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Allyson B v. Montgomery County Intermediate Unit No. 23

March 31, 2010

ALLYSON B, A MINOR BY AND THROUGH HER PARENTS, SUSAN B. AND MARK B., PLAINTIFFS,
v.
MONTGOMERY COUNTY INTERMEDIATE UNIT NO. 23, DEFENDANT.



The opinion of the court was delivered by: Pollak, J.

OPINION

This case arises under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq, § 504 of the Rehabilitation Act, 29 U.S.C. § 794, and 42 U.S.C. § 1983. It now come before me on cross motions for summary judgment/motions for judgment on the administrative record. Defendant filed a motion for summary judgment/judgment on the administrative record (Docket No.44), to which plaintiffs filed a cross-motion for summary judgment/judgment on the administrative record (Docket No. 50) and a response to defendant's motion (Docket No. 51). Plaintiffs filed a motion to amend their cross-motion for summary judgment/judgment on the administrative record (Docket No. 53).*fn1 Defendants filed a response to plaintiffs' cross-motion (Docket No. 55). Plaintiffs replied to the defendants'response (Docket No. 56).*fn2 The cross motions are now ripe for disposition.

I. Facts and Procedural History

A. Facts

Allyson B., child of Mark B. and Susan B., was born with profound binaural hearing loss. Decision of Special Education Hearing Officer (Decision), at 2. In October 2003, when Allyson was six-months-old, the county mental health and mental retardation (MH/MR) agency began to provide early intervention educational services twice a week. Ibid. The MH/MR agency paid for personnel of the Clarke Pennsylvania School, a private school which specializes in deaf and hearing-impaired education, to provide these in-home services. Ibid. These services were provided by Sherri Finkenscher and Jeana Novak from Clarke for one hour, twice a week. Hearing Transcript (HT), at 985-986 (Testimony of Susan B.) On April 19, 2005, Allyson received a cochlear implant at the Children's Hospital of Pennsylvania. Decision, at 3. In the summer of 2005, Allyson began attending a toddler program at the Clarke School twice a week in the mornings, at the parents' expense. Ibid. In March of 2006, the MH/MR agency reduced the in-home services to once per week, in part, because Allyson's speech and language skills had improved and, in part, because she was attending the toddler group for six hours per week. Ibid.

On March 23, 2006, Sherri Finkenscher created an Early Intervention Progress Report/Annual Review evaluating Allyson's progress. Parents' Exh. 27, pg 246. Finkenscher conducted a Brigance Diagnostic of Early Development, which indicated that from July of 2005 to March of 2006 Allyson had made a great deal of progress. Parents' Exh. 27, pg 247. The Diagnostic of July 2005 found that in the areas of gross motor skills, fine motor skills, self-help skills, and social/emotional development Allyson had the skills of a child of age 2 years 0 months, and that her speech/language skills were that of a child of 1 year 0 months, while her actual chronological age at the time was 2 years 2 months. Ibid. The March 2006 Diagnostic showed that Allyson, then 2 years 10 months old, had developed the skills of a child between 3 years and 3 years 6 months old for the various skills tested, well above her chronological age, with the exception of her speech/language skills which were at the level of a 2 years 0 months-old child. Ibid.

The same report contained the results of the Hawaii Early Learning Profile (HELP), which provides age ranges for when certain skills are expected to develop in a child with normal hearing. Ibid. The results indicated that Allyson "falls solidly in the 24 month range with some younger skills lacking . . . and some older skills mastered." Ibid.

On March 31, 2006, employees of the Montgomery County Intermediate Unit (MCIU), which was preparing to provide Allyson services once she reached age three, prepared an Evaluation Report along with Finckensher and Novak in anticipation of Allyson's transition to preschool. Parents' Ex. 27, pg 254. The report found that Allyson was able to identify words that differed by large sound difference, and, using a closed set of 12 familiar objects, Allyson could follow two key-word directions and simple one-step directions. Parents' Ex. 27, pg 259. In addition, the report indicated she knew around 100 words, frequently put two words together, and sometimes used three word utterances. Ibid. However, she inconsistently "maintained precision of known sounds" and had substitutions and omissions in words. Ibid. According to Jeana Novak, Allyson was able to communicate her wants and needs and used "intelligible speech." Ibid.

