Petit v. United States Department of EducationPetit v. United States Department of Education
Lead Opinion
Opinion concurring in the judgment filed by Circuit Judge HENDERSON.
The Individuals with Disabilities Education Act (“the IDEA” or “the Act”) provides federal grants to states to support educational programs for children with disabilities. In order to qualify for funding, participating states — and, by extension, local educational agencies (“school districts”), see
In 2004, Congress amended the IDEA. The amended Act provides, inter alia, that “related services” and “assistive technology device[s]” do “not include a medical device that is surgically implanted, or the replacement of such device.” Id. § 1401(26)(B), (1)(B). Moreover, under the amended Act, a school district is required to provide assistive technology services only for devices falling within the Act’s definition of “assistive technology device.” Id. § 1401(2). This means that states are not responsible for “selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing” surgically implanted medical devices. Id. § 1401(2)(C). The statutory definition of “related sеrvices,” however, does not explicitly address whether states must generally provide optimization and maintenance services for surgically implanted medical devices. See id. § 1401(26)(B).
Appellants are parents of children who are eligible to receive a free appropriate public education under the IDEA. Their children use cochlear implants — a device used by individuals with severe hearing disabilities. These devices are surgically implanted, and they include both internal and external components. To function properly, a cochlear implant must be routinely optimized — a process known as “mapping.” The Department of Education (“the Department” or “the Secretary”) promulgated regulations in 2006, which state that, given the new statutory definition of “assistive technology device,” school districts are not required to provide the mapping of cochlear implants as an “assistive technology service.” Appellants do not challenge the exclusion of mapping as an assistive technology service. The 2006 regulations also state that school districts are not required to provide mapping as a “related service.” See
Appellants filed the instant suit to challenge the exclusion of mapping from the regulatory definition of “related services.” They advance two claims. First, Appel
We conclude that the phrase “audiology services” as used in the IDEA’S “related services” definition,
I. Background
A. The IDEA and Cochlear Implants
1. The IDEA
“Congress enacted IDEA in 1970 to ensure that all children with disabilities are provided a free appropriate public education ... designed to meet their unique needs [and] to assure that the rights of [such] children and their parents or guardians are protected.” Forest Grove Sch. Dist. v. T.A.,
The Act defines “free appropriate public education” to mean “special education and related services.”
The “special education” component of “free appropriate public education” is not directly at issue in this case. The “related services” component, however, is of critical importance. For each child with a disability, the IEP Team is responsible for determining which related services must be made available by the school district. See
“Related services” under the IDEA include, inter alia, “transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, [and] counseling services ...) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.”
The Supreme Court first addressed the meaning of “related services” in Irving Independent School District v. Tatro,
In addition to “related services,” the Act also directs each child’s IEP team to “consider whether the child needs assistive technology devices and services.”
The Department has consistently maintained that, as a general matter, the IDEA does not require a school district to provide “a personal device that [a] student would require regardless of whether he/ she was attending school.” Letter from Thomas Hehir, Dir. Office of Special Educ. Programs, to Peter J. Seiler, Superintendent, Ill. Sch. for the Deaf 1 (Nov. 19, 1993) (“Seiler Letter”), reprinted in Joint App. (“J.A.”) 8. For example, the Department generally does not require school districts to provide hearing aids or eyeglasses as assistive technology devices. Id.; see also Letter from Thomas Hehir to Terry K. Bachus, Dir. Dep’t of Special Educ., Wichita Pub. Sch. 2 (Jan. 13, 1995) (“Bachus Letter”), J.A. 13. But the Department does require school districts to provide personal devices if they are specified in a child’s IEP as necessary for him or her to receive a free appropriate public education. See Bachus Letter 2, J.A. 13; Seiler Letter 1, J.A. 8.
2. Cochlear Implants
As Appellants explain, a cochlear implant is a type of hearing aid for an individual whose hearing loss is too severe for the use of a traditional acoustical hearing aid. The device consists of both an external component and a surgically implanted internal component. The external component — a microphone, a speech processor, and a transmitter system — detects and processes sound and then transmits the sound to the internal component in the form of radio waves. The internal component — a receiver connected to an electrode array — receives the radio waves and stimulates the corresponding electrodes so that the brain can process the audio signals.
