M.S. v. Utah School for the Deaf and the Blind

Filing 44

MEMORANDUM DECISION AND ORDER granting in part and denying in part 25 Motion for Judgment on the Administrative Record; denying 26 Motion for Judgment on the Administrative Record. Plaintiff's IEP team is directed to meet within 30 days of this Order to establish an updated IEP that is consistent with this Order. Signed by Judge Ted Stewart on 8/25/14 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
M.S., a minor, by and through her parent,
J.S.,

MEMORANDUM DECISION AND
ORDER ON CROSS-MOTIONS FOR
JUDGMENT ON THE
ADMINISTRATIVE RECORD

Plaintiff,
v.
UTAH SCHOOL FOR THE DEAF AND
BLIND,

Case No. 2:13-CV-420 TS

Defendant.

District Judge Ted Stewart

This matter is before the Court on cross-Motions for Judgment on the Administrative
Record. 1 For the reasons discussed below, the Court will grant in part and deny in part
Plaintiff’s Motion 2 and deny Defendant’s Motion, 3 which requires the Court to affirm in part and
reverse in part the Hearing Officer’s May 10, 2013 Decision and Order. 4
I. BACKGROUND
M.S. is a sixteen-year-old girl who is blind, is hearing impaired, and has been diagnosed
with autism and a cognitive impairment. M.S. is a residential student at the Utah School for the
Deaf and Blind (“USDB”). M.S. has been a residential student at USDB since September 2004.
M.S. receives special education services at USDB where she is classified as having multiple
disabilities. M.S. makes slow progress and she is working on basic, functional, life-skills goals.

1

Docket Nos. 25, 26.

2

Docket No. 25.

3

Docket No. 26.

4

Docket No. 24, at 2–64 (Hearing Officer’s May 10, 2013 Order).

1

USDB sent a letter home to M.S.’s mother in February 2010, noting that the school was
closing its residential program and that M.S. would need to have her personal items packed no
later than March 12, 2010. USDB’s intention to restructure its residential program caused a
strain in the relationship between USDB and M.S.’s mother. M.S.’s mother and other parents
sought assistance from the Utah Parents of Blind Children to get assistance in keeping USDB’s
residential program open. Ultimately, USDB rescinded that letter and kept its residential
program open.
In May 2010, Robert Shaw (audiologist at USDB) attempted to conduct an audiological
evaluation on M.S. M.S. would not tolerate anything in or near her ears, so the audiological
evaluation was unsuccessful. Several previous audiological tests on M.S. were also
unsuccessful. A USDB audiologist in 2003 indicated that an auditory brainstem response
(“ABR”) test would “provide more definitive information about [M.S’s] current level of hearing
sensitivity.” 5 After Mr. Shaw’s unsuccessful audiological evaluation in May 2010, Mr. Shaw
recommended an ABR test to get an objective evaluation of M.S.’s hearing.
An Individual Educational Program (“IEP”) meeting for M.S. was held in August 2010
where M.S.’s mother indicated that she was dissatisfied with USDB’s evaluation of M.S. and
with M.S.’s slow progress toward her goals. M.S.’s mother requested an Independent
Educational Evaluation (“IEE”) by experts in the areas of autism and blindness. M.S.’s mother
also requested a sedated ABR test be performed on M.S. to determine if M.S. had a hearing loss.
USDB agreed to both requests. M.S.’s mother also requested that M.S’s placement at USDB not
be changed until the IEE was completed. USDB also agreed not to change M.S.’s placement
5

Id. at 687.

2

until the IEE was performed. In February 2011, USDB’s counsel sent M.S.’s mother a list of
qualified evaluators for M.S.’s IEE. The letter also advised that USDB would allow a maximum
of $2,000.00 for the IEE.
M.S. received the ABR test in September 2010, where it was discovered that she has a
bilateral, mild to moderate, low frequency hearing loss that slopes to within normal limits at
2000 and 4000 hertz. After learning about M.S.’s hearing loss, M.S.’s classroom teacher at
USDB, Ms. Hadley, introduced thirty tactile signs and noted that M.S. made progress in both
receptively understanding the signs and in beginning to use the signs expressively. M.S.’s IEP
was modified in May 2011 to add a frequency modulated system (“FM system”) to her
classroom so that amplification would help M.S. compensate for her hearing loss. Ms. Hadley,
the teacher M.S. had for many years, left USDB in May 2011. M.S. began classes in August
2011 with a new teacher, Ms. Hollinger.
On September 13, 2011, another IEP meeting was held. At that meeting, M.S’s parent
advocate indicated that, because of the new diagnosis of a hearing impairment, M.S.’s mother
was interested in receiving a deafblind IEE instead of an IEE for blindness and autism. USDB
agreed that a deafblind IEE would cost more than the previously allotted $2,000.00 and that
USDB would have to make more money available. The IEP that came out of the September 13,
2011 IEP meeting was not signed because it was still under construction. Various staff members
at USDB were confused about whether the 2010–2011 IEP was to continue to be implemented or
whether the 2011–2012 IEP should be implemented. Ms. Hollinger testified that she
implemented both IEPs. However, Ms. Hollinger did not utilize tactile signs with M.S. She also
did not utilize the FM system in the classroom during the entire 2011–2012 school year.

3

M.S.’s deafblind IEE was conducted at Perkins School for the Blind (“Perkins”) in March
2012. USDB received the results of the IEE in May 2012. Among several other
recommendations, the Perkins report recommended (1) an FM system for M.S., (2) a total
communication approach to be used with her, (3) additional speech language services minutes,
and (4) consistency for M.S. in all environments. USDB found many recommendations in the
Perkins evaluation to be appropriate for M.S. USDB utilized the Perkins IEE for M.S.’s
statutorily required three-year reevaluation.
M.S.’s next IEP meeting was held on October 29, 2012. At the IEP meeting USDB went
over the Perkins IEE report. USDB was concerned with Perkins’s disregard for M.S.’s autism
diagnosis and Perkins’s failure to appreciate M.S.’s usable hearing. M.S.’s mother was
concerned that the autism diagnosis was conducted before M.S.’s hearing loss was diagnosed.
Further, M.S.’s mother believed USDB discounted M.S.’s hearing loss. On December 17, 2012,
M.S.’s next IEP meeting was held, this time with a facilitator present. The IEP meeting lasted
over four hours but had to be cut short because M.S.’s mother had to go to work. USDB
indicated that they would need to reconvene the meeting in order to finalize the IEP because
several sections were not completed.
On January 8, 2013, M.S.’s mother filed for a due process hearing for alleged violations
of the Individuals with Disabilities Educational Act (“IDEA” or “the Act”). Another IEP
meeting was scheduled for February 4, 2013, where the December 17, 2012 IEP was finalized.
This IEP changed M.S.’s placement to Provo School District (“PSD”). The due process hearing
was held during the spring of 2013.

4

Five procedural issues and seven substantive issues were presented to the hearing officer
for decision. The hearing officer found that USDB pre-determined extended-school-year
services for M.S. outside of the context of an IEP meeting during 2011 and 2012 and that such
was a procedural violation of the Act that denied M.S. a free and appropriate public education
(“FAPE”). The hearing officer ordered compensatory education in the form of direct speechlanguage-pathology services. That issue is not being appealed.
The hearing officer also determined that PSD was not an appropriate placement for M.S.
USDB appeals on that issue alone. The hearing officer found for USDB on all remaining
substantive and procedural issues. M.S.’s mother appeals each of these issues. The Court will
address each issue in turn.
II. STANDARD OF REVIEW
Courts are to employ a unique standard of review in IDEA cases, one less deferential than
that typically applied in review of administrative decisions. 6 In IDEA cases, courts apply a
“modified de novo” standard under which they review the administrative record and base their
decisions on the preponderance of the evidence. 7 In doing so, courts “must give ‘due weight’ to
the hearing officer’s findings of fact, which are considered prima facie correct.” 8

6

Thompson R2-J Sch. Dist. v. Jeff P. ex rel. Luke P., 540 F.3d 1143, 1149 (10th Cir.

2008).
7

Murray v. Montrose Cnty. Sch. Dist. RE-1J, 51 F.3d 921, 927 (10th Cir. 1995); see also
20 U.S.C. § 1415(i)(2)(C).
8

L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 974 (10th Cir. 2004).

5

III. DISCUSSION
“The IDEA provides federal funding to states to assist with the education of disabled
children on the condition that states comply with the Act’s ‘extensive goals and procedures.’” 9
“One of the Act’s stated purposes is ‘to ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes special education and related services
designed to meet their unique needs and prepare them for further education, employment, and
independent living.’” 10 The Act sets forth detailed procedures through which an IEP is to be
developed. 11 The IEP is a detailed written document that describes the student’s educational
goals for an academic year and establishes a plan to achieve those goals. 12 The IEP is the “basic
mechanism through which each child’s individual goals are achieved.” 13 The IDEA contains
both procedural requirements to ensure the proper development of an IEP and substantive
requirements designed to ensure that each child receives a FAPE. 14
A.

PROCEDURAL ISSUES
Parents have a number of procedural rights under the IDEA. Parents are entitled to
(1) examine all records relating to their child, (2) participate in the IEP
preparation process, (3) obtain an independent evaluation of their child, (4)
receive notice before an amendment to an IEP is either proposed or refused, (5)
take membership in any group that makes decisions about the educational

9

Jefferson Cnty. Sch. Dist. R-1 v. Elizabeth E. ex rel. Roxanne B., 702 F.3d 1227, 1229
(10th Cir. 2012) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982)).
10

Id. (quoting 20 U.S.C. § 1400(d)(1)(A)).

11

See 20 U.S.C. § 1414(d).

12

Id. § 1414(d)(1)(A)(i).

13

Murray, 51 F.3d at 928.

14

See 20 U.S.C. §§ 1414–15.

