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Cochlear Implant Mapping and the IDEA

Illustration of a Cochlear Implant from National Institutes of HealthAs an attorney with a hearing impairment, I read Petit v. United States Department of Education with great interest. Last week, the US Court of Appeals for the District of Columbia held that the Department of Education’s 2006 regulations, which excluded cochlear implant mapping from the scope of “related services,” was valid and consistent with the Individuals with Disabilities in Education Act (“IDEA”) as amended in 2004.

For those of you who don’t know what “cochlear implants” are, what is meant by “mapping,” and what “related services” mean — a brief explanation is in order.

A cochlear implant is a type of hearing aid that consists of two parts: an internal device that is surgically implanted inside the cochlea, and an external device that looks like a hearing aid. Individuals with severe and profound hearing loss may benefit more from cochlear implants as they are more powerful than even the most powerful hearing aid. Cochlear implants are surgically implanted by head and neck surgeons, typically otolaryngologists, who have expertise in cochlear implantation.

To understand exactly how cochlear implants work, the following video gives a good introduction.

When an individual is a recipient of a cochlear implant, it is important that the implant be “mapped,” or programmed, periodically so that the implants stimulate the electrodes inside the cochlea appropriately, so that the individual wearing the cochlear implant can hear sounds that are as realistic as possible. The mapping, or programming, are done by audiologists who have training and experience working with cochlear implant programming.

And “related services”? That is a concept found in the IDEA, a federal law that guarantees children with disabilities a Free and Appropriate Education. The federal regulations provide clear definition and guidance:

Related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also include school health services and school nurse services, social work services in schools, and parent counseling and training. 34 CFR §300.34.

If you continue to read the regulations, you’ll more specifics about many of the related services that the IDEA guarantees to children with disabilities. Audiology, for example, is clearly defined in the regulations:

(1) Audiology includes—

(i) Identification of children with hearing loss;

(ii) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing;

(iii) Provision of habilitative activities, such as language habilitation, auditory training, speech reading (lip-reading), hearing evaluation, and speech conservation;

(iv) Creation and administration of programs for prevention of hearing loss;

(v) Counseling and guidance of children, parents, and teachers regarding hearing loss; and

(vi) Determination of children’s needs for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification. 34 CFR §300.113(c)(1)

In 2004, the IDEA was amended and excluded as a related service any medical device that has been surgically implanted. 20 U.S.C. § 1401(26).

However, the amended IDEA does not explicitly address whether school districts must provide “optimization” and “maintenance” services for surgically implanted devices. Cochlear implant mapping is a kind of “optimization” and “maintenance” service.

In 2006, the Department of Education implemented new regulations and provided clarification relating to cochlear implants:

Related services do not include a medical device that is surgically implanted, the optimization of  that device’s functioning (e.g., mapping), maintenance of that device, or the replacement of that device. 34 CFR §300.34(b)(1) (emphasis mine).

And again further down in the regulations:

For a child with a surgically implanted medical device who is receiving special education and related services under this part, a public agency is not responsible for the post-surgical maintenance, programming, or replacement of the medical device that has been surgically implanted (or of an external component of the surgically implanted medical device). 34 CFR §300.113(b)(1) (emphasis mine).

All of this means that under the implementing “Mapping Regulations,” public schools are no longer required to pay for the costs of mapping.

Petit v. United States Department of Education involved two couples with hard-of-hearing children who were recipients of cochlear implants. These children required periodic mapping, which the school districts had agreed to pay for a number of years prior to 2006 because during that time there was case law in favor of mapping as a related service. But when the Department of Education issued the new “Mapping Regulations” in 2006 that excluded mapping from the scope of “related services,” the school districts in D.C. refused to continue to pay for the cost of additional mappings.

The parents filed suit. In essence, the parents argued that the Department of Education’s 2006 “Mapping Regulations” violated the IDEA.

The District Court for the District of Columbia ruled in favor of the school district and granted summary judgment. When the parents appealed to the US Court of Appeals for the District of Columbia, the parents lost again.

In its opinion, the appellate court made it clear that the issue was whether the 2006 “Mapping Regulations” were valid. Without delving into precisely how it reached its conclusion (which would bore most lay readers), the appellate court determined that the 2006 Mapping Regulations were valid.

While the appellate court’s decision is binding only on the District of Columbia, courts in other jurisdictions will find it extremely persuasive. I predict that if a case based on similar facts is litigated in another circuit in the future, the court will take a long and hard look at Petit.

Notwithstanding the outcome of Petit, school districts still have certain obligations to children who have cochlear implants. These obligations should not be overlooked. The US Department of Education explained some of these obligations:

Teachers and related services providers can be taught to first check the externally worn speech processor to make sure it is turned on, the volume and sensitivity settings are correct, and the cable is connected, in much the same manner as they are taught to make sure a hearing aid is properly functioning. To allow a child to sit in a classroom when the child’s hearing aid or cochlear implant is not functioning is to effectively exclude the child from receiving an appropriate education. (71 Fed. Reg. at 46570-1)

While school districts are not responsible for the costs of cochlear implantation or mapping, several insurance policies cover cochlear implant surgery and mapping if they are “medically necessary.” Such policies benefit children with severe and profound hearing loss if parents choose the cochlear implant option for their children. Parents may wish to review their insurance policy or contact their insurance company to discuss their options. Adults who are hearing impaired may also benefit from cochlear implants as well.

It is important to note that the Petit decision does not affect the right of deaf and hearing impaired children to receive certain special education services under the IDEA, such as speech therapy, sign language interpreters, and CART (Computer Assisted Real Time Captioning).

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