Future Reflections Spring/Summer 1994, Vol. 13 No. 2

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LINDA GETS A CANE Parents Prevail in Due Process Hearing
by Barbara A. Cheadle and Douglas C. Boone

[PICTURE] Today, Linda Perez walks confidently down the middle of the school hall with he long white cane.

[PICTURE] Linda learns to use her cane to locate the steps on her school bus.

Barbara Cheadle, Editor: Three years ago I wrote an article for Future Reflections about the canes for preschoolers revolution. I concluded that except for individual skirmishes and disagreements about the length of the cane, type of tip, and other such details, that the revolution was pretty much over. After all, the American Foundation for the Blind -that bastion of sacred and time-honored traditions in the field of blindness -was selling kid-size canes. I couldn't think of a surer sign that giving canes to small children was no longer considered a radical act by the O&M profession. However, victory was perhaps announced too soon. For even as I wrote that article I was well aware of another trend that was developing in the O&M field: the use of pre-cane devices. 

The idea of pre-cane devices has actually been around for some time. It began, perhaps, when professionals noticed that little kids would use certain push toys as a bumper. Now, there is nothing profound about this discovery. Any blind kid who is curious and has been encouraged to move about and explore will discover that holding a stick-like object out in front of him or her will eliminate some bumps and falls. But simultaneously with the acceptance of the notion that even preschoolers can use a regular cane, came more experimentation with these so-called pre-cane devices. Initially, the devices were unadapted toys, such as the hula hoop, push-carts, and toy push-poppers. Then adaptation were made: the hula hoop was weighted with sand, the push-popper reduced to a stick with a wheel on the end. Then whole new devices were created: walker-like pre-canes were created out of light-weight plastic tubing. 

These devices are often touted as beneficial for the multiple-handicapped -children with cerebral palsy who had an uneven gait, or a weak grasp, or other motor problems. As such, they have come to be called alternative mobility devices, or AMD's. However, the same apparatuses are also called pre-canes and are used with blind children who have no other disabilities as a preliminary step or stage before going on to instruction with a regular long white cane.

The obvious questions this practice presents are: What does an alternative mobility aid, or pre-cane device, do that a cane doesn't? Does it develop muscles, motor skills, and movement patterns that are necessary for regular cane use? Is it just as effective as a cane in a variety of settings -hallways, stairs, curbs, playgrounds, pavement, gravel, and so forth? Is it easier to use? Is it easier to transfer from a pre-cane to a cane as opposed to beginning with the cane? Does the pre-cane give the user the same kind of sound cues and feedback that the tap of a cane gives? Does it allow the user to walk at a normal pace and gait? If the answer to even one of these questions is No. then the next question I pose is: What's the point? If regular cane use is the desired goal, and if young kids -including many with multiple disabilities -can use the regular cane effectively right from the get-go, why take a detour?

That was the question Dale and Arlene Delker of South Dakota found themselves asking their school district in the fall of 1992. It was a simple situation. The Delkers wanted their seven-year-old totally blind foster daughter, Linda Perez, to switch from the pre-cane device she was using in school to a regular long white cane, and to get instruction in its use. (Linda had used a toy push-cart in the fall of 1991, then was later given a Connecticut pre-cane -a rectangular shaped device made out of hollow tubing. However, the Delkers lived in a rural setting with lots of dirt, gravel, and uneven weedy, grassy areas around the home, and the Connecticut pre-cane was not usable in this environment.) The Delkers had attended several seminars and events sponsored by the NFB of South Dakota and were regular readers of Future Reflections. Through this contact with blind persons, they had become convinced that Linda, despite her other developmental delays, was ready to use a cane. 

The school district responded by contracting with the South Dakota School for the Visually Handicapped for a mobility evaluation. Based upon the results of this one-and-one-half-hour evaluation -an evaluation in which the child never touched a white cane -the school district refused the request. Furthermore, even though Linda used a long white cane at home (she had some private instruction from a blind teacher -also a member of the NFB), she was not even allowed to bring the cane to school. 

The Delkers were not going to give up so easily. They knew what their daughter needed, they knew their rights, and they were not going to be deterred. They then requested an independent evaluation. When the school district refused the request, they proceeded, with the help of Karen Mayry of the NFB of South Dakota, to arrange an independent evaluation for their daughter with mobility instructor and evaluator Douglas C. Boone of Nebraska. In an attempt to outmaneuver the Delkers, the school district filed for a due process hearing with the South Dakota Board of Education on April 23, 1994 -about two weeks before the Boone evaluation was to take place. The school district asked the board to uphold the district's evaluation and to deny reimbursement to the Delkers for the independent evaluation conducted by Doug Boone. The Delkers, of course, not only asked for reimbursement but also asked the South Dakota Board of Education to rule on the question about Linda's readiness to use a long white cane.

In the course of preparing their case, the Delkers -again, with the assistance of the NFB of South Dakota -gathered some information about pre-cane devices from Joe Cutter, a mobility instructor from New Jersey. Mr. Cutter's credentials included extensive experience in working with blind and blind multiply handicapped children from infancy through the early school years. Mr. Cutter began giving canes and cane instruction to young blind children in the very early years of the canes for pre-schoolers revolution. He also experimented with pre-cane devices and alternative mobility aids with his young blind students. Mr. Cutter was not available as a witness for the Linda Perez case, but he wrote a letter for the Delkers about his experiences. The Delkers' attorney used quotations from this letter (along with quotations from other letters and articles by progressive O&M instructors) in the brief submitted to the board for the due process hearing. 

Because of the valuable information and insight this letter sheds on the use of pre-cane devices, it is reprinted in full following this introduction. 

The Perez case depended most heavily, of course, upon the independent mobility evaluation conducted by Douglas C. Boone. The heart of this article, therefore, is Mr. Boone's description of his involvement with the case, the complete text of the evaluation he conducted, and the results of that evaluation. 

