Federal appellate court rules that mapping of cochlear implants is not a “related service” under IDEA
Petit v. United States Dep’t of Educ., No. 11-5033 (D.C. Cir. Apr. 13, 2012)
Abstract: A three-judge panel of the U.S. Court of Appeals for the District of Columbia (D.C., Tax Ct., Fed. Admin. Agencies) has ruled that mapping of cochlear implants is not a ”related service” under the U.S. Department of Education’s (ED) 2006 implementing regulations of the 2004 Individuals with Disabilities Education Act (IDEA). The panel concluded that IDEA’s 2006 implementing regulations do not substantively lessen the protections that were provided to children with disabilities by the 1983 regulations, ED has interpreted those regulations as not providing cochlear implant mapping, and ED’s interpretation is not plainly erroneous or inconsistent with the regulation.
Facts/Issues: In 2006, ED promulgated regulations to implement the 2004 amendments to IDEA. Among other changes, the 2004 amendments provide that “related services” and “assistive technology services” do “not include a medical device that is surgically implanted, or the replacement of such device.” School districts are not responsible for “selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing” surgically-implanted medical devices. The statutory definition of “related services”, however, does not explicitly address whether school districts must generally provide optimization and maintenance services for surgically-implanted medical devices, such as cochlear implants. However, the 2006 regulations state that school districts are not required to provide “mapping” services, the process of routinely optimizing a cochlear implant to function properly.
The plaintiffs are parents of children who use surgically-implanted cochlear implants, and are eligible to receive services under the IDEA. The children were receiving mapping services up until the time ED’s 2006 final regulations went into effect, after which the children’s school districts stopped providing those services. The plaintiffs’ suit challenges the exclusion of mapping from the regulatory definition of “related services,” and seeks a declaratory judgment, injunctive relief, and reasonable attorney’s fees. In their case, the plaintiffs first argue that the 2006 Mapping Regulations are founded on an impermissible construction of the IDEA statute itself, insofar as they define “related services” to exclude the mapping of cochlear implants. Second, the plaintiffs contend that because ED’s 1983 regulations provided for audiology services (which included mapping), the 2006 Mapping Regulations violate the IDEA. The federal district court rejected their claims and granted summary judgment for ED. The plaintiffs appealed.
Ruling/Rationale: The three-judge panel reached a unanimous decision in the judgment of the matter, affirming the district court’s opinion, with one judge writing a separate concurring opinion.
Standard of Review
This case involves a challenge to federal agency (ED) action that was reviewed by the district court under the Administrative Procedures Act. As such, the panel assessed ED’s interpretation of the IDEA using the two-step Chevron-deference analysis scheme. Under Chevron Step One, if the intent of Congress is clear, the reviewing court must give effect to that unambiguously expressed intent. If Congress has not directly addressed the precise question at issue, the reviewing court proceeds to Chevron Step Two. Under Step Two, if Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are manifestly contrary to the statute.
Where a legislative delegation to an agency on a particular question is implicit rather than explicit, the reviewing court must uphold any reasonable interpretation made by the administrator of that agency. But deference to an agency’s interpretation of its enabling statute is due only when the agency acts pursuant to its delegated authority.
The Provision of Mapping Services
The plaintiffs first argue that mapping of cochlear implants was encompassed by Section 300.113 of the 2006 regulations because that provision states that school districts are responsible for the “[r]outine checking of hearing aids and external components of surgically implanted medical devices.”
The plaintiffs had never previously raised their claim resting on Section 300.113 with either ED, the district court, or in their brief to the panel, and consistent with the case law, the panel deemed the plaintiffs’ claim to have been waived. However, the panel stated that even if this argument was obliquely raised by the plaintiffs, such a claim resting on Section 300.113 is wholly without merit. The panel clearly stated that mapping necessarily falls outside of that section, because that section covers only the routine checking of external components.