On May 3, 2006, Susan B. and Mark B., Sherri Finkensher, Jeana Novak, and Judith Sexton from Clarke, and Dr. Joan Evans and Gerry Delmonico from the MCIU, met to create an Individualized Education Program (IEP) for the next year which would cover Allyson's transition to preschool. Parents' Ex. 15. The major difference of opinion between the participants of this meeting was whether Allyson would attend the MCIU's new auditory oral classroom for the hearing-impaired or whether the MCIU would pay for her to attend Clarke's preschool program. HT 279-82 (Testimony of Joan Evans). Auditory oral programs attempt to maximize auditory perception and verbal expression by reducing dependence on tactile or visual cues, such as the use of sign language, so that students can develop the same method of communication as their typical hearing peers.

Decision, at 2.

Joan Evans, director of the new classroom recommended placement with the MCIU. NT 272-73, 440 (Testimony of Joan Evans), while Finkersher, the Clarke employee who provided Allyson in-home services, and Allyson's parents wanted her to attend Clarke. NT 272, 279-82 (Testimony of Joan Evans). According to Susan B., the MCIU staff present at the meeting made clear that the MCIU class was the only option. HT 1002 (Testimony of Susan B.).

On May 19, 2006, a Speech and Language Evaluation was conducted at the Children's Hospital of Pennsylvania (CHOP). Decision 4; Parents' Ex. 27, pgs 329-31. It showed Allyson to rank in the 23rd percentile in auditory comprehension and the 18th percentile for expressive comprehension and total language skills. Parents' Ex. 27, pg 330. However, it also said that she demonstrated "fair to good intelligibility during simple word productions" and her "speech productions skills [were] close to age-appropriate." Parents Ex. 27, pg 229, 230.

On June 13, 2006, Susan B. visited the facility where the MCIU planned to hold their new class. Decision, at 4. At this time, the IEP was revised to include 30 minutes of speech and language therapy weekly as well as payment of one week of tuition at Clarke to assist Allyson's transition to the MCIU preschool classroom. Decision, at 4, Parents Ex. 18, pg 152. Susan B. never received notice of the second IEP meeting, which was to occur when Susan B. was planning to visit the proposed classroom. HT 1032-33. Due to the lack of notice, only Susan B. and Jeana Novak were present on behalf of the parents. Parents' Ex. 18. The MCIU employees present were Joan Evans, Gerry Delmonico, and Kimberly Buck, the teacher of the MCIU classroom, who was not present at the first IEP meeting. Parents' Ex. 18. On June 16, 2003, Susan and Mark B. rejected the proposed IEP. Decision, at 4. On July 7, 2006, they requested a due process hearing. Ibid.

In September of 2006, Janice Egan, the communications coordinator of Clarke, evaluated Allyson and found that her "[s]peech intelligibility i[s] compromised by nasality, substitutions/deletions of phonemes and limited linguistic competency." Parents' Ex. 25, pg 200. She recommended that Allyson receive daily speech therapy. Ibid. This contrasts with the evaluations by CHOP. Decision, at 7.

Before the opening of the MCIU classroom, the MCIU paid for hearing-impaired students to attend the Clarke School for preschool. Decision, at 6. It also allowed seven students who had been enrolled in the Clarke preschool as an MCIU placement, to continue to be placed at Clarke with MCIU funds. Ibid. This policy did not include allowing Allyson, who had been in Clarke's toddler program paid for with private funds to continue at Clarke using public funding. Ibid; HT 298-99 (Testimony of Joan Evans).

The proposed MCIU classroom opened on July 10, 2006. Decision, at 4. If Allyson had attended the classroom she would have been the only one with a cochlear implant, as the five students for that year only had hearing aids, with one of them in the process of receiving an implant. Decision, at 4.

