School Districts and AV Therapy

Update on the School Distructs And Auditory-Verbal Therapy
Source: The Auricle

The following are two recent and important cases regarding the provision of Auditory-Verbal Therapy services. In the first, Cert.AVT® Mary Boucher Jones played a significant role and the case is a landmark one: It is the first federal case regarding Auditory-Verbal Therapy known to this writer and the attorney who handled it on behalf of the Auditory-Verbal parents. Con­gratulations to the parents, Cert.AVT® Mary Boucher Jones, and Barry Lowy of Equip for Equality, the attorney who handled the case.
Equip for Equality is a Chicago-based nonprofit organization that specializes in public interest law including the ADA, IDEA, developmental disability issues, employment discrimination, and housing issues. The website for Equip for Equality is located at www.equipforequality.org.
The second case is a Hearing Officer decision involving the State of Connecticut Department of Education. Cert.AVT® Ellen Gill of CREC Soundbndge played a leading role in the case, in which Cert.AVT® Kimberly Peters also was involved. Congratu­lations to the parents, the Cert.AVT®s, and attorney Andrew Feinstein of Hartford, Connecticut, who worked so hard for this important victory.

Copies of both of these decision are available through the AVI office.

Board of Education of Paxton-Buckley Loda Unit School District No. 10, and the Ford-Iroquois County Special Education Association v. Jeff and Debbie S. and Illinois State Board of Education
This decision emanates from the U.S. District Court for the Central District of Illinois.
The decision is a detailed and lengthy one, and it is examined here at length for two reasons. The case is significant as it is a precedential one. It is not simply the work of an Administrative Hearing Officer, but rather is an opinion of a Federal Court. Second, the case is significant as it discusses at length Auditory-Verbal Therapy, the role of certification and other issues relevant to AVI members. Additionally, detail is provided to allow AVI members to use these cases where necessary in their own cases or with their own children.
Factual Background
The case arose under the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. § 1400 et seq. The underlying administrative proceeding against the Board of Education of Paxton-Buckley Loda Unit School District (hereinafter “the District”) was commenced on behalf of Alex S., a child with profound hearing loss. The Administrative Hearing Officer found in favor of Alec S. The District filed a complaint appealing the decision of the Hearing Officer to the U.S. District Court.
Alec S., son of the plaintiffs, was diagnosed with profound hearing loss in both ears at 13 months of age. Alec received hearing aids at that time and began receiving Auditory-Verbal Therapy from two providers, including Cert.AVT® Mary Boucher Jones. The Court specifically set forth in a footnote in its decision some of the prerequisites for certification in the approach. Alec received a cochlear implant in February 1998. The Court specifically noted that:
"When a person receives a cochlear implant, the person does not automatically begin to hear sound like a person with an intact auditory system. Rather, the initial sounds that a person hears when receiving a cochlear implant are buzzes and clicks. AVT teaches those with hearing impairments to integrate the sounds and signals provided by the cochlear implant in order to better learn speech and to ultimately communicate verbally." [Board of Education of Paxton-Buckley Loda Unit School District No. 10 v.Jeff and Debbie S. Case No. 00-2304 (U.S.District Court, Central District of Illinois) February 13,2002, at 2-3.]
The Court included in its decision Cert.AVT® Jones' testimony regarding Auditory-Verbal Therapy, specifically:
"If a student uses an [A]uditory-[V]erbal mode of communication, they receive the communication through their auditory sense. They develop the feedback mechanism to monitor their own speech production and learn how to produce speech sounds and language through naturally occuring events in the environment. There's no emphasis placed on any undue visual cues, and it's occurring under the same scope and sequence that normal speech and language development would occur with all of those things happening concurrently and blending together." [Supra at 2-3.]
