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February 13, 2002


The opinion of the court was delivered by: McCUSKEY, District Judge.


This case arises 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 ("the District") was commenced on behalf of Alec S., a child with profound hearing loss. The hearing officer found in favor of Alec S. On July 31, 2000, the District filed a Complaint (# 1) appealing the decision of the hearing officer to this court. On May 25, 2001, the parties filed cross-motions for summary judgment (# 29 & # 35). Following a careful review of the record in this case, Defendants' Motion for Summary Judgment (# 29) is GRANTED and Plaintiffs' Motion for Summary Judgment (# 35) is DENIED.


Alec S., the son of Debbie S. and Jeff S., was born on July 27, 1995, and was diagnosed with profound hearing loss in both ears at thirteen months of age. Alec received hearing aids at that time and began receiving auditory verbal therapy (AVT)*fn1 from Dianne Hammes ("Hammes") of the Echo Program at the Carle Clinic and Mary Boucher Jones ("Jones"), a certified AVT therapist*fn2 in Indianapolis, Indiana.*fn3 Alec received a cochlear implant in February 1998. When a person receives a cochlear implant, that 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. Jones describes AVT as follows:

If a student uses an auditory-verbal 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 occurring 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.

As part of AVT, therapists assess the "map" of a cochlear implant and provide diagnostic information to audiologists for the purpose of adjusting the implant. There is a critical window of opportunity for a child with a cochlear implant to learn to hear and speak during which AVT is implemented.*fn4 In order for AVT to be effective, the recipient must be placed in a regular education classroom setting with typically developing peers where he will be exposed to normal speech and language patterns. Another aspect of AVT is that parents and siblings of children receiving AVT participate in the therapeutic process. AVT is implemented 24 hours per day and integrated into the daily life of the child's family.

Until Alec turned three, he was receiving services under an Individualized Family Service Plan (IFSP). Debbie has chosen AVT as the therapy she preferred Alec to receive. The IFSP called for Alec to receive AVT*fn5 services one hour per week from Hammes and two hours per month from Jones. The IFSP also called for Alec to "participate in a center based program that includes normally developing children." Prior to the time Alec turned three, Debbie contacted Cliff McClure, principal of the Clara Peterson Grade School, to request services. Debbie contacted McClure by telephone in February 1998 and completed a referral form for special education services on March 5, 1998. On the referral form, Debbie checked boxes indicating a need for speech, hearing, and social development services. At this time, McClure gave Debbie a "Notice of Parent's Rights." The form was outdated, however, and was silent on the issue of placement by parents in a private school not approved by the local educational agency.*fn6

McClure had Debbie sign a consent form to allow the District to perform its initial case study evaluation of Alec. The form indicated that Alec would receive comprehensive and speech/language case study evaluations. A comprehensive case study evaluation is supposed to include a social development study, a medical history report, a review of academic history, and an assessment of the child's learning environment. In April 1998, the District performed a Psychoeducational evaluation and a Social Development Study of Alec. The Psychoeducational evaluation indicated that Alec's academic skills fell within the below average to high average range compared to same age peers. The Social Development Study was conducted by Lisa Combes. Combes spoke with Debbie about potential placements for Alec, and Debbie informed Combes that Alec should be placed in a normal preschool setting. Debbie informed Combes that Alec would be turning three over the summer. Combes told Debbie that there was a program for three to five-year-olds offered at Westlawn school. Debbie went to Westlawn school and believed, based upon her observations, that the children in the class were disabled and many exhibited disabilities with regard to their speech.

The District has policies relative to the transition of children from Part C to preschool programs. Part C is an early intervention program for children ages 0 to 3. At age three, Alec should transition from the Part C program to a Part B program designed for children ages 3 to 5. The District has policies regarding the development of an Individualized Education Program (IEP) which state that an "IEP or IFSP will be developed for any child referred for a case study evaluation and found to be eligible within at least 60 days prior to their [sic] third birthday to be implemented on the third birthday." The policy further states that "Each initial IEP must be completed by the IEP team no later than 30 days after the determination of eligibility and in no case later than 60 school days from the date of referral."

