Stratham School v. Beth & David P. CV-02-135-JD 02/05/03 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Stratham School District

v. Civil No. 02-135-JD Opinion No.

Beth and David P.

O R D E R

Stratham School District brings an action under the

Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.

1415(i)(2), challenging the decision of the New Hampshire

Department of Education issued on February 19, 2002.1 In that

decision, the Department concluded that Stratham School District

("District") is responsible under the IDEA for costs incurred fo

cochlear implant "mapping" and ordered the District to reimburse

the parents for travel to and from the audiologist and to pay fo

"mapping" services provided by the audiologist.2 The District

appeals the decision, arguing that cochlear implant mapping is

not a "related service" within the meaning of the IDEA.

1The hearing officer's decision is the decision of the New Hampshire Department of Education. See

-C:16-a & 16-b.

2Cochlear implant mapping refers to the programming necessary to make the system work. Background3

This case involves services for Hunter P., and was brought

on his behalf by his parents, Beth and David. Hunter was born on

July 30, 1996, and lives with his family in Stratham, New

Hampshire. Hunter has had a profound hearing loss in both ears

since birth and is, therefore, deaf. His parents and two

brothers have normal hearing and communicate through oral speech.

In September of 1997, Hunter was fitted with acoustical

hearing aids. Although the District apparently disputes this,

the hearing officer found that during the year Hunter used the

hearing aids it became apparent that he was not obtaining any

benefit from them due to his profound hearing loss. His parents

then decided that they wanted Hunter to use an auditory and oral

system for communication.

As a result of examinations. Hunter was found to be an

appropriate candidate for a cochlear implant. With advice from

Dr. Glen Johnson, Hunter's parents chose a Clarion cochlear

3Counsel were unable to comply with Local Rule 9.3(d) due to their personal dislike for each other. See Report and Recommendation at 4, Dec. 20, 2002. Although the magistrate judge concluded that sanctions were not appropriate, he detailed the history of the difficulties that counsel had with each other. When personality conflicts are allowed to interfere with the progress of a case, there is a disservice done to the litigants and the court. As a result, the court is left to construct background facts from the "redlined" factual submissions submitted by counsel for each side.

2 implant device manufactured by Advanced Bionics Corporation. Dr.

Johnson performed the surgery on March 3, 1999, to implant the

internal components of the device: a receiver-stimulator in

Hunter's skull under his scalp and an electrode array in the

cochlea of his right ear.

Six weeks after the surgery. Hunter met with Suzanne Lenz, a

clinical audiologist at Dartmouth-Hitchcock Clinic in Lebanon,

New Hampshire. Lenz fitted Hunter with the external components

of the device, which are a headpiece with a microphone and radio

freguency transmitter, placed behind his right ear, a speech

processor, and a cable connecting the headpiece to the speech

processor. The speech processor is carried in a pouch fastened

to Hunter's clothing. Once the external components were fitted,

Lenz activated and programmed the speech processor.

Although the District apparently disputes the number of

appointments, the hearing officer found that Hunter has had

seventeen subseguent appointments with Lenz and two appointments

with audiologist Linda Strojny. Lenz and Strojny are

audiologists, not physicians, who have experience with cochlear

implants.

As noted above, programming the speech processor is called

"mapping." Proper mapping is essential to the use of a cochlear

implant. Particularly in the case of a child, mapping must be

3 done accurately to permit adequate language development.

Improper mapping or improperly functioning equipment will have a

negative effect on an implanted child's education. Only a

specially trained audiologist can perform mapping. A speech

language pathologist works closely with the audiologist for

mapping, but a pathologist cannot map the device.

To begin the mapping process, a specially trained

audiologist chooses a coding strategy, which is a plan for the

electrical stimulation of the electrodes implanted in the

cochlea. The audiologist then connects the speech processor to a

computer and uses the coding strategy to create a map for the

pattern and intensity of the electrical current to the electrodes

in order to create sound sensations. The goal is to determine

the amount of electrical current that will provide a comfortable

level of sound sensation. The speech processor may have three

maps to accommodate different listening environments. The

audiologist determines the mapping needs of each user based in

part on information provided by the user's family and school

staff. The speech processor has controls for volume and

microphone sensitivity.

