District Wins: Hard-of-Hearing Preschooler's Assessment and FAPE Claims Denied

What Happened

Student was a three-year-old girl with mild to moderate sensorineural hearing loss who had used bilateral hearing aids since she was three months old. She attended a general education preschool where she was described as social and communicative, though her speech was sometimes hard to understand. After Parents enrolled Student in East Whittier City School District's assessment process, the district evaluated her in academics, cognitive development, speech and language, and adaptive behavior. The resulting December 2014 report found Student to be generally performing in the average range for her age, with a speech and language disorder in articulation and expressive language. The district found her eligible under the speech-language impairment category — not the deaf and hard of hearing category — and offered her placement in a small speech therapy group (called FLAG) once a week plus monthly deaf and hard of hearing consultation.

Parents disagreed with the assessment and wanted a publicly funded independent evaluation by a certified auditory-verbal therapist. They also believed the district's IEP failed to meaningfully address Student's hearing loss needs. Parents wanted Student placed in the district's deaf and hard of hearing auditory-oral special day class. The district denied the request for an independent evaluation and filed for due process to defend its assessment. Student separately filed her own complaint. Both cases were consolidated and heard together.

What the ALJ Found

The ALJ found in favor of the district on both issues. On the assessment question, the ALJ concluded that the district's evaluation team was qualified and experienced, used multiple valid and reliable testing tools, assessed Student in both English and Spanish, and produced results that accurately reflected her educational needs. The fact that Parents' own expert later obtained somewhat different scores on one test was not enough to invalidate the district's assessment, especially since both sets of experts identified the same areas of need. The district was not required to use a certified auditory-verbal therapist to conduct the evaluation, and the presence of a certified auditory-verbal educator who observed all assessments satisfied the requirement to address Student's hearing-related needs.

On the FAPE question, the ALJ found that the district did consider Student's deaf and hard of hearing needs at the IEP meeting. All but one district team member had worked with Student and her family before. The district offered goals for expressive language and articulation, added a third goal at Mother's request, and provided a deaf and hard of hearing itinerant consultant as part of the IEP. The ALJ found that Student's experts — who recommended auditory-verbal therapy and a different placement — were not familiar with the district's FLAG program or its personnel, which significantly weakened their opinions. The ALJ also noted that Mother had reported Student was struggling and had disenrolled her from general education preschool, which undermined the argument that a general education placement was appropriate at the time. Because Student had been using hearing aids successfully since infancy and performed more like a typical hearing child than a profoundly deaf student, the special day class for deaf and hard of hearing students was also found to be too restrictive.

What Was Ordered

1. The student's request for a publicly funded independent evaluation was denied.
2. The student's claim that the district failed to address her deaf and hard of hearing needs at the December 2, 2014 IEP meeting was denied.
3. All of the student's requests for relief were denied. The district prevailed on every issue.

Why This Matters for Parents

1. Withholding consent to observe your child can hurt your case. Parents in this case declined to let the district observe Student at her preschool, citing concerns about how it might affect the district's placement offer. The ALJ noted this repeatedly — the district couldn't observe how Student functioned in a noisy, real-world setting, which actually made it harder to argue she needed more support. If you're worried about what an observation will show, talk to an advocate before refusing consent.

2. Your expert's opinion carries less weight if they haven't seen the district's program. Parents brought in two outside specialists who recommended auditory-verbal therapy and a different placement. But neither expert had ever visited the FLAG class, met its staff, or observed how the district's program worked. The ALJ gave their recommendations little weight for this reason. If you're challenging a district's program, make sure your experts actually evaluate what the district is offering.

3. A district doesn't have to provide the best possible services — just adequate ones. The law only requires that a district's program be reasonably calculated to provide educational benefit, not that it maximize a child's potential. Even if auditory-verbal therapy might have been more beneficial for Student, the district only had to show its offer was good enough — and here, it did.

4. Eligibility category doesn't have to match your preferred placement. Parents wanted Student classified as deaf and hard of hearing, not just speech-language impaired, believing that label would lead to different services. The ALJ found that the district based its program on Student's actual needs and performance, not the eligibility label — and that is legally permissible. Focus on the services and goals offered, not just the eligibility box checked.