Parents often find themselves in a dilemma about evaluations. How do they know if a mobility evaluation is thorough and really covers what it should cover? What should be observed? How long should it take? Mr. Boone's evaluation is an excellent model of a well-planned and conducted cane readiness and mobility evaluation. The decision of the board in this case was clearly influenced by the completeness of this evaluation. There was simply no comparison between the earlier, and clearly inadequate, mobility evaluation  and the one conducted by Mr. Boone.

Finally, we conclude this article with the findings of law and decision reached by the South Dakota Board of Education in the Douglas School District v. Delker/Perez case. In brief, the board concluded that the school district had not provided the Delkers with an appropriate mobility evaluation, and awarded the Delkers reimbursement for the independent evaluation conducted by Douglas Boone. This was, for all practical purposes, a victory for the Delkers. (The board declined to rule, for technical reasons, on the Delker's question about Linda's readiness to use the cane. It seems that the school district refused to recommend any IEP mobility goals until after the due process hearing. Therefore, there were no IEP goals regarding mobility upon which the board could base a decision. The board did state that The school's action in delaying a decision on Linda's IEP until the due process hearing was not appropriate under regulations.) 

The school district correctly interpreted the board's decision as a mandate to use the Boone evaluation as the foundation for developing Linda's IEP mobility goals. Today, Linda uses her cane in school and has regular mobility lessons with her long white cane. 

But none of this would have been possible without the National Federation of the Blind. Because of the NFB the Delkers had a steady stream of information and inspiration coming regularly through their mail box in the form of Future Reflections and other publications. Karen Mayry, President of the NFB of South Dakota, gave freely of her time to advocate for Linda in IEP meetings and to locate information and resources for the Delkers. It was through the NFB that the Delkers met competent, confident blind adults who gave them a vision of what Linda's future could be -if she had the right training.

Here is the letter from Joe Cutter regarding pre-cane devices, followed by the Boone evaluation and the final due process decision:
May 23, 1993

Mrs. Karen Mayry, President
National Federation of the Blind 
of  South Dakota
919 Main St., Suite 15
Rapid City, S. Dakota 57701

Dear Karen:
As an Orientation and Mobility Instructor with the New Jersey Commission for the Blind and Visually Impaired, I became concerned regarding our recent conversation about a seven-year-old blind child. There is apparently a disagreement between home and school over which travel tool promotes independent ambulation, and thereby increases safety, effectiveness, and confidence. The child was evaluated by an Orientation and Mobility Instructor. The long cane was determined to facilitate her independent movement. She took to it, as you said, like a duck to water. On the other hand, the school is promoting the use of some other tool that they refer to as a pre-cane. I am moved to share with you my thoughts on differences in points of view over this concept of a pre-cane. 

The term pre-cane implies that the structure and function of the device fits into some continuum of progression for using travel tools and that the cane would be the next step along this assumed progression, once the blind child has mastered its predecessor. After twenty-three years of experience as an 0 & M Instructor (I am also a certified Teacher of the Blind and Visually Impaired and possess a Masters of Arts in Teaching the Developmentally Handicapped), I believe that this notion of a pre-cane is more fancy than fact. What we know about children in general is far less than what we think we know. Blind children are particularly vulnerable to adult assessments that do not develop from observations of children, but rather are imposed upon them by an adult-centered model. 

There is no research of which I am aware that validates or substantiates this pre-cane concept that some other tool must be used prior to the use of a cane. In addition, my personal experience does not support this notion. I have used a variety of tools to experiment with the facilitation of movement in blind children, such as a hula hoop, a Connecticut Pre-Cane, a t-shaped cane with roller tip, and so forth. The components of movement needed to use many of these devices are actually more complex and may demand more sophisticated motor schemes and planning than what is required by the simple design and function of the cane. Certainly a blind child's gait is negatively affected by an inappropriate travel tool.

The essential question is: Does the cane facilitate movement when the child is exploring the world and safely moving about in it? The best way to know is to follow the child's lead. A child who takes to a travel tool like a duck to water is telling the adult what is best. When a child's travel tool promotes a sense of security and autonomy in free movement, then much more brain power is available for orientation and for enjoying the feeling of the movement itself. Over the years I have introduced the cane to many children -some were as young as twenty months of age -without a pre-cane device. As they matured these children engaged in higher levels of comprehension and technical skill, and in time learned appropriate adult techniques. My experience tells me that introducing a cane much later in a child's life presents a barrier to independent movement and to the development of the grace and poise that is within them.

I hope these thoughts assist the school in reevaluating their present position towards independence in travel for this seven-year-old child. In my years of teaching orientation and mobility my thinking has changed about the readiness of blind children to travel with a cane. What changed over time were not the children but my perception of their abilities and readiness. It is this area of what we think we know that shifts over time. Twenty-three years ago if I had known to follow and observe the child more carefully, many more blind children would have had the opportunity to develop independent travel concepts and skills much earlier in life. I know now that the cane, more than any other tool, facilitates the movement of the walking blind child. This seven-year-old child is at a crossroad. The school can either facilitate or interfere with development. How exciting it would be for home and school to be offering the same travel tool with similar enthusiasm and commitment.

Sincerely,

Joe Cutter,
0rientation and Mobility Instructor
New Jersey Commission for the Blind and Visually Impaired

Editor: There you have Joe Cutter's letter about pre-cane devices. Next is Doug Boone's description of the independent mobility evaluation he conducted for the Delkers:

ERRING ON THE SIDE OF POSITIVE EXPECTATIONS
by Douglas C. Boone

In the middle of April, 1993, I received a phone call from Karen Mayry, President of the National Federation of the Blind of South Dakota. She informed me that a seven-year-old blind person, Linda Perez, was not receiving instruction in the use of her long white cane. Furthermore, she was not being encouraged or allowed to use her cane in the school. The wishes of Linda and her parents, as presented to the Douglas School District (which is near Rapid City) during IEP meetings were being discounted in favor of the recommendation by the Regional Orientation and Mobility (O & M) Consultant who had prescribed a pre-cane device for Linda. 

