Lawyer's 'fact' was only opinion

From: Portsmouth Herald News, NH - Nov 30, 2004

By Shir Haberman
shaberman@seacoastonline.com

PORTSMOUTH - The attorney for the Stratham School District admits it was her own legal opinion she expressed in a press release issued last week, not a statement of fact.

In fact, attorney Jeanne Kincaid, of the law firm of Bernstein, Shur, Sawyer & Nelson in Portland, Maine, said she expects the courts again to be involved in the issue of whether school districts are responsible for maintenance of devices that are implanted in students that would enhance their ability to learn.

"I am positive that someone will litigate this somewhere again," Kincaid said.

In the release, Kincaid said amendments to the Individuals with Disabilities Education Act made by New Hampshire Sen. Judd Gregg "effectively overrule the Stratham School District v. Hunter P. ruling." That ruling, made in February 2003, said that, under federal special-education laws, the school district was required to cover the costs associated with programming, or "mapping," the cochlear implant Hunter Petit was given in March 1999, when he was 32 months old.

"In my opinion, it is not covered," Kincaid said Monday, but she admitted, "there are two ways of looking at it."

However, Peter Smith, a Durham lawyer who represented Hunters parents, David and Beth Petit, in the case against the Stratham School District, said Kincaids press release contained a "gross factual error."

He contended the reauthorized IDEA now requires school districts to pay the costs of programming cochlear implants, as well as the transportation costs incurred in getting the student to the location where the maintenance and programming are done.

Smith said that an early amendment by Gregg did, in fact, preclude school districts from paying these costs, but ultimately Gregg changed the wording of the amendment, and the amended version of the bill passed the U.S. House and Senate Nov. 19.

Kincaid predicted the IDEA changes would have broad impact across the nation because it marked the first time that these types of devices are specifically addressed. However, Smith contended the only thing the amendments do is make clear that school districts are not responsible for the cost of implanting these kinds of devices, something neither he nor the Petits have contested.

In fact, all the Petits had originally requested of the Stratham School District was reimbursement for the costs incurred in bringing Hunter to Dartmouth Medical Center in Lebanon for adjustments to his implant.

"We asked the school district to pay transportation costs for Hunter to see the only audiologist in the state who could program his implant," Smith said. "This became a feud over a principle. There was never a lot of money involved."

The Stratham School District ended up paying approximately $100,000 in legal fees in an attempt to keep from paying the Petits approximately $1,200 in transportation costs, Smith said. Both the New Hampshire Board of Education and a state superior court judge ruled in favor of the Petits, and the district ultimately had to pay. The final IDEA reauthorization bill is expected to be signed by President Bush within the next few weeks; however, Kincaid stands by her opinion and believes the next time this issue comes up, a court will side with her based on the amendments passed two weeks ago.

"Why should a school district be responsible for the programming of a device it was not responsible for implanting?" she asked rhetorically.

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