and 1999-00 school years, Jalen progressed in his placement in the total communication classroom. He learned to communicate in sign language and developed an appropriate base in the English language. Testing done in September 2000 shoed that Jalen's composite language skills were equivalent to that of a 4 year, 8 month old person without a hearing impairment. Jalen achieved both academic and non-academic benefits from his IEPs and placement. Although he progressed in speech and language, as well as other areas, Jalen still could not understand any normal conversational speech without the use of sign language.

16.     At the end of the 1999-00 school year, the ARDC met to develop Jalen's IEPs and placement for the 2000-01 school year. Mrs. M. informed the ARDC that Jalen would be implanted with a cochlear implant over the summer and requested that additional speech therapy and auditory training be provided in the fall to assist Jalen in the use of his cochlear implant. The ARDC agreed to develop new speech IEPs in the fall after Jalen received his cochlear implant. In addition, the ARDC agreed to complete necessary additional assessments for Jalen by September 30, 2000. The ARDC placed Jalen in the total communication kindergarten class.

17.     The IEPs adopted for the 2000-01 school year provided for 1.0 hours per week of speech therapy and .75 hours per week of auditory training. The ARDC did not adept an IEP setting objectives for auditory training skills.

18.     Through the Houston Ear Research Foundation (hereinafter HERF), Jalen was implanted with a cochlear implant on June 6, 2000 that was "turned on" or activated on July 14, 2000. A cochlear implant is a prosthetic device that includes a surgically implanted electrode array placed in the cochlea. An externally worn microphone picks up sound and then transfers the sound to an externally worn processor that converts the mechanical sound waves into an electrical stimulation. The electrical stimulation is then processed according to a speech processing "MAP" that is designed to individualized specifications, sent back up to a receiver which is worn on the head and interfaces with the internal cochlea implant device that was surgically implanted. The electrodes stimulate the fibers in the inner ear and ultimately travel to the brain, allowing the brain to "hear."

19.     Jalen's implantation was successful, allowing him to detect speech at normal loudness and even, under certain conditions, at a whisper. Jalen's hearing for the intensity of speech increased to the mild to moderate range of hearing impairment. However, following a cochlear implant, a person cannot hear and understand speech or reproduce sounds like a person with an intact auditory system. Rather, an implanted person initially hears sounds that are distorted as buzzes and must be taught, through auditory training and speech therapy, to attach meaning to the received auditory stimulation in order to learn to listen and speak intelligibly.

20.     For an implanted child to learn to listen and speak with the aid of the cochlear implant, the child's parents and teachers must be trained in the use of the implant and the child must receive ongoing and regular speech therapy and auditory training that is designed to teach listening skills, spoken language, and the understanding of spoken language. The period immediately following implantation is critical for this rehabilitative training; the sooner the intervention occurs, the greater the chance of closing the gap in language delays.

21.     Audio-verbal therapy (hereinafter AVT) is a type of therapy specifically designed to teach persons with cochlear implants the skills needed to develop audition and spoken language. This type of therapy stresses the input of language and understanding into the person receiving it, rather than focusing on the output of language and response from the person. It also stresses the importance of forcing a recently implanted person to rely exclusively on an auditory/oral mode of communicating by eliminating all visual cues from the communication environment such as sign language, gestures, facial expressions, and lip reading.

22.     Jalen returned to school in August 2000 with his ability to respond to sound significantly improved as a result of the cochlear implant and with a new set of educational needs related to learning to listen and speak with the aid of the cochlear implant. Although Jalen's ability to detect sound had greatly improved, his comprehension and ability to make sense of that sound had not. On the Test of Auditory Comprehension administered in September 2000, Jalen was only able to pass 2 of the 10 subtests. On the IT-MAIS (Infant Toddler Meaningful Auditory Integration Scale) testing administered by the HERF in August 2000, Jalen scored 21 out of 40.

23.     On August 29, 2000, Mrs. M. made a written request for an ARDC meeting to revise Jalen's IEPs based on the cochlear implant and to increase his speech therapy.

