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Appeals Court Upholds Education Dept. IDEA Rules on Cochlear Implants

A federal appeals court has upheld U.S. Department of Education regulations that interpret the main special education law as not covering a process for optimizing cochlear implants used by deaf children.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, in Washington, unanimously upheld the 2006 regulations interpreting the 2004 renewal of the Individuals with Disabilities Education Act. One judge said in a concurrence, though, that the Education Department's rule regarding cochlear implant "mapping" is "troubling" and "far from satisfactory."

Such mapping involves periodic calibration of a cochlear implant so that a person with profound hearing loss may continue to receive and understand auditory signals.

The 2004 version of the IDEA includes language that the terms "related services" and "assistive technology devices" do not cover surgically implanted devices such as cochlear implants. The act says states or school districts are not responsible for "selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing" surgically implanted medical devices. However, the statutory definition of "related services" did not address whether states must generally provide optimization and maintenance services for such surgically implanted devices.

In its 2006 regulations interpreting the 2004 version of the IDEA, the Education Department amended the regulatory definition of "related services" to exclude "a medical device that is surgically implanted, the optimization of that device's functioning (e.g., mapping), maintenance of that device, [and] the replacement of that device."

The regulations did impose some obligations on school districts with respect to cochlear implants, such as requiring them to ensure that the external components of such devices are working properly.

The regulations were challenged by two families with children using cochlear implants whose school districts stopped covering the costs of "mapping" services after the rules came out. Their suit claims the regulations do not comport with the statute.

The families lost in a federal district court and before the D.C. Circuit court panel. In its April 13 decision in Petit v. U.S. Department of Education, the appeals court held that the department's mapping rules do not violate the plain language of the IDEA.

Judge Harry T. Edwards, in the main opinion, said it was a "close question," but "we nonetheless think that [the families] have fallen short of demonstrating that 'audiology services,' as used in the IDEA, unambiguously encompasses mapping."

The court also said the Education Department's interpretation was a reasonable one, and that its justifications for the regulation were rationally related to the goals of the IDEA. For example, the mapping process requires a high level of training and thus "is distinct from the routine checking of acoustical hearing aids and of the external components of a cochlear implant, both of which can be performed by trained lay persons, teachers, and school nurses."

The court added that "the mapping regulations are entitled to our deference."

Judge Karen LeCraft Henderson, in her concurrence, said she agreed the statute was ambiguous and that the department's interpretation was permissible.

"The Congress enacted IDEA ... to ensure that all children with disabilities are provided a free appropriate public education designed to meet their unique needs, not only those children with disabilities that are more easily or cheaply corrected," Henderson said. "While I cannot say that the mapping regulations are ultra vires (beyond the powers) in light of the deference we are duty-bound to afford them, they do not, in my opinion, correctly and fairly implement the IDEA."

[Hat Tip to NSBA's Legal Clips for bringing this decision to my attention.]

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