A cochlear implant periodically must be mapped to function properly. Mapping is the process by which an audiologist optimizes the amount of stimulation that the electrodes provide to the auditory nerve. According to Appellants, an audiologist maps an implant by measuring the user’s response to electrical stimulation by connecting the device’s speech processor to a computer with specialized software. Based on the user’s response to the stimuli, the audiologist calibrates the speech processor so that the electrodes stimulate the auditory nerve in a way that the user can process. Periodic mapping is essential, because, without it, the cochlear implant may transmit auditory information to the brain that does not accurately reflect the sounds around the user.
Mapping must be performed by an audiology specialist who possesses a specific set of skills. See Letter from Am. Acad, of Audiology to Troy R. Justesen, U.S. Dep’t of Educ. (Aug. 12, 2005) (“Academy Letter”), J.A. 43. Moreover, the audiologist must have familiarity with the “speech coding, processing and programming parameters of all ... manufacturers of cochlear implants.” Id., J.A. 44. Thus, the American Academy of Audiology requires that, even to sit for the examination for Board Certification in Audiology with Speciality in Cochlear Implants, an audiologist must have “two years experience as an audiologist, 450 hours of direct contact with individuals with cochlear implants, and 50 hours of case management of individuals with [cochlear implants].” Id., J.A. 43.
Marilyn Neault, the Director of Habilitative Audiology at the Children’s Hospital in Boston, has explained why mapping must be performed by a specialist:
Programming (mapping) of a cochlear implant processor alters the electrical stimulation that the implant provides to the surrounding tissue inside the inner ear. Too much stimulation can cause*775 pain or facial twitching. Programming that is poorly done can result in a lower outcome in terms of the child’s ability to hear. Failure of the programming audiologist to notice changes in the child’s electrical stimulation requirements that signal partial extrusion or malfunction of the internal device can result in poor outcome. Failure of the audiologist to notice that the headpiece magnet is too tight can result in skin breakdown over the magnet which can require hospitalization and surgery. Lack of communication access between the programming audiologist and the implant surgeon can delay action regarding internal device problems.
Letter from Marilyn W. Neault to Troy R. Justesen 1 (Sept. 6, 2005) (“Neault Letter”), J.A. 48.
B. Regulatory and Procedural History
1. The Mapping Regulations
The Department is authorized to “issue rеgulations under [the IDEA] ... [as] are necessary to ensure ... compliance” with the Act’s requirements.
Prior to the 2004 amendments, some courts had construed the Act and the Department’s regulations to require school districts to offer cochlear implant mapping to children pursuant to their IEPs. See, e.g., A. U., ex rel. N. U. v. Roane Cnty. Bd. of Educ.,
In response to these concerns, the Department ultimately amended the regulatory definition of “related services” to exclude “a medical device that is surgically implanted, the optimization of that device’s functioning (e.g., mapping), maintenance of that device, [and] the replacement of that device.” Department of Education, Assistance to States for the Education of Children with Disabilities, Final Regulations (“Final Regulations”), 71 Fed.Reg. 46,540, 46,760 (Aug. 14, 2006) (codified at
(i) Limits the right of a child with a surgically implanted device (e.g., cochlear implant) to receive [general] related services ... that are determined by the IEP Team to be necessary for the child to receive [a free appropriate public education].
(ii) Limits the responsibility of a public agency to appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the child, including breathing, nutrition, or operation of other bodily functions, while the child is transported to and from school or is at school; or
(iii) Prevents the routine checking of an external component of a surgically implanted device to make sure it is functioning properly, as required in § 300.113(b).
Id. (codified at
The Department also adopted a new regulatory provision clarifying school districts’ obligations with respect to the “[r]outine checking of ... external components of surgically implanted medical devices.” Id. at 46,764 (codified at
(1) Subject to paragraph (b)(2) of this section, each public agency must ensure that the external components of surgically implanted medical devices are functioning properly.