24.     An ARDC meeting was held on August 31, 2000 for the purpose of determining what additional assessments needed to be completed for Jalen. The ARDC adopted the same schedule of services developed at the May 4, 2000 ARDC that included 1.0 hour per week of speech therapy and .75 hours per week of auditory training. The ARDC made no changes to Jalen's IEPs. No additional audiological or otological assessments were requested.

25.     The ARDC met again on October 2, 2000 to review the results of the testing completed on Jalen. After completing the review. The ARDC determined that Jalen's IEPs from the May 4, 2000 ARDC would remain in effect. The ARDC did not make changes to Jalen's speech therapy IEPs' goals or objectives or in the amount or type of speech therapy and auditory training services. No adjustments were made to any of Jalen's academic IEPs to alter his goals related to spoken language or audition. In addition, the ARDC did not discuss, consider or deliberate on what changes, if any, should be made in Jalen's IEPs and placement as a result of the cochlear implant.

26.     During the 2000-01 school year, Mrs. M. communicated to school personnel that the family's goal for Jalen was to work toward becoming oral. She explained that the reason Jalen had obtained a cochlear implant was to support this oral expectation and allow him a greater opportunity to develop his oral language abilities.

27.     For the duration of the 2000-01 school year, Jalen remained in the total communication classroom and received speech therapy services for 1.0 hours per week. In the classroom, Jalen's teacher observed Jalen begin to mimic sounds and localize sounds within the room by January 2001. Jalen's teacher reported this to the speech therapist and discussed techniques to elicit certain sounds from Jalen, but made no other alterations in teaching style, communication approach, or goals and objectives for Jalen as a result of his cochlear implant and changing communication patterns. In speech therapy, Jalen received services using total communication. The speech therapist also provided some activities that were based on the principles of AVT and did not involve visual cues. Jalen's speech therapy IEPs' goals and objectives were aimed more towards producing isolated sounds and words than toward developing audition and spoken language.

28.     Neither Jalen's speech therapy nor his classroom instruction during the 2000-01 school year provided a systematic program of teaching audition and the skills necessary to develop the communication mode of clear spoken language. His instruction remained the same as it had been prior to the cochlear implant.

29.     The Test of Auditory Comprehension administered to Jalen by the RDSPD's speech therapist in April 2001 showed that he was able to pass only the first 2 of 10 subtests. From September until April, Jalen showed virtually no improvement in his auditory comprehension as measured by this test. The IT-MAIS (Infant Toddler Meaningful Auditory Integration Scale) administered to Jalen by the HERF to evaluate meaningful auditory integration in profoundly hearing impaired children showed the following progressions:

Date 5/02/00 (pre-implant) August 2000 January 2001 July 2001

Score 10/40 21/40 31/40 31/40

30.     The ARDC made no changes or revisions in Jalen's program and placement in the 2000-01 school year as a result of his cochlear implant and its implications for his education and changing communication mode.

31.     School personnel did not conduct any audiological assessments on Jalen during the 2000-01 school year. School personnel did not receive any audiological or otological information from HERF pertaining to Jalen until October 2001.

32.     The ARDC met on April 27, 2001 to develop IEPs and a placement for the 2001-02 school year. The IEPs adopted for Jalen in speech therapy showed little to no change in objectives from the previous year. In the IEP for speech therapy: semantics/cognition, the mastery level was set at 70% for 2001-02 in contrast to 80% for 2000-01 with virtually no change in goals and objectives. The ARDC adopted an IEP for Auditory Training Skills for the first time that included goals related to auditory comprehension, phonetic listening, and sound awareness.

33.     In determining placement, the ARDC discussed the  changes in Jalen's communication skills and considered the possibility of mainstreaming Jalen with an interpreter. The ARDC did not consider or discuss the option of placing Jalen in the oral classroom. Ultimately, the ARDC recommended a placement for the 2001-02 in the total communication classroom with mainstreaming for calendar and mathematics. The ARDC agreed to meet again in 6 weeks into the school year to confer about Jalen's progress and determine if additional alterations in his IEPs or placement were needed.

