United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2011 Decided April 13, 2012

No. 11-5033

BETH PETIT, ET AL.,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF EDUCATION AND ARNE

DUNCAN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE

UNITED STATES DEPARTMENT OF EDUCATION,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cv-01583)

Mark W. Mosier argued the cause for appellants. With him

on the briefs were S. William Livingston, Nishchay H. Maskay,

and Emily Johnson Henn.

Seth M. Galanter was on the brief for amicus curiae

Council of Parent Attorneys and Advocates in support of

appellants. Brian R. Matsui entered an appearance.

Sarang Vijay Damle, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were Ian

Heath Gershengorn, Deputy Assistant Attorney General, Ronald

C. Machen, Jr., U.S. Attorney, and Michael S. Raab, Attorney.
2

Before: HENDERSON and TATEL, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

Opinion concurring in the judgment filed by Circuit Judge

HENDERSON.

EDWARDS, Senior Circuit Judge: 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 20 U.S.C. § 1413(a)(1) (2006)

– must make a “free appropriate public education” available to

every child with a disability, id. § 1412(a)(1). As defined by the

IDEA, a “free appropriate public education” means “special

education and related services.” Id. § 1401(9). The statutory

definition of “related services” is “transportation, and such

developmental, corrective, and other supportive services . . . as

may be required to assist a child with a disability to benefit from

special education.” Id. § 1401(26)(A). The IDEA separately

requires school districts to provide necessary “assistive

technology devices and services.” Id. § 1414(d)(3)(B)(v); see

also id. § 1401(1)–(2).

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
3

replacing” surgically implanted medical devices. Id. §

1401(2)(C). The statutory definition of “related services,”

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 34

C.F.R. § 300.34(b)(1), 300.113(b)(2) (2011) (“the Mapping

Regulations” or “the Regulations”). In particular, the regulatory

definition of “related services” excludes “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.” Id. § 300.34. After the

Department issued the final regulations, the school districts in

which Appellants reside stopped providing mapping to

Appellants’ children.

Appellants filed the instant suit to challenge the exclusion

of mapping from the regulatory definition of “related services.”

They advance two claims. First, Appellants argue that the

Regulations are founded on an impermissible construction of the

IDEA, insofar as they define related services to exclude the
4

mapping of cochlear implants. Second, Appellants point to 20

U.S.C. § 1406(b)(2), which provides that “[t]he Secretary may

not implement . . . any regulation . . . that . . . substantively

lessens the protections provided to children with disabilities

under . . . [the] 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.” According

to Appellants, because the Department’s 1983 regulations

provided for audiology services and audiology services included

mapping, the 2006 Mapping Regulations violate the IDEA. The

District Court rejected Appellants’ claims and granted summary

judgment to the Department. See Petit v. U.S. Dep’t of Educ.,

756 F. Supp. 2d 11 (D.D.C. 2010); Petit v. U.S. Dep’t of Educ.,

578 F. Supp. 2d 145 (D.D.C. 2008). Appellants now appeal.

We conclude that the phrase “audiology services” as used

in the IDEA’s “related services” definition, 20 U.S.C. §

1401(26)(A), does not unambiguously encompass mapping of

cochlear implants. We also find that the Mapping Regulations

embody a permissible construction of the Act, because they are

rationally related to the underlying objectives of the IDEA. We

additionally find that the Mapping Regulations do not, in

contravention of the IDEA, substantively lessen the protections

afforded by the 1983 regulations. “Audiology services,” as used

in the Department’s 1983 regulations had no more of a fixed

meaning than the term has now, as used in the IDEA itself. And

the Department has interpreted the 1983 regulations not to

encompass mapping. Because the Department’s construction of

its own regulation is neither plainly erroneous nor inconsistent

with the regulation, we owe it deference. We are therefore

constrained to deny Appellants’ claims and affirm the District

Court’s grant of summary judgment to the Department.
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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., 129

S. Ct. 2484, 2491 (2009) (second and third alterations in

original) (footnote omitted) (citation omitted) (internal quotation

marks omitted). The cornerstone of the Act is the condition that

schools provide children with a “free appropriate public

education.” See 20 U.S.C. §§ 1412(a)(1)(A), 1413(a)(1). A free

appropriate public education must be tailored to each child’s

needs pursuant to an “individualized education program”

(“IEP”) designed by the child’s “IEP Team.” Id. §§ 1401(14),

1414(d). 

The Act defines “free appropriate public education” to

mean “special education and related services.” Id. § 1401(9).

However, in Board of Education of the Hendrick Hudson

Central School District, Westchester County v. Rowley, 458 U.S.

176 (1982), the Supreme Court refused to interpret the phrase to

require schools to “maximize the potential of handicapped

children ‘commensurate with the opportunity provided to other

children,’” id. at 189–90 (citation omitted). Instead, the Court

interpreted the Act to require schools to provide a “‘basic floor

of opportunity.’” Id. at 200 (quoting H.R. REP. No. 94-332, at

14 (1975)). A school satisfies the requirement of a free

appropriate public education “by providing personalized

instruction with sufficient support services to permit [a] child to

benefit educationally from that instruction.” Id. at 203.

The “special education” component of “free appropriate

public education” is not directly at issue in this case. The
6

“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 20 U.S.C. § 1414(d)(1)(A)(i)(IV). All

such services must be specified in a child’s written IEP. Id.

“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.” Id. § 1401(26)(A). In 2004, Congress amended this

definition by adding an express “exception.” See Individuals

with Disabilities Education Improvement Act of 2004, Pub. L.