6

placement of their child, and (6) receive formal notice of their rights under the
IDEA. 15
Proving a procedural violation is only a first step to obtaining relief. 16 In order to be
compensable, a procedural violation must either (1) impede the student’s right to a FAPE, (2)
significantly impede the parents’ opportunity to participate in the decision-making process
regarding the provision of a FAPE to the student, or (3) cause a deprivation of educational
benefit. 17
1.

Parent Participation

The first issue before the Court is whether M.S.’s mother was denied meaningful
participation during the IEP team meetings held in September 2011 and October and December
2012. The hearing officer determined, and this Court concurs, that there was no procedural
violation of the IDEA on this issue. The Court has reviewed more than twenty hours of audio of
M.S.’s IEP meetings from the dates at issue. M.S.’s mother attended each of the IEP team
meetings in question. The school and parent worked collaboratively to schedule IEP meetings at
a time convenient for the large IEP team. In addition, the school scheduled the meetings at a
time convenient for M.S.’s mother, her parent advocates, and for M.S.’s mother’s interpreter.
The meetings addressed suggested revisions to the IEP, parent concerns, and M.S.’s progress

15

Ellenberg ex rel. S.E. v. N.M. Military Inst., 478 F.3d 1262, 1269 (10th Cir. 2007).

16

Systema ex rel. Systema v. Acad. Sch. Dist. No. 20, 538 F.3d 1306, 1313 (10th Cir.

2008).
17

34 C.F.R. § 300.513(a)(2); 20 U.S.C. § 1415(f)(3)(E)(ii). Systema applies the same
standard with slightly different language choices. Systema states that a procedural violation of
the IDEA is compensable when the violation causes substantive harm to the student, deprives her
of an IEP, or results in the loss of an educational opportunity. Systema, 538 F.3d at 1313.

7

toward meeting her IEP goals. Therefore, the Court finds no procedural violation as it relates to
parent participation.
2.

2010–2011 IEP Revision of Service Minutes

The next issue is whether USDB revised M.S.’s IEP on March 21, 2011, outside of an
IEP team meeting in order to add service minutes to the IEP, and whether doing so denied M.S. a
FAPE. Service minutes are the amounts of time that M.S. receives related services from
specialists in speech and language, orientation and mobility, occupational therapy, adaptive
physical education, or other areas.
The record in this case shows that in response to a Utah State Office of Education onsite
audit, Gloria Hearn (lead teacher at USDB who was a program specialist during the 2010–2011
school year) hand wrote service minutes on the 2010–2011 IEP, outside of an IEP Meeting, and
provided M.S.’s mother with a copy of that revision. 18 Such is a procedural violation of the
IDEA. Thus, the Court must consider whether this violation is compensable.
Although a technical deviation of the IDEA, writing in service minutes did not deny M.S.
a FAPE. The record reflects that Ms. Hearn wrote in service minutes that reflected service times
that M.S. was already receiving. There is no evidence in the record that adding in the service
minutes that M.S. was already receiving to the IEP caused substantive harm to M.S., deprived
M.S. of an IEP, or resulted in the loss of an educational opportunity. Although M.S.’s mother
desired additional service minutes for M.S., her available service minutes were not changed for
the 2010–2011 year. Plaintiff has failed to prove by a preponderance of the evidence that the

18

Docket No. 24, at 624–26.

8

addition of related service minutes to M.S.’s IEP denied M.S. a FAPE. Based on the above,
Plaintiff has not met her burden on this issue.
3.

FM System

The next procedural issue is whether USDB discontinued use of the FM system as an
accommodation for M.S. during the 2011–2012 school year, without the approval of the IEP
team and without prior written notice to the parent, and whether such procedural violation of the
IDEA denied M.S. a FAPE. The parties and the hearing officer identify the issue related to the
FM system as a procedural issue and therefore the Court does the same. However, this dispute
can also be described as a dispute over the implementation of the IEP. Regardless of whether
this issue is described as procedural or substantive, the analysis hinges on whether M.S. was
denied a FAPE.
Plaintiff argues that USDB’s discontinued use of the FM system during the 2011–2012
year constitutes a procedural violation of the IDEA. The hearing officer maintained that the
weight of the evidence presented indicated only that an FM system may help M.S., not that it
was essential in order for M.S. to access her educational environment. 19 He then found no
violation because the IEP did not require full-time use of the FM system and because the FM
system remained installed in the classroom and was operational during the year. 20
To comply with IDEA, schools must satisfy the procedural requirements of the Act and
provide an appropriate education “in conformity with” an IEP in order to provide a student with

19

Id. at 40.

20

Id. at 18.

9

a FAPE. 21 A FAPE is an “education that is specifically designed to meet the child’s unique
needs, supported by services that will permit [the student] ‘to benefit’ from the instruction.” 22
a.

Procedural Violation

The following facts are relevant to the claim concerning the amplification system.
Because of M.S.’s tactile sensitivity, audiologists were never able to perform a full hearing
assessment on M.S. 23 Mr. Shaw testified that an audiogram conducted by USDB in 2003 stated
that “[f]our previous OAE screenings have been attempted but could not be completed due to
patient movement and noise. An auditory brainstem response (ABR) test may provide more
definitive information about [MS’s] current level of hearing sensitivity.” 24 An ABR is a test of
how sound travels through the ear and brainstem 25 and is performed on infants and on people
who are not able to give responses. 26 An ABR test was not done until re-recommended by Mr.
Shaw in 2010. 27 M.S. saw Dr. Nancy Hohler (audiologist at Primary Children’s Hospital who
has a doctorate in audiology) and underwent a sedated ABR test in September 2010. The test
results provided that M.S. has a “mild to moderate, low frequency hearing loss sloping to within
normal limits at 2000 and 4000 Hz bilaterally.” 28 The hearing loss was previously unknown. 29

21

20 U.S.C. § 1401(9).

22

Rowley, 458 U.S. at 188–89 (citation omitted).

23

Docket No. 24, at 2125.

24

Id. at 687.

25

Id. at 2638.

26

Id. at 640.

27

Id. at 2125.

28

Id. at 2195.

29

Id. at 694.

10

Dr. Hohler recommended that the parent consult with audiologists at USDB for consideration of
amplification and acknowledged that M.S.’s tactile defensiveness could prohibit it. 30
USDB received the ABR test results and attempted to determine what effect M.S.’s
hearing loss has on her daily life. After reviewing the ABR, Janeal Erikson (audiologist at
USDB) informed Carolyn Lasater (Associate Superintendent for the School for the Blind at
USDB) in an e-mail that M.S. should have access to quite a bit of speech information. 31 She
further indicated that without amplification M.S. might be able to access “some good consonant
information, and she may even be able to identify some vowels. Consonants that are probably
audible to [M.S.] include: l, r, t, k, f, s, and voiceless ‘th’ as in ‘thing.” 32 However, Ms. Erikson
indicated that M.S. may not be accessing the first formant of most vowels and that M.S. “may be
missing a bit of this vowel information—so identification is questionable.” 33 A formant is the
band of energy, which for most vowels is located in the low frequencies. 34 Ms. Erikson also
listed out the sound information that is associated with lower frequencies and indicated that M.S.
may not be accessing some of this additional information without amplification. This additional
information includes
discrimination of voiced/voiceless consonants, nasality cues, suprasegmental
cues: duration, loudness, and pitch, plosive bursts associated with “b” & “d” . . .
voicing cues, some plosive bursts, some nasality cues, important consonant-vowel

30

Id.

31

Id. at 2223.

32

Id.

33

Id.

34

Id. at 3502; see also New Oxford American Dictionary 681 (3d ed. 2010) (defining
formant as “any of several prominent bands of frequency that determine the phonetic quality of a
vowel”).

11

and vowel-consonant transition information, [and] 2nd formant of back and
central vowels (i.e. “ah” as in “all,” “o” as in “know”). 35
Ms. Erikson indicated that speech cues are going to be harder for M.S. to understand in a noisy
classroom. 36 Finally, Ms. Erikson concluded that “[w]ith amplification all vowel sounds (and
probably consonants) should be audible to [M.S.]” 37
Mr. Shaw had concerns about amplification because of M.S.’s tactile defensiveness. 38
He recommended an FM system as it “would provide many of the same benefits in the classroom
[as a hearing aid] without causing extra undue stress” related to M.S.’s tactile issues. 39 Mr.
Shaw testified that he did not recommend hearing aids for M.S. because he did not think hearing
aids were necessary. 40 Mr. Shaw also indicated that he did not believe an FM system was
necessary but—if hearing assistance were to be provided—he believed an FM system was the
better option. 41
An amendment to the IEP was signed on May 19, 2011, indicating that M.S. “has been
found to have a hearing loss according to a recent ABR. She needs to have modifications in her
classroom to support her hearing challenge.” 42 The amendment called for an FM system to be
used “in the classroom to assist [M.S.] in compensating on her hearing loss.” 43 Mr. Shaw
35

Docket No. 24, at 2223–24.

36

Id. at 2224.

37

Id. at 2223.

38

Id. at 2210.

39

Id.

40

Id. at 652.

41

Id. at 654.

42

Id. at 2173.

43

Id.
12

installed the FM system in M.S.’s classroom and trained M.S.’s teacher on its use. 44 The FM
system was used in M.S.’s classroom the last three days of school during the 2010–2011 school
year. 45 An observation of M.S. on May 31, 2011, indicated that three days of data was too short
of an exposure to the FM system to understand its efficacy thus “more time and training will be
needed to know [if] any auditory system will help her.” 46 However, the observer did note M.S.
displayed “increase[d] voice awareness” during the FM system’s use. 47
M.S. had a different teacher for the 2011–2012 school year. The new classroom teacher,
Ms. Hollinger, unilaterally chose not to utilize the FM system. She testified that she felt it was
more important for M.S. to learn to localize sound and that the FM system did not allow for
that. 48 The FM system was apparently not used again until December 14, 2012, when USDB
used the system for one day and produced data that showed the system did not help M.S. on that
day. 49 Based on this one day of data, USDB concluded that the FM system was not benefitting
M.S. and did not propose it as an accommodation in M.S.’s December 2012 IEP. 50
As for M.S.’s IEP during the 2011–2012 school year, various teachers and related service
professionals were confused about which IEP was to be implemented. The IEP team met on
September 13, 2011, but the IEP was not signed because it was still under construction. 51 The
44

Id. at 3880.