Debbie S. chose Auditory-Verbal Therapy as the therapy she preferred Alec to receive. At an Individualized Education Program (IEP), the District found Alec eligible for special education and related services as a student with hearing impair­ment. The District offered Alec an educational placement in the Early Childhood Special Education class along with speech and language and itinerant hearing-impaired teacher services. Debbie S. had previously visited this special education class at the school and believed, based upon her observations, that the children were disabled and exhibited disabilities with regard to their speech. Instead, Debbie requested a regular school placement. The District refused to place Alec in a preschool class other than the one offered at this school. Debbie rejected the placement as she did not believe that the school in which Alec was offered a placement would provide appropriate language models, a necessary part of Alec's Auditory-Verbal Therapy. Instead, Debbie advised the District that she had reserved a spot for Alec at a local parochial preschool.
At another conference with the District, Cert.AVT® Jones presented what was at that time her latest progress report for Alec, indicating: "It is critical that Alec have consistency in his therapy program at this critical juncture in his development. Changing service provid­ers or methodology at this point could be extremely detrimental to his progress. All of Alec's therapists and teachers should know how to troubleshoot cochlear implants as well as knowledge of [A]uditory-[V]erbal techniques." [Supra at 2-3.]
Despite this information, the District refused to provide an Auditory-Verbal Therapist for Alec and declined to pay for Auditory-Verbal Therapy services rendered.
The District did provide Alec with the IDEA's requirements of services to privately enrolled students. In this regard, the District offered the services of a speech pathologist to provide twice weekly service to Alec in one-half-hour sessions. The speech pathologist agreed to learn about Auditory-Verbal Therapy and incorporate elements of Auditory-Verbal Therapy into his management of Alec's case. However, at this time, the speech pathologist had never worked with a cochlear implanted child, nor had he been trained or certified as an Auditory-Verbal Therapist. Parent Debbie testified that she elected to give this speech pathologist a chance as “he was very interested in the concept and wanting to try [A]uditory-[V]erbal and learn about it.” [Supra at 7.]
The speech pathologist worked with Alec from mid September 1998 until mid January 1999 with a traditional speech-language model using auditory-oral philosophy. During this time, he colloborated with Jones via e-mail in an attempt to incorporate Auditory-Verbal into his practice.
The parent ultimately terminated the speech pathologist's services because she felt that Alec had not only failed to progress, but had actually regressed as a result of the speech pathologist's therapy. Cert.AVT® Jones testified that there were some regres­sions of patterns including Alec's intonational pattern, listening focus, and vocal segmentation.
The IEP team met a second time in May 1999. The District's only offer of placement at this meeting was a self-contained classroom for those with hearing impairment. In its decision, the Court specifically noted that if Alec had been placed in this classroom, be would not have had speech modeling from “nondisabled peers.” [Supra at 9.]
The parent again rejected this placement and asked that Alec be educated at the parochial school. Alec's IEP was not com­pleted at this meeting and the meeting was postponed until September 1999.
At the September 1999 meeting, the District offered the “PREP/At-Risk class” as a placement for Alec in addition to the early childhood program it had offered earlier. The PREP was a District program for non-special education students who are perhaps behind in normal developmental areas that would cause them to not have an equal chance with their peers when they arrive in kindergarten. Together with a parent advocate, Debbie later visited the PREP program. Debbie ultimately refused the PREP placement as both she and the parent advocate believed that the children in that class “would not provide Alec sufficient interaction with children exhibiting proper speech modeling.” [Supra at 10.]
As the District declined to fund Alec's placement in parochial school and his Auditory-Verbal Therapy, the parents requested a due process hearing. After each of the parties presented their respective cases, the Special Education Due Process Hearing Officer found in favor of Alec and his parents. Specifically, the Hearing Officer ordered the District to pay for the costs of Alec's therapy to the two providers, including Jones, in the amount not covered by the parents' insurance until an LEP was convened where the two providers recommended a change in service.
Additionally, the Hearing Officer ordered that Alec be placed in a private preschool at the District's expense and also ordered reimbursement to the parents to cover the preschool tuition already expended and one provider's charges not covered by insurance.
Analysis
In rendering its decision, the Court noted that its decision was based on the preponderance of the evidence. Citing other federal decisions, the Court noted that due weight should be given to the findings from an administrative proceeding below and the Court is “not to substitute its judgment for that of the administrative hearing officer's.” [Supra at 10.]
