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February 16, 2003

School district will not appeal implant ruling

From: Portsmouth Herald, NH - 16 Feb 2003

By Larissa Mulkern

STRATHAM - The Stratham School Board voted this past week not to appeal a U.S. District Court decision requiring the school district to pay for expenses related to maintaining a young student’s surgically implanted cochlear implant.

The plaintiffs, Beth and David Petit of Stratham, and their attorney are expected to enter into a written agreement with School Administrative Unit 16 officials whereby the district will reimburse the Petits for about $1,800 in expenses related to their son’s treatment, $31,687 in attorney’s fees, and $2,625 to cover the fee for an expert’s testimony at trial, and also promise not to appeal or seek further relief.

The Feb. 5 decision by U.S. District Judge Joseph DiClerico upheld a ruling by the state Education Department that the school district is responsible for the costs under the federal Individuals with Disabilities Education Act.

The case involved the Petits’ 6-year-old son, Hunter, who underwent surgery four years ago to receive a cochlear implant, a device that sends auditory signals to the brain to restore hearing in people with certain types of hearing loss. The implant requires occasional programming, called "mapping," and Beth Petit and her son made repeated trips to Dartmouth-Hitchcock Medical Center for this treatment.

The legal dispute began when the Petits requested, and the board twice denied, reimbursements to the couple both for mileage costs for the trips to Lebanon as well as for the family’s insurance co-payments. The school district’s position was that it shouldn’t be held responsible to cover medical services for a biomedical device that, in essence, becomes a human organ once implanted and that services related to the cochlear implant are not specified in the law.

SAU 16 Assistant Superintendent Stephen Kossakoski said the federal decision has larger implications.

"We believe this opens a Pandora’s box. This is a precedent-setting case that could lead to school districts being required to pay for cutting-edge technology," said Kossakoski.

Meeting Wednesday, the School Board held a closed session with its attorney, Jeanne Kincaid, to discuss the decision and whether to appeal. The Petits’ attorney, Peter Smith of Durham, described it as a long night.

In addressing the board at the meeting, Beth Petit - who recently asserted the lawsuit was never about the money but about the principle of receiving reimbursement for a rightfully covered related service - said she hoped the members would vote to bring the matter to an end.

And, essentially, that’s what they did, voting 4-1 on a motion to not appeal the ruling and to pay the expenses and fees as outlined in a letter Smith had presented to the board specifying the legal and expert fees. The board gave the Petits until March 1 to submit in writing an agreement to resolve the dispute and limit future billings to the school district to the maintenance costs and transportation costs related to the mapping of the implant.

Smith reiterated that the Petits were never in it for more money than they had originally requested.

"From the beginning to the end, my clients have consistently said they have not in the past, or have any intention of asking the district to pay for equipment or any service performed by a physician," Smith said.

"Their entire point was they wanted the school district to recognize they had an obligation to provide through their resources the related service of mapping by an audiologist. The claims never went past the related service of mapping and transportation."

Smith has heard the "Pandora’s box" arguments that this decision is an "opening wedge" to unreasonable claims.

"I’ve heard, ‘The next thing you know, parents will ask for this and that, ask to pay for an insulin pump,’" he said. "Our response to that is, I guess - the most important response is that these parents were honestly seeking to have the district reimburse for a service that is rather modest in costs, to cover transportation and mapping, and that’s all," Smith said.

He also said the school district’s concern that the decision would result in "a parade of horribles" was unrealistic since the special education laws as written already do not permit funding of medical services except for evaluation or diagnostic services.

National attention

This ruling has attracted the attention of school districts and parents of hearing-impaired students nationally, including the Alexander Graham Bell Association for the Deaf and Hard of Hearing, based in Washington, D.C.

The A.G. Bell organization had filed a "friends of the court" brief alongside the Petits’ lawsuit, essentially saying it supported the plaintiffs’ case.

Contacted Thursday in Washington, A.G. Bell attorney Arthur Ackerhalt, who filed the brief, reacted to the ruling.

"We’re very pleased with the result. This is what we advocated for when we filed the friends of the court brief. We believe it’s the correct legal decision. Under the law, such mapping services are something they are entitled to, and to be reimbursed by the school district for a related service is in accordance with federal statute," Ackerhalt said.

As far as the implications of the court decision are concerned, Ackerhalt limited the impact to setting a precedent and clarifying matters for parents in similar situations.

"We don’t believe it opens the door to all sorts of hypothetical awful things ... happening," he said.

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