437 F.3d 1085 (11th Cir. 2006), 04-14982, M.M. ex rel. C.M. v. School Bd. of Miami-Dade County, Florida

Docket Nº:04-14982.
Citation:437 F.3d 1085
Party Name:M.M., on behalf of their minor child, C.M., B.M., on behalf of their minor child, C.M., Plaintiffs-Appellants, v. SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant-Appellee.
Case Date:January 25, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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437 F.3d 1085 (11th Cir. 2006)

M.M., on behalf of their minor child, C.M., B.M., on behalf of their minor child, C.M., Plaintiffs-Appellants,

v.

SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant-Appellee.

No. 04-14982.

United States Court of Appeals, Eleventh Circuit.

Jan. 25, 2006

Appeal from the United States District Court for the Southern District of Florida

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Stewart Lee Karlin, Ft. Lauderdale, FL, for Plaintiffs-Appellants.

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Madelyn P. Schere, c/o Leslie Alan Schere, P.A., Miami, FL, for Defendant-Appellee.

Before HULL, MARCUS and HILL, Circuit Judges.

PER CURIAM

C.M.'s parents appeal the district court's dismissal of their complaint filed pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq . After review and oral argument, we affirm the district court's dismissal but remand for the limited purpose of allowing the district court to modify its order of dismissal.

I. BACKGROUND

A. C.M.'s Disability

C.M. was born on November 24, 1998, with profound bilateral sensorial hearing loss. The diagnosing audiologist asked C.M.'s parents whether they wanted C.M. to learn to communicate orally (through spoken language) or manually (using sign language). C.M.'s parents indicated that they wanted C.M. to be an oral communicator.

The audiologist recommended that C.M. be fitted with hearing aids and begin auditory-verbal therapy ("AVT").1 After doing considerable research, C.M.'s parents determined that AVT was the best methodology for their child.

Accordingly, C.M.'s parents fitted C.M. with hearing aids and took her to see Kathy Bricker, an audiologist with the University of Miami Ear Institute, for an hour of AVT each week. C.M. was nine months old at the time.

After about six months, it was clear that C.M. was not getting enough sound from the hearing aids she was wearing, even though they were the most powerful on the market. After consulting with experts, C.M.'s parents decided that C.M. should receive a cochlear implant.2

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On April 4, 2000, Dr. Thomas Balkany, the head of the Health Services' Department of Otolaryngology at the University of Miami, successfully performed C.M.'s cochlear implant surgery. The device was "activated" three to four weeks after the surgery. The date of activation of a cochlear implant is considered "day one of hearing" for an implant recipient, who "has to learn all the pragmatics of hearing, just like a newborn has to learn them."

Cochlear, which sells the devices, recommends that children who are implanted with a cochlear device receive an "educational program that maximizes exposure to meaningful sounds . . . [particularly] exposure to spoken language every day." However, Cochlear does not recommend any particular program.

Although Cochlear does not recommend any particular program, Dr. Balkany does. According to Dr. Balkany, AVT "is the best form of therapy" for the implanted child. Consequently, C.M. continued to receive AVT for one hour each week.

In the summer of 2001, C.M.'s parents enrolled her in a half-day summer program at their local synagogue. C.M.'s parents then elected to enroll C.M. in the synagogue's year-round preschool program for children from six weeks to five years of age. Although the synagogue accepts disabled students like C.M., it does not provide them with special education classes, such as AVT.

Until C.M. turned three in November 2001, the AVT she received was paid for through the Miami-Dade County Early Intervention Program ("Early Intervention Program"). After age three, the Early Intervention Program no longer pays for AVT. In addition, until age of three, C.M. received oral motor therapy and other special education services under the authority of a public agency.

B. Efforts to Provide an Individual Education Plan

In late 2001, the Miami-Dade School Board received written materials from the Early Intervention Program in order to determine whether C.M. was a candidate for receiving special education services from the Miami-Dade School Board. In mid-November 2001, School Board staff members and C.M.'s parents met to discuss C.M.'s eligibility for special education services.

At the outset of the meeting, C.M.'s parents inquired about AVT as C.M. was still receiving AVT one hour per week. The School Board stated that before any decisions were made, they would have to "go through" the Early Intervention Program materials. The evaluations were finished on November 30, 2001.

