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Beth Petit, et al v. U.S. Department of Education

December 21, 2010

BETH PETIT, ET AL., PLAINTIFFS,
v.
U.S. DEPARTMENT OF EDUCATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos.: 26, 27

MEMORANDUM OPINION

GRANTING THE DEFENDANTS'MOTION FOR SUMMARY JUDGMENT ON THE IDEACLAIM;

DENYING THE PLAINTIFFS'CROSS-MOTION FOR SUMMARY JUDGMENT ON THE IDEACLAIM

I. INTRODUCTION

This matter concerns a regulation promulgated by the U.S. Department of Education ("the Department") that excludes cochlear implant mapping as a service covered under the Individuals with Disabilities Education Act ("the IDEA" or "the Act"), 20 U.S.C. §§ 1400 et seq.The plaintiffs, parents of children with cochlear implants, argue that the regulation violates the IDEA and the Administrative Procedure Act ("APA"). The court, having already granted the defendant's motion for summary judgment with regard to the plaintiffs' APA claim, now turns to the parties' cross motions for summary judgment on the remaining IDEA claim. For the reasons discussed below, the court grants the defendants' motion for summary judgment and denies the plaintiffs' cross-motion for summary judgment on the plaintiffs' IDEA claim.

II. BACKGROUND

A. Legal & Factual Background*fn1

The IDEA entitles children with disabilities to special education and "related services" that are "designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. §§ 1400(d)(1)(A), 1414(d). The IDEA defines "related services" to include such developmental, corrective, and other supportive services (including . . . audiology services . . . and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.

20 U.S.C. § 1401(26)(A). In 2004, Congress amended the IDEA to state that "[t]he term [related services] does not include a medical device that is surgically implanted, or the replacement of such device." 20 U.S.C. § 1401(26)(B) (the "medical device exception").

Cochlear implants are surgically implanted hearing aids that are "significantly more complex than the traditional acoustical hearing aid. Unlike an acoustical hearing aid, which amplifies sound, a cochlear implant converts sound into electrical stimuli that are delivered directly into the cochlea -- bypassing the outer ear completely." Compl. ¶ 18. Each implant has an external and an internal component. Id. ¶ 19. The external component consists of a microphone, speech processor and transmitter system. Id. The microphone, worn at ear level, detects sounds from the environment. Id. The pager-size speech processor then converts the sound detected by the microphone into electrical signals and then, with the help of the transmitter system, transmits the electrical signals to the internal component. Id.; Defs.' Supplemental Mem. in Support of their Mot. to Dismiss or Alternatively, for Summ. J. ("Defs.' Suppl. Mem.") at 8. The internal component is a surgically implanted receiver connected to electrodes; the receiver "takes the radio waves from the transmitter system and stimulates the selected electrodes so that the brain receives" audio signals. Compl. ¶ 20.

A properly functioning cochlear implant stimulates the auditory nerve in a manner that allows the brain to process the electrical stimuli. Id. ¶ 21. A process known as "mapping" allows an audiologist to optimize the amount of stimulation to the auditory nerve. Id. ¶¶ 21-22. Mapping requires that an audiologist connect the child's external speech processor to a computer that utilizes special software to measure a child's response to electrical stimulation. Id. ¶ 22. The software measures the characteristics of the implanted electrodes and adjusts "the parameters controlling the stimuli that will be delivered to the electrodes" within the implant. Id. The first mapping session typically takes place after the receiver is surgically implanted; the implant is then calibrated to the child's unique needs through subsequent mapping sessions. Pls.' Cross-Mot. for Summ. J. & Opp'n to Defs.' Mot. to Dismiss or Alternatively, for Summ. J. ("Pls.' Cross-Mot.") at 5-6; Defs.' Mot. to Dismiss or Alternatively, for Summ. J. ("Defs.' Mot.") at 9.

After receiving numerous comments requesting clarification as to whether the IDEA covered cochlear implant mapping as a "related service," Defs.' Supplemental Resp. Mem. ("Defs.' Resp. Mem.") at 9; see also 71 Fed. Reg. at 46,569 (Aug. 14, 2006), the Secretary of Education ("the Secretary") promulgated a regulation on August 14, 2006 specifying that "[r]elated services do not include . . . the optimization of [a surgically implanted] device's functioning (e.g., mapping)." 34 C.F.R. ยง 300.34(b)(1) ("the 2006 regulation"). The 2006 regulation states that ...


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