Saturday, September 30, 2023
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Deaf Kids’ Hearing Aids Aren’t School Funded

(CN) - A school district's obligation to educate disabled children does not require it to pay for hearing-aid maintenance, the D.C. Circuit ruled.

The plaintiffs in this case are parents of children with severe hearing loss in both ears who have been fitted with cochlear implants.

A cochlear implant is a hearing aid that is surgically implanted and must be periodically "mapped" to function properly. The mapping process optimizes the amount of stimulation that the electrodes provide to the auditory nerve.

States have received federal money to make a free public education available to children with disabilities since the passage of the Individuals with Disability Education Act in 1970. The special education funding can cover "assistive technology devices" and "related services."

Congress amended the law in 2004 to specify that such assistive technology does "not include a medical device that is surgically implanted, or the replacement of such device."

The 2004 amendment firmly established that states need not pay for cochlear implants, but many school districts covered mapping for another two years. In 2006, the U.S. Department of Education clarified that "a public agency is not responsible for the post-surgical maintenance" of a surgically implanted medical device.

Two couples with hard-of-hearing kids then sued the Education Department, arguing that the new regulations substantially lessen the provisions for children with disabilities and violate provisions for "audiology services."

A federal judge sided with the government at summary judgment, and the federal appeals court affirmed last week, albeit on different grounds.

"We are not persuaded by the district court's approach to interpreting the 'related services' provision," Judge Harry Edwards wrote for a three-judge panel.

"The fact that Congress expressly did not intend for schools to provide surgically implanted medical devices as a related service says nothing with respect to whether Congress intended schools to provide the programming and maintenance of those devices as a related service," he added. "In the end, however, we conclude that 'audiology services' as used in the IDEA is ambiguous."

"The 'related services' provision makes clear that school districts are required to provide 'developmental, corrective, and other supportive services' ... only 'as may be required to assist a child with a disability to benefit from special education.' In other words, the services must be related to something - i.e., special instruction and the IDEA's standard of a free appropriate public education," the decision states. "That standard is limited."

Department regulations deserve deference because they are not inconsistent with the IDEA, and the phrase "audiology services," as used in the act, is ambiguous, according to the panel.

"In sum, in promulgating the mapping regulations, the department considered whether mapping was necessary for students to benefit from their education; whether mapping had to be provided during school hours, at a school campus; whether mapping could be provided by laypersons, teachers, and other trained educational professionals; and whether mapping imposed an excessive financial burden on schools," Edwards wrote. "These considerations are rationally related to the purposes of the IDEA. Therefore, the mapping regulations are entitled to our deference."

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