(2) 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).
Id.
2. Prior Litigation and the Proceedings Below
Appellants Beth and David Petit are the parents of H.P., who was born in 1996 with severe hearing loss in both ears. H.P. was initially fitted with acoustical hearing aids, but it quickly became apparent that he was not receiving any benefit from them due to the extent of his hearing loss. In 1999, H.P. was fitted with a cochlear implant, and he began to meet with audiologists for mapping sessions. In that same year, the school district identified H.P. as eligible for special education and related services under the IDEA. In 2000 and 2001, Mrs. Petit sought reimbursement from the school district for their copays for HJP.’s mapping sessions as well as the transportation costs associated with those sessions. The school district initially refused to provide reimbursement. However, the school district was required to change its position after the District Court for New Hampshire ruled that mapping qualified as a related service for H.P. See Beth P.,
Appellants Nicole and Bennie Underwood are the parents of A.U., who was also born with severe hearing loss in both ears. She was fitted with a cochlear implant in her right ear in 2002 and in her left ear in 2005. The school district in which the Underwood family resides initially covered the costs of mapping as a related service, but then declined coverage after the Department proposed its new regulations. The District Court for the Eastern District
Appellants filed this suit seeking declaratory judgment and injunctive relief against the Mapping Regulations as well as reasonable attorneys’ fees. They advanced two claims. First, they claimed that the Regulations violate the IDEA. As noted above, the Department “may not implement, or publish in final form, any regulation prescribed pursuant to this chapter that ... substantively lessens the protections provided to children with disabilities under this chapter, as embodied in regulations in effect on July 20, 1983.”
In separate memorandum opinions, the District Court granted summary judgment to the Department. First, the District Court addressed Appellants’ APA claims. Following the two-step framework from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
The District Court then addressed and rejected Appellants’ claim that the Mapping Regulations substantively lessen the protections afforded by the 1983 regulations. See Petit,
Appellants appeal both orders.
II. Analysis
A. Standard of Review
In a case of this sort, in which the District Court has reviewed an agency action under the APA, “we review the administrative action directly, according no particular deference to the judgment of
In assessing the Department’s interpretation of the IDEA, we remain mindful that
an agency’s power to regulate “is limited to the scope of the authority Congress has delegated to it.” Am. Library Ass’n v. FCC,406 F.3d 689 , 698 (D.C.Cir. 2005). Pursuant to 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, “[i]f 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.” Chevron,467 U.S. at 843-44 [104 S.Ct. 2778 ]. 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.” Id. at 844 [104 S.Ct. 2778 ]. But deference to an agency’s interpretation of its enabling statute “is due only when the agency acts pursuant to delegated authority.” Am. Library Ass’n,406 F.3d at 699 .
Harry T. Edwards & Linda A. Elliott, Federal Standards of Review — Review of District Court Decisions and Agency Actions 141 (2007) (alterations in original).
Our review of the Department’s construction of its regulations
is governed by5 U.S.C. § 706(2)(A) , which requires courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Allentown Mack Sales & Serv., Inc. v. NLRB,522 U.S. 359 , 377 [118 S.Ct. 818 ,139 L.Ed.2d 797 ] (1998); see also Thomas Jefferson Univ. v. Shalala,512 U.S. 504 , 512 [114 S.Ct. 2381 ,129 L.Ed.2d 405 ] (1994). Pursuant to this standard, a court accords “substantial deference” to an agency’s views. See, e.g., Allentown Mack,522 U.S. at 377 [118 S.Ct. 818 ]; Thomas Jefferson Univ.,512 U.S. at 512 [114 S.Ct. 2381 ]. Thus, an agency interpretation that “does not violate the Constitution or a federal statute ... must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Stinson v. United States,508 U.S. 36 , 45 [113 S.Ct. 1913 ,123 L.Ed.2d 598 ] (1993). “In other words,” deference to an agency’s interpretation of its regulation is required “unless an alternative reading is compelled by the regulation’s plain language or by other indications of the [agency’s] intent at the time of the regulation’s promulgation.” Thomas Jefferson Univ.,512 U.S. at 512 [114 S.Ct. 2381 ]. The substantial deference due agency interpretations of ambiguous regulations is “all the more warranted when ... the regulation сoncerns a complex and highly technical regulatory program, in which the identification and classification of relevant criteria necessarily require significant expertise and entail the exer*779 cise of judgment grounded in policy concerns.” Id.