Linda, Karen said, was developmentally delayed as a result of a number of problems associated with premature birth and low birth weight. She also informed me that Linda had worked a few times with Konnie Hoffman, a blind woman who is a member of the Rapid City Federation and a teacher with special education background. Konnie's work with Linda revealed a high degree of motivation for using the long white cane and an appreciation for the fact that an adult would have and use a cane (Miss Hoffman is a cane user). As a result of this initial success, Linda's parents, Mr. and Mrs. Dale Delker, had requested that the Regional O & M consultant evaluate her ability to use the cane. The instructor performed the evaluation, without giving Linda the opportunity to use a cane, and concluded that Linda was not yet ready for the cane! 

As a private consultant in the field of blindness/visually impaired issues, it has become my policy not to rely on others' perceptions of a situation. Instead, I like to evaluate each situation or human need personally and then pursue a course of action which is based upon fact. I also proceed on the assumption that it is best to err on the side of positive expectation -I always first assume that a given task or challenge CAN be accomplished by the person with whom I am working.

The foundation of experience and philosophy I bring to this process consists partly of my experience in the employ of three state blind rehabilitation agencies. While an employee of the state rehabilitation agencies I was often called upon to consult with educational facilities regarding the needs of blind and visually impaired adults and children in issues related to cane travel and industrial technology classes. Also vital to my foundation of knowledge is the extensive sleep-shade training I received when I first entered the field, and my continued philosophical growth by way of my association with the literature and members of the National Federation of the Blind. With this background, I set about designing an appropriate evaluation of Linda Perez's ability to function with the long white cane. Here is the text of that evaluation:

PROPOSAL FOR O & M ASSESSMENT

The following is a proposal for contract services to assess the feasibility of the introduction and subsequent instruction in the use of the long white cane, as an aid to mobility, for Linda Perez, beginning on Sunday, May 9, 1993, and concluding on Monday, May 10, 1993.

The assessment will be conducted in a two-phase process: at the student's residence on the first day and at the student's school on the second day. The assessment schedule will help to minimize the Hawthorn effect by allowing for the development of rapport with the consultant in the secure environment of the home on the first day. This arrangement will also allow for parent observation of the process. The second day of the assessment will provide for an expansion of the assessment in a more structured environment with observation by interested instructional staff. The second day will seek to provide a review of those areas (listed below) which were assessed on the first day. The provision of two days of assessment will seek to minimize the chance that the student might have an off day and thus skew the results of the assessment. Both days of the student's assessment will cover, to the extent possible, the following:
1. Establish rapport between the evaluator and parents and student.
2. Begin evaluation of student's: a. expressive and receptive language skills, b. level of community/environmental awareness, c. level of social awareness.
3. Evaluation of student's ability to collect, correctly assess, and/or use auditory, tactile, and other available environmental information.
4. Provide for the evaluation of the student's balance under a variety of situations and conditions.
5. Evaluation of the student's ability to grip the cane and begin manipulation of same.
6. Instruction in, and evaluation of, the ability of the student to slide or tap cane in such a manner as to provide for a clear path of movement.
7. Confirm the ability of the student to maintain, at a level consistent with that of beginning students, incorporation of the following elements in the use of the cane: a. grip, b. slide or tap, and c. acceptable width of arc. 
8. A basic assessment of the student's psychomotor skills in general.
9. An assessment of student's maturity level and ability to maintain concentration necessary for beginning use of the cane.
10. Evaluation of the student's ability regarding stowing the cane in an appropriate location and retrieval of the stored cane.

All of the above will serve to determine the readiness of the student to begin a course of instruction in the use of the long white cane.  Of necessity the assessment will be conducted at a pace commensurate with the student's attention and tolerance levels. To provide for these considerations, the assessment will be interspersed throughout both days of evaluation.

A written report will be sent by FAX to the school no later than the morning of May 14, 1993, and a FAX sent to the parents to a location of their choosing. This will be done in order to acquaint all interested parties with the findings of the assessment.

The summarized results of the evaluation are provided below:

O & M EVALUATION REPORT

Locations For The Assessment: Student's residence, Rapid City Mall, and the Douglas School Badger Clark building, Carousel building, and surrounding school environment as it relates to Linda's instructional needs.

The evaluation began on the morning of May 9, 1993, at the residence of Linda Perez. My first efforts were directed toward establishing rapport with Linda and her parents. I asked Linda to get her cane. Linda independently found the cane, with only a verbal prompt from her parents to tell her that the cane was on the porch. Linda was receptive to becoming acquainted, and I soon asked her to show me her favorite toy. She took her cane, without prompting, and returned with a busy box. Approximately 15 minutes later I asked Linda to put her toy back, which she did without any difficulty. I then asked her to get another toy. This time she chose a puzzle. She came back to the table and began working on the puzzle. After a short time, she asked about the location of her cane. It was at this point that I demonstrated to Linda how she could store the cane under her chair. Linda exhibited a good attention span while working on her puzzle.

Mr. and Mrs. Delker next provided me with information regarding various self-help skills which Linda is able to accomplish. While this is not directly related to the assessment of Linda's ability to use a cane, a cursory review of her level of functioning is desirable in order to understand her behavior when using the cane. The discussion revealed an overall development in the range of a three- to four-year-old. Her parents stated that Linda has specific tasks to do in the home. A recommendation was made to encourage Linda to become involved in the selection of her own clothing since activities of this nature contribute to independent thinking and concept development. It should be noted that this portion of the assessment was for the benefit of the consultant, and was/is not intended as an official finding regarding age-appropriate development.

