Special Education Law Discriminates against Children with Surgical Implants

The Individuals with Disabilities Education Improvement Act denies services to children with disabilities who have cochlear implants or other surgically implanted devices. The National Institute on Deafness and Other Communication Disorders (NIDCD) reports that as of 2005 approximately 15,000 children in the U.S. have cochlear implants, and with the advancement of bio-technology, the number is rapidly growing. A leading scientific report states: "Cochlear implants could potentially affect the auditory rehabilitation of an estimated 200,000 United States children with advanced levels of deafness . . ."

What are cochlear implants? They are not hearing aids. NIDCD states: "Hearing aids amplify sounds so they may be detected by damaged ears. Cochlear implants bypass damaged portions of the ear and directly stimulate the auditory nerve." The NIDCD describes the implant as having "an external portion that sits behind the ear and a second portion that is surgically placed under the skin."

The Act excludes surgically implanted medical devices as "related services" or as a "assistive technology device." The Act reads: "The term does not include a medical device that is surgically implanted, or the replacement of such device." Related services are the variety of services that the Act requires schools to provide children "to benefit from special education." What is the difference if a medical device is above the skin or below the skin? If a non physician can provide the service, anatomical topography, the location of the device, should not be relevant to whether the service is a related service. Nevertheless, the Act excludes services required for children with surgical implants as a related service.


To join the Disability Law Committee, contact Austin Newberry at the Bar, at anewberry@flabar.org.