34.     During the summer of 2001, Mrs. M. enrolled Jalen in a program through the Center for Hearing, a private oral deaf education school in Houston, Texas. The program offered intensive audio-verbal therapy for six weeks and did not utilize sign language as a communication technique. Jalen was very successful in the program, learning quickly and demonstrating the ability to learn in an oral setting.

35.     As a result of Jalen's progress during the summer, he began engaging in conversational speech at home with his family members, relying more exclusively on oral methods of communication, and reducing his use of sign language.

36.     During the summer of 2001, Jalen began receiving audio-verbal therapy from  Michael Douglas, a speech language pathologist, trained in the provision of audio-verbal therapy. Jalen worked with Douglas for a few visits during the summer and then began seeing him regularly two times per week beginning in the fall. Jalen responded well to the AVT, showing steady progress from early fall 2001 until January 2002.

37.     Jalen began school in August 2001 in the total communication classroom. At the parent/teacher night at the beginning of the school year, Jalen's teacher, Dana Walker, noticed the change in his communication style that had occurred over the summer and commented on Jalen's lack of signing. Mrs. M. told Ms. Walker how excited the family was about Jalen's use of his voice and his growing grasp of incidental hearing. Mrs. M. asked Ms. Walker to make sure that Jalen continued to use his voice even though he would be in an environment where the other children were signing so that he could continue his progress and not experience a regression.

38.     On or about August 16, 2001, Mrs. M. wrote Ms. Walker a letter expressing her concerns for the school year. Specifically, Mrs. M. proposed that both Ms. Walker and the interpreter who accompanied Jalen to his mainstream math class refrain from signing unless Jalen could not otherwise comprehend the instructions and ask Jalen to use his voice at all times, even when signing. Mrs. M. expressed clearly that if Jalen began to deteriorate with his speech and utilize sign more, that the M's would send Jalen to a private program that used AVT.

39.     On or about September 14, 2001, Mrs. M went to pick up Jalen early from school and, in talking with Ms. Walker, expressed concern that he was beginning to sign more than use his voice. In response, Mr. Walker suggested placing Jalen in the oral program at the RDSPD rather than just mainstreaming so that Jalen could benefit from the other children's use of their voices. Mrs. M. immediately indicated her surprise at the existence of an oral program and contacted the special education director that day, by telephone and in writing, to call an emergency ARDC meeting.

40.     Later that day, Ms. Walker telephoned Mrs. M. to discuss the matter further and Ms. Walker indicated her surprise that Mrs. M. was unaware of the oral class at the RDSPD. Mrs.. M. was similarly surprised that she had never been told about the oral class given that her family had expressed the desire for Jalen to move toward an oral mode of communication.

41.     On September 19, 2001, the ARDC met to consider Mrs. M.'s concern that she hadn't known about the oral class and her view that Jalen should be in an oral class given his cochlear implant. The special education director responded by agreeing that students with cochlear implants need exposure to oral children and that the RDSPD would work to transition Jalen into the oral class. In addition, the director agreed to meet with the RDSPD's speech therapist and Michael Douglas to coordinate Jalen's speech therapy. The ARDC also reviewed Jalen's IEPs and updated those goals relating to oral communication.

42.     Jalen began in the oral class at the RDSPD on September 19, 2001. The ARDC met again on October 5, 2001 to discuss Jalen's programming and to consider Mrs. M.'s request for compensatory services for the time that Jalen was not in the oral program at the RDSPD. At the conclusion of the meeting, the ARDC agreed to increase Jalen's speech therapy time to 1.5 hours per week, but did not agree to provide any compensatory services.

43.     The ARDC reconvened on October 16, 2001 to reconsider the disagreement concerning compensatory services. Jalen's teacher in the oral classroom, Jennifer Blumberg, reported that Jalen was progressing in the oral classroom and had transitioned successfully. The ARDC reviewed a comprehensive assessment from the HERF dated October 5, 2001 that was based on audiological testing performed on July 26, 2001. HERF testing showed that with his cochlear implant, Jalen could detect speech at normal loudness, but that his speech perception scores suggested an inability to recognize or attach meaning to every spoken word. Basted on the testing, HERF recommended the following:

• Especially in a classroom situation, sign language or written information should be presented in conjunction with spoken messages.

