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February 9, 2003

Legal victory has national impact

From: Portsmouth Herald, NH - 09 Feb 2003

By Larissa Mulkern

For Stratham mom Beth Petit, it was a battle over principle, not money.

Nevertheless, it was a battle she won Wednesday with a federal court ruling that the Stratham School District must reimburse her and her husband David Petit for travel expenses and other costs associated with the programming of their deaf son’s cochlear implant.

The Petits incurred approximately $1,800 in unreimbursed treatment-related expenses and at least $32,000 in legal expenses during this litigation.

"It was the principle of the thing, not the money. I felt if you don’t provide for the services, that was discrimination," Petit said in an interview Friday.

The decision by U.S. District Judge Joseph DiClerico upheld a state Education Department ruling that the school district was responsible for the costs under the federal Individuals with Disabilities Education Act (IDEA).

The case involved 6-year-old Hunter, who in 1999 underwent surgery to receive a cochlear implant, which sends auditory signals to the brain to restore hearing in people with certain types of hearing loss.

Afterward, he made repeated trips to Dartmouth-Hitchcock Medical Center in Lebanon to have the implant’s speech processor "mapped" or programmed. During those appointments, a specially trained audiologist used a computer to determine the proper level of electrical current needed to stimulate electrodes implanted in the ear. The Petits sought reimbursement for mileage for the trips to Lebanon and for reimbursement of insurance co-payments of $10 per visit the family paid for the appointments, but the School District rejected both requests. Beth Petit said at one session the board made its decision without hearing her out first.

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 decision essentially identifies the cochlear implant mapping services as a necessary service even if it isn’t specifically listed. Without it, the implant wouldn’t work properly.

But the court said 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.

"Although mapping for cochlear implants is not included within the enumerated audiology services provided in the statute and regulations ... (section) 300.14 broadens the scope of the definition of audiology beyond the enumerated examples," Judge DeClerico wrote in the 15-page order.

"... Absent a clear indication that such audiology services were not intended to be included within "related services," the definition would appear to encompass the mapping process," he wrote.

School Board responds

Attorney Jeanne Kincaid handled the case on behalf of the Stratham School Board. In an interview Friday, Kincaid, of the Portland, Maine-based law firm of Bernstein, Shur, Sawyer & Nelson, said the case has national implications.

"Certainly, the School Board was enormously disappointed and believed the court’s affirmation of the hearing officer’s decision was an invitation for Sen. Judd Gregg to look at this issue," Kincaid said.

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: If Congress had intended for school districts to be responsible for what is basically a bodily organ, Congress would have been more specific about cochlear implants in the Individuals with Disabilities Education Act.

"There is no case like this in any judicial forum ... to go down that road was misguided," Kincaid said.

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.

"By acceding to the parents’ wishes, the court is basically saying (the school district) owns the device. The court didn’t analyze this from the public policy implications," Kincaid said.

"This is a very sophisticated biomedical case. I predict parents around the country will sue districts with claims their child may not be speaking as much because an implanted device wasn’t programmed properly."

Kincaid said she’d spoken with board members regarding the court decision, adding it would be up to the board to decide at its next meeting whether to appeal the decision. She said the "silver lining" for the School Board is that it brings national attention to this issue of whether a public school board or district should be responsible for implanted devices that become bodily organs. The most beneficial course of action is if Congress revisits IDEA and clarifies the rules for biologically implanted devices.

She said the Stratham board’s suit was fought on behalf of all schools.

"The decision doesn’t give the flavor of the board’s argument, but really Stratham was trying to defend schools of New Hampshire," Kincaid said. The lawsuit wasn’t fought over the relatively small amount of incurred expenses, she added.

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