Id. at 163 (alterations in original).
B. The “Mapping” of Cochlear Implants Is Not Required by
During oral argument before this court, Appellants’ counsel suggested that mapping of cochlear implants was encompassed by
To avoid any confusion on this point, however, we should make it clear that, even if this argument was obliquely raised by Appellants, any claim resting on
Even if mapping has an impact on the external component of the implant, it still would not be covered by
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 postsurgieal maintenance, programming, or replacement of the medical device that has been surgically implanted (or of an external component of the surgically implanted medical device).
Id. (emphasis added) (codified at
The record makes absolutely clear that mapping falls within the ambit of “post-surgical maintenance [or] programming” under paragraph (b)(2). See Final Regulations, 71 Fed.Reg. at 46,569 (“Specifically, ‘mapping’ and ‘optimization’ refer to adjusting the electrical stimulation levels
Finally, and most significantly, the Department has been perfectly clear throughout this case in stating that “mapping a cochlear implant (or paying the costs associated with mapping) is not routine checking ... and should not be the responsibility of a public agency.” Final Regulations, 71 Fed.Reg. at 46,582. There has been no dispute on this point. As both parties assumed prior to oral argument, the Regulations categorically excuse school districts from providing mapping as a related service.
C. The Department’s Mapping Regulations Are Not Contrary to the Plain Language of the IDEA
Appellants’ principal claim in this case is that “[t]he Mapping Regulations are invalid because they are contrary to the plain language of the IDEA.” Appellants’ Br. at 16. This is a Chevron step-one claim, so we must determine whether the IDEA unambiguously requires school districts to provide for the mapping of cochlear implants as a “related service.” This is a close question.
The parties do not dispute that “audiology services” are related services. The question is whether, under the IDEA, the term “audiology services” unambiguously encompasses mapping of cochlear imрlants. The relevant provisions of the statute read as follows:
(26) Related services
(A) In general
The term “related services” means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.
(A) Exception
The term does not include a medical device that is surgically implanted, or the replacement of such device.
It is true that “the absence of a statutory definition does not render a word ambiguous.” Natural Res. Def. Council v. EPA,
In the final analysis, however, we nonetheless think that Appellants have fallen short of demonstrating that “audiology services,” as used in the IDEA, unambiguously encompasses mapping. “[T]o prevail under Chevron step one, [Appellants] must do more than offer a reasonable or, even the best, interpretation” of the IDEA. Village of Barrington, Ill. v. Surface Transp. Bd.,
Moreover, at step one, a court must “exhaust the traditional tools of statutory construction to determine whether Congress has spoken to the precise question at issue. The traditional tools include examination of the statute’s text, legislative history, and structure, as well as its purpose.” Bell Atl. Tel. Cos. v. FCC,
Appellants are correct that we must start with the statute’s text. See, e.g., Natural Res. Def. Council, Inc. v. Browner,
The Department urges that, following such a contextual approach, this court should conclude that the 2004 amendments to the IDEA’S “assistive technology” provisions rendered the “related services” provision ambiguous with respect to mapping. No one disputes that these amendments exempted school districts from providing mapping as an assistive technology service; the Department argues that “it is doubtful” Congress would do so “while simultaneously and sub silentio mandating the provision of such services via the ‘related services’ provisions.” Appellees’ Br. at 25. This reasoning is superficially attractive, but ultimately unpersuasive. First, the Department did not advance this position before the District Court, so the claim is forfeited. See District of Columbia v. Air Florida, Inc.,
We also are not persuaded by the District Court’s approach to interpreting the “related services” provision. The District Court held that the placement of the medical devices exclusion within the “related services” provision created ambiguity as to whether the exclusion reached mapping. See Petit,
In the end, however, we conclude that “audiology services” as used in the IDEA is ambiguous. In reaching this conclusion, we start with the Act’s explicit educational purpose. The IDEA requires school districts to provide related services, such as audiology services, not qua related services, but, along with special education, as instrumental means to ensure that children with disabilities receive a “free appropriate public education ... designed to meet their unique needs and prepare them for further education, employment, and independent living.”