In May of 1999, the District identified Hunter as being

eligible for special education services, under Part B of the

IDEA, because of his deafness. Hunter attended a three-week

4 summer program in Manchester, New Hampshire, called HEAR in New

Hampshire ("HNH"), which is directed by Michael Moon. The

District then placed Hunter at HNH, now located in Hooksett, New

Hampshire, for the school years from 1999 through 2001. When

Hunter began the program at HNH he had no spoken language and

responded in very limited ways to oral and auditory

communications.

At present. Hunter attends HNH in the morning, and four

afternoons each week he attends a special education preschool

program at Stratham Memorial School. Hunter's Individualized

Education Program ("IEP") provides for five hours per week of

speech therapy and three hours per week of service from a teacher

of the acoustically handicapped at HNH. Hunter's IEP includes

objectives based on his use of the cochlear implant and assumes

that he will learn to hear. If his mode of communication

changed, his IEP would also change.

The HNH staff check the cochlear implant eguipment each day

to be sure that it is functioning by asking the child to indicate

whether he can detect ten different sounds. If the eguipment

appears to be functioning but Hunter's responses are not what the

staff would expect, they refer him to the audiologist, Suzanne

Lenz, to perform further checks. Although the HNH staff can

choose among the three maps provided on Hunter's speech

5 processor, the HNH staff is not qualified to perform mapping.

Beginning in April of 2000, Beth P. began seeking

reimbursement from the District for mileage used to drive Hunter

to audiology appointments for mapping the speech processor. The

District decided that the trips for mapping were not covered by

the IDEA and, therefore, that the District was not obligated to

reimburse for mileage. In February of 2001, Beth P. requested

reimbursement for the insurance co-payments of $10 she was

charged for each mapping appointment beginning on November 15,

1999. The District refused to reimburse Hunter's parents for the

co-payments.

Beth P. and David P. initiated a due process hearing on

their requests for mileage and reimbursement for co-payments.

The hearing was held before Hearing Officer John LeBrun,

appointed by the New Hampshire Department of Education, on

November 1 and 2 and December 7 and 11, 2001. Hunter's parents

presented testimony from Donald K. Eddington, Director of the

Cochlea Implant Research Laboratory at the Massachusetts Eye and

Ear Infirmary; Michael Moon, Director of HNH; Beth P., Hunter's

mother; Ronnie Sue Duby, a parent of another child at HNH, and

Linda Strojny, audiologist, who is employed by Advanced Bionics

Corporation, the maker of Hunter's implant device. The District

presented testimony from Marilyn Neault, Director of Audiology

6 Services at Boston Children's Hospital; Ann Bednar, a deaf

education consultant; Dorothy Eisenhaure, a speech language

pathologist; Patricia Willis, Director of Special Education for

the supervisory administrative unit that includes the District;

and Margaret Driscoll, Co-Director of Special Services for the

District.

Following the hearing. Hearing Officer LeBrun issued a

decision in which he presented the issues as follows:

First, the parents take the position that the audiologist should be identified in Hunter's IEP as a Related Service. The District believes it is not necessary to include the audiologist as a Related Service. Secondly, the parents reguest reimbursement for their transportation expenses for visits to the audiologist from their home in Stratham to and from the office in Lebanon, New Hampshire. Finally, the parents believe they should be reimbursed for the portion of the audiologist expenses that are not covered by insurance (i.e. the co-pays).

Decision at 2. The hearing officer further explained that the

District believed that the IDEA does not cover cochlear implant

services because a cochlear implant is not an acoustical hearing

aid and is not included specifically in the IDEA or its

regulations and because cochlear implant mapping is a medical

service not covered by the IDEA. The hearing officer concluded

that the mapping services are a necessary related service under

the IDEA and that the audiology services provided by Suzanne Lenz

were related services for Hunter's IEP. The District was ordered

7 to reimburse Hunter's parents for mileage for the trips to Lenz's

office and for insurance co-payments for the mapping services.

