Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

FINAL DECISION AND ORDER

The Parties to this proceeding are:

On March 14, 2001, the Department of Public Instruction received a request for a due process hearing under Wis. Stat. Subchapter V, Chapter 115, and the federal Individuals with Disabilities Education Act (IDEA), from a parent of the Student. Prehearing telephone conferences were held on March 26, 2001, May 8, 2001, and June 21, 2001. No due process hearing was scheduled as a result of these prehearing telephone conferences because the parties wished to pursue a course of action that they hoped would result in an agreed resolution of the matter.

Another prehearing telephone conference was held on October 11, 2001, during which the date for the due process hearing was set for November 28, 2001. This somewhat late date was established by agreement of the parties to allow them to continue to pursue an agreed resolution. No agreed resolution resulted, however, and the due process hearing was held as scheduled on November 28, 2001 at City Hall in the City of Milwaukee. The Parents’ request for an adjournment of the hearing to allow for the completion of a further evaluation of the Student was denied for reasons set forth on the record at the hearing. The parties filed simultaneous post-hearing written arguments on December 17, 2001, and responsive written arguments on December 20, 2001.

The issue to be decided is whether the Student must continue to receive speech therapy for one hour per week. I find that speech therapy is not required, so the Parents’ request to continue the speech therapy is denied.

1. [Student] (the "Student") was born on [XXXXXXXX] with Down Syndrome. She resides in Milwaukee and is presently enrolled in the tenth grade in the Milwaukee Public Schools ("MPS") at Bay View High School.
2. In November 1986, MPS first enrolled the Student in programs for Cognitive Disabilities and for Speech and Language. She continued in both programs until February 1993, when she was discontinued from the Speech and Language program. In May 1995, she was re-enrolled in the Speech and Language program and continued in the Cognitive Disabilities program. She has continued in both programs since that time. Her recent individualized education programs (IEP’s) have provided that she receive special education services and support from the special education staff for 100% of the school day.
3. The Student’s operative IEP for the 2000-2001 academic year (the IEP for the period 5/4/00 to 5/3/01) required that she receive speech and language services for one hour per week. MPS met this requirement by having a speech-language pathologist provide speech therapy for one hour per week. The focus of the speech therapy for the academic year 2000-2001 was on the Student’s intelligibility. MPS has continued to provide this speech therapy during the pendency of these proceedings. The focus of this continued therapy has remained the Student’s intelligibility.
4. In March 2001, MPS completed a required three-year reevaluation of the Student. The IEP team met on March 7, 2001 to consider the re-evaluation information and to develop a new IEP. The IEP team concluded that the Student continued to have a speech or language impairment, as well as cognitive disability. (MPS Ex. p. 058).
5. A speech-language pathologist evaluated the Student as part of the three-year reevaluation, and she recommended that the IEP team discontinue speech therapy services. The Parents disagreed with this recommendation, but all other members of the IEP team agreed. The IEP team followed the speech-language pathologist’s recommendation and determined that the Student did not require special education services as a consequence of her speech or language impairment. (MPS Ex. p. 059). The IEP team determined that the weekly one-hour of speech therapy should be discontinued in the Student’s next IEP.
6. Because of physical characteristics related to Down Syndrome, the Student is not able to create perfectly the sounds for "s" "z" and "j". The Student distorts these sounds in isolation and in regular speech. The Student also displays intermittent errors for other phonemes uttered during regular speech. The speech-language pathologist has tried numerous techniques to elicit the "s", "z" and "j" sounds from the Student but without success. The speech-language pathologist has largely ceased efforts to have the Student generate these sounds. She views continued efforts to attempt to have the Student "do something that she is physically incapable of doing" to be inappropriate. (Tr. 82).
7. Despite the chronic distortion of the "s", "z" and "j" sounds and her intermittent distortions of other phonemes, the Student is intelligible to others in conversational speech approximately 90% of the time. (Cohen testimony; Mayer testimony). She has achieved this degree of intelligibility by employing "compensatory skills" such as slowing her speech, looking at the person to whom she is speaking, and repeating words that her listeners have not understood.
8. The Student has progressed as far as she can in her speech intelligibility. Continued speech therapy from a speech-language pathologist for one hour per week will not improve her intelligibility. (Cohen; Mayer).
9. The nature of the weekly one-hour period of speech therapy that the speech-language pathologist (SLP) for MPS has provided since the beginning of the 2000-2001 academic year does not require the special training or expertise of an SLP. In a typical therapy period since the beginning of the academic year 2000-2001, the SLP has stayed alongside the Student in a regular vocational education classroom setting and stimulated interaction and conversation between the Student, herself, and others. The SLP has devoted much of her effort in coaching the Student on her compensatory skills. During the weekly speech therapy the SLP also requires the Student to repeat certain that are identified on a "word list" that is developed by the special education staff in consultation with the Parents.
10. The Student does not typically receive any services during the weekly speech therapy period that are not also being substantially and regularly provided throughout the school day by special education teachers and staff. Special education teachers and staff, from whom the Student receives special education services 100% of the school day, regularly coach the Student to employ compensatory skills and in practicing words from the word list, and they do so effectively throughout the school day.
11. The Student does not require speech therapy from an SLP for one hour each week in order to meet any unique needs arising out of either her cognitive disability or her speech or language impairment. Accordingly, such speech therapy services are not required as special education services to the Student.
12. The Student does not require speech therapy from an SLP for one hour each week in order to benefit from the special education program that is provided to address her cognitive disability. Accordingly, such services are not required as a related service in support for the Student’s special education program.
13. An hour of speech therapy each week is not required to provide the Student with a free appropriate public education.