Thus, we think the meaning of “audiology services” as used in the IDEA’S “related services” provision is ambiguous as to whether it encompasses the full panoply of services that might be described as audiology services in other contexts. Cf. Garret F.,
There are two considerations that amplify our conclusion that “audiolоgy services” as used in the IDEA is ambiguous.
First, Appellants point out that the “audiology services” component of the “related services” provision contains “no words of limitation.” PDK Labs., Inc.,
Appellants also argue that the “nurse services” component of the “related services” provision could be interpreted to contain an express educational limit. That component in full covers “school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child.” Id. There are two bases for concluding that this component contains an express educational limit. The word “school” could modify the phrase “nurse services.” And the additional phrase “designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child” is unique to “nurse services”; it does not modify other services contained within the “related services” provision.
An educational limit is not implied. It is imposed by the statute’s context. For example, “transportation” is also listed as a related service. Id. The phrase is not expressly limited in any way. Surely, however, no plaintiff could argue that the IDEA unambiguously requires the relevant school district to provide his or her child with the best and most comfortable form of transportation to and from a specific school. Similarly, “psychological services” is listed as a related service, and it too is unqualified and unmodified. Id. But it seems to be at least ambiguous whether schools could ever be required to provide the full range of psychological services to children with disabilities, given the breadth of services available. One need only peruse the volumes of the Psychological Review and other materials published by the American Psychological Association to grasp this point.
Additionally, we think it more natural to read the “nurse services” component not to contain an express educational limit. The reference is not a model of clarity, but we think that Appellants attach tоo much significance to the word “school” in conjunction with “nurse services.” Appellants appear to view the word “school” as an independent adjective that modifies “nurse services.” In other words, Appellants read the phrase as “school nurse[-]services” and attach a limiting function to the word “school.” This reading would be more plausible if the IDEA used different language, such as “educational nurse services.” But school nurses are ubiquitous in public schools. We think it more likely that Congress employed “school nurse” as a compound adjective that modifies “services.” Therefore, we read the phrase as “school[-]nurse services” and attach a descriptive function to the phrase “school nurse.”
Nor does our reading of this component change, merely because the component contains the additional phrase “designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child.” Id. It might seem odd that Congress specifically attached this phrase to “nurse services” but not to other related services. We think not, however. We do not infer that Congress included this phrase to impose an educational limit on “nurse services.” Instead, we interpret the phrase to signal Congress’s intent that a school must do more than simply provide standard school nurse services to satisfy the IDEA; a school must also provide such nontraditional school nurse services as are required by the IDEA and included in а child’s IEP.
Second, we understand that the Supreme Court has consistently warned against looking to a statute’s “statement of findings [or] purpose ... in the context of an unambiguous statutory text.” E.g., Pa. Dep’t of Corr. v. Yeskey,
In our view, the term “audiology services” in
D. 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, we proceed to Chevron step two to ask “whether the agency’s answer is based on a permissible construction of the statute.” Chevron,
The Department justified the Mapping Regulations based on a number of related considerations. We think each is rationally related to the goals of the IDEA and supported by the record.
The Department considered whether schools must provide mapping during the day, on campus, for students to benefit from special education. The Department concluded that this was not necessary:
Although the cochlear implant must be properly mapped in order for the child to hear well in school, the mapping does not have to be done in school or during the school day in order for it to be effective.... [Mapping] services and costs are incidental to a particular course of treatment chosen by the child’s parents to maximize the child’s functioning, and are not necessary to ensure that the child is provided access to education, regardless of the child’s disability, including maintaining health and safety while in school.
