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A.U. v. Roane County Board of Education

May 23, 2007

A.U., BY HER PARENTS AND NEXT FRIENDS, N.U. AND B.U., PETITIONER/APPELLANT,
v.
ROANE COUNTY BOARD OF EDUCATION, RESPONDENT/APPELLEE.



The opinion of the court was delivered by: Leon Jordan United States District Judge

MEMORANDUM OPINION

These consolidated civil actions, brought pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., are before the court on the plaintiff's motion for judgment on the pleadings and administrative record [doc. 16] and the defendant's motion for summary judgment [doc. 18]. In case no. 3:06-cv-123, the plaintiffs (child and parents) appeal the hearing officer's conclusion that Roane County's proposed placement of the hearing impaired child in its Head Start collaborative program would provide a free appropriate public education in the least restrictive environment. In case no. 3:06-cv-125, the Roane County Board of Education appeals the hearing officer's conclusion that Roane County must continue to provide mapping services for the child's cochlear implants. The parties have responded to the respective motions [docs. 21 and 23], and oral argument on the motions has been heard. Therefore, the motions are ripe for the court's consideration. For the reasons discussed below, the ruling of the hearing officer will be affirmed in part and modified in part.

I. BACKGROUND

The administrative record in this case has been filed under seal with the court, and the parties have not asked the court to consider any new evidence. See 20 U.S.C. § 1415(i)(2)(C) (requiring the court to receive the administrative record and hear additional evidence upon the request of the parties). The following summary of the background of this case is taken from the administrative record.

The child, referred to as A.U. in the pleadings, was born in March 2001 with a profound bilateral sensorineural hearing loss. At fourteen months old, she received a cochlear implant in her right ear and started auditory verbal therapy at the University of Tennessee Child Hearing Services. There is evidence that this cochlear implant is in "soft failure." In June of 2005, she received a cochlear implant in her left ear. Roane County identified A.U. as a "child with a disability" and services were provided under an Individualized Family Service Plan. See 20 U.S.C. §§ 1432 and 1436 (requiring early intervention services for infants and toddlers with disabilities, up to age three).

Before the 2004-2005 school year, the parents and Roane County began to consider possible preschool placements, and an individualized education program ("IEP") was developed for A.U. Roane County proposed placement at the Henry Center, a private day care center in Harriman, Tennessee. The parents sought placement at Tate's School of Discovery, a private preschool in Knoxville. A mediated agreement was reached wherein Roane County would pay for A.U.'s placement at Tate's up to the amount it would have paid for her to attend the Henry Center. Tate's became unavailable for that school year, and A.U. was home-schooled by her mother with five other children. Roane County continued to provide weekly auditory verbal therapy at the U.T. Center during this time.

In the spring of 2005, the parents and Roane County began to consider an appropriate placement for A.U. in the up-coming 2005-2006 school year. The parents again sought placement at Tate's, but Roane County's proposed placement was in a new collaborative program being developed in Roane County with Head Start. There is a dispute whether proper written notice of the change in placement was given prior to the 2005 IEP meetings. Roane County also proposed to stop paying for mapping services for the new school year, but agreed to pay for the services during the summer. The parents objected to both the proposed placement and the denial of mapping services, and filed a request for a due process hearing. Under the "stay-put" provisions of the IDEA during the pendency of the hearing, 20 U.S.C. § 1415(j), A.U. attended Tate's during the 2005-2006 school year under the mediated agreement of the year before.

Following five days of evidence from experts in education, audiology, and hearing disabilities,*fn1 the hearing officer found that Roane County's collaborative program with Head Start met the requirements of the IDEA and denied reimbursement to the parents for A.U.'s fees at Tate's. The hearing officer also found that Roane County must continue to provide mapping services for A.U.'s cochlear implants.

