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May 23, 2012

Recent Litigation Development Involving Transcription Services for Deaf and Hard of Hearing Students

On May 21, 2012, the Office of Administrative Hearings (“OAH”) issued a decision in Student v. Poway Unified School District (OAH Case No. 200907099), finding that a student with profound hearing loss did not require communication access real-time translation (“CART”) in order to receive a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”). This decision follows Poway Unified School District’s (“District’s) successful challenge of an initial OAH decision, which had ordered the District to provide CART services to Student, a decision that the United States District Court ultimately vacated and remanded back to OAH for further proceedings consistent with the District Court’s order.

At the time of the due process hearing, Student was fifteen years old, had a cochlear implant in her left ear, and had recently received a cochlear implant in her right ear. Current hearing testing revealed that with the cochlear implants, Student had borderline normal to mild residual hearing loss. On remand, the OAH case determined whether the parent’s preferred CART methodology, which is a word-for-word transcription service, was necessary in order for Student to receive some educational benefit, or whether the District offered TypeWell transcription system (which is not word for word, yet captures the substantively relevant information), in addition to other accommodations being provided to Student, were sufficient to provide Student with some educational benefit.

In its decision, OAH focused on “the basic floor of opportunity” that students must be provided pursuant to Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), and noted that the Supreme Court has specifically rejected the idea that a school district must maximize the potential of students with disabilities. OAH further observed that the appropriate legal analysis must focus on the adequacy of the school district’s proposed program, and that a school district is not required to provide a parent’s preferred program, even if that program would result in greater benefit to the student.

Noting that the methodology used to implement Student’s IEP is a choice left to the District’s discretion, so long as it meets Student’s needs, OAH concluded that TypeWell would provide some educational benefit to Student, and that CART was not necessary in order to provide Student a FAPE. Some of the facts considered by OAH in making this determination included the complexity of the vocabulary that would be used in Student’s classes, the extent to which the classes involved lecture and classroom discussion as opposed to activities that did not require transcription, and Student’s progress in school using other means of accessing the curriculum, such as the use of FM amplification, use of closed caption videos, preferential seating, visual presentation of new materials and vocabulary, etc.

Significance/Impact on School Districts and County Offices of Education

OAH’s decision is consistent with prior federal court and OAH decisions, which have focused on whether a school district’s proposed program will confer some educational benefit to the student, consistent with the standard set forth in Rowley, rather than a parent’s preferred program or methodology. In making educational recommendations for students, IEP teams must continue to consider the parent’s preferences and input, but must ultimately offer a program and services that will allow the student to receive some educational benefit, providing a basic floor of opportunity, based on the student’s unique and individual needs.

As OAH observed in its decision, there are multiple transcription services on the market, of which CART is only one. School districts should carefully consider the individual needs of its students and be prepared to offer transcription services, if necessary to provide some educational benefit. This requires that school districts have qualified staff who understand not only the unique needs of the deaf and hearing population, but also understand service options available to address the unique needs of these students.


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