Final Regulations, 71 Fed.Reg. at 46,569-70.
The Department was entitled to consider the fact that mapping need not take place at school or during school hours to be effective. Appellants do not dispute the proposition that, so long as a student’s cochlear implant is routinely mapped somewhere, that student will benefit from special instruction. This concession is significant at Chevron step two, because the Supreme Court has repeatedly interpreted the “related services” provision by reference to services that must be provided in order to get students to, or keep students in, school. For example, in Garret F., the Court summarized the provision as generally encompassing “services that enable a disabled child to remain in school during
Appellants counter that in the preamble to its final regulations, the Department acknowledged that “allowing] 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.” Final Regulations, 71 Fed.Reg. at 46,571. But Appellants take this statement out of context. The Department made this point to explain why schools are responsible under
Appellants also argue that we should not push Garret F. and Tatro so far as to allow the Department to limit schools’ obligations under the “related services” provision to those services that must be offered during school hours. They claim that with such broad authority the Department could functionally write many of the listed services out of the IDEA. Their concern is overstated. As Garret F. and Tatro demonstrate, there are certain services — continuous nursing services for ventilator-dependent students and clean intermittent catheterization — that absolutely must be provided during school hours. See
In promulgating the Mapping Regulations, the Department also considered the technical expertise required to map cochlear implants. See Final Regulations, 71 Fed.Reg. at 46,571 (“[T]he distinguishing factor between those services that are not covered under the Act, such as mapping, and those that are covered, such as verifying that a cochlear implant is functioning properly, in large measure, is the level of expertise required.”). The agency noted that “[o]ptimization services,” such as mapping, “are generally provided at a specialized clinic.” Id. at 46,570. Moreover, the agency described that “[t]he maintenance and monitoring of surgically implanted devices require the expertise of a licensed physician or an individual with specialized technical expertise beyond that typically available from school personnel.” Id. at 46,571. Indeed, the American Academy of Audiology informed the Department that it will not even let a candidate sit for its Board Certification examination without two years of experience, 450 hours of contact with individuals with cochlear implants, and fifty hours of case management experience. See Academy Letter, J.A. 43.
Thus, the Department concluded that mapping is distinct from the routine checking of acoustical hearing aids and of the external components of a cochlear implant,
These considerations — expertise and cost — are rationally related to the IDEA’S purpose. This proposition emerges clearly from the Supreme Court’s interpretation of the “medical services” component of the “related services” provision in Garret F. and Tatro. Schools are required to provide “medical services, except that such medical services shall be for diagnostic and evaluation purposes only.”
Appellants argue that while the Department was entitled to take cost and expertise into account when interpreting “medical services,” it may not do so in interpreting “audiology services.” Appellants’ Br. at 44. They reach this conclusion based on two premises: First, Congress clearly intended “to include some medical services (those services ‘for diagnostic and evaluation purposes’) and exclude others (notably, medical treatments),” id.; and, second, “Congress did not restrict coverage of ‘audiology services’ in the same way,” id. Based on these premises, Appellants conclude, “there is no statutory basis for inferring that Congress intended to exclude some ‘audiology services,’ much less that it intended to differentiate between audiology services based on the degree of expertise required.” Id. But this is nothing more than a repackaged version of Appellants’ Chevron step-one argument. We have already explained that there is a statutory basis for inferring that Congress intended to exclude some audiology services. Starting from that baseline, the Department was clearly entitled to consider cost and expertise in determining which services to include.
Appellants are correct to point out that in enacting the IDEA, “Congress plainly required schools to hire various specially
Appellants separately argue that the Mapping Regulations fail at Chevron step two, because the Department made an error in tracking the IDEA’S legislative history. When Congress considered the Individuals with Disabilities Education Improvement Act, the Senate Committee initially proposed amending the “related services” and “assistive technology device” provisions to exclude “a medical device that is surgically implanted, [and] the post-surgical maintenance, programming, [and] replacement of such device, [and] an external device connected with the use of a surgically implanted medical device.” S.Rep. No. 108-185, at 8 (2003) (emphasis added); see also id. at 102, 107. Congress ultimately enacted a narrower amendment, excluding only “a medical device that is surgically implanted, [and] the replacement of such device.”
