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February 10, 2003

Couple wins battle with school district over disabilty

From: Portsmouth Herald, NH - 10 Feb 2003

By Associated Press

STRATHAM, N.H. - A Stratham couple has won their battle with the school district over reimbursements of costs connected with treatment for their hearing impaired son.

A federal judge in Concord agreed with the state Education Department that the Stratham school district was responsible for certain costs incurred by Beth and David Petit under the federal Individuals with Disabilities Education Act.

The court said the district must reimburse them $1,800 in travel expenses and at least $32,000 in legal fees.

The case involved 6-year-old Hunter Petit, who underwent surgery to receive a cochlear implant in 1999 at Dartmouth-Hitchcock Medical Center in Lebanon, and had to make numerous trips back for followup treatment.

The implant sends auditory signals to the brain to restore hearing in people with certain types of hearing loss.

''It was the principle of the thing, not the money. I felt if you don't provide for the services, that was discrimination,'' Beth Petit said.

School officials argued federal law does not cover cochlear implant services because the implant is not an acoustical hearing aid and is not included in a listing of sample-related services specified in the law.

''Our argument was, life is not that simple,'' said Peter Smith, the Petits' attorney. ''Science is being constantly updated. Because the word airplane isn't mentioned in the U.S. Constitution doesn't mean the government has no power to regulate transportation by airplanes.''

The court said that since the school district's Individualized Education Plan for the boy is based on his using the cochlear implant to communicate, it must provide services necessary for him to use the device.

Attorney Jeanne Kincaid represented the school board. She said the court's decision doesn't address larger public policy issues of whether a school district should be responsible for a surgically implanted device that essentially becomes a bodily organ.

She described cochlear implants as the first artificial sense organ in humankind, but not the last. Once implanted, the device must be maintained for life. She also said a child does not require a cochlear implant to acquire a quality education.

She said the school district fought the case for all districts in the state, not for the relatively small amount of incurred expenses.

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