The MCIU classroom planned to and does use a room at the YMCA in Montgomery County. Decision, at 4. The MCIU's educational audiologist was able to test the background noise of the classroom, the results of which were included in the information for potential parents. MCIU 18-7, HT 404-06 (Testimony of Joan Evans). He found ambient noise to be less than 35 decibels, which comports with professional standards. Ibid. A professional evaluation conducted in October of 2006 found the same, and further found that reverberation, the amount of time it takes sound to decay, was also consistent with professional standards. MCIU Ex. 17-2.

Kimberly Buck, the MCIU's teacher, has a master's degree in deaf education from Gallaudet University. Decision, at 5. She is a state-certified teacher of the hearing-impaired. Decision, at 5; MCIU Ex. 21-10. For the three years prior to opening the MCIU classroom, Buck was a hearing support itinerant teacher, which required that she travel to different schools and homes to check on the status of the students' hearing amplification, and work with teachers and students in "typical" preschools. HT 21-24 (Testimony of Kimberly Buck). Buck also worked as a teacher for thirteen years at the Pennsylvania School for the Deaf, and in an auditory oral classroom for Elwyn Early Intervention Opportunities. HT 37-38 (Testimony of Kimberly Buck). While an itinerant teacher she worked with two students with cochlear implants, and in her prior employment worked with another child with a cochlear implant. HT 25 (Testimony of Kim Buck); MCIU Ex. 19.

Other MCIU staff were available to the MCIU class, although these staff are not constantly present in the classroom. Shari McGraph, the speech and language therapist, visits the classroom twice a week for a total of six hours. Decision, at 5. She is certified in communication disorders and has a certificate of clinical competence from the American Speech Hearing Association. Ibid. She has provided services to five children with cochlear implants during her approximately fifteen years of experience in working with children. Ibid.

Terri Cohen-Johnson acts as the cochlear implant consultant for the MCIU's classroom. Decision 5, HT 667. She has worked with hearing-impaired children for over twenty-five years and obtained a certification from an intensive six-week training program (the ECTP program) on the operation of cochlear implants. Decision 5, HT 667-71. Cohen-Johnson works with staff members of the MCIU to train them on how to troubleshoot and maintain the cochlear implant devices. HT 671-73. Cohen-Johnson does not work out of the MCIU's classroom, but she is available on call for two-and-a-half days a week. HT 685-86.

Gerry Delmonico is a licensed educational audiologist. Decision 5, MCIU Ex. 18-2. He is on-call to address equipment problems and primarily works at a location about seven minutes away from the MCIU classroom. HT 312-13.

Joan Evans supervises the MCIU classroom. She received a doctorate in audiology from the University of Florida and has masters in both elementary education and speech pathology and audiology. Decision 5-6; HT 361. She has state-certifications in education of the hearing-impaired, elementary education, and special education supervision. HT 334. She is also certified by the American Speech, Language, Hearing Association and is licensed by the Pennsylvania Department of Education in speech/language pathology and audiology. Ibid.

B. Procedural History

A due process hearing was conducted on January 17 and 26, and March 12 of 2007, before the hearing officer, Daniel Myers, at the MCIU. The parties and the hearing officer took testimony from Kimberly Buck, Shari McGraph, Joan Evans, and Terri Cohen-Johnson of the MCIU. Additionally, Janice Egan, who trains teachers at Clarke, and Daniel Salvucci, the Director of Clarke, testified for the parents. Jean Moog served as an expert witness for the parents, and Marguerite Vasconcelos testified as an expert for the MCIU. Susan B. was the final witness.

Kimberly Buck testified as to her qualifications and the character of the proposed classroom. She also testified that, due to an oversight, the information given to prospective parents failed to include a complete description of the curriculum. HT 58-63. The information failed to include AUSPLAN, a curriculum specifically targeted to the hearing-impaired child. Ibid. The manual for AUSPLAN recommends "speech/language therapy" in one-on-one sessions. Supp. App. 27. Buck testified that the speech/language therapy given to Allyson once a week would generally be in the classroom with other activities ongoing. HT 88-93. She also testified that she had some experience in troubleshooting cochlear implants and if there were further problems she could contact either ...


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