At the outset, we agree with Appellants that the Department’s citation of the Senate Report in the preamble to the rule-making is inexplicable. The Senate Report is based on legislative language that was withdrawn from the final bill. It is incontrovertible, therefore, that the Report is not persuasive or even relevant authority. We think the most plausible explanation is that the Department simply made a mistake in citing the Report. The Department’s efforts to explain why the citation was proper, see Appellees’ Br. at 40-42, are specious at best.
Be that as it may, however, Appellants’ legislative history argument has only limited traction. Appellants suggest that the Department’s misconstruction of the legislative history should change our analysis at Chevron step two. This argument is entirely unpersuasive. The Department’s mistake in this instance does not, without more, discredit the Department’s judgment in adopting the Mapping Regulations. Nor does the mistake, without more, show that the Department’s Mapping Regulations are flawed for want of reasoned decision making. The record here clearly demonstrates that the Department did not rely solely — or even much at all — on the Senate Report in promulgating the Mapping Regulations. Indeed, we have
Appellants also argue that the actual legislative history of the 2004 amendments to the IDEA should be dispositive at Chevron step two, because it reveals that the Mapping Regulations are contrary to Congress’s intent. But that reasoning is simply incorrect as a matter of law. Unenacted statutory text certainly may inform an agency’s interpretation of an ambiguous term. This court reiterated that proposition recently in Village of Barrington:
[Intervenor] dismisses the relevance of this legislative history, stating that inferences of legislative intent from unenacted legislation are unreliable. [Intervener's] caution is well taken, but only to a point. Although we would be uncomfortable relying on such legislative history at Chevron step one, we think it may appropriately guide an agency in interpreting an ambiguous statute — -just how the Board used it here.
Finally, we note that prior to the 2004 amendments to the IDEA, several courts had interpreted the Act — -as implemented by the Department’s then-existing regulations — to require schools to offer mapping, pursuant to children’s IEPs. See, e.g., A.U., ex rel. N.U.,
In sum, in promulgating the Mapping Regulations, the Department considered whether mapping was necessary for students to benefit from their education; whether mapping had to be provided during school hours, at a school campus; whether mapping could be provided by laypersons, teachers, and other trained educational professionals; and whether mapping imposed an excessive financial burden on schools. These considerations are rationally related to the purposes of the IDEA. Therefore, the Mapping Regulations are entitled to our deference.
E. The Mapping Regulations Do Not Violate
Appellants’ final claim in this case is that the Mapping Regulations are inval
[t]he Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this chapter that ... proeedurally or substantively lessens the protections provided to children with disabilities under this chapter, as embodied in regulations in effect on July 20,1983 (particularly as such protections related to ... related services ...), except to the extent that such regulation reflects the clear and unequivocal intent of Congress in legislation.
Because the Department has never previously interpreted the 1983 regulations with respect to the question of mapping, “[o]ur task is not to decide which among several competing interpretations best serves the regulatory purpose.” Thomas Jefferson Univ.,
Those regulations define “related services” to mean
transportation and such developmental, corrective, and other supportive services as are required to assist a handicapped child to benefit from special education, and includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, early identification and assessment of disabilities in children, counseling services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training.
The regulations then offer a laundry-list definition of “Audiology”:
“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 pupils, parents, and teachers regarding hearing loss; and
(vi) Determination of the child’s need for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification.
