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December 1, 2004

Editorial: Changes in law fail to solve issue of implantable devices

From: Portsmouth Herald News - Portsmouth,NH,USA - Dec 1, 2004


Despite changes made by Congress to the Individuals with Disabilities Education Act (IDEA) two weeks ago, it appears the issues that led to a conflict between the parents of a Stratham student and the towns School Board remain unresolved. For the time being, the only ones who will benefit from these changes, some of which were proposed by New Hampshire Sen. Judd Gregg, will be the lawyers.

David and Beth Petit had sued the board after their son, Hunter, 32 months old at the time, received a cochlear implant - a mechanical device that when placed in the inner ear allows a formerly profoundly deaf person to hear. The Petits had asked the board to reimburse them for the costs of transporting Hunter to Dartmouth Medical Center, about 100 miles away, where the only audiologist in the state trained to map, or program, Hunters implant was located.

Unbelievably, the board refused to reimburse the Petits for the measly amount involved, claiming, through its attorney, Jeanne Kincaid of Portland, Maine, that those expenses were not covered under the IDEA. Board members said if they allowed these kinds of expenses there would be no ceiling on what taxpayers could be forced to pay as medical technology advances.

However, a hearing officer for the New Hampshire Department of Education and a federal judge both ruled against the board, which had already spent approximately $100,000 in legal costs associated with the case. The district was forced to pay the Petits the $1,200 they had spent in travel costs.

Kincaid and the board took credit for approaching Sen. Gregg and asking him to amend the federal law in a way that would have overturned those rulings. Initially, Gregg agreed, but in the end his amendment better reflected the need for districts to pay the costs of transportation and audiological services while maintaining that taxpayers are not responsible for the costs involved in securing and implanting these kinds of devices.

At least thats what the attorney for the Petit family contends. Kincaid claims that the IDEA amendments support the position taken by the Stratham School District.

Her argument is: Why should a school district be forced to pay for maintenance of a device it was not responsible for paying for in the first place? The truth is that the changes made to the federal law dont address that question specifically.

So there are really three issues involved here. The first is whether the Stratham School District appropriately spent tens of thousands of taxpayer dollars to litigate a case that ultimately cost the district only $1,200. The second is, How was a U.S. senator influenced to amend a major piece of federal legislation based on one case in Stratham?

But the most important question, it appears, is why the entire U.S. House and Senate couldnt come up with a solution to this issue that would preclude future litigation. That question may very well lie at the heart of why health-care costs are escalating at a rate far exceeding the ability of many people to pay them.

- Portsmouth Herald

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