On January 10, 2002, the School Board and C.M.'s parents met again and the results of the evaluations were discussed. The School Board and C.M.'s parents agreed that C.M. was eligible for special education services.

C.M.'s parents indicated that they were satisfied with C.M.'s current private preschool placement at the synagogue and that they wanted C.M. to continue to receive AVT but have the School Board pay for it.3 The School Board explained to C.M.'s parents that the Board did not provide AVT but that it did have other programs to recommend.

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The School Board utilizes the verbotonal ("VT") approach, rather than AVT, to develop the oral communication skills of hearing-impaired students who communicate orally.4 VT is a recognized and well-established means by which to teach hearing-impaired children to speak. VT has evolved since cochlear implants and has become a flexible methodology that can be adapted to meet the individual needs of an implanted child. Like AVT, VT focuses on sharpening listening skills and strengthening the auditory pathway. Visual and tactile clues, vibratory stimulation, and body movements are used, but only if needed. VT may be provided on either a group or individual basis. Unlike AVT, VT does not rely on parental participation for successful results.

As to C.M.'s academic classes, the Board advised C.M.'s parents at the January 2002 meeting that there was no age-appropriate, "mainstream" public school placement option available in Miami-Dade County that the School Board could offer. However, the Board did recommend placement in a "special education" class taught by Darci Lester at one of the public schools.

Specifically, Lester is a teacher for the deaf and hearing impaired who received VT training from the Board. Lester taught a self-contained class of three-, four-, and five-year-old, hearing-impaired children at Arcola Lakes Elementary School. There were seven students in her class, one of whom had a cochlear implant. Two of the older students had cognitive impairments. The three-year olds were "very high functioning." The children in the class were grouped according to their abilities.

The Board also offered C.M. a varying exceptionalities, reverse mainstream class (with 12 "mildly handicapped" students and two non-disabled students serving as models for the disabled children) at Highland Oaks Elementary School, and a half-day, self-contained speech/language class, taught by a certified teacher for the deaf at Myrtle Grove Elementary School.

After the Board made its recommendations during the January 2002 meeting, C.M.'s parents informed the Board that they were not interested in any of them. C.M.'s parents repeated their desire for C.M. to remain in the synagogue preschool, but have the Board pay for C.M.'s AVT.

The School Board refused to pay for C.M.'s AVT. Instead, the School Board offered 90 minutes of "small teacher [sic] instruction and specialized instruction in expressive and receptive [language] skills" on a "walk-in" basis at Highland Oaks Elementary School. The Board's offer included VT techniques only. C.M.'s parents wanted only 60 minutes (not 90) so they would not have to pull C.M. out of the synagogue preschool three times a week.

The Board prepared an Individual Education Plan ("IEP") for C.M. for the period January 11, 2002, to January 9, 2003. According to the IEP, C.M. would receive 60 minutes of "small teacher [sic] instruction and specialized instruction in expressive and receptive [language] skills" from a "speech/language pathologist" on a "walk-in" basis at Highland Oaks Elementary School. The Board's offer included VT techniques, not AVT.

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Although C.M.'s parents signed the January 2002 IEP, they wrote the following in the comment section: "Agree to walk-in but disagree w/ placement options. [C.M.] is in need of auditory-verbal services [AVT] to fully access her education. The School District says they are not able to provide this!! Why?"

After speaking with the speech/language pathologist who would be providing services to C.M., C.M.'s parents concluded that the Board's offer would be "wrong" for C.M. On January 31, 2002, C.M.'s parents filed a due process hearing request on behalf of C.M. challenging the School Board's refusal to provide C.M. with AVT.

On May 20, 2002, the School Board and C.M.'s parents entered into a mediation agreement, which provided:

1. Miami/Dade County guidelines for specific learning disabilities and OT [Occupational Therapy] criteria will be mailed to the parents as soon as possible.

2. An IEP meeting will be held to write appropriate goals and objectives to address OT, oral motor therapy, speech and language services, L.D. [learning disabilities] guidelines specific to [C.M.], auditory development goals, LRE [least restrictive environment] and cost of mapping. The meeting will be held within one month after parents contact Edna Waxman [of the School Board].

3. Dennis Hoffman [of the School Board] will provide to parents prior to IEP meeting documentation of...

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