Appellants argue, first, that the 1983 regulations unambiguously encompass mapping, because the ordinary meaning of “audiology” encompasses mapping. But, as Appellants admit, this is the same argument that they advance at Chevron step one. See Appellants’ Br. at 49. We think
Appellants finally argue that mapping falls within the Department’s 1983 regulations, because those regulations list specific services that “supplement the ordinary meaning of ‘audiology.’ ” Appellants’ Br. at 50. As support for this proposition, Appellants emphasize that the 1983 regulations set forth that audiology “includes ” a series of disparate services. This court has held that when a term is defined by what it “includes” as opposed to what it “means,” the term should be interpreted to encompass not just its ordinary meanings but also the specific enumerated examples. Schumann v. Comm’r of Internal Revenue,
This avenue of argumentation fails, because it ignores the deference that is owed to the Department’s interpretation of its own regulations. The Department has interpreted the 1983 regulations not to encompass mapping. And to overcome the deference that we owe the Department’s construction of its own regulation, Appellants must show that the Department’s construction was clearly inconsistent with the regulation. See Thomas Jefferson Univ.,
In sum, we conclude that the Mapping Regulations do not substantively lessen the protections that were provided to children with disabilities by the 1983 regulations. The Department has interpreted those regulations as not providing cochlear implant mapping, and Appellants have failed to show that the Department’s interpretation is plainly erroneous or inconsistent with the regulation.
III. Conclusion
For the foregoing reasons, the District Court’s grant of summary judgment to the Department is affirmed.
It is so ordered.
Concurrence Opinion
concurring in the judgment:
While I join my colleagues in the judgment affirming the district court, I write separately to set out why I find the result troubling. The principal question before us is whether cochlear implant mapping — i.e., calibrating a cochlear implant so that an individual with profound hearing loss can receive and interpret auditory signals — is an “audiology serviee[ ]” or other “related service[]” that must be provided under the IDEA. See
First, although the Department reads the Mapping Regulations as written to exclude cochlear implant mapping from the services a school district must provide under the IDEA, the convoluted (and often contradictory) text of the provisions can be fairly read to say the opposite: that is, a school district must provide cochlear implant mapping. Let’s begin with
Following this regulatory bread trail, however, reveals very little. Paragraph (b)(1) of
But paragraph (b)(2) of
In short, after tracking two regulatory provisions, two exceptions and one exception to the exception, it is still unclear whether a school district must provide cochlear implant mapping under the IDEA. In the end, much of this uncertainty is legally irrelevant because, as my colleagues note, Majority Op. at 779-80, the Department has consistently interpreted the Mapping Regulations to exclude cochlear implant mapping and we generally defer to the Department’s interpretation of its own ambiguous regulations. See Auer v. Robbins,
Second, there is a glaring disparity in the Mapping Regulations. It is simply unfair, as the appellants noted at oral argument, that the IDEA does not provide a child born with a severe auditory disability periodic programming of his cochlear implant but that a child with a more moderate disability is entitled to similar periodic programming of a digital hearing aid. See
Notes
. It is particularly close in light of both the definition of audiology — "[t]he study of hearing disorders ... as well as the rehabilitation of persons with hearing impairments," Stedman’s Medical Dictionary 169 (27th ed. 2000) (emphasis added) — and the legislative history of the 2004 amendments to the IDEA, see Majority Op. at 788-90.
. To map the implant, the audiologist connects the child’s "microprocessor based speech processor” — the externally worn microprocessor — to a computer that uses special software to measure electrode characteristics and adjust the parameters controlling the stimuli that are delivered to the electrodes within the implant. The Bionic Human, Cochlear Implants 379-385 (Frank E. Johnson et al. eds., 2005). The implant’s speech processor is then programmed according to each electrode’s characteristics (according to the softest and loudest sounds the child can hear comfortably). See id. Once the sound processing parameters for all electrodes have been determined, the computer downloads the information to the implant’s speech processor. See id.
. A six-year-old child has his tonsils removed and twelve years later he graduates from high school. Is his graduation "post-surgical”? Of course not.
. Although a cochlear implant does not amplify sound and thus does not fall within this portion of the definition of "audiology,” a cochlear implant serves the same function as a hearing aid — namely, it enables its user to hear. And just as a digital hearing aid must be periodically programmed in order to function — periodic programming that is provided under the IDEA — a cochlear implant must be periodically programmed, that is, mapped, to "ensure that the external components [microphone and processor] ... are functioning properly.”
. As noted by my colleagues, Majority Op. at 782-83, the "related services” exception added to the statute in 2004 —