The panel stressed that the “record makes absolutely clear that mapping falls within the ambit of ‘post-surgical maintenance [or] programming’” not covered by the provision. The panel also stated that ED has been perfectly clear throughout this case that “mapping a cochlear implant (or paying for the costs associated with mapping) is not routine checking … and should not be the responsibility of a public agency.” “As both parties assumed prior to oral argument, the Regulations categorically excuse school districts from providing mapping as a related service,” and ”Section 300.113 is perfectly consistent with this position.”
The Validity of the 2006 Mapping Regulations
The plaintiffs also claim that the Mapping Regulations are invalid because they are contrary to the plain language of the IDEA. Identifying this as a Chevron Step One claim, the panel had to determine whether the IDEA unambiguously requires school districts to provide for the mapping of cochlear implants as a “related service,” i.e., whether the term “audiology services” under the IDEA unambiguously encompasses mapping. The panel found this to be a close question.
In examining the statutory definition of “audiology services,” the panel found it does not give a clear indication as to whether mapping is a related service. In exhausting the traditional tools of statutory construction, and in rejecting the plaintiffs’ arguments reading certain limtations into the regulations, the panel found that the plaintiffs “have fallen short of demonstrating that ‘audiology services,’ as used in the IDEA, unambiguously encompasses mapping.” Thus, the plaintiffs’ claim cannot prevail under Chevron Step One.
Whether the Mapping Regulations Embody a Permissible Construction of the IDEA
Having determined that the IDEA is ambiguous with respect to whether schools must provide mapping, the panel proceeded to Chevron Step Two to determine “whether the agency’s answer is based on a permissible construction of the statute.” At this step, the panel focused on whether ED has reasonably explained how the permissible interpretation it chose is rationally related to the goals of the statute.
The panel found that ED justified the Mapping Regulations based on a number of related considerations, which the panel found to be rationally related to the goals of IDEA and were supported by the record. First, ED concluded that it was not necessary for schools to provide mapping during the day, on campus, for students to benefit from special education, a point to which the plaintiffs conceded.
Second, ED made the point ”to explain why schools are responsible under section 300.113 for the routine checking of the external components of cochlear implants – i.e., for checking that the device is turned on, that the settings are correct, and that the cable is connected – but not for mapping the implant.” The panel noted that ED “concluded that mapping is distinct from the routine checking of acoustical hearing aids and of the external components of a cochlear implant, both of which can be performed by trained lay persons, teachers, and school nurses.” The panel found that all “[t]hese considerations – expertise and cost – are rationally related to the IDEA’s purpose,” and the regulations are entitled to the panel’s deference.
Whether the Mapping Regulations Lessen Protections Afforded by Previous IDEA Regulations
Lastly, the panel rejected the plaintiffs’ argument that the mapping regulations are invalid because they substantively lessen the protections afforded children with disabilities under ED’s 1983 regulations. Because ED had “never previously interpreted the 1983 regulations with respect to the question of mapping,” the panel concluded it “must give [ED's] interpretation of its own regulation controlling weight unless it is plainly erroneous or inconsistent with the regulation,” which the plaintiffs failed to show.
In her concurring opinion, Circuit Judge Henderson agreed that ED’s exclusion of mapping is a permissible interpretation of the statutory text, however, ”after tracking two regulatory provisions, two exceptions and one exception to the exception,” the judge stated that “it is still unclear whether a school district must provide cochlear implant mapping under the IDEA.” The concurrence called upon ED to “clarify and simplify its regulatory framework” because “[i]t does little to advance the educational goals of the IDEA if [ED] produces regulations that resist efforts to understand them.”
Petit v. United States Dep’t of Educ., No. 11-5033 (D.C. Cir. Apr. 13, 2012)
[Editor's Note: In a 2003 Inquiry & Analysis article titled, Are Biomedical Devices "Related Services" Under The IDEA, available to COSA members, NSBA's Deputy General Counsel Naomi Gittins discussed whether schools are required to pay for devices such as cochlear implants and the mapping that is required to make the device effective.]