The evaluations conducted by the District were completed by April 20,1998. As a result of these evaluations, the District had determined that Alec was eligible for services. An IEP was not developed within 30 days of this evaluation. Neither did the District develop an IEP for Alec prior to May 27, 1998, which is 60 days prior to his third birthday. Furthermore, the District did not prepare an IEP within sixty school days of March 5, 1998, the day Debbie signed the referral form.*fn7 Rather, the Multidisciplinary Conference (MDC) to develop an IEP was not held until August 27, 1998.

The Psychoeducational evaluation and a Social Development Study were the only evaluations conducted by the District prior to the first MDC held on August 27, 1998. Prior to the MDC, the District also failed to perform a hearing screening. Neither had the District's speech pathologist done any testing of Alec as required for a speech and language case study evaluation. Rather, the District relied upon the testing conducted by Alec's private therapists for test results. Furthermore, the District had not reviewed Alec's records from his IFSP prior to the MDC.

At the IEP meeting held on August 27, 1998, the District found Alec eligible for special education and related services as a hearing impaired student. In preparing the IEP, the District set a number of goals for Alec. These goals included increasing social language, increasing auditory skills, and achieving age-appropriate communication skills.*fn8 The District offered Alec an educational placement in the Early Childhood Special Education class at the Westlawn school along with speech and language and itinerant hearing impaired teacher services. At the IEP meeting, Debbie requested a regular preschool placement. The District refused to place Alec in a preschool class other than the one it offered at Westlawn. Debbie rejected the placement because she did not believe that Westlawn would provide appropriate language models which is necessary as part of Alec's AVT. Therefore, Debbie advised the District that she had reserved a spot for Alec at St. John's preschool and intended to place him there without the District's consent.*fn9

Jones and Hammes were also in attendance at the MDC to discuss AVT with the District. They indicated that Alec was receiving AVT therapy regularly at Carle Clinic and twice monthly with Jones for one hour periods. Hammes presented her report at the MDC recommending that Alec continue to receive AVT because "his ability to process language auditorily continues to improve as he and his family work to develop his auditory and feedback systems." Jones also presented 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 [have] knowledge of auditory-verbal techniques.

Despite these reports, the District refused to provide an AVT therapist for Alec and declined to pay Jones or Hammes for AVT rendered to Alec.

The District did, however, provide Alec with the IDEA's requirements of services to privately enrolled students. Specifically, the District offered the services of Al Bowman, its speech pathologist, to provide services to Alec twice weekly in one-half hour sessions. Bowman agreed to learn about AVT and incorporate elements of AVT into his management of Alec's case. Bowman had never worked with a cochlear implanted child, nor is Bowman trained or certified as an auditory verbal therapist. Debbie testified that she decided to give Bowman a chance because "he was very interested in the concept and wanting to try auditory-verbal and learn about it."

Bowman worked with Alec from September 15, 1998, to January 14, 1999.*fn10 Bowman treated Alec with a traditional speech-language model using auditory-oral philosophy.*fn11 During this time he collaborated with Jones via email in an attempt to incorporate AVT into his practice. In one of these emails, Bowman stated:

I saw Alec for the first time today, and now understand why you and your team were so excited about his potential as an oral communicator. 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.

Debbie terminated Bowman's services because she felt that Alec had not progressed, but was in fact regressing as a result of Bowman's therapy. Hammes testified that, following Bowman's treatment, Alec regressed in his ability to stay on task for a one hour AVT session and had lost some of his natural intonation patterns which had been developed prior to Bowman's involvement. Jones testified as follows regarding the effects of Alec receiving treatment from Bowman:

Hammes conducted testing of Alec following Bowman's treatment. The Ski-Hi test indicated that Alec made gains in one area and maintained in another area between October 1998 and February 1999. The expressive one word picture vocabulary test results demonstrated some gains as well. In a report dated February 2, 1999, Hammes indicated that "Alec's overall ...

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