• Auditory training daily - school, home, and private

44.     The ARDC declined Mrs. M.'s request for compensatory services on the basis that Jalen's placement in the total communication classroom had been appropriate from 1997 until the present when he moved into the oral classroom.

45.     Since Jalen's placement in the oral class at the RDSPD, his teacher has been Jennifer /Blumberg, a long -term substitute in the RDSPD who is not a certified teacher. Ms. Blumberg has an Associate Arts degree from Blinn College. During her schooling, Ms. Blumberg took two semesters of American Sign Language and one class each in Gestures, Finger Spelling, and Interpreting. Ms. Blumberg has no other course work or training related to teaching oral education of the deaf.

46.     A certified teacher of the deaf, Ms. J. Reznicek supervised and mentored Ms. Blumberg in their teaching position at the RDSPD. In addition to general consultation and support, Ms. Reznicek began team teaching with Ms. Blumberg in early October 2001 from approximately 8:00 to 10:45 a.m. during which time she taught Jalen and other students language arts. For the remainder of the day, Ms. Blumberg functioned as the sole teacher in the class along with a teacher's aide.

47.     Ms. Blumberg's testimony made it clear that she does not understand IEPs and how they work, or how to measure progress and set expectations for students with hearing impairments. Ms. Blumberg, while well intentioned and diligent, does not have the training or knowledge to understand the unique nature of deafness and the hard of hearing condition.

48.     From September 19, 2001 through the hearing date in this cause, Jalen received his educational instruction in the oral communication class at the RDSPD. He received speech therapy for 1.5 hours, or two times, per week. Jalen missed some scheduled speech therapy sessions due to illness of the therapist; however, the therapist has made up all but 1 week of the missed sessions. The RDSPD plans to make up that week as well. Jalen's speech therapist at the RDSPD and Douglas, his private AVT therapist, worked together and coordinated services. In addition, the RDSPD retained Douglas to consult with the RDSPD's staff to help them integrate the principles of AVT therapy in their work.

49.     J. Reznicek completed Brigance testing of Jalen in January, 2001, October 2001, and January 2002. In January 2001, Ms. Reznicek did the testing using a total communication mode; in October 2001 and January 2002, she administered the testing orally. Brigance tests skills in 3 main content areas: Speech and Language Skills, General Knowledge and Comprehension, and Basic Reading Skills. Test scores in October 2001 showed that Jalen's scores in the Speech and Language Skills area were slightly lower, but comparable, to those received when he was tested in the total communication mode. In the area of General Knowledge and Comprehension, Jalen's scores when tested orally were mostly substantially lower. Scores in Basic Reading Skills were comparable.

50.     Comparing Jalen's Brigance test scores in October 2001 and January 2002 after a little over 3 months in the oral classroom shows definite progress in almost every area. An example is his score on the Body Parts section of the General Knowledge and Comprehension portion of the test: in October 2001, Jalen scored 8 out of 30 body parts when tested for receptive language and 9 out of 28 in expressive language. In January 2001, Jalen scored 19 out of 30 for receptive language and 19 out of 28 in expressive language. Not all improvements were as substantial as this, but most areas showed notable gains.

51.     Testing done by Michael Douglas also showed notable progress in receptive and expressive language skills during the time period between fall 2001 and January 2002.

52.     With regard to Jalen's placement in the total communication class in the 2000-01 school year, Petitioner's expert witnesses, Dr. Daniel Ling and Michael Douglas, both expressed the firm view that Jalen should have been placed in the oral class immediately post cochlear implant to expedite his progress in listening and the development of speech be eliminating sign language. Both experts believe that Jalen suffered as a result of remaining in the total communication class and that he could have transitioned successfully into the oral class in August 2000 just as he did in the summer program he attended during the summer 2001 or when he ultimately transitioned into the oral class in September 2001.

53. With regard to Jalen's placement in the total communication class in the 2000-01 school year, Jan Gilden, the executive director of the HERF, testified that Jalen's placement in total communication "with certainly working towards transitioning to an oral program, would be appropriate."