Evaluation Of Outside Use Of The Cane: As we prepared to leave the house for the outside evaluation, Linda prompted her parents by asking for her cane. I believe this was a significant act, demonstrating an awareness of the cane as a tool for independent mobility. 

As we came down the ramp from the house, Linda found a section of plywood with the cane, then stomped on it to confirm the feedback she had received from the cane -an act not inconsistent with beginning users of the cane of any age. This demonstration of an awareness of the auditory feed-back available from the cane is significant in view of the limited experience Linda has had with the cane. 

Once in the yard, Linda followed her father's voice toward the place where the bus stops. Linda continued to use her cane in a somewhat sporadic arc, mostly keeping it near to the ground but occasionally raising it. Linda displayed an ease with using the cane in either the right or left hand. This ambidextrous approach to the cane is a skill well worth fostering, as it provides for independent mobility when carrying heavier objects which can be shifted between hands to minimize fatigue. While I generally introduce this skill later in a student's instruction, I do not view the early alternating of hands to use the cane in a negative light.

From the bus stop we proceeded to the lamb pen. Again, Linda followed her father's voice. She used the cane surprisingly well over uneven surfaces, including tire ruts, unmown grass, mud, and loose gravel. When she arrived at the lamb pen, she was not facing the pen, but was parallel to it. Her father made note of this fact and prompted her to put the cane in front of her. She extended the cane and swung it to her left, found the fence with the cane, then turned and appropriately faced the lambs. This action represents an understanding of the value of the cane as a tool to collect information from the environment.

Next, I asked her to find the chicken house. (I had heard a chicken as Mrs. Delker was gathering the eggs.) Linda needed one additional auditory cue, then proceeded in the direction of the building. After locating the chicken house she turned and approached the feed shed which Mr. Delker had entered. After arriving at the feed shed, I showed Linda how to determine the height of a step by using her cane. The step was inordinately high, approximately fourteen inches off the ground. After several exploratory tries, Linda crawled into the shed. At all times she maintained contact with the cane or remembered where she had placed it. This behavior demonstrated Linda's awareness of the value of the cane in enabling her to move effectively in her environment. As we returned to the house Linda continued to use her cane while following sound cue information from her parents' voices.

Evaluation At The Mall: At my request, Mrs. Delker drove Linda and me to the mall for an evaluation of cane usage in an unfamiliar location. Upon arrival at the mall, Linda unbuckled her seat belt. This was the first time she had self-initiated and independently accomplished this task.

As we entered the mall Linda immediately noticed the sound feed-back available from the cane, and swung her cane with additional vigor. Initially, Linda seemed a little intimidated at the prospect of walking about using only her cane and not hanging on to her mother's hand. This behavior was not surprising given her limited instruction in the use of the cane to date. Most people tend to experience some degree of fear and apprehension when encountering new environments. 

As we walked in the mall, Mrs. Delker asked Linda to find a bench. Linda, without further information, reached out and found the bench using her cane. During this portion of the evaluation I observed multiple incidents of Linda's swinging the cane vertically and horizontally at waist height or above. After a number of interventions by Linda's mother failed to produce a controlled arc, I suggested to Mrs. Delker that she briefly take the cane from Linda the next time she failed to heed a verbal warning to use the cane properly. Linda once again inappropriately swung the cane. Mrs. Delker took the cane and told Linda she would have to walk the mall holding her (Mom's) hand, not using the cane, if she were to again swing the cane improperly.  

At this point I suggested that perhaps Linda was tired and we should conclude the evaluation. It is significant to note that no additional misuse of the cane occurred as we returned to the car! In my opinion, the modification of Linda's negative behavior, which coincided with the prospect of losing the cane because of misuse, demonstrated the value she places on the cane. As we left the mall, Linda found a two-foot drop-off with the cane. She knelt down to feel the drop-off, sat down so that her feet were on the lower surface, then stood up again. We returned to the car and concluded the day's activities.

Evaluation In The School Environment: The evaluation on the morning of May 10, 1993, was conducted at Linda's school and included the Badger Clark building, Carousel building, and other areas used in the provision of Linda's education plan.

I began the school portion of the evaluation by observing Linda exiting her main school bus and moving to the small bus in which she waits until a school staff member comes to escort her to the building. In going from the large to the small bus, Linda exhibited excessive vertical raising of the cane similar to what I had observed in the mall on Sunday, May 9, 1993. When leaving the bus and encountering the bus steps, Linda did not seem to know how the cane could provide information regarding the step height. Both of these observed deficits do not represent inability, but instead reflect lack of instruction and consistency of cane usage. It is worth noting that when Linda went up the steps to the second bus, she seemed to instinctively use the cane to locate the next step. Once again, she showed her appreciation for the cane by maintaining constant contact with it at all times. 

After a short wait, two school staff persons came to the bus to get Linda. I introduced myself and let them know I was present for the day to observe Linda using the cane at her school. Linda then began to follow the staff to the building, located a metal grate on the sidewalk, crossed it, and proceeded into the building. She followed the staff persons down the hall, located the door to her classroom with her cane, and entered.  Without asking Linda's permission, a staff person took the cane from her and hung it up. At that point I offered to put on a pair of sleep-shades and demonstrate how the cane can act as an effective tool in mobility. None of the school staff indicated a desire for me to do so.

Linda's first class was physical education, and it was necessary to walk approximately one-and-a-half blocks outside to the track area. The staff person who was taking her to the track referred to the cane as a stick. I explained that the proper term was cane, and she apologized. I informed her that no apology was necessary as no one could expect her to know all of the terms related to blindness and visual impairment. 

As we continued, I again observed the ease with which Linda switched the cane from one hand to the other. At one point, Linda walked off the sidewalk and onto playground gravel. When asked by the staff person to get back on the sidewalk, Linda located the sidewalk with her cane and, after some independent re-orientation, continued in the proper direction. At another point Linda stepped off the sidewalk onto a grass edge and seemed to be exploring and experimenting with her cane. This action of using her cane as a tool to collect information and to satisfy her curiosity is yet another indicator of her readiness to use the cane. 

