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New law may impact case of Stratham deaf student
New law may impact case of Stratham deaf student

Portsmouth Bureau Chief

STRATHAM — Whether or not the school district should be responsible for reimbursing audiological expenses for a parent’s deaf son could be headed back to court, with the interpretation of a new disabilities law at stake.

Attorney Peter Smith of Durham represents Beth and David Petit, whose 8-year-old deaf son, Hunter, hears with the help of a cochlear implant, a device surgically implanted in the boy’s ear in 1999. The device allows sound to bypass the part of the ear that causes deafness and send an electric current to the other side of the inner ear. These electrical signals create the sensation of hearing.

The parents sued the Stratham School District in 2002 because the school would not reimburse them for mileage expenses and co-payments for audiological services related to adjusting the cochlear implant. In February 2003, Judge Joseph DiClerico ruled in favor of the parents and the School District declined to appeal.

Representing the school district, Attorney Jeanne Kincaid of Bernstein, Shur, Sawyer & Nelson, is now saying receiving a cochlear implant is elective surgery and a school district "shouldn’t be responsible for maintaining an implanted device you elected to have for your child."

Kincaid said she is "pretty confident" the matter would be litigated again, adding she was not speaking on behalf of Stratham.

Smith said he felt the need to respond to a press release by Kincaid stating the law firm had successfully lobbied U.S. Sen. Judd Gregg, R-N.H., to change the Individuals with Disabilities Education Act so services related to the maintenance of cochlear implants would not have to be paid for by school districts.

"That release is completely false in its attempt to establish that the decision of a U.S. District Court has been legislatively overridden," he said.

Smith said Kincaid’s interpretation of the law may have been in error. An earlier draft of this section of the legislation had included language stating school districts are not responsible for "post-surgical maintenance, programming or replacement of such device, or an external device connected with the use of a surgically implanted medical device"

After a meeting with Gregg on April 30, Smith said he was able to convince the Senator to strip out most of this language while retaining "the term does not include a medical device that is surgically implanted, or the replacement of such device."

Kincaid admitted the issue was open to interpretation. "If you just look at the wording in isolation, it doesn’t say what my press release says," she said. "You have to put it in the context of the act overall."

"By excluding these devices from assistive technology, then these devices don’t qualify for assitive technology services," she added.

Smith said if the school district moved to deny the right of a family to seek reimbursement for audiology or transportation services related to a cochlear implant, he would either file an action to hold the school district in contempt of court or file a new lawsuit.