Should Schools Pay for Maintenance of Students' Cochlear Implants?

Editor: I think this is a rather interesting question, and one that has good arguments on both sides (as this article demonstrates). There are actually two articles in this story; they were printed a few days apart in the Portsmouth (NH) Herald and are reprinted here with permission.

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November 26, 2004 Article
Law: Schools needn't pay for implant upkeep
By Emily Aronson

STRATHAM - In a move that will affect public schools across the country, federal lawmakers have spelled out that school districts don't 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 hadn't been invented and the law didn't 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 O'Sullivan 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 O' Sullivan.

When the dispute first arose, O'Sullivan said the board was worried that paying for the implant would set a precedent since the law didn't 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 O'Sullivan.

"Not only are we responsible for children with various medical needs, we're 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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November 30, 2004 Article
Lawyer's 'fact' was only opinion
By Shir Haberman

PORTSMOUTH - The attorney for the Stratham School District admits it was her own legal opinion she expressed in a press release issued last week, not a statement of fact.

In fact, attorney Jeanne Kincaid, of the law firm of Bernstein, Shur, Sawyer & Nelson in Portland, Maine, said she expects the courts again to be involved in the issue of whether school districts are responsible for maintenance of devices that are implanted in students that would enhance their ability to learn.
"I am positive that someone will litigate this somewhere again," Kincaid said.

In the release, Kincaid said amendments to the Individuals with Disabilities Education Act made by New Hampshire Sen. Judd Gregg "effectively overrule the Stratham School District v. Hunter P. ruling." That ruling, made in February 2003, said that, under federal special-education laws, the school district was required to cover the costs associated with programming, or "mapping," the cochlear implant Hunter Petit was given in March 1999, when he was 32 months old.

"In my opinion, it is not covered," Kincaid said Monday, but she admitted, "there are two ways of looking at it."

However, Peter Smith, a Durham lawyer who represented Hunter's parents, David and Beth Petit, in the case against the Stratham School District, said Kincaid's press release contained a "gross factual error."

He contended the reauthorized IDEA now requires school districts to pay the costs of programming cochlear implants, as well as the transportation costs incurred in getting the student to the location where the maintenance and programming are done.

Smith said that an early amendment by Gregg did, in fact, preclude school districts from paying these costs, but ultimately Gregg changed the wording of the amendment, and the amended version of the bill passed the U.S. House and Senate Nov. 19.

Kincaid predicted the IDEA changes would have broad impact across the nation because it marked the first time that these types of devices are specifically addressed. However, Smith contended the only thing the amendments do is make clear that school districts are not responsible for the cost of implanting these kinds of devices, something neither he nor the Petits have contested.

In fact, all the Petits had originally requested of the Stratham School District was reimbursement for the costs incurred in bringing Hunter to Dartmouth Medical Center in Lebanon for adjustments to his implant.

"We asked the school district to pay transportation costs for Hunter to see the only audiologist in the state who could program his implant," Smith said. "This became a feud over a principle. There was never a lot of money involved."

The Stratham School District ended up paying approximately $100,000 in legal fees in an attempt to keep from paying the Petits approximately $1,200 in transportation costs, Smith said. Both the New Hampshire Board of Education and a state superior court judge ruled in favor of the Petits, and the district ultimately had to pay. The final IDEA reauthorization bill is expected to be signed by President Bush within the next few weeks; however, Kincaid stands by her opinion and believes the next time this issue comes up, a court will side with her based on the amendments passed two weeks ago.