At one point, the staff person grabbed the cane and was teasing Linda by pulling on the cane and saying they were going to get her with it. I asked the staff person not to engage in this kind of activity because Linda, like most students, will benefit from positive reinforcement in the proper treatment of equipment; be it a baseball bat, eyeglasses, or a cane. These examples of the staff's lack of knowledge regarding blindness are not a negative comment on the staff personnel, but rather reflects the need to empower staff through a specialized in-service training conducted by professionals and blind role models. 

As we came back from physical education and were approaching the building, the staff person asked me if I wanted Linda to trail along the wall. I told her that I preferred that Linda not do this since the cane could find things for her which she would miss if she were just trailing the wall. Furthermore, by using the cane Linda would be developing transferable skills. When asked for additional information I explained that if a maintenance worker or teacher left a tool box or some other item in the hall, trailing the wall would result in a collision. On the other hand, when using the cane correctly, items hurriedly placed in the hall could be easily detected and walked around. To the credit of the staff person, this explanation made sense to her. 

Just before we entered the building Linda began to tap more heavily, again indicating her ability to use echo location information produced by the cane. She stomped a few times, to confirm the cane information, and proceeded into the building. Once inside, her speed increased as she walked down the hall without trailing. Soon she asked the staff person if she could stop by the office and was allowed to do so. When she was in the proximity of the office, she heard sound cues coming from within. She extended her cane to her left and entered the office without contacting the door. Even the staff person commented on how well Linda was doing with the cane. 

As Linda left the office, again smoothly passing through the door, she turned left to proceed to her home room. The staff person and I arrived at the home room and paused; Linda continued past the door approximately thirty feet. She stopped, without comment from either the staff person or myself, turned around, and walked back to the door. When she reached the door, she swung the cane into the opening and then she entered. The staff person acted very appropriately, allowing Linda to discover and resolve her error on her own. 

Once again I extended an offer to demonstrate, under sleep-shades, the full cane technique used by blind persons. I told the staff persons they had but to ask. No one asked to have the demonstration.

While waiting for Linda in her home room I heard an instructor outside the classroom repeat twice, to a sighted student, Please keep your hands off the wall; we have art work on the walls! Encouraging trailing walls in place of using the cane does not facilitate mainstream efforts, but instead serves to enhance differences between Linda and her peers. This subtle and unnecessary allowance can have negative implications for both Linda's self-concept and the expectations which peers have for Linda.

The next significant event, related to this assessment, occurred when it became time to go from Linda's home room to her mainstream class. A staff person informed Linda that it was time to go to Carousel (her mainstream classroom). Another student in the class was looking at Linda's cane. The staff person, while retrieving the cane from the lad, informed Linda they were running late and would have to hurry. As she finished her statement the staff person hung up the cane, took Linda's hand, and proceeded down the hall. Approximately one quarter of the way to the mainstream classroom I heard Linda ask for her cane. The staff person told her that they were late and didn't have time for the cane. Linda's question reflects the value she places on her cane. The response to the question indicates the need for staff training regarding the importance of cane usage in the development of self-confidence and independence. 

That failure to permit Linda to have her cane with her was a lost opportunity to reinforce her independence. Indeed, after arriving at the mainstream classroom, Linda needed to go from one location in the room to another. The staff person told her to go on over. Then, almost immediately she said, Take my hand, there are kids on the floor. Again, this was another example of a lost opportunity to teach Linda and her peers that blind people can do things by themselves. 

Next, the class members, including Linda, were asked to go outside and get an egg carton which had been filled with dirt and planted. Linda's assigned staff person accompanied her, helped her find a carton, and lined up with her to come back into the building. They had stopped just prior to the sidewalk while waiting for other children to move inside. When the staff person indicated to Linda that the line was moving, Linda moved forward, caught her toe on the edge of the sidewalk, and almost fell. With the cane Linda could have been in control of her own mobility and collected information relevant to her needs. She might still have stumbled, but then again, maybe not. Because she was not allowed to take her cane to the mainstream class, she did not have it available for recess or for the walk back to her home room. 

Also, a different staff person led Linda back to home room by a different route. This inconsistency in going to and from various locations occurred several times and appeared to be the norm. It would be helpful for the staff to learn the value of Linda's using the same routes during this early period of learning how to maintain orientation.

It is salient to the evaluation that Linda, when she used the cane at school, exhibited none of the negative behaviors she had displayed while at the mall on Sunday, May 9. Whatever the cause for this improved respect for using the cane, the absence of negative behavior simply means one less thing the staff at the school would need to  modify. 
Also noteworthy is that, during the morning I observed Linda at school, with the exception of one staff person, no one else prompted her to use either the pre-cane device or the long white cane. Instead the staff consistently took Linda's hand to accompany her to various class activities.

It is significant to note that, while staff were reluctant to expand their knowledge of the cane, I did observe a high level of commitment and concern for Linda and a good deal of coordinated effort in expanding her knowledge of geometric shapes and enhancing various concepts in general. These efforts should contribute significantly to Linda's development of spatial awareness and the ability to generalize information when moving about with her cane.

SUMMARY OF FINDINGS

Linda demonstrated:
1. a willingness and motivation to use the cane;
2. awareness of the value of the cane as a tool to assist her in her mobility;
3. awareness of sound feedback available from the metal cane tip and ability to use same; 4. awareness of texture variables, as they relate to orientation and mobility;
5. good echo/sound cue usage;
6. recognition that the cane can locate objects and openings through purposeful extension of the cane in the desired direction;
7. a willingness to explore her environment with the cane;
8. a firm grip on the cane for extended periods of time;
9. excellent balance in a variety of evaluation environments;
10. an increased pace when using the cane as opposed to trailing the walls; and
11. good travel orientation.