45

Id. at 2263.

46

Id.

47

Id. at 2269.

48

Id. at 766.

49

Id. at 3653.

50

See id. at 2696.

51

Id. at 18 (Hearing Officer’s May 10, 2013 Order).
13

IEP team did not meet again until October 29, 2012, which resulted in some service providers
continuing to implement the 2010–2011 IEP while others implemented the never-to-be-finalized
2011–2012 IEP. M.S.’s classroom teacher, Ms. Hollinger, testified that she implemented both
the 2010–2011 and 2011–2012 IEPs during the 2011–2012 school year. 52 However, M.S.’s
classroom teacher did not take any data on the 2011–2012 IEP and sent home progress reports
that corresponded to the 2010–2011 IEP goals. 53 The 2011–2012 IEP was implemented by
M.S.’s related service providers. 54 By Ms. Hollinger’s own account, the IEP amendment to
utilize the FM system should have been implemented during the 2011–2012 school year because
she was implementing both years’ IEPs.
The hearing officer found that discontinuing use of the FM system for the 2011–2012
school year was not a procedural violation as he gave weight to the fact that the FM system was
present and operational in the classroom. 55 While the IEP amendment does not explicitly state
that a full-time level of use was required, it was reasonable for all parties to expect it to be used,
at least until appropriate data could be gathered on the FM system’s efficacy. The hearing
officer also indicated that M.S. receives her instruction in one-on-one and small group settings,
which is correct. However, the classroom where M.S. receives her instruction has been
described as a loud classroom that is very verbal with a lot of background noise. 56 Classroom
observations indicate that requests were often made of M.S. from across the room and that the

52

Id. at 758.

53

Id.

54

Id. at 18 (Hearing Officer’s May 10, 2013 Order).

55

Id. at 15, 38–39.

56

Id. at 1188, 1651.

14

teacher sometimes communicated with M.S. only verbally. 57 The hearing officer also indicated
that M.S.’s teacher felt that she needed to learn to localize sound, which was not possible when
using an FM system because of how the system broadcasts sound. 58 The hearing officer did not
acknowledge that Dr. Norman, who holds a doctorate in audiology, did not believe that an FM
system would impair the opportunity for M.S. to localize sound. 59 Regardless of M.S.’s need to
localize sound, an FM system was a required program modification of M.S.’s IEP, and IDEA
requires it to be implemented.
The Court finds that because the May 2011 amendment to M.S.’s IEP called for an FM
system to assist her in the classroom, and because that FM system was not used at all during the
2011–2012 school year, there has been a procedural violation of IDEA.
b.

Compensable Violation

Having found a procedural violation of IDEA, the Court must next determine if that
violation is compensable. Technical deviations from IDEA’s requirements do not entitle a
student to relief unless that deficiency causes substantive harm to the child or parent, deprived
the child of an IEP, or resulted in the loss of an educational opportunity. 60 Simply put, the
violation must result in a denial of a FAPE to be compensable. 61
Plaintiff’s own expert reports indicate that an FM system may benefit M.S., not that it
was essential in order for M.S. to access her educational environment. It is true that the relevant

57

Id. at 1340, 1385, 2881.

58

Id. at 766.

59

Id. at 713.

60

Systema, 538 F.3d at 1313.

61

Id.

15

professionals do not know how necessary an FM system is for M.S. Dr. Hohler testified that not
all children with M.S.’s levels of hearing loss require amplification and some children are
symptom free “particularly in children with normal cognition.” 62 However, for students with a
hearing loss on top of near total blindness, even a mild hearing loss cannot be discounted. 63
M.S.’s 2011–2012 classroom teacher acknowledged in the September 2011 IEP meeting that “we
have not found out yet what works best for [M.S.] We need to try different modes and see what
we can get.” 64
In Urban by Urban v. Jefferson County School District R-1, 65 the Tenth Circuit found no
denial of a FAPE where a student’s IEP lacked an explicit statement of transition services and
did not designate an outcome for the student when he reached twenty-one years of age. 66
However, the court found that the student received and benefitted from transition services, and
only a statement of transition services was missing. 67 The court noted that “[i]t is important to
distinguish between the statement of transition services in the IEP and the provision of transition
services.” 68 Similarly, in O’Toole v. Olathe District Schools Unified School District No. 233, 69
the Tenth Circuit held there was no denial of a FAPE where the IEP stated that related services
would be provided “as appropriate” and the evidence showed that the student was not ever
62

Docket No. 24, at 643.

63

Id. at 999, 1177, 2893–900, 2902.

64

Id. at 2412.

65

89 F.3d 720 (10th Cir. 1996).

66

Id. at 726.

67

Id.

68

Id.

69

144 F.3d 692 (10th Cir. 1998).

16

denied any related services sought for her by her parents. 70 The court noted, “While we do not
condone statements that related services will be provided ‘as appropriate,’ and while we
recognize that the District should specify in its IEPs the level at which such services will be
provided, we hold that these technical irregularities did not produce . . . a violation of . . . the
IDEA.” 71
The Urban and O’Toole cases both describe situations in which a related service was not
well stated and yet was provided. The case at hand, however, is a situation in which a program
modification was stated yet not provided. The hearing officer gave deference to the professional
expertise of the classroom teacher who unilaterally chose not to implement the IEP amendment
in question. While some deference should be given to teachers, the IEP is created by a team of
individuals with various areas of expertise and requires the classroom teacher to implement the
components, even the ones that the teacher may not agree with or care to implement. In M.S.’s
case, her IEP team meetings were attended by upwards of twenty individuals. 72 The IEP process
cannot be trumped unilaterally by the person trusted to implement its provisions.
Every audiologist on record except for Mr. Shaw has recommended amplification for
M.S. While hearing may be a strength for M.S., this strength still describes a mild to moderate
hearing loss. A child with a vision loss, like M.S., must especially rely upon hearing to
compensate for the lack of available visual information. 73 Dr. Norman, who saw M.S. on March
26, 2013, indicated that “[i]t is recommended that even a mild hearing loss be treated with
70

Id. at 707.

71

Id.

72

Docket No. 24, at 2991.

73

Id. at 1117, 2893–900, Pl. Ex. 140, at 3:57:50.

17

amplification. [M.S.] could receive benefit from binaural behind-the-ear hearing aids with her
hearing loss. She may also benefit from the use of an FM system.” 74 Mr. Shaw’s opinion might
be given more deference except he, and others at USDB, appear to minimize M.S.’s hearing
loss. 75

Because experts can indicate only that M.S. may benefit from an FM system, it is

difficult for the Court to determine whether this IDEA procedural violation caused substantive
harm to M.S., deprived her of an IEP, or resulted in the loss of an educational opportunity.
Unfortunately, M.S. is unable to communicate with professionals to aid them in determining
whether the FM system is of any assistance. We do know that M.S. “can hear many
environmental sounds, but discriminating speech and its meaning is more difficult for her.” 76
Ms. Erickson indicated that with amplification M.S. could hear “all vowel sounds (and probably
consonants)” while without it M.S. “should be hearing many of the consonants, and may be able
to identify some vowels in loudness levels of normal conversational speech.” 77
USDB was required to take M.S.’s hearing loss into account once it was known. 78 M.S.
cannot be expected to receive any educational benefit from her IEP if the team does not consider
and implement agreed-upon supports that address her hearing loss. The original
recommendation was for M.S. to receive hearing aids. The hearing aid recommendation was
74

Id. at 2902.

75

Some examples of USDB’s downplaying of M.S.’s hearing loss include: M.S.’s 2011–
2012 IEP does not even describe the hearing loss. Id. at 2388–902. USDB has described the
loss as being unilateral instead of bilateral. Id. Pl. Ex. 140, at 4:05:55. Additionally, USDB
referred to M.S.’s hearing loss as “negligible.” Id. at 2236–38.
76

Id. at 2895.

77

Id. at 2223–24.

78

Lamoine Sch. Comm. v. Ms. Z. ex rel. N.S., 353 F. Supp. 2d 18, 37 (D. Me. 2005)
(holding that IEP denied FAPE because all areas of learning disabled student’s needs not
recognized in IEP).

18

changed to an FM system because of concerns that M.S. would not tolerate in-ear hearing aids.
USDB did not try to use a hearing aid with M.S. nor did USDB include in M.S.’s IEP a program
to desensitize her ears so that she could wear hearing aids. Because M.S. has cognitive
impairments, autism, hearing loss, and no usable vision, M.S.’s strength in her hearing must be
maximized to obtain some educational benefit from her IEP.
Disregarding the use of the FM system for the 2011–2012 school year without notifying
M.S.’s mother significantly impeded M.S.’s mother’s opportunity to participate in the decisionmaking process regarding the provision of a FAPE to M.S. It also impeded M.S.’s right to a
FAPE, and caused a deprivation of an educational benefit to M.S. The Court finds that prior
written notice to M.S.’s mother was required before the FM system could be discontinued and
the failure to utilize the FM system or notify the parent resulted in a denial of a FAPE during the
2011–2012 school year. The Court will award M.S. compensatory educational services for this
violation.
4.