Discussion

The standard of review in an IDEA case depends on whether

the issue on appeal presents a guestion of fact or law. A

hearing officer's factual findings are reviewed under an

intermediate standard which "'reguires a more critical appraisal

of the agency determination than clear-error review entails, but

which, nevertheless, falls well short of complete de novo

review.'" Rafferty v. Cranston Pub. Sch. Comm.,

(1st Cir. 2002) (guoting Lenn v. Portland Sch. Comm.,

(1st Cir. 1993)). In contrast, a purely legal

guestion is reviewed de novo. See Manchester Sch. Dist. v.

Crisman,

(1st Cir. 2002). The burden of proof

rests with the party challenging the agency decision, which is

the District in this case. See Hampton Sch. Dist. v.

Dobrowolski,

(1st Cir. 1992) .

The IDEA "was enacted, in part, 'to assure that all children

with disabilities have available to them . . . a free appropriate

public education which emphasizes special education and related

services designed to meet their unigue needs.'" Cedar Rapids

Cmtv. Sch. Dist. v. Garret F.,

(1999) (guoting

(d) (1) (A) (formerly § 1400 (c))) . Participating

states, such as New Hampshire, receive federal financial

assistance for IDEA mandated services. See id.; see also Murphy

v. Timberlane Reg'1 Sch. Dist.,

, 1188 at n.2 (1st

Cir. 1994). States that receive federal aid under the IDEA are

obligated to provide special education and related services as

defined by the Act. See Rome Sch. Comm, v. Mrs. B.,

(1st Cir. 2001); see also Irving Indep. Sch. Dist. v. Tatro,

, 891 n.8 (1984) (construing predecessor to IDEA,

Education of the Handicapped Act). A gualified child's unigue

needs are addressed by an IEP. See

(d); see also

Bd. of Educ. v. Rowley,

(1982).

Although the District contends that the hearing officer's

decision is wrong under both the IDEA and state law, the District

focuses primarily on the IDEA and does not argue that New

Hampshire would provide a different standard. Therefore, the

court will not separately address the issue under New Hampshire

law. In the complaint, the District frames the issues to be

decided in terms of four errors by the hearing officer.4 In its

4First, the District contends that the hearing officer erred in granting the parents' proposed ruling of law that the child's IEP team is obligated to respect the parents' decision as to the child's mode of communication and ensure that the IEP is consistent with that mode of communication, citing

(d)(3)(B)(iv) and

(a)(2)(iv). Second, the decision memorandum, the District consolidates its claims into a

single issue to be decided on appeal: whether the New Hampshire

Department of Education erred as a matter of law in determining,

through the hearing officer's decision, that "mapping" for a

cochlear implant constitutes "related services" under the IDEA,

which obligates the District to pay for travel and insurance co­

payments for audiologist appointments.

The term "related services" is defined in the IDEA to mean

"transportation, and such developmental, corrective, and other

supportive services (including speech-language pathology and

audiology services, . ..) as may be reguired to assist a child

with a disability to benefit from special education

§ 1401(22). In the context of related services, "[a]udiology

includes," in relevant part, "[p]revision of habilitative

activities, such as language habilitation, auditory training,

speech reading (lip-reading), hearing evaluation, and speech

District contends that the hearing officer erred by concluding that cochlear implant mapping is a related service under the IDEA, citing § 1401(22). Third, the District defines the cochlear implant as a "sensory organ" and contends that the hearing officer erred in finding the District obligated to program a child's sensory organ "irrespective of the sociological, privacy, family and liability concerns attendant thereto." Fourth, the District contends that the hearing officer erred in concluding that because Hunter's IEP was designed around the cochlear implant, the District was obligated to ensure that the implant worked outside of the school setting.

10 conservation."

(b) (1) (iii) . The word

"includes," as used in the regulations interpreting the IDEA,

means that "the items named are not all of the possible items

that are covered, whether like or unlike the ones named."5

.