A. Cochlear Implants

A basic explanation of how cochlear implants work is necessary to understand the experts' recommendations for A.U. According to the training materials submitted at the hearing (exh. 13), a cochlear implant is "a surgically implanted device used by severe to profoundly deaf individuals who receive minimal benefit from hearing aids." It provides electrical stimulation to the inner ear rather than acoustical amplification. A microphone detects sounds that are sent to a speech processor, which uses a mathematical algorithm to digitize and process speech into a signal that is sent to an external transmitter. The external transmitter sends the signal across the skin by way of a FM transmission to the internal receiver-stimulator. The signal is then sent to electrodes attached to the auditory nerve. Mapping involves a "series of instructions that are saved into the speech processor to direct it to stimulate the different electrodes at the levels that are appropriate for an individual ear." The process requires a trained audiologist and specialized equipment. At the time of the hearing, mapping services for A.U.'s implants were provided by Vanderbilt University in Nashville.

A child like A.U. with cochlear implants has special acoustic needs such as a quiet space with little extraneous noise and reverberation and a close distance to the person speaking. The American National Standards Institute ("ANSI") standards recommend that a normal classroom have a 15 decibel "signal to noise" ratio. This number is determined by comparing the noise level in the classroom with the signal -- usually the voice of the teacher. Assuming a noise level of 35 decibels (the ANSI recommendation for an empty classroom), the teacher would have to speak at 50 decibels to achieve the desired 15 decibel difference. In A.U.'s case, the evidence showed that she needs a 20-30 decibel signal to noise ratio because of her cochlear implants. A personal FM transmitter worn by the teacher would increase the signal to noise ratio about 20 decibels for the child with cochlear implants but does not affect others who do not have an FM receiver, although A.U. was too young to use a personal transmitter. Also, a sound field FM system (speakers in the classroom) can improve the signal to noise ratio for a cochlear implant child by 10 to 12 decibels.

Following a cochlear implant, there is a critical window of opportunity for the child to learn to hear and speak. A.U. began auditory verbal therapy*fn2 shortly after receiving her first cochlear implant. This type of therapy consists of the child spending a couple of hours a week with a trained therapist, the parents and teacher being trained to reinforce what the therapist does, and the child spending as much time as possible with typically developing peers to develop age-appropriate language and speech skills. Of course, mapping of the device is critical.

B. Expert's Recommendations

The parties in this case presented the testimony of several experts in audiology, speech therapy, and education. The hearing officer accurately set out these experts' testimony, so only a brief summary will be necessary here. A.U.'s treating audiologists and therapists, Andrea Hedley-Williams (pediatric cochlear implant audiologist), Gayla Hutsell (certified auditory verbal therapist), Velvet Buehler (audiologist and speech pathologist), and Lynn Harmon (speech language pathologist),*fn3 all testified that it was critical for A.U., given her age and developing language skills, to be in a classroom with typically developing peers for language and speech. But, A.U. should not be the highest functioning child because she needs to be around children with better skills as models. They also stressed that noise would interfere with A.U.'s ability to hear, as would distance from the speaker. The teacher from Tate's testified about her classroom and A.U.'s participation in the classroom since the beginning of the 2005 school year.

Roane County's experts included Aimee Mason (Roane County speech/language pathologist), Leigh Lamb (Roane County education audiologist), Ellen O'Callaghan Sheldon (regional Head Start director), Stephanie Walker (Roane County special education supervisor), and the teachers from the Roane County collaborative program and the Henry Center. They testified that the Roane County Head Start program had typically developing children, that the classroom was appropriate, and that the teaching staff was trained to work with A.U.'s special needs.

C. Available Classrooms

1. Roane County's Collaborative Head Start Classroom

Prior to the 2005-2006 school year, it is undisputed that Roane County did not have a public preschool program suitable for A.U., thus the suggested placement at the Henry Center. However, in the spring of 2005, Roane County began to plan for a collaborative program with Head Start. As the program was described to the parents during the spring meetings, it would be mostly Head Start children, eligible for the program based on socioeconomic reasons, but characterized as typically developing.*fn4 Some disabled children eligible for preschool services ...


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