Failure to Provide Written Notice Regarding Changes to the 2011–2012 IEP

Plaintiff claims that USDB failed to provide prior written notice regarding changes to the
2011–2012 IEP. The hearing officer did not find references in the record that changes were
made to the 2011–2012 IEP, nor does this Court. Further, the Court finds that this issue was not
adequately briefed. Accordingly, Plaintiff has failed to prove by a preponderance of the
evidence that there were changes made to the 2011–2012 IEP and therefore the Court finds that
Plaintiff has not met her burden of proof on this issue.

19

B.

SUBSTANTIVE ISSUES
The United States Supreme Court has held that the “‘basic floor of opportunity’ provided

by the [IDEA] consists of access to specialized instruction and related services which are
individually designed to provide educational benefit to the handicapped child.” 79 A state need
not provide services “sufficient to maximize each child’s potential.” 80 A school provides a
FAPE as long as it has a procedurally sound IEP in place that is reasonably calculated to enable
the child to receive some educational benefit. 81
1.

Reimbursement of IEE Costs

The first substantive issue is whether USDB is obligated to reimburse Plaintiff for travelrelated expenses incurred in connection with M.S.’s IEE conducted by Perkins in Massachusetts
during March 2012.
If a parent disagrees with an evaluation obtained by the district, a parent may request an
IEE at public expense. 82 The parents of a child with a disability have the right to select the
evaluators who meet agency criteria. 83 Once a parent requests an IEE, “[t]he public agency
must, without unnecessary delay, either file a due process hearing to show that its evaluation is
appropriate or ensure that an IEE is provided at public expense unless the district demonstrates in
a hearing that the IEE did not meet agency criteria.” 84 “Public expense means that the public

79

Rowley, 458 U.S. at 201.

80

Id. at 198.

81

Thompson, 540 F.3d at 1148–49.

82

34 C.F.R. § 300.502(b)(1).

83

Id. § 300.502(a)(1).

84

Id. § 300.502(b)(2)(i)–(ii).
20

agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise
provided at no cost to the parent . . . .” 85
M.S.’s mother incurred $1,198.80 in personal costs related to the IEE conducted at
Perkins. She incurred $240.00 for lodging and $958.80 for flights. 86 The hearing officer denied
reimbursement stating that “[n]owhere in the statutory scheme does it require a public agency to
reimburse the cost of unnecessary travel expenses, especially when the necessary services were
available within the community.” 87
The desire to have an IEE was thoroughly discussed in the September 2011 IEP meeting.
At that point USDB had placed a $2,000.00 cap on the expenses for an IEE. 88 However, because
M.S.’s hearing loss had only recently been diagnosed, M.S.’s mother discussed at that meeting
the need to have a deafblind IEE rather than an IEE for blindness and autism. USDB then
acknowledged that there were no deafblind specialists in Utah who could conduct the IEE
because the Utah experts are all at USDB. 89 USDB noted that they would have to “add more to
the pot” to account for the deafblind IEE. 90 To conduct the deafblind IEE from the list provided,
M.S.’s mother would have had to utilize an out-of-state expert, Marilyn Gense, who would
require transportation costs from Oregon. Her fee is listed as “$1,500 per day plus travel

85

Id. § 300.502(a)(3)(ii).

86

Docket No. 24, at 1445, 2848–52.

87

Id. at 42.

88

Id. at 2197.

89

Id. Pl. Ex. 138, at 4:46:00–4:47:30.

90

Id. Pl. Ex. 137, at 4:48:12.

21

expenses (airfare, transportation, lodging, meals).” 91 M.S.’s mother would also have had to put
together additional individuals to form a team to conduct a comprehensive IEE as Ms. Gense is
not a speech therapist or an occupational therapist. Thus, the hearing officer was incorrect when
he found that the necessary services were available in the community.
USDB put together a list of qualified individuals who were capable of conducting M.S.’s
IEE. 92 That document makes it apparent that because of M.S.’s complicated issues, an IEE, even
one conducted in Utah, would have exceeded the $2,000.00 cap provided by USDB. Based on
the information from the IEP meeting, the Court finds that M.S. could not have received a
deafblind IEE in Utah at the cost of $2,000.00.
USDB argues that M.S. and her mother’s travel expenses to Massachusetts were
unnecessary costs but does not acknowledge that travel costs, whether incurred to transport M.S.
and her mother to Massachusetts or to bring a qualified team of experts to Utah to evaluate M.S.,
were a necessary and reasonable expense required to perform M.S.’s IEE. Moreover, USDB is
statutorily required to conduct a reevaluation of each student at public expense every three
years. 93 USDB utilized the Perkins IEE for M.S.’s three-year reevaluation, ultimately saving
USDB reevaluation costs. 94
The Court finds that USDB is required to reimburse M.S.’s mother for her out-of-pocket
expenses incurred in conducting M.S.’s IEE because the travel costs were reasonable and
justifiable and because the Perkins IEE was also utilized as M.S.’s three-year reevaluation.
91

Id. at 2203.

92

Id. at 2197.

93

See 34 C.F.R. § 300.303(b)(2).

94

Docket No. 24, at 608, 1916–17, 2585.

22

2.

Appropriateness of the 2010–2011 and 2011–2012 IEPs

Plaintiff next argues that the 2010–2011 and 2011–2012 IEPs were inappropriate for a
variety of reasons, including that the sections that describe M.S.’s present level of academic
achievement and functional performance (“PLAAFP”) are deficient, the IEPs are skill-based
rather than based on concepts, and the IEPs failed to include behavior strategies and appropriate
speech and language services. Plaintiff also argues that the IEPs were inadequate because they
were composed of repeated and recycled goals that were not measurable and because they failed
to include task analysis.
In creating the IEPs for M.S., USDB considered M.S.’s classroom teacher’s input, M.S.’s
mother’s input, the input of related services providers, assessments, and data where available.
Her goals were individualized. The PLAAFPs adequately described M.S.’s functional
performance, although they could have done more to address M.S.’s hearing loss. The
PLAAFPs described multiple methodologies including an object/symbol communication system,
verbal and physical prompts, braille instruction, and hand-over-hand techniques.
Plaintiff argues that M.S.’s goals should be concept-based. A school district has the right
to select a program for a special-education student as long as the program is able to meet the
student’s needs and the IDEA does not empower a parent to make unilateral decisions about
methodology. 95 Plaintiff’s argument about concept-based learning is a methodology argument.
Therefore, the IEP is adequate on this ground.

95

Rowley, 458 U.S. at 208 (finding that “once a court determines that the requirements of
the [IDEA] have been met, questions of methodology are for resolution by the States”).

23

Plaintiff argues that the IEP is inadequate because M.S. did not have a behavior
intervention plan (“BIP”) in her IEPs. M.S. has behavioral problems—such as biting, pinching,
grabbing her head—and self-stimulating problems—including rocking and flapping her arms.
However, there was testimony that M.S.’s behaviors were infrequent and of a short enough
duration that the IEP team did not feel a BIP was necessary. While a BIP could have been
utilized for M.S., it was not required for M.S. to receive a FAPE because there was no evidence
presented that her behavioral problems affected her receiving a FAPE.
Plaintiff also argues that after M.S.’s hearing loss was diagnosed, her IEP should have
required hearing aids. M.S.’s 2011–2012 IEP needed to acknowledge M.S.’s recently diagnosed
hearing loss, but it did not have to acknowledge it by including hearing aids. While
amplification was recommended, the testimony provides that, because of tactile defensiveness,
the decision to provide that amplification via an FM system was reasonably calculated to provide
M.S. with educational benefits. Therefore, there was no violation on this ground.
There is some confusion about whether M.S. received all of her required service minutes
and whether her service minutes were adequate for her severe needs. M.S.’s 2009 IEP provided
M.S. with only twenty-five minutes of speech and language services per month, which the Court
finds to be inadequate for M.S.’s needs. Service times were carried over to M.S.’s 2010–2011
IEP; therefore she received only twenty-five minutes a month of speech language services.
While inadequate in retrospect, these service minutes were developed before M.S.’s hearing loss
was known and therefore were adequate at the time they were developed.
After M.S.’s hearing loss was diagnosed, her IEP service times were adjusted so that she
would receive sixty minutes a month of services by a speech language pathologist. The issue is

24

whether M.S’s service times were adequate for a child with M.S.’s severe speech and language
needs.
An educational agency in formulating a special education program for a disabled pupil is
not required to furnish every special service necessary to maximize the child’s potential. 96
Given that M.S.’s speech and language training was to be direct and consultative, and
implemented across all environments, the Court finds M.S.’s service times to be minimal, yet
reasonably calculated to provide M.S. with some educational benefit.
Finally, recycling goals year after year despite no more than minimal progress is an
indicator that a student may be denied a FAPE. 97 IEP “goals and objectives must be realistic and
attainable” and if the IEP is not working “a reevaluation must be done so that the child can
obtain educational benefit in the future.” 98
Plaintiff’s argument about using repeated and recycled goals for M.S. is undercut by the
fact that testimony by experts on both sides shows that M.S. makes slow progress, such that
goals must continue to be reviewed and revised. Because of M.S.’s slow progress, several goals
were similar year-after-year, although they often included different short-term objectives to assist
in meeting the overarching goal. The goals, as written, are individualized and appropriate for
M.S. and tied to the PLAAFPs. M.S.’s IEPs, if implemented properly, were reasonably
calculated to provide M.S. with educational benefit.

96

Id. at 199.

97

D.B. v. Bedford Cnty. Sch. Bd., 708 F. Supp. 2d 564, 585–88 (W.D. Va. 2010).

98

99 Am. Jur. Proof of Facts 3d 237 (2008).

25

In light of the low threshold of what is required of an IEP in order for a student to receive
some educational benefit, the Court finds that M.S.’s IEPs were reasonably calculated for M.S.
to receive some educational benefit.
3.