1. The Student requires special education and related services because of her cognitive disability and is therefore a "child with a disability" as defined in Wis. Stat. § 115.76(5)(b), 20 U.S.C. § 1401(3)(A), and 34 C.F.R. § 300.7(a).
2. The Student does not require special education and related services by reason of her speech or language impairment.
3. Speech therapy from a speech-language pathologist is not required as part of a "special education" program or as a "related service" to address the Student’s cognitive disability. Such therapy is not necessary "to meet the unique needs" of the Student and thus is not required as "special education" services. Wis. Stat. § 115.76(15); 34 C.F.R. § 300.26(a)(1). Similarly, such therapy is not "required to assist [the Student] to benefit from special education" and thus is not required as a "related service". Wis. Stat. § 115.76(14); 34 C.F.R. § 300.24(a).
4. An hour of speech therapy each week is not required to provide the Student a free appropriate public education. Wis. Stat. § 115.77(1m)(b); 20 U.S.C. § 1412(a)(1); 34 C.F.R. §300.300(a).

Part A

The Student has a speech-language impairment. The essence of this dispute is whether speech therapy of one hour per week by a speech-language pathologist will improve her intelligibility. MPS presented substantial evidence to demonstrate that it would not, and based thereon MPS contends that discontinuation of the speech therapy is appropriate.

The Parents challenge the methodology of the evaluations and assessments by the two speech-language pathologists who testified, but I find their methodology to be within the range of accepted professional practices and to be reasonably reliable. Their separate conclusions that the Student has maximized her level of speech intelligibility are convincing.¹ The Parents’ controverting evidence consisted solely of a somewhat vague hearsay account of the views of a speech-language pathologist associated with the University of Wisconsin-Milwaukee. (Tr. 192-194). This hearsay testimony is not sufficiently reliable and does not outweigh the conclusions of the two speech-language pathologists who testified.

^{FOOTNOTE 1} I overrule the objections to Dr. Cohen's testimony and evaluation that the Parent interposed during the due process hearing, but upon which I deferred a ruling until issuance of this decision. I overrule the objection based on the absence of an in-class observation of the Student by Dr. Cohen for the reasons set forth by MPS in footnote 1 of its brief dated December 17, 2001. I overrule the objection based upon the contention that the IEP team has not yet considered Dr. Cohen's evaluation for the reasons stated by MPS on the record at the hearing (Tr. 121-122) and in its written reply dated December 20, 2001.

The evaluations of the two speech-language pathologists who testified compel the conclusion that the weekly speech therapy periods that are presently being provided and which the Parents seek to continue are not necessary to meet any unique need of the Student. Also, these weekly speech therapy periods do not assist the Student in benefiting from her special education program. Speech therapy is not required to be continued because it does not meet the definitions of either "special education" or "related services" under both state and federal law, as described below. (For purposes of the matters addressed in this decision, there is no substantive difference between state and federal law, so citations to statutory provisions will focus on state law. See Wis. Stat. § 115.758, which provides that "[t]o the extent possible, this subchapter will be construed in a manner that is consistent with 20 USC 1400 to 1487.")