DISCUSSION

I.

Whether Respondent Filed To Provide Jalen With A Free Appropriate Public Education Prior To His Placement In The Oral Communication Class In September 2001

    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 (5^th 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.

A.

Whether Respondent Violated the Procedural Guarantees of IDEA And State Law

    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:

A student who is deaf or hard of hearing must have an education in which the student's parents or legal guardians and advocates for the student's parents or legal guardians are involved in determining the extent, content, and purpose of programs. Other individuals including individuals who are deaf or hard of hearing, may be involved at the discretion of parents or legal guardians or the school district.

Texas Education Code, Section 29.306 (emphasis added)

    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. 3^rd 245 (5^th 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. 2^nd 1479 (9^th 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.

B.

Whether Respondent Violated the Substantive Provisions of IDEA and State Law By Failing To Provide a Free Appropriate Public Education

    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. 3^rd 245 (5^th 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. 2^d 290 (7^th 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 (9^th 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 (5^th 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.

II.

Whether Respondent Failed To Provide Jalen With A Free Appropriate Public Education Following His Placement In The Oral Communication Class In September 2001

    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 (5^th 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.

III.

Compensatory Education and Relief

    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

1.     Jalen M. is a student attending the Brazoria-Fort Bend Regional Day School Program for the Deaf who is eligible for special education services under the provisions of IDEA and its implementing regulations as a student with a hearing and speech impairment.
2.     Respondent Alief ISD is an independent school district duly constituted in and by the state of Texas, and subject to the requirements of the IDEA and its implementing federal and state regulations. Alief ISD, as a participating member of the RDSPD and Jalen's resident district, has the responsibility to provide him with a free appropriate public education. 20 U.S.C. � 1401 (a)(18).
3.     At all times prior to the 2000-01 school year, Respondent provided Jalen M. with a free appropriate public education within the meaning of IDEA and state law.
4.     Beginning with the 2000-01 school year, Respondent's failure to notify Petitioner of the existence of an oral communication class within the RDSPD constituted a procedural violation of IDEA and state law provisions by denying the M's a meaningful opportunity to participate in the development of Jalen's IEPs and placement. 34 C.F.R. � 300.501 (a)(2); 34 C.F.R. � 300.501 (c); Texas Education Code, � 29.306; W.G.; B.G., individually and as parents of R.G. v. Board of Trustees of the Target Range School District, No. 23, 960 F.2^nd 1479 (9^th Cir. 1992).
5.     Respondent's program and placement for Jalen during the 2000-01 school year failed to provide Jalen with a free appropriate public education within the meaning of IDEA. Hendrick Hudson Central School District v. Rowley, 458 U.S. 175 (1982); Cypress-Fairbanks Independent School District v. Michael F., 118 F. 3^rd 245 (5^th Cir. 1997), cert denied, 522 U.S. 1047 (1988); 34 C.F.R. � 3000.346; Texas Education Code, �� 29.302, 29.303.
6.     Respondent properly implemented Petitioner's IEPs during the 2001-02 school year with regard to the provision of speech therapy services and AVT therapy. Houston Independent School District v. Bobby R., 200 F.3d 341 (5^th Cir. 2000).
7.     Respondent's failure to provide Jalen instruction by properly qualified personnel during the 2001-02 school year denied him a free appropriate public education. 34 C.F.R.� 300.23; Texas Education Code, � 29.304.

ORDER

    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:

1.     Respondent shall provide Jalen with twelve (12) months of compensatory speech therapy and auditory training, calculated at a service level of two (2) hours per week. The therapy provided shall 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.
2.     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.
3.     The ARDC shall provide Jalen with a summer program at the conclusion of this school year that is 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.
4.     The ARDC shall review Jalen's current IEPs and program to insure that ongoing coordination and collaboration occurs with regard to the provision of speech therapy and auditory training services within school and by private therapists.
5.     The ARDC shall meet within ten (10) days of receipt of this decision to begin implementation of the relief ordered herein.

    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.

Lynn E. Rubinett

Special Education Hearing Officer

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