Implementation of IEPs

The third substantive issue is whether USDB failed to properly implement the IEPs for
the two-year period immediately preceding the filing of Plaintiff’s due process complaint,
thereby failing to provide educational benefit to M.S. Plaintiff argues that M.S.’s dual sensory
loss was not taken into account by USDB. Plaintiff argues that M.S. is entitled to tactile sign
language, consistent object cues, as well as the use of total communication strategies to educate
M.S.
a.

Materiality Standard

School districts should strive to follow IEPs as closely as possible, though the IDEA does
not require perfect adherence to a child’s IEP. To comply with IDEA, schools must satisfy the
procedural requirements of the Act and provide an appropriate education “in conformity with” an
IEP. 99 Minor discrepancies between the services provided and the services called for by the IEP
do not give rise to an IDEA violation. 100
In addressing a claim challenging the implementation of an IEP, many courts apply a
materiality standard that requires only substantial compliance with an IEP. Under this
framework, a school is found to offer a FAPE, even when it fails to implement portions of an IEP
as long as those provisions are not deemed substantial, and the student otherwise makes progress

99

20 U.S.C. § 1401(9).

100

Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821 (9th Cir. 2007).

26

on annual goals. 101 Stated differently, Plaintiff “must show more than a de minimis failure to
implement all elements of that IEP and instead must demonstrate that the school board or other
authorities failed to implement substantial or significant provisions of the IEP.” 102
Other courts, however, have applied a per se rule to implementation challenges, under
which a failure to implement any portion of an IEP denies a FAPE. 103 The dissent in Van Duyn
ex rel. Van Duyn v. Baker School District advocates for this approach, noting that
an IEP is the product of an extensive process and represents the reasoned
conclusion of the IEP Team that the specific measures it requires are necessary
for the student to receive a . . . FAPE. A school district’s failure to comply with
the specific measures in an IEP to which it has assented is, by definition, a denial
of FAPE. 104
The dissent further notes that “[j]udges are not in a position to determine which parts of an
agreed-upon IEP are or are not material. The IEP Team . . . is the entity equipped to determine
the needs of a special education student, and the IEP represents [that] determination.” 105
The Tenth Circuit has not explicitly adopted either standard, but based on its reasoning in
other cases, appears to espouse the materiality standard. 106 “[T]he materiality standard does not
require that the child suffer demonstrable educational harm in order to prevail” on a failure-to101

Id. at 818; Neosho R-V Sch. Dist v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003);
Hous. Ind. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000).
102

Bobby R., 200 F.3d at 349.

103

D.D. ex rel. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 512 (2d Cir. 2006) (“IDEA does not
simply require substantial compliance; . . . it requires compliance.”).
104

Van Duyn, 502 F.3d at 827 (Ferguson, J., dissenting).

105

Id. (citations omitted).

106

O’Toole, 144 F.3d at 707; Miller ex rel S.M. v. Bd. of Educ. of Albuquerque Pub.
Sch., 455 F. Supp. 2d 1286, 1312 (D.N.M. 2006) (affirming a hearing officer’s order for
compensatory relief due to improperly implemented IEP where the IEP called for books on tape
yet these assistive technologies were not provided on a consistent basis), aff’d, 565 F.3d 1232
(10th Cir. 2009).

27

implement claim. 107 Rather, “courts applying the materiality standard have focused on the
proportion of services mandated to those actually provided, and the goal and import (as
articulated in the IEP) of the specific service that was withheld.” 108
b.

M.S.’s 2010–2011 and 2011–2012 IEPs

M.S.’s 2010–2011 IEP classifies her as a student with multiple disabilities including
autism and blindness. 109 She requires a setting “with an appropriate functional academic
curriculum, close proximity instruction, a favorable ratio of student to staff, appropriate
therapies, and a strong behavioral support system.” 110 “She is non-verbal and uses a tactile
schedule system.” 111 “[O]n occasion . . . she produces word-like vocalizations which are then
reinforced with standard words.” 112 This IEP describes her as being able to follow a toileting
routine well and being able to walk into the bathroom independently when she needs to go. 113
She complies with familiar one- and two-step directions on a consistent basis. 114 Her goals
include a communication goal of using an object/symbol communication system in combination
with verbal-gesture cues and grasping said system independently, 115 a self-care goal to improve

107

Van Duyn, 502 F.3d at 822.

108

Wilson v. District of Columbia, 770 F. Supp. 2d 270, 275 (D.D.C. 2011) (citing Van
Duyn, 502 F.3d at 822).
109

Docket No. 24, at 2174.

110

Id.

111

Id. at 2175.

112

Id.

113

Id.

114

Id.

115

Id. at 2179.

28

her independence by doing things such as eating with a utensil and wiping with a napkin, 116 and
a language-arts goal to respond to three-step requests. 117 She also had an orientation-andmobility goal to travel safely and efficiently in her school environment, 118 a science goal to
independently prepare a simple snack, 119 math goals to sort and organize objects independently
and to do a three-piece puzzle,120 and a reading goal to use tactile discrimination to explore
objects and braille symbols. 121
M.S.’s 2011–2012 IEP describes her as a nonverbal student who uses a tactile schedule
system, who communicates through body movements such as turning away, using simple hand
movements, and reaching toward items. 122 M.S. uses babbling and simple gestures. 123 M.S.’s
goals include a communication goal of using an object/symbol communication system in
combination with verbal and gesture cues to make requests within structured activities. 124 Some
of the short-term objectives include grasping the communication system, demonstrating a
consistent response to indicate a desired activity or object, associating symbols with the objects
they represent, and indicating a desire to discontinue activities without incidents of aggression. 125

116

Id. at 2180.

117

Id. at 2183.

118

Id. at 2182.

119

Id. at 2184.

120

Id. at 2185–86.

121

Id. at 2187.

122

Id. at 2393.

123

Id.

124

Id.

125

Id.

29

M.S. also had goals to improve her independence with self-care by using a spoon, a
napkin, soap, and brushing her teeth. 126 She also had goals to follow one-step and two-step
directions and learn three new routes on the school campus. 127 Additionally, there was an
objective for M.S. to use a tactile symbol to indicate her desire to use the restroom. 128 M.S. did
not meet any of the goals from the 2010–2011 IEP even though that IEP was implemented for
two years. Data does not appear to have been taken on the 2011–2012 IEP during the 2011–
2012 school year and progress reports were not sent home for the 2011–2012 goals. 129
c.

Failure to Provide a Consistent Communication System to MS

M.S.’s 2010 communication goal was to “use an object/symbol communication system in
combination with verbal-gesture cues, [to] grasp and hold objects from a communication system
with minimal physical and verbal prompts 4 out of 5 opportunities over 5 data sessions by May
2011.” 130 M.S.’s 2011–2012 IEP goal for communication was to “use an object/symbol
communication system in combination with verbal/gesture cues to make requests/choices within
structured activities by September 2012.” 131 One of the objectives for the 2010–2011 IEP goal
was for M.S. to make “choices from a group of two options using tactile representations for

126

Id. at 2395.

127

Id. at 2397.

128

Id. at 2395.

129

Id. at 758.

130

Id. at 2179.

131

Id. at 2975.

30

preferred activities.” 132 One of the objectives for the 2011–2012 goal was for M.S. to
“demonstrate association of symbol[s] to 10 different objects or activities.” 133
Despite goals to use an object/communication system, USDB teachers changed the object
cues for M.S.’s communication system every year between 2010 and 2013. 134 Ms. Hollinger
testified that she used a piece of M.S.’s diaper as the object cue for the bathroom but it was a
different cue from what Ms. Hadley used the year before. 135 The following year Ms. Anderson
changed the cue to an empty toilet paper roll. 136 Similarly, a bathroom switch was used in 2010
and in 2011 but then given to M.S.’s mother and so was not utilized during the 2012–2013
school year. 137 The cue for lunch similarly changed from a spoon to a fork then back to a
spoon. 138 USDB acknowledged the cues were changed because of staff changes. 139 M.S. had
one teacher (Ms. Hadley) for the first five years she was at USDB and then had six different
teachers between 2010 and 2013. This included four different teachers during the 2012–2013
school year alone. 140
It is unclear why tactile signing was used inconsistently during the 2011–2012 school
year. During the 2010–2011 school year, after learning about M.S.’s hearing loss, Ms. Hadley

132

Id. at 2179.

133

Id. at 2975.

134

See generally id. at Pl. Ex. 138–41.

135

Id. at 761.

136

Id. at 760.

137

Id. Pl. Ex. 140, at 1:57:17.

138

Id. at 914, 2629.

139

Id. Pl. Ex. 140, at 1:58:28.

140

Id. at 1997–98.

31

began using thirty different tactile signs with M.S. 141 Ms. Hadley reported that M.S. was
responsive to the tactile signing and was occasionally spontaneously signing a few phrases by the
end of the year. 142 Ms. Hadley testified that she left a binder of all communication signs for
M.S. with the new teacher. 143 However, Ms. Hollinger implemented a new communication
system for M.S., changed her object cues, and discontinued the use of the thirty tactile signs that
Ms. Hadley had been teaching. 144 While Ms. Hollinger failed to use any of the tactile signs
herself, she testified that some of the classroom aides utilized the signs “sporadically.” 145 When
asked if Ms. Hollinger worked on the tactile sign for “more,” a sign the school claims M.S. has
worked on for years, Ms. Hollinger testified that M.S. worked on it “here and there, but it was
not a consistent thing.” 146 Ms. Hollinger testified that M.S. has not shown an aptitude for tactile
signing and does not maintain the signs taught to her. However, Ms. Hadley indicated that M.S.
showed an aptitude for tactile signing as soon as Ms. Hadley was informed of M.S.’s hearing
loss and began implementing tactile signs. 147 Ms. Hearn re-implemented tactile signing the
beginning part of 2013. 148

141

Id. at 914, 2855.

142

Id. at 2855–78.

143

Id. at 915–16.