A. Violations of the IDEA's Procedural Safeguards Found
At the outset of its analysis of the case, the Court noted that it agreed with the hearing officer's finding below that the District violated several procedural safeguards of the IDEA, particularly noting that the District's delay in developing an IEP for Alec was significant and denied Alec a free appropriate public education (FAPE) as provided by the IDEA. 20 U.S.C. § 1400(d).
B. Placement in the Least Restrictive Environment (LRE)
In consideration of this issue, the Court noted that the IDEA's implementing regulations provide that “children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled.” [Supra at 14-15.]
Additionally, the Court noted that children with disabilities are to be removed from typical education classes only “if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily...” [Supra at 15.]
The Court held it agreed with the Hearing Officer that the PREP program could not considered the Least Restrictive Environment (LRE) because “the evidence shows that [Alec] can be educated in a regular preschool classroom with nondisabled children and with few modifications to the curriculum.” [Supra at 16.]
Thus, the Court concluded it agreed with the Hearing Officer that neither the PREP Program nor the Early Childhood Special Education class was a free appropriate public education (FAPE) for Alec pursuant to the IDEA as the programs did not provide the least restrictive environment (LRE) to meet his educational needs. [Supra at 16.]
C. The District's Discretion to Choose the Method of Service Delivery
This section of the Court's decision includes several other points not specifically addressed here but the decision turns on all of these so this section merits particularly close reading. How­ever, the points particularly referencing Auditory-Verbal are included below.
Rejecting arguments by the District, the Court found here that Auditory-Verbal Therapy requires that the child be included in a typical classroom so that “he can hear appropriate speech modeling.” [Supra at 18.]
The Court specifically noted that the programs proposed by the District were not in typical classrooms and therefore could not provide the necessary speech modeling. Additionally, the Court remarked that the District did not present any evidence in the proceedings below that its proposed therapy would as effectively place Alec in the least restrictive environment if he was given time to adapt to a different therapeutic approach as proposed by the District. [Supra at 18.]
D. Services Ordered by Hearing Officer Provide FAPE
This is a particularly interesting portion of the decision for Auditory-Verbal advocates. The District attempted to argue that providing Auditory-Verbal Therapy to Alec “could be detrimental to his future development because AVT is not a widely accepted practice or the best method for educating children with hearing loss.” [Supra at 19.]
While disposing of this argument on procedural grounds, the Court also noted that the District did not consistently challenge the opinions of the two therapists. In fact, the Court noted that the District had previously relied exclusively on their earlier opinions and testing regarding Alec's hearing loss. Additionally, the Court noted that the District speech pathologist colloborated with Cert.AVT® Jones and attempted to incorporate A-V in his treat­ment of Alec, even stating in an e-mail to Jones that “Considering how little time has elapsed since the implant surgery, his progress has been nothing short of remarkable. I can't imagine anyone even considering signing or ‘traditional' auditory training with a child like this.” [Supra at 20.]
E. Reimbursement
In deciding the issue of reimbursement for Alec's private school enrollment, the Court again decided the issue on proce­dural considerations. Due to procedural deficiencies, the Court ruled that the District had failed to make free appropriate public education (FAPE) available to Alec in a timely manner prior to the enrollment in derogation of 34 C.F.R. § 300.403(c). Thus, the Court stated, pursuant to 34 C.F.R. § 300.403(c), the only remaining consideration was whether the placement was appro­priate. In finding for the parents, the Court stated: “The record indicates that Alec receives interaction with typically speaking peers at St. John's, a requirement to effectively implement AVT. Alec's preschool teacher testified that Alec benefits “speak­ing-wise” from being in her class. Furthermore, Jones testified that St. John's was the appropriate placement for Alec. Thus, this court concludes, in the exercise of its discretion, that the hearing officer properly ordered the District to reimburse Defendants for the costs associated with Alec's placement at St. John's.” [Supra at 23.]