RECOMMENDATIONS

As a result of the evaluation, I make the following recommendations:
1. Future instruction in orientation and mobility be conducted using the long white cane. 2. The cane be used for all independent mobility as often as possible in the school and in home life.
3. Staff, parents, and peers receive in-service training in basic use of the cane by blind role model(s) and professional staff so that they will be better able to reinforce the use of the cane in and out of the school environment.
4. Establish set routes during this early phase of O & M instruction for going to and from classrooms. This will allow Linda to concentrate more on the skills associated with manipulation of the cane and less on keeping oriented.
5. Some emphasis and priority be given to cane usage until Linda develops more skills. For example, perhaps on Mondays and Wednesdays Linda might use all of her allotted time just going to and coming back from, say, physical education (or some other class). Learning independent mobility is a priority on those days. On Tuesdays and Thursdays Linda takes her cane, but may also take a staff person's hand to quickly get to P.E. so she can participate. On these days the emphasis is on class participation. This approach is suggested as an interim solution, pending Linda's development of speed and self-confidence in using the cane. Careful consideration should be given in a plan of this nature to assure minimum disruption of her academic curriculum.

Those were my findings but the school continued to resist the Delkers' request for Linda to receive instruction in the use of the long white cane. Indeed, the Douglas School District chose to contest the payment of my services even though it is the right of parents to seek outside evaluation in cases where the school and parents disagree. 

A Fair Hearing date was set for June 23, 1993, to be held in Rapid City. The school district, represented by their legal counsel, called upon a number of professional staff and the Regional O & M consultant to testify. Mr. and Mrs. Delker, represented by South Dakota Advocacy Services (thanks to the help and support of Karen Mayry), called witnesses to support the need for the independent evaluation. Among those testifying at the hearing on behalf of Linda's training needs were Konnie Hoffman and myself. 

Since this was to be the first time that I had to provide testimony in a hearing, I chose to alleviate some of my apprehension by staying outside the courtroom. Soon it was my turn to testify. The questions posed by the counsel for the school district began on a rather low-key level, asking about my background and seeking weak links in my professional experience which would discredit me. Then came a question which completely caught me off guard! The school's counsel asked: Isn't it true that you first learned of this job from Karen Mayry, the NFB's Rapid City representative? I answered that I had learned of the Delkers' need from Karen and that she was the State President of the Federation in South Dakota. He next said: And isn't it also true that the NFB has referred jobs to you on numerous other occasions? To which I answered: No, it is not true. This is the first such referral! There was complete silence in the courtroom! The counsel then asked, No other jobs at all? To which I also answered, No! (When Karen contacted me in April of 1993, I was in the first full month of self-employment as a consultant! And if it had been the 100th consulting job referred to me by the NFB, what does that have to do with the appropriateness of the evaluation? My Federation membership was not a surprise to the school; it was listed on my resume!).

In July of 1993 the Hearing Officer handed down his ruling and found in favor of Mr. and Mrs. Delker and ordered the Douglas School District to reimburse the Delkers' for the cost of the independent evaluation. The school district has since obtained the regular services of an O & M instructor for Linda Perez, and she is reported to be making fine progress in the use of the cane, using it not only at home, but also in school!

It was a long road for Linda Perez and her parents, Mr. and Mrs. Delker, a road they should not have had to travel! But since they did experience the objections of the school, it was nice to have the help of Karen Mayry and the many other Federationists who subsequently provided advice, moral support, information for resources, and perspective regarding blindness through articles published in the Braille Monitor and Future Refections. There are times when we simply can not go it alone.

Editor: The next segment is the complete, unedited text of the hearing officer's decision in the Linda Perez case. It includes references to pertinent segments of the law, history of the intent of the law, and relevant court cases, as well as references to arguments and evidence submitted by both parties in the case. 

Many of you may be tempted to skip this segment, but I hope you will not. There is much to be learned by reading these original documents. The IEP and all the rights that parents have in that process would be meaningless without the right to appeal and to have that appeal heard before an impartial, qualified hearing officer. But parents cannot effectively utilize this right if they do not understand the process, or have a practical sense of what they can reasonably expect to get out of it. 

As in the Linda Perez case, hearing officers much prefer to deal with procedural questions as opposed to educational instruction issues (i.e. Did the Delkers have the right to reimbursement for an independent evaluation? versus Should Linda Perez receive cane travel instruction?). Even when the parents prevail, seldom will the ruling mandate particular IEP goals. Rather, the ruling will focus on the appropriateness, or inappropriateness, of the evaluation(s) in question. The hearing officer will then order both parties to go back to the drawing board and write another IEP, or, even more fundamentally, order them to get another evaluation. If parents have not understood and anticipated the limitations of due process rulings, they may end up winning the battle but losing the war.

Here, then, is the Conclusions of Law and the Decision portion of the July 9, 1993, South Dakota Board of Education due process ruling in the Douglas School District v. Mr. and Mrs. Dale Delker case.

CONCLUSIONS OF LAW

1. The parties received due, proper and legal notice required in contested cases.
2. The Hearing Officer has jurisdiction over the parties and the subject matter of this action.
3. The Douglas School District has not met its burden of proving by a preponderance of the evidence that the evaluation it provided for Linda Perez was sufficiently appropriate to defeat the Delkers' right to an independent educational evaluation.
4. The Delkers are entitled to reimbursement for the costs of obtaining the independent educational evaluation of Linda Perez by Douglas Boone.
5. The Hearing Officer makes such other and further conclusions of law as are contained in the written Decision, filed herewith.

DECISION

The Decision of the Hearing Officer is that the independent educational evaluation obtained by the Delkers was consistent with their rights pursuant to the South Dakota Special Education laws, the Education for All Handicapped Children Act of 1975 and its implementing regulations. Thus, the Delkers are entitled to reimbursement for the cost of this independent evaluation.