144

Id. at 759, Pl. Ex. 138, at 40:05–42:10.

145

Id. at 760, 882.

146

Id. at 875.

147

Id. at 911.

148

Id. at 1985.

32

USDB admits that it “probably would have been better to keep the same symbols.” 149
Despite the changes in M.S.’s object/symbol communication system and visual cues, and
discontinuing tactile signs during 2011–2012 school year, USDB insists there has been no
violation of IDEA because the educational method of using visual cues stayed the same. 150
When asked why the symbols changed when M.S. needs repetitions to learn, Ms. Finch stated
that “the symbol [used] doesn’t matter because [M.S.] is understanding the oral
communication.” 151 However, even if M.S.’s hearing is sufficient to receptively receive
language, the record demonstrates that symbols still matter for M.S. to develop expressive
language.
Susan Patten (USDB lead teacher specialist for deafblind services) testified that M.S.
needed to have meaning to respond to information. 152 Ms. Patten gives the example of a
command for M.S. to put her feet down. Because M.S. knows what is required of her, she puts
her feet down. 153 The problem then with Ms. Finch’s assessment that M.S.’s symbols do not
matter because M.S. understands oral communication is that M.S. cannot express language
orally. Linda Alsop (Plaintiff’s expert and director of deafblind programs at the SKI-HI institute
at Utah State University) testified that sign language is important for students who cannot

149

Id. Pl. Ex. 140, at 1:58:28.

150

Id. Pl. Ex. 140, at 2:29:37.

151

Id. Pl. Ex. 140, at 2:32:44.

152

Id. at 1684.

153

Id.

33

express themselves using oral communication because it helps students “be expressive
themselves.” 154
Observers in the classroom cite other implementation failures. Cheralyn Creer
(Plaintiff’s expert and coordinator of a program for transition-aged blind youth) recounts that
during her observation of M.S., USDB staff asked M.S. if she wanted to jump on the trampoline
or swing, yet provided M.S. with a communication board that allowed her only a yes or no
response. 155 Ms. Creer testified that when she observed M.S.’s classroom, M.S.’s
communication device was often out of M.S.’s reach and then only handed to her when an aide
wanted a response from her. 156 Ms. Alsop similarly testified that she never saw a calendar
system, voice output choice board, or other techno cues being used with M.S. 157
Although parents do not have the right to dictate methodology, methodology was not
changed. It was the implementation of M.S.’s methodology that was not consistently performed.
Because of M.S.’s need for consistency, and for both receptive and expressive communication
skills, M.S.’s teachers were required to make efforts to continue the use of the same
communication cues and to continue using tactile signs coupled with voice. Taken alone, this
implementation problem poses only a de minimis failure to properly implement M.S.’s IEP but is
more concerning when all implementation failures are considered in the aggregate.

154

Id. at 955.

155

Id. at 1387.

156

Id. at 1386.

157

Id. at 1339–40, 2894–900.

34

d.

Failure to Provide Consistency Across Environments

Despite testimony that M.S. needed consistency across all environments, M.S.’s mother
did not know and was never trained in how to use M.S.’s communication cues at home. 158
M.S.’s mother requested consultative speech and language parent training, although USDB’s
speech language pathologist testified that she never provided it. 159 M.S.’s program was also not
consistently implemented in the residential program. Trena Roueche (USDB director of
residential services) testified that dorm staff had been using tactile signs with M.S. for the past
seven years, but M.S. does not remember the signs. 160 Her testimony is seemingly contradicted
by written instructions sent to dorm staff on October 27, 2012, instructing them to begin using
five particular tactile signs with M.S. 161 Ms. Roueche also did not have any data on M.S.’s
progress with tactile signs and the total communication approach the residential services claims
they were implementing, although she admits data would be necessary to know whether tactile
signing has been effective for M.S. 162 Object cues were also not used at all in the dorms at least
up until September 2011. 163 At the September 2011 IEP meeting, dorm staff admitted, “We
didn’t have any cues. I didn’t know that there even were any cues used in the classroom. That
information wasn’t relayed to us.” 164

158

Id. Pl. Ex. 138, at 41:35.

159

Id. at 1760.

160

Id. at 2001.

161

Id. at 2611.

162

Id. at 2012–14.

163

Id. Pl. Ex. 138, at 42:10.

164

Id.

35

Ms. Lasater testified and the hearing officer found that the residential program is a place
that students live so that they can access their educational environment during the day. 165 But
when pressed, she agreed that the residential program should be utilized to implement IEP goals
and employ the same methods as the child receives during the day. 166 Taken alone, this may not
be significant, but coupled with the other implementation problems during the 2011 year, that
nobody from M.S.’s IEP team provided training for residential staff and M.S.’s mother is
problematic, because it limited the consistency available to M.S. This is particularly troubling
because M.S. needs thousands of repetitions 167 and consistency to learn. This needed
consistency across environments is one of the benefits of a residential school. One of the
benefits of the Perkins program is that M.S. would receive consistency in all environments.
Because of M.S.’s need for consistency and repetition, this implementation problem poses a
material and substantial failure to properly implement M.S.’s IEP.
e.

Failure to Implement All Speech Language Pathology Services

“A school district’s failure to provide the number of minutes and type of instruction
guaranteed in an IEP could support a claim of material failure to implement an IEP.” 168 M.S.’s
2010–2011 IEP provides for 25 minutes of speech language pathology services per month. 169
M.S.’s 2011–2012 IEP does not provide for speech language pathology service minutes, but Ms.

165

Id. at 7.

166

Id. at 735–37.

167

Id. at 1713.

168

N.D. ex rel. Parents Acting as Guardians ad Litem v. Haw. Dept. of Educ., 600 F.3d
1104, 1117 (9th Cir. 2010).
169

Id. at 2171.

36

Finch (speech language pathologist for USDB) testified that she was to provide sixty minutes per
month of speech language services to M.S. during the 2011–2012 school year. 170
The hearing officer found that he could not determine if M.S. received all of her speech
service minutes during the 2011–2012 school year. There is also confusion over how much of
M.S.’s speech language therapy was provided as direct service. 171
Ms. Finch testified that she provided direct and consultative services to M.S. 172 Direct
services are provided directly to the student while consult services are provided to other service
providers so that everyone in her educational environment is taught to work with M.S.
throughout the day. 173 However, in the October 2012 IEP meeting, Ms. Finch indicated that she
did not keep speech language data because she was only a consultative therapist who provided
M.S. no direct services at all. 174 The number of service minutes was left blank on M.S.’s 2011–
2012 IEP because the IEP was never finalized. 175
The Court finds that USDB was obligated to provide M.S. with sixty minutes of speech
language direct and consultative therapy per month during the 2011–2012 school year, based on
Ms. Finch’s testimony. The therapist contact list indicates that M.S. only received a partial
amount of speech language services for four of the nine months during the 2011–2012 school

170

Id. at 1726.

171

Id. at 1756–67. In the hearing Ms. Finch testified that she provided direct and
consultative services but, in the October 2012 IEP meeting, Ms. Finch indicated that she only
provides consultative services to M.S. Id. Pl. Ex. 140, at 2:08:14.
172

Id. at 1709.

173

Id. at 628, 1742.

174

Id. Pl. Ex. 140, at 2:08:14.

175

Id. at 2970.

37

year, 176 showing M.S. was deprived of seventy minutes of speech language services during that
year. 177
There is also a question about how much of the speech language services were provided
directly to M.S. M.S. requires direct speech language services. 178 USDB was aware that Ms.
Finch preferred to provide only consultative services. A December 11, 2012 e-mail from Ms.
Hearn to Ms. Lasater acknowledged that Ms. Finch was required under the 2012–2013 IEP to
provide direct services to M.S. Ms. Hearn wrote, “Communication being the top issue for
[M.S.,] this should be direct. [Ms. Finch] prefers consult with all our students, but in this case
she needs to be direct.” 179 Ms. Finch indicated in the October 2012 IEP meeting that she was
only there to consult. 180
Based on the above, the Court finds that M.S. did not receive all of her speech language
services minutes during the 2011–2012 school year and that Plaintiff has shown by a
preponderance of the evidence that M.S. did not receive direct speech language services. This
implementation failure, taken alone, constitutes a de minimus failure to implement M.S.’s 2011–
2012 IEP.
f.

Regression

In determining whether an IEP was implemented appropriately, courts consider whether
there was regression. However, the materiality standard does not require that a child suffer

176

Id. at 3386–96.

177

Id.

178

Id. at 1087–88.

179

Id. at 2650.

180

Id. Pl. Ex. 140, at 2:04:14.

38

demonstrable educational harm in order to prevail. 181 “[T]he child’s educational progress, or
lack of it, may be probative of whether there has been more than a minor shortfall in the services
provided.” 182
The hearing officer found that there was no IDEA implementation violation because M.S.
made progress in the areas of orientation and mobility and self-help skills including toileting,
cooking, and eating. 183 The hearing officer did not note any progress in the areas of receptive
and expressive speech, language, or communication. Moreover, given M.S.’s May 2011 end-ofyear evaluations and the testimony of Ms. Hadley, there is a strong possibility that M.S. has
regressed in the areas of language and communication, the exact same areas where the
implementation failures occurred. 184 USDB wants the Court to dismiss Ms. Hadley’s progress
reports because of testimony that Ms. Hadley was prone to overstate her students’ progress.
However, there was also testimony that Ms. Lasater and Ms. Hearn reviewed Ms. Hadley’s
reports to ensure they were accurate before sending them home. 185 Therefore, the Court finds
Ms. Hadley’s end-of-year progress report to be an accurate measure of M.S.’s abilities in May
2011, and supports the finding that M.S. regressed.
Moreover, the Utah Alternative Assessment (“UAA”) supports a finding that M.S. has
regressed as well. The UAA is the test that USDB is mandated to administer to disabled students

181

Van Duyn, 315 F.3d at 822.