According to Attorney Barry Lowy of Equip for Equality, the deadline to appeal the District Court's decision in this case has just expired as we go to press. No appeal has been filed.

Summary of Hearing Officer's Findings of Facts
The 4-year-old student was born with a profound bilateral sensorineural hearing loss which was identified when the student was 5 months old. At 7 months, the student received hearing aids and at 8 months began the Birth-to-Three program through a school for the deaf. Additionally, a speech pathologist worked with the student for two one-hour sessions per week. The parents' goal was for the student to listen and speak.
At 19 months of age, the student received a cochlear implant and one month later, the device was activated. The Hearing Officer noted that the student was profoundly deaf the student's parents and teachers had to be trained to help the student effectively use the implant to listen, speak and learn naturalistically through daily life.
The Hearing Officer noted that the student had been receiving Auditory-Verbal Therapy at CREC (Capital Regional Education Council) Soundbridge with Certified Auditory-Verbal Therapist Ellen Gill. The Hearing Officer included in the “Findings of Fact” portion of her decision the following summary of the Auditory-Verbal approach:
"Auditory-[V]erbal Therapy is the application and management of technology, strategies, techniques and procedures to enable children who are deaf to learn to listen and understand spoken language in order to communicate through speech. Auditory-[V]erbal is diagnostic, with each session being an ongoing evaluation of the child's and the parents' progress. Children systematically learn to use their hearing aids or cochlear implants to listen to their own voices, the voices of others, and the sounds of their environment in order to understand spoken communication and deveLop meaningful conversations. Auditory-[V]erbal [T]herapy encourages and follows natural language and speech development. The parents and therapist help the child to integrate hearing, language and spontaneous speech into the child's personality. Through the [Ajuditory-Verbal approach, maximum use of hearing is developed in order to learn spoken language through listening rather than through watching. The [AJuditory-[Vjerbal [1']herapist is a qualified educator of the hearing impaired, an audiologist and/or speech-language patholo­gist who has received advanced, specialized instruction and practical experience through university courses, specific [A]uditory-[V}erbal learning centers, and/or from [Cjertified [A]uditory-[V]erbal clinicians. The goal of[A}uditory-[V]erbal [T]herapy is to close the ‘language gap', the difference between the child's chronological age and his or her language-age equivalency as shown on testing results." [[Student] v. Branford Board of Education of the State of Connecticut, Final Decision and Order 01-320, December 28, 2001 at 3.]
The Hearing Officer further noted that while the student had not yet progressed to the functional equivalence of his typically hearing peers, the student appeared to be rapidly approaching that goal.
Though the Birth-to-Three program, the student received year-round, twice weekly hour-long sessions of Auditory-Verbal Therapy, until the time of his third birthday, at CREC Soundbridge, at no cost to his parents.
The Board proposed IEP upon exiting the Birth-to-Three Program provided for two half-hour speech-language therapy sessions per week at the Board's early education center and consultation by the CREC Auditory-Verbal Therapist at the early education center once per month. The parents rejected this proposal.
At all times the Board contended that [A]uditory-[V]erbal [T]herapy sessions at CREC Soundbridge were not required in order for the student to make educational progress and that services to be provided to the student by the Board speech-language pathologist were sufficient to meet the child's needs. The Hearing Officer specifically noted that no Board personnel had any training or experience in Auditory-Verbal Therapy or working with an audiologist in adjusting the student's cochlear implant MAP.
The Hearing Officer noted that in September 2001, the student began attending a private, typical preschool program chosen and paid for by the parents. Additionally, the Hearing Officer noted that although the Board agreed that an FM system was necessary for the child to benefit from the educational setting, the Board had not provided an FM system for the student's use at the private school during the pendency of the case. Nor had the Board reimbursed the parents for transportation to and from Auditory-Verbal Therapy sessions at CREC Soundbridge.
Particularly relevant was the Hearing Officer's finding that the Board produced no witnesses whose testimony “adequately demonstrated specific training and experience with the unique needs of a preschool-age, profoundly deaf child who has received a cochlear implant.” [Supra at 9.]
The Hearing Officer also cited testimony of rehabilitative audiologist Dr. Kimberly Peters to the effect that mastery of many speech sounds would be highly dependent on the quality of the student's MAP, which in turn would be dependent upon close coordination between the MAPping audiologist and those who provide services to the student.
Conclusions of Law
Citing the highly credible testimony of Ellen Gill, the CREC Auditory-Verbal Therapist, and Cert.AVT® Dr. Kimberly Peters, as well as that of other educational personnel, the Hearing Officer concluded that the student's progress in acquiring listening and speech skills could be attributed largely to the intensive Auditory-Verbal Therapy at CREC Soundbridge.
The Hearing Officer further found that since the student was still developing speech and language based on what he heard in the environment, he should be enrolled in a preschool in which all children exhibit age-appropriate speech and language skills. The Hearing Officer found that the Board's early childhood program was not a preschool in which all children exhibited age-appropriate speech and language skills. Thus, the Hearing Officer concluded that since the student's educational needs could not be met by public school arrangements, the Board had to fund the student's private preschool placement.
Relying on CFR § 300.24(b)(1) “Supplementary aids and services,” the Hearing Officer found that as the Board had been unable to offer an appropriate IEP designed to meet the student's unique needs and the student had made demonstrable educational progress as a result of Auditory-Verbal Therapy, the Board was obligated to reimburse the parents for the cost of transportation to and from CREC Soundbridge for the school year and to provide an FM system at the preschool.
Finally, the Hearing Officer concluded that:
"[T]he IEP offered by the Board was not reasonably calculated to provide the student educational benefit. Although the IEP offered by the Board seemed to be the best it could offer, it was not designed to address the student's unique needs as a profoundly deaf, cochlear implant child who has successfully acquired the entirety of his speech and language by means of Auditory-Verbal Therapy, including committed parental participation, and attendance in the regular education and preschool setting."

• This decision is final.