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November 26, 2004

Law: Schools needn't pay for implant upkeep

From: Portsmouth Herald News - Portsmouth,NH,USA - Nov 26, 2004

By Emily Aronson

STRATHAM - In a move that will affect public schools across the country, federal lawmakers have spelled out that school districts dont have to pay for the upkeep of surgically implanted devices used by disabled students.

An amendment to the Individuals with Disabilities Education Act that was passed last week by Congress specifies that surgically implanted medical devices are not considered to be "assistive technology," which means schools do not have to pay to service the devices, according to a statement released on Wednesday by attorney Jeanne Kincaid.

"These elective surgeries carry with them follow-up and maintenance costs that are the responsibility of the families and their insurers, rather than the public school system," Kincaid said in the statement.

This clarification came as a result of a legal dispute between the Stratham School District, represented by Kincaid, and a 6-year-old deaf student who uses a cochlear implant to hear.

In February 2003, federal court in New Hampshire ruled that the intention behind the Individuals with Disabilities Education Act was that schools would pay for programming the cochlear implant. When the original IDEA was passed, devices such as cochlear implants hadnt been invented and the law didnt include provisions for addressing future technological advancements.

Kincaid said the ruling will have no effect on the requirement that schools provide accommodations and services for disabled students who use special medical devices.

"Congress did nothing to the IDEA to undercut its primary function ... to put (disabled children) on equal par with non-disabled students," she said.

School Board Chairman Bob OSullivan said he was glad the matter was settled by Congress instead of through further litigation. The case has already cost the district $100,000 in legal fees, he said.

With the help of U.S. Sen. Judd Gregg, chairman of the Senate Education Committee, the district was able to get Congress to amend IDEA to address recent medical advancements.

"We were not trying to be ogres about this. We were simply asking for clarification," said OSullivan.

When the dispute first arose, OSullivan said the board was worried that paying for the implant would set a precedent since the law didnt explicitly say that schools must pay for the device.

Prosthetic devices like cochlear implants require specialized and continued maintenance, which winds up being very costly, said OSullivan.

"Not only are we responsible for children with various medical needs, were also responsible for taxpayers money," he explained.

He added, however, that if Congress had required that schools subsidize disabled students medical costs, the district would have followed the ruling.

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