Additionally, the school needs to take the Boone evaluation into account in determining Linda Perez's independent educational program as it relates to cane use. The decision whether Linda is ready for cane use and training should be made in the first instance by the placement committee and parents, taking into account all information about Linda, including, but not limited to, the Mundschenk evaluation, the Boone evaluation, Linda's current use of both the pre-cane device and the cane, the family's support or non-support of either plan, and such other factors that may be relevant in determining an appropriate and beneficial IEP for Linda.

As pointed out by the school, the landmark case in special education was Board of Education, Etc. v. Rowley, 458 U.S. 176 (1982). There is a two-part test to be applied in these cases: (1) whether the procedural requirements of the Education for All Handicapped Children Act of 1975 (the Act) have been followed; and (2) whether the individualized educational program (IEP) developed through the Act's procedures is reasonably calculated to enable the child to receive educational benefits.

The school argues that there is no issue about the procedure used, but that the only issue is the substance of Linda's educational program. This argument is incorrect. The case is before the Hearing Officer on a procedural issue raised by the school itself, namely, whether its evaluation of Linda was appropriate so as to defeat the procedural right granted to the Delkers by the Act for an independent educational evaluation pursuant to 20 U.S.C. 14l5(b)(1)(A) and 34 C.F.R. 300.503(b).

If the case at bar had been a challenge to the educational program provided by the school for Linda, then Rowley would undoubtedly control and require that the school's plan be found to be appropriate. The school is to be commended for developing an excellent overall educational plan for Linda. It is clear that Linda has benefited from the implementation of the IEPs that were developed for her. As Linda's teachers noted, Linda has progressed remarkably, and she enjoys school a great deal.

The issue, however, is whether the school properly refused the Delkers' request for an independent educational evaluation for Linda regarding her readiness to learn cane skills. Linda had been given an initial comprehensive evaluation in October 1991. Between October of 1991 and the fall of 1992 Linda changed considerably. She was not functioning at the same level as a year earlier. Linda's teachers stated that her skills had grown and improved beyond all prior expectation. According to the end of the year report from the Student Resource Room, since the evaluation was completed [October 1991] Linda has made wonderful progress. Linda has amazed us and has gone beyond any expectations. (Emphasis added). Thus, by the fall of 1992 the conclusions from the October 1991 evaluation about Linda's skill levels and developmental age were no longer accurate.

The October 1992 re-evaluation was necessary because of the changes in Linda's circumstances. ARSD 24:05:25:06 provides that Re-evaluations shall be conducted every three years or more frequently if conditions warrant or if the child's parent or teacher requests an evaluation In this case, the changes in Linda's abilities, as identified by Linda's teachers and her parents, warranted the re-evaluation, which was conducted by Jane Mundschenk in October 1992. Additionally, Mrs. Delker had specifically requested this re-evaluation for the purpose of determining Linda's cane readiness, due to Linda's apparently successful experiences with a cane since the 1991 evaluation.

Several important considerations that merited the October 1992 re-evaluation, then, were as follows: (1) Linda had changed and grown considerably in her performance levels over the last year; (2) Linda had received cane instruction from Konnie Hoffman for several weeks, and had gained considerable skills in her ability to use a cane since 1991; (3) Linda was using a cane regularly at home; (4) Linda could not use her pre-cane at home because of environmental considerations; (5) Linda's family had become strong supporters of, and advocates for, cane use and training instead of pre-cane use; and (6) Linda's guardian, Mrs. Delker, specifically requested an evaluation of Linda's ability to use a cane.

The school was not able to prove the appropriateness of its evaluation conducted in October 1992, because the evaluation did not address these considerations. For example, Ms. Mundschenk stated that she relied on the stale October 1991 findings regarding Linda's performance level age for Linda's abilities; there was no re-assessment of whether and how much Linda's performance levels had actually changed over the last 12 months. Ms. Mundschenk denied any knowledge of the training that Linda had received from Konnie Hoffman. Ms. Mundschenk did not consider Linda's use of a cane at home, nor the environmental limitations for pre-cane use. Ms. Mundschenk did not take into account the attitude and potential supportiveness of Linda's family regarding cane use or pre-cane use.

Although the written criteria used by Ms. Mundschenk for her evaluation appeared to require inquiry and observation of the child's use of a cane, Ms. Mundschenk's October 1992 report, stated that she did not assess Linda's use of a cane. In a letter dated May 22, 1993, Ms. Dunmire offered the school's explanation why Ms. Mundschenk did not test Linda's use of cane: A cane was not used at the time of the assessment as the examiner felt it was inappropriate for Linda at the time, for various reasons. The report of the examiner, Ms. Mundschenk, stated, however, that Linda's ability to use a cane would have also been assessed, but it was not available. Ms. Mundschenk also testified that she had not received documentation from the school about Linda's use of a cane.

Thus, on its face, the October 1992, evaluation did not appear to evaluate the changes in circumstances that Mrs. Delker believed demonstrated Linda's cane readiness. Moreover, Ms. Mundschenk relied upon conclusions regarding Linda's skill levels that were a full year out of date. It is true that in October 1991, Linda was reported to have skill levels of a two- or three-year-old. By October 1992, however, these skills appear to have grown considerably according to the reports of Linda's teachers. Yet, there was no new information provided to Ms. Mundschenk on these critical points.

Finally, the methodology used by Ms. Mundschenk appeared to be somewhat summary and rushed. Ms. Mundschenk stated she spent approximately one and a half hours observing Linda in her school environment and without use of a cane. It is true that she stated this methodology was accepted in the field, yet, when contrasted with Mr. Boone's method of spending eight hours over a two-day period studying Linda in a variety of settings (home, school, and public mall), all with Linda actually using a cane, it would seem that Ms. Mundschenk's method may have missed important information about Linda.