Wisconsin Stats. § 115.77(1m)(b) requires school districts to provide a "free appropriate public education" (FAPE) to "children with disabilities".

The term FAPE "means special education and related services" which meet certain criteria. Wis. Stat. § 115.76(7).

The term "child with a disability" means "a child who … needs special education and related services" by reason of any of a variety of conditions, including both "cognitive disabilities" and "speech or language impairments". Wis. Stat. § 115.76(5).

The term "special education" "means specially designed instruction ... to meet the unique needs of a child with a disability". Wis. Stat. § 115.76(15).

The term "related services" means "corrective and other supportive services as may be required to assist a child with a disability to benefit from special education, including speech-language pathology ... services...." Wis. Stat. § 115.76(14).

"Speech-language pathology services" includes "[p]rovision of speech and language services for the habilitation ... of communicative impairments." 34 C.F.R. § 300.24(b)(14).

Though the Student has a speech-language impairment, this in itself does not require that MPS provide speech therapy. MPS must provide such services only if they are necessary to meet the Student’s unique needs or to assist her in benefiting from special education. Because the weekly one-hour periods of speech therapy will not result in further progress in the Student’s intelligibility, these services do not meet any "unique needs" of the Student arising out of her speech or language disability. Accordingly, the speech therapy services do not meet the definition of "special education" in Wis. Stat. § 115.76(15) and MPS need not provide speech therapy as special education for her speech or language impairment.

For the same reason, the speech therapy is not required as "special education" services for the Student’s cognitive disability because such services are not necessary to meet her unique needs arising from that disability. Wis. Stat. § 115.76(15). In addition, the speech therapy does not meet the definition of a "related service". The Student has achieved the maximum degree of speech intelligibility of which she is capable, so continuation of the speech therapy would not assist her in benefiting from the special education she receives for her cognitive disability. Since the speech therapy is not "required to assist [the Student] to benefit from" the special education services she receives for her cognitive disability, the therapy does not meet the definition of a "related service". Wis. Stat. § 115.76(14).

The IEP for the period March 7, 2001 to March 6, 2002 contains a notation providing for the continuation of speech and language services for one hour weekly as a related service. (MPS Ex. p. 070). In the Parents’ post-hearing brief filed on December 17, 2001, the Parents have contended for the first time that MPS is bound to continue to provide the speech therapy because of this notation in the IEP. I reject this contention for the following reasons.

This notation on the IEP developed on March 7, 2001 was entered in error. As a result of this erroneous notation, the IEP does not reflect the IEP team’s true determination to discontinue speech therapy. This erroneous notation on the IEP constitutes a procedural error.

On March 8, 2001, the day after the IEP team determined that speech therapy should be discontinued, the Parents prepared their request for a due process hearing. The Parents requested the due process hearing solely to challenge the IEP team’s decision to discontinue speech therapy. For more than eight months between the filing of the request for the due process hearing and the hearing itself, the parties sought to achieve an agreed resolution to the dispute regarding the decision to discontinue speech therapy.

Both parties have proceeded with the understanding that on March 7, 2001 the IEP team determined that speech therapy would be discontinued, and based upon this common understanding the issue was joined for the due process hearing. (Parent testimony, p. 199; Tohulka testimony, p. 151). The parties prepared for and presented evidence at the due process hearing predicated upon their common and accurate understanding that the IEP team had determined to discontinue speech therapy.

The erroneous notation on the IEP constitutes a procedural error that has not prejudiced the Parents. The Parents have not relied upon this error to their detriment from the time the error was made on March 7, 2001 through the conclusion of the due process hearing on November 28, 2001. MPS is not required to provide speech therapy under this IEP as a consequence of this non-prejudicial procedural error.

The Parents’ request that MPS continue to provide speech therapy for one hour each week is denied.

Dated at Milwaukee, Wisconsin on January 4, 2002.

NOTICE OF APPEAL RIGHTS