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
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
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
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
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 ...