182

Id.

183

Docket No 24, at 50.

184

Id. at 914–15.

185

Id. at 1972.

39

to measure their progress and mastery on their special education goals. 186 The UAA test scores
also demonstrate that M.S. has regressed in multiple areas. 187 M.S.’s 2010 UAA indicated she
scored at the highest level of proficiency (Level 4, “substantial”) in responding to familiar twostep requests. 188 That means that M.S. received three correct trials tested by different people,
making different requests, in different settings. 189 However, in M.S.’s 2011 UAA, which tested
the same goal of following familiar two-step requests, she received the lowest possible score
(Level 1, “minimal”) proficiency, meaning she “is not yet proficient on measured standards and
objectives of the Curriculum in this subject. The student’s performance indicates minimal
understanding and application of key curriculum concepts.” 190 The UAA notes show that M.S.
was able to follow two separate one-step instructions but no two-step requests. 191 During the
2012–2013 school year, USDB continued to work on teaching M.S. one-step directions. 192 In
2010 and 2011, M.S. received a Level 3 “Sufficient” rating on her math goal of sorting objects
based on two or more attributes. M.S.’s 2012 sorting goal was simplified to sorting objects by
only one attribute. 193 The Court finds M.S. regressed in key areas during the 2011–2012 school
year.

186

Id. at 620

187

Id. at 2163, 2228–33, 2588.

188

Id. at 2163.

189

See id. at 2231.

190

Id. at 2233.

191

Id. at 2232.

192

Id. at 3266.

193

Id. at 2163.

40

g.

Implementation Conclusion

As to the 2010–2011 IEP, the Court finds it was properly implemented. Ms. Hadley
tried multiple approaches and was willing to try new approaches when M.S.’s hearing loss
became known. Ms. Hadley testified that she used multiple strategies appropriate for children
with M.S.’s disabilities. She testified that she implemented tactile signing as soon as she became
aware of M.S.’s hearing loss and M.S. made progress on her IEP goals during that year. 194
However, given the above, the Court finds the 2011–2012 IEP was not properly
implemented. Taken alone, some of these implementation failures are de minimus, but together
the failures are material and substantial. USDB failed to utilize an FM system, failed to provide
a consistent and repetitive object cue system, completely disregarded tactile signing, and failed
to document sixty minutes of speech language services to M.S. each month. Moreover, USDB
cannot document that M.S. received any direct speech language pathology services. USDB also
failed to train residential staff and M.S.’s mother on the object cues that were being used so that
M.S. could access communication in all her environments.
Taken together, these implementation failures during the 2011–2012 school year are
substantial and material. During that same period of time, M.S. regressed in her abilities to
communicate via tactile signs, sort objects, and comply with two-step requests. Therefore, the
Court finds M.S. was denied a FAPE due to the previously detailed implementation failures
during the 2011–2012 school year. The Court will order compensatory educational services for
these implementation failures.

194

Id. at 911.

41

4.

Deafblind Classification

Plaintiff next argues that USDB failed to properly identify M.S. as deafblind and failed to
utilize dual sensory loss strategies in M.S.’s post-2010–2011 IEPs. Deafblindness means
“concomitant hearing and visual impairments, the combination of which causes such severe
communication and other developmental and educational needs that they cannot be
accommodated in special education programs solely for students with deafness or students with
blindness.” 195 The hearing officer found that M.S. might technically be considered deafblind
under Utah’s definition of deafblind. 196 The hearing officer also considered M.S.’s autism
diagnosis. 197 M.S.’s mother argues that the autism diagnosis is suspect because it occurred prior
to knowing that M.S. had a hearing loss.
Some experts believe that “deaf-blindness coupled with [a cognitive impairment] is a
generally-recognized exclusionary criteria in autism diagnosis because the deaf-blind and
[cognitive impairment] make the student present as an autistic child.” 198 “[T]he IDEA’s
language makes the actual needs of the child more important than any formal designation of a
particular disability.” 199 However, the Tenth Circuit finds the eligibility label to be a relevant
factor in IDEA analysis. 200

195

Utah Admin. Code R277-800-1(j).

196

Docket No. 24, at 52.

197

Id. at 6.

198

Millay v. Surry Sch. Dept., No. 1:09-CV-411-JAW, 2010 WL 5288191, at *23 (D.
Me. Dec. 8, 2010) (unpublished opinion) (summarizing testimony from a deaf-blindness expert).
199

Bell v. Bd. of Educ. of Albuquerque Public Sch., No. CIV 06-1137 JB/ACT., 2007 WL
5991062, at *23 (D.N.M. Nov. 28, 2008).
200

Id.

42

All parties agree that M.S.’s needs should drive services, not the label of her disabilities.
The hearing officer noted that “it may be argued that [M.S.] could technically qualify under the
Utah definition of deafblind, focusing on a ‘label’ is clearly less important than focusing on
appropriate individualized services for [M.S.]” 201 The hearing officer also noted that a particular
label assigned to a child does not drive services, goals, or placement decisions. Even so, Steve
Noyce (superintendent at USDB) stated that “one of the things we do is provide a deafblind
specialist for every [deafblind] child.” 202 Leslie Buchanan (director of deafblind services at
USDB) also testified that “[t]he supports that are available in Utah are more extensive and
expansive than any state in the nation. Each child who is identified deafblind in our state has the
support of a trained deafblind specialist, which cannot be said about anyplace else.” 203 Ms.
Buchanan also noted that deafblind students in Utah have the support of communication
intervenors. 204 Finally, Mr. Noyce also testified that once he became superintendent of USDB
he talked with staff and overwhelmingly they indicated they “wanted to teach children who were
blind and visually impaired. And they felt like what they were doing was primarily servicing
children with severe disabilities.” 205 He continued, “They were multidisabled children with
intellectual disabilities or autism or orthopedic disabilities and [the staff] felt like they were ill
prepared to provide services to those children and it’s not what they got in the field for.” 206

201

Docket No. 24, at 54.

202

Id. at 1889.

203

Id. at 1660.

204

Id.

205

Id. at 1885.

206

Id.
43

Considering the testimony listed above, M.S.’s disability classification may, for all intents and
purposes, drive M.S.’s services, goals, and placement decisions.
M.S.’s IEPs must take into consideration her current level of functioning. While M.S.’s
functional hearing is purportedly good, additional observation is warranted, and M.S.’s mild to
moderate hearing loss cannot be discounted. Her dual sensory loss is complicated by her
cognitive impairments and autism, and while the exact limitations of each disability in isolation
is unknown, the combination of disabilities has adversely affected M.S.’s receptive and
expressive communication and impaired her ability to develop language skills. Given the above,
the Court finds that M.S.’s dual sensory loss must be taken into account in her IEPs but finds her
classification as multiple-disabled to be appropriate.
5.

Placement at Provo School District

The next substantive issue is whether PSD is an appropriate placement for M.S. The
hearing officer found that PSD was not an appropriate placement because M.S. needs intensive
one-on-one instruction to learn and benefits from the low student-to-teacher ratio she receives at
USDB. 207 The hearing officer further found that PSD was not the least restrictive environment
(“LRE”).
The IDEA requires that children be educated in the LRE. The IDEA provides,
[T]o the maximum extent appropriate, children with disabilities . . . are educated
with children who are not disabled, and . . . removal of children with disabilities
from the regular educational environment occurs only when the nature or severity
of the disability of a child is such that education in regular classes with the use of
supplementary aids and services cannot be achieved satisfactorily. 208

207

Id. at 56.

208

20 U.S.C. § 1412(a)(5).

44

The LRE test in the Tenth Circuit requires courts to “(1) determine[] whether education in a
regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily;
and (2) if not, determine[] if the school district has mainstreamed the child to the maximum
extent appropriate.” 209 Plaintiff, as the party challenging the IEP placement, bears the burden of
proof in challenging the IEP team’s placement decision. 210
Plaintiff argues that a change to PSD is inappropriate because of the reduction in services
available to M.S., because the increase in classroom size and classroom noise, and because M.S.
will lack direct and meaningful communication with her peers. M.S.’s mother and Dr. Evans
(licensed school psychologist and former teacher of students with visual impairments who
offered a consultation report for Plaintiff) did not find the PSD classrooms appropriate for M.S.
due to higher student-to-teacher ratio and the crowded classroom. 211 M.S. is currently educated
in a classroom of five students with a teacher and two aides. The PSD classroom has twelve to
eighteen students and one teacher. 212 When M.S.’s mother visited the PSD classroom, she
became concerned that she did not see sign language or symbol communication being used with
the students. 213 During the February 2013 IEP meeting, a PSD representative also voiced
concerns about the decrease in support that would be available to M.S. 214

209

Nebo Sch. Dist., 379 F.3d at 976.

210

Johnson ex rel. Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022, 1026 (10th Cir.

211

Docket No. 24, at 1454, 2891.

212

Id. at 2070–71.

213

Id. at 1454.

214

Id. at 54 (Hearing Officer’s May 10, 2013 Order).

1990).

45

USDB contends that PSD’s peer-tutoring program will be made available to M.S. so that
she could work with trained peers and those same non-disabled peers would also accompany
M.S. into the mainstream school setting to provide her support. 215 More specifically, Ms.
Buchanan described the socialization opportunities M.S. would receive at PSD as “socialization
[that] extends beyond the classroom. So as the kids are . . . moving about in the halls and things,
they’ll see their peer tutor friends and they’ll say hi to them. They’re involved in assemblies and
in proms and all of those kinds of things.” 216
The hearing officer concluded and the Court agrees that “it is hard to see how [M.S.] will
be able to interact with her non-disabled peers.” 217 It is also hard to see how a child who has no
expressive language skills, is blind, has hearing loss, and needs consistency to learn, will be able
to benefit from a peer-tutoring program at a mainstream high school. Much has been made about
PSD’s ability or inability to educate M.S. The appropriate question is not whether PSD can
provide some lower level of support for M.S. but whether a reduction in the level of support is
appropriate for M.S. M.S. needs to be where she can receive intensive services that include oneon-one instruction. Given that she has regressed in key areas, such a reduction in the level of
support is not appropriate.
The hearing officer also determined that as M.S. approaches sixteen, the age of transition,
being close to her home community and family would be beneficial to her. It is true that being
educated at PSD would allow M.S. to be in her home community and to spend more time with
her family. Even considering the age of transition, the hearing officer called the placement
215

Docket No. 26, at 19.