The right of a parent to obtain an independent educational evaluation when the parent disagrees with the evaluation obtained by the school appears to be a significant and compelling right. 20 U.S.C.  1415(b)(1)(A) identifies certain required procedures, which include an opportunity for the parents or guardian of a child with a disability to obtain an independent educational evaluation of the child. One important concern of Congress in enacting this protection appears to have been to assure that all relevant information ought to be considered by a school in developing an IEP to avoid erroneous classification of children or their conditions. For example, Senate Report No. 94-168, explains some of the background to the procedural protections under the Act:

….The Committee specifically requires that procedural safeguards guaranteed to parents… provide adequate protection against erroneous classification….

The Committee is alarmed about the abuses which occur in the testing and evaluation of children, and is concerned that expertise in the proper use of testing and evaluation procedures falls far short of the prolific use and development of testing and evaluation tools…

All relevant information with regard to the functional abilities of the child should be utilized in the placement determination…

Senate Report No. 94-168, at p. 29, 2 U.S Code & Cong. News, 94th Cong., 1st Sess 1975 at p. 1452-53. (Emphasis supplied).

Congress intended to assure that if a mistake was made, it should be made in obtaining too much, not too little, information for placement decisions. The federal regulations provide:

(b) Parent right to evaluation at public expense. A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. However, the public agency may initiate a hearing under  300.506 of this subpart to show that its evaluation is appropriate. If the final decision is that the evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.
 (c) Parent initiated evaluations. If the parent obtains an independent educational evaluation at private expense, the results of the evaluation:(1) Must be considered by the public agency in any decision made with respect to the provision of a free appropriate public education to the child, and (2) May be presented as evidence at a hearing under this subpart.

34 C.F.R. 300.503(b) and (c).

These regulations implement the procedural requirement of providing for an independent educational evaluation. It is important to note that the regulations also require that the school take into account the results of any independent evaluation, even if the school's evaluations were fully appropriate. Here, however, the school did not mention or consider the Boone evaluation during the May 17, 1993, IEP meeting. Moreover, the school did not try to establish a goal for Linda at this meeting because of the pending due process hearing.

The school's action in delaying a decision on Linda's IEP until the due process hearing was not appropriate under the regulations. The school should have taken into account the Boone evaluation and its conclusions, and, in conjunction with all other relevant information then available, proposed an IEP for Linda. The determination whether the Boone evaluation should have been at public expense had no bearing on Linda's IEP. The purpose of the due process hearing is never to order a school to follow any particular IEP, but is instead to determine whether the school's  IEP, and procedures used to develop the IEP, are consistent with the requirements of federal and state law.

It is premature for the parents to request that the Hearing Officer decide whether Linda is ready to be trained in cane travel. The school and the parents must first together make this decision at an IEP meeting, taking into account all available information and coming to a decision. If the parents challenge the IEP, or the procedures used to develop it, then upon hearing, the IEP can be assessed pursuant to the requirements of the Act as construed by Board of Education, Etc. v. Rowley, 458 U.S. 176 (1982), and other relevant cases. At this time, however, the position of the school that: The goal relative to independent mobility will be developed after the due process hearing and the IEP adjusted accordingly makes it impossible to determine whether its IEP will be consistent with the Act.

The school suggests that a parent may not be reimbursed for an independent educational evaluation if the evaluation is obtained while the school's request for a due process hearing is pending. This is incorrect, although the parents do take a risk in obtaining the early evaluation. Burlington School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). In Hudson v. Wilson, 828 F.2d 1059 (4th Cir. 1987), the Court of Appeals addressed a similar contention. The school argued that it should not have to provide reimbursement for an independent educational evaluation because the parents obtained it after the school had requested its due process hearing. The Hudson court rejected this argument.

In granting the Delkers' request for reimbursement, the Hearing Officer has considered the submission by Mr. Boone of his billing. There was no evidence submitted to indicate that this billing was unreasonable or inappropriate. Therefore, the Delkers are entitled to reimbursement of the full cost of the consultation as evidenced by Parent's exhibit P-F.

In their brief, the parents have requested that the Hearing Officer award them attorney's fees. In her letter of May 22, 1993, Ms. Dunmire also requested information about attorney's fees. The Hearing Officer has provided both parties with a copy of the Handicapped Children's Protection Act of 1986. This should explain the current law regarding the awarding of attorney's fees.

The Hearing Officer is without authority to make an attorney fee award for the instant hearing. This was clarified in the legislative history to the above enactment. According to the committee report, The Committee intends that 5.415 will allow the Court, but not the Hearing Officer, to award fees in administrative proceedings. PL 99-372, 4 U.S Code & Cong. News, 99th Cong., 2nd Sess 1986 at p. 1804. Therefore, the Hearing Officer is without jurisdiction to rule on the parent's request for attorney's fees.

The Hearing Officer finds that the Douglas School District has done an excellent job in developing Linda's educational program. Testimony and written reports show that Linda's teachers and Douglas personnel demonstrate a great deal of caring and dedication to helping Linda obtain an excellent education. They are to be commended for their efforts and their success. Likewise, Linda's guardians have proved to be diligent and caring parents who offer a great deal to the school. Their involvement and participation in Linda's placement meetings and IEP development has provided very valuable insight and information to school officials. It is truly rewarding to see such actions by both parties.

These actions convince the Hearing Officer that neither the school nor the parents are tied to some philosophy that does not take into account Linda's particular needs. The Hearing Officer specifically finds, and encourages both parties to recognize, that the school and the parents have shown that they are concerned only with Linda's individual well-being and proper development, not with some abstract philosophical goal. Recognition of each other's good faith and legitimate concerns should assist the parties in developing an appropriate and beneficial IEP for Linda, that takes into account all relevant information available.
Dated this 9th day of July, 1993. Mark Falk, Hearing Officer

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