Although mapping for cochlear implants is not included

within the enumerated audiology services provided in the statute

and regulations, § 300.14 broadens the scope of the definition of

audiology beyond the enumerated examples. As described in this

case, the mapping process is the system that allows the cochlear

implant to provide usable sound sensation to Hunter. The mapping

process is performed by trained audiologists. Absent a clear

indication that such audiology services were not intended to be

included within "related services," the definition would appear

to encompass the mapping process.6

The only reported decision to have considered similar

51he regulations address the responsibility of schools to ensure that children's hearing aids are functioning properly, see

, but cochlear implants are not mentioned in the regulations. The parties agree that a cochlear implant is not an acoustical hearing aid.

61he District's argument that Congress could have included mapping as a covered audiology service, along with the specific provision for acoustical hearing aids, and therefore its absence shows Congressional intent not to include mapping, is not persuasive.

11 circumstances is Bd. of Educ. of Paxton-Bucklev-Loda v. Jeff S.,

(C.D. 111. 2002). In that case, the

child, who had a cochlear implant, was receiving auditory verbal

therapy ("AVI") which included mapping his implant system.

. The child's parents challenged the District's failure

to comply with IDEA procedures, the District's placement of the

child, the District's failure to provide supportive services for

the child's implant, and failure to pay for the child's private

school placement.

. The district court affirmed

the hearing officer's decision ordering the District to provide

AVT to the child and to pay the costs of the AVT services.

at 801-03 & 804.

The court did not address the guestion of whether AVT and

mapping services for a cochlear implant were "related services"

within the meaning of the IDEA. Instead, the issue addressed in

Jeff S. was whether the AVT system provided the child a free

appropriate public education, as reguired by the IDEA, and

whether the evidence supported the hearing officer's decision.

The court concluded that the District must provide and pay the

costs of the child's AVT services, as determined by the child's

therapists, but that after an appropriate IEP was developed, the

District would also have recourse to a due process hearing if it

disagreed with the services recommended.

. As such,

12 it appears that the parties never disputed that such services

would be included within "related services" under the IDEA.

In contrast, here the IEP developed for Hunter is designed

to use his cochlear implant as his method of communication, and

his parents and the District do not contest the adequacy of the

IEP. The District contends, however, that mapping is not a

related service under the IDEA because other communication

methods are possible, and might be determined to be more

appropriate for Hunter. In that case, the District contends.

Hunter's IEP team would design a program to address his needs

with a different mode of communication.

The IDEA requires a school district to provide "such

services as are necessary to permit the child to benefit from the

instruction." Rowley,

. Stated in other terms, a

school district is required to provide supportive services that

permit a disabled child to have meaningful access to education.

See Garret F .,

. The educational method to be used

in each case is left "to state and local educational agencies in

cooperation with the parents or guardians of the child." Rowley,

. The IEP provides the mechanism for determining

the appropriate educational method and goals to achieve a free

appropriate public education and requires that the parents be

included in the process along with teachers and a representative

13 of a local educational agency with special knowledge about the

needs of children with disabilities. § 1414(d); see also Shapiro

v. Paradise Valiev Unified Sch. Dist. No. 69,

(9th

Cir. Jan. 29, 2003) (discussing IEP process for child with

cochlear implant).

There is no dispute that, at present. Hunter's mode of

communication involves the use of his cochlear implant and that

the cochlear implant must be mapped for him to benefit from the

instruction provided by the District. Hunter's IEP is based on

his current mode of communication through his cochlear implant.

The IEP, therefore, confirms that the educational methodology

chosen for Hunter includes the use of the cochlear implant as a

necessary part of the free appropriate public education provided

to him. Under these circumstances, the mapping services

necessary for the use of Hunter's cochlear implant are "related

services" within the meaning of the IDEA.

Conclusion

For the foregoing reasons, the decision of the New Hampshire

Department of Education is affirmed.7 The plaintiff's motion for

7Because the issue presented on appeal is a legal guestion, subject to de novo review, the court does not address the individual findings and rulings issued by the hearing officer.

14 oral argument (doc. no. 28) is denied. The clerk of court will

enter judgment accordingly and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

February 5, 2003

cc: Jeanne M. Kincaid, Esguire Peter S. Smith, Esguire Arthur H. Ackerhalt, Esguire

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