216

Docket No. 24, at 1605.

217

Id. at 56.

46

change to PSD “premature at best.” 218 Moreover, while proximity to a school near one’s home is
a consideration of what constitutes an LRE, so is the need for direct and meaningful
communication with her peers. 219 Any setting that does not meet M.S.’s communication needs is
not the LRE. 220 The administrative record illustrates that placement at PSD will not meet M.S.’s
needs because of her intense communication needs and her need for consistency, a high rate of
repetition, one-on-one instruction, and direct and meaningful communication with her peers and
teachers. The Court finds that Plaintiff proved by a preponderance of the evidence that PSD is
not the appropriate placement for M.S.
6.

The 2012–2013 IEP

The next substantive issue is whether USDB failed to propose an IEP for the 2012–2013
school year that is reasonably calculated to enable the student to receive educational benefit.
The testimony showed that in creating appropriate goals for M.S., USDB considered the
IEE recommendations as well as the IEP team’s input. However, the PLAAFP plays loose with
semantics when it states that several audiologists agree that M.S.’s hearing is adequate for speech
and language needs. M.S.’s 2012–2013 IEP inaccurately notes that “[a]udiologists from Primary
Children’s Hospital (Audiologist, Nancy Hohler), Perkins (Audiologists Ellen Branfman and
Vicki Wilson), and USDB (Audiologist, Rob Shaw), agree that [M.S.’s] hearing is adequate for
speech/language needs.” 221 In fact, Dr. Hohler’s report does not say that, 222 which Mr. Shaw

218

Id.

219

Id. at 1674, 1770, 1922–23, 2013.

220

Id. at 1770.

221

Id. at 3010.

222

Id. at 2194–95.

47

admitted in his testimony. 223 Moreover, the Perkins audiologists describe M.S.’s hearing as
being adequate for “her communication needs” in a total communication environment and
adequate for “speech reception in at least one ear.” 224 The Perkins audiologists do not address
expressive speech, receptive speech in the left ear, or the impact of M.S.’s vision loss on her
hearing. 225 Given that the PLAAFP determines goals, in the future M.S.’s PLAAFP should be
revised to more accurately account for M.S.’s hearing loss. However, the Court finds that M.S.’s
goals have not been impeded because of the PLAAFP’s inaccuracy.
M.S.’s 2012–2013 IEP addresses M.S.’s dual sensory loss by providing M.S. with the
services of a deafblind specialist, 226 by using hand-under-hand signing, 227 and providing that
M.S. will communicate via a consistent sign, gesture, or voice output device. 228 The 2012–2013
IEP also includes several dual sensory teaching techniques including tactile signing, voice output
devices, object cues, verbal cues, physical prompts, hand-over-hand instruction, hand-underhand instruction, and an object calendar system. 229 If implemented consistently, the 2012–2013
IEP is reasonably calculated for M.S. to receive educational benefit. The results of the Perkins
IEE were considered by USDB, which is all that is required of the agency. 230 Therefore, the

223

Id. at 661–62.

224

Id. at 2533.

225

Id.

226

Id. at 2697.

227

Id. at 3288.

228

Id. at 2711.

229

Id. at 2696–722.

230

34 C.F.R. § 300.502.

48

Court finds that M.S.’s 2012–2013 IEP is reasonably calculated to enable M.S. to receive an
educational benefit.
7.

Residential Placement at Perkins

The last substantive issue is whether a residential placement at Perkins is an appropriate
placement in the LRE. The United States Supreme Court has held that placement in a private
school can be appropriate relief under the Act. 231 The hearing officer agreed that Perkins is a
fine school with experienced and capable staff and agreed that M.S. could receive an appropriate
education there. However, because he held a FAPE had been provided to M.S. at USDB, the
hearing officer held that the question of whether Perkins is an appropriate placement in the LRE
for M.S. is a moot issue. 232 Because this Court has held that M.S. has been denied a FAPE due
to IEP-implementation failures during the 2011–2012 school year and because the FM system
was discontinued without notice to M.S.’s mother, the issue of placement must be addressed.
Rather than order a specific placement, the Court will require particular educational
compensatory services to be offered to M.S. M.S.’s IEP team can then determine placement at
an appropriate residential school that will provide her with the services ordered. This way,
M.S.’s IEP team, the people most familiar with M.S. and with USDB’s services, can determine if
USDB or Perkins is an appropriate placement for M.S.

231

Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369 (1985).

232

Docket No. 24, at 61.

49

IV. COMPENSATORY EDUCATION
“[C]ompensatory education involves discretionary, prospective, injunctive relief crafted
by a court to remedy what might be termed an educational deficit caused by an educational
agency’s failure over a given period to provide a FAPE to a student.” 233 Compensatory
education is an equitable remedy fashioned to fit an individual student’s needs; such services are
a surrogate for the education that the student should have received during periods when his IEP
was inappropriate such that the student was denied a FAPE. 234 “Compensatory education should
be fashioned to provide ‘replacement of educational services the child should have received in
the first place.’” 235 Compensatory education is a “flexible approach” wherein “some students
may require only short, intensive compensatory programs targeted at specific problems or
deficiencies. Others may need extended programs, perhaps even exceeding hour-for-hour
replacement of time spent without FAPE.” 236 The Court’s goal in awarding compensatory
education should be to “place disabled children in the same position they would have occupied
but for the school district’s violations of IDEA.” 237 Compensatory relief should endeavor to put
the student in a situation similar to where the student would be had the student received
FAPE. 238

233

G. ex rel RG v. Fort Bragg Dependent Schs., 343 F.3d 295, 308–09 (4th Cir. 2003).

234

Dracut Sch. Comm. v. Bureau of Special Educ. Appeals, 737 F. Supp. 2d 35, 55 (D.
Mass. 2010) (citing C.G. v. Five Town Comm. Sch. Dist., 513 F.3d 279, 290 (1st Cir. 2008)).
235

Bell, 2008 WL 5991062, at *35 (quoting Reid v. District of Columbia, 401 F.3d 516,
518 (D.C. Cir. 2005)).
236

Reid, 401 F.3d at 524.

237

Wilson, 770 F. Supp. 2d at 276.

238

See Bell, 2008 WL 5991062, at *35 (holding that fifteen months of compensatory
education is appropriate to remedy a fifteen-month deficiency in receiving FAPE); Woods v.
50

The parties agree that if M.S. were denied a FAPE, she would need intensive services to
remediate for the time she was denied a FAPE. 239 M.S.’s 2011–2012 IEP was improperly
implemented and denied her a FAPE. The Court notes it was not until February 4, 2013, that her
2012–2013 IEP was implemented. For that reason, the Court will Order that M.S. is entitled to
an academic year-and-a-half of compensatory education, the period of time M.S.’s 2011–2012
IEP was being implemented. 240
M.S. will be enrolled in a classroom at a residential program with a teacher and staff who
specialize in teaching dual sensory-impaired children where she will be provided, at a minimum,
with all of the services outlined in her 2012–2013 IEP as well as the following compensatory
educational services at USDB expense:
(1) Provide M.S. with a total communication approach that requires instructors to
simultaneously voice, use tactile signs, and use gestures as well as a voice output device and
object choice board. These approaches are to be used consistently and repeatedly in an
environment that allows for significant one-on-one instruction. All people involved with M.S.
should strive to use clear, consistent, and accurately formed signs paired with clear spoken
language and meaningful object cues.

Northport Pub. Sch., 487 F. App’x 968, 978 (6th Cir. 2012) (upholding a 768-hour
compensatory-education award because the student’s “window of opportunity to become
usefully literate ha[d] begun to close”).
239

See Docket No. 24, at 1159, 1195, 1922, 2899.

240

An academic year typically includes forty weeks of instruction. M.S. therefore is
eligible for sixty weeks of compensatory services.

51

(2) Provide M.S. sixty minutes per week of direct services from a speech language
pathologist, who is proficient in tactile sign language. In addition, provide M.S. sixty minutes of
consult speech language pathology services per month.
(3) Provide M.S. with tactile desensitization training with the goal of allowing M.S. to
receive hearing aids as soon as possible. The training should occur until M.S.’s tactile
defensiveness allows M.S. to receive hearing aids. The school where M.S. attends will be
encouraged to utilize an FM system and take data on its efficacy so that M.S. can benefit from
amplification while the tactile desensitization training is occurring.
And (4) Provide a combined total of sixty minutes per month of training for residential
staff and M.S.’s family in the educational and behavioral methods the school employs with M.S.
so that all services providers, residential staff, and M.S.’s family can strive to utilize the same
methods.
V. CONCLUSION
Based on the foregoing, it is hereby
ORDERED that USDB’s Motion for Judgment on the Administrative Record (Docket
No. 26) is DENIED. It is further
ORDERED that M.S.’s Motion for Judgment on the Administrative Record (Docket No.
25) is GRANTED IN PART AND DENIED IN PART. It is further
ORDERED that M.S.’s IEP team is directed to meet within thirty (30) days of this Order
to establish an updated IEP for M.S that is consistent with this Order.
The Clerk of Court is hereby directed to close this case forthwith.

52

DATED this 25th day of August, 2014.
BY THE COURT:

Ted Stewart
United States District Judge

53