No. 108-446, § 602(26), 118 Stat. 2647, 2657 (codified at 20

U.S.C. § 1401(26)(B)). The exception states that the term

“related services” excludes “a medical device that is surgically

implanted, [and] the replacement of such device.” 20 U.S.C. §

1401(26)(B). 

The Supreme Court first addressed the meaning of “related

services” in Irving Independent School District v. Tatro, 468

U.S. 883 (1984). There, the Court interpreted the phrase to

include “services that enable the child to reach, enter, or exit the

school” as well as “[s]ervices . . . that permit a child to remain

at school during the day.” Id. at 891. The Court reaffirmed that

interpretation in Cedar Rapids Community School District v.

Garret F. See 526 U.S. 66, 73 (1999) (“As a general matter,

services that enable a disabled child to remain in school during
7

the day provide the student with ‘the meaningful access to

education that Congress envisioned.’” (citation omitted)). The

Court has yet to address the meaning of the “exception” for

surgically implanted medical devices that was added to the

IDEA in 2004.

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.” 20 U.S.C. §

1414(d)(3)(B)(v). “The term ‘assistive technology device’

means any item, piece of equipment, or product system, whether

acquired commercially off the shelf, modified, or customized,

that is used to increase, maintain, or improve functional

capabilities of a child with a disability.” Id. § 1401(1)(A).

Pursuant to the 2004 amendments, this definition excludes “a

medical device that is surgically implanted, [and] the

replacement of such device.” Id. § 1401(1)(B). “The term

‘assistive technology service’ means any service that directly

assists a child with a disability in the selection, acquisition, or

use of an assistive technology device . . . [including] selecting,

designing, fitting, customizing, adapting, applying, maintaining,

repairing, or replacing assistive technology devices . . . .” Id. §

1401(2)(C). 

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
8

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
9

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 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.
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B. Regulatory and Procedural History

1. The Mapping Regulations

The Department is authorized to “issue regulations under

[the IDEA] . . . [as] are necessary to ensure . . . compliance”

with the Act’s requirements. 20 U.S.C. § 1406(a). In late 2004,

the Department solicited comments and recommendations

regarding the recently enacted amendments to the IDEA. See

Department of Education, Individuals with Disabilities

Education Act, Notice of Request for Comments and

Recommendations, 69 Fed. Reg. 77,968 (Dec. 29, 2004).

Among the thousands of comments that the Department received

were many requests from state officials seeking clarification as

to the status of cochlear implant mapping under the amended

IDEA. See Department of Education, Assistance to States for

the Education of Children with Disabilities, Notice of Proposed

Rulemaking, 70 Fed. Reg. 35,782, 35,783, 35,785 (June 21,

2005).

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., 501 F. Supp. 2d 1134, 1143–44 (E.D. Tenn. 2007);

Stratham Sch. Dist. v. Beth P., No. 02-135, 2003 WL 260728

(D.N.H. Feb. 5, 2003). The 2004 amendments to the IDEA

clearly resolved that school districts are not required to provide

or replace cochlear implant devices as either a related service or

an assistive technology device. See 20 U.S.C. § 1401(1)(B),

(26)(B). Furthermore, commenters to the Department’s request

for recommendations appeared to surmise correctly that school

districts were no longer required to offer mapping as an assistive

technology service, given the amended statutory definition of

“assistive technology device.” See, e.g., Letter from Linda

McCulloch, Mont. Superintendent, to Troy R. Justesen (Feb. 24,

2005) (“McCulloch Letter”), J.A. 25. But commenters
11

expressed uncertainty as to whether school districts could be

required to offer mapping as a related service. See, e.g., Letter

from Cecil J. Picard, La. Superintendent of Educ., to John H.

Hager, Assistant Sec’y (Feb. 25, 2005), J.A. 22–23; Letter from

Alice D. Parker, Cali. Dep’t of Educ., to Troy Justesen (Feb. 9,

2005), J.A. 19–20.

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 34 C.F.R. § 300.34(b)(1) (2011)). At the

urging of several commenters, however, the Department

clarified that school districts are still required to provide some

services to students with cochlear implants. The Department

explained that nothing in its new regulation – 

(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).
12

Id. (codified at 34 C.F.R. § 300.34(b)(2) (2011)).

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 34 C.F.R.

§ 300.113 (2011)). Section 300.113(b) of this provision states

that

(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 H.P.’s mapping sessions as well as the transportation costs

associated with those sessions. The school district initially
13

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., 2003 WL 260728, at *4–5. The school

district thereafter continued to cover H.P.’s mapping costs, until

the Department’s new Mapping Regulations took effect.

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 of Tennessee required the school district to

pay for A.U.’s mapping through the date on which the

Department’s regulation actually took effect. See A.U., ex rel.

N.U., 501 F. Supp. 2d. at 1143–44. The school district complied

with the court’s order, but no longer covers A.U.’s mapping

sessions.

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.” 20 U.S.C. § 1406(b).

Appellants claimed the Mapping Regulations violate this

restriction, because the 1983 regulations provided for

“audiology services” – a term that, Appellants argued,

encompasses mapping. Second, Appellants claimed that under

the Administrative Procedure Act (“the APA”), 5 U.S.C. § 706

(2006), the Mapping Regulations “are contrary to the plain
14

language, intent, and purpose of IDEA.” Compl. ¶ 52, J.A. 371.

Moreover, Appellants contended that “the regulations exceed the

Secretary’s statutory rulemaking authority under 20 U.S.C. §

1406 and do not reasonably interpret the statute.” Id. In effect,

Appellants argued that the IDEA itself, quite apart from the

1983 regulations, covers mapping.

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., 467 U.S. 837 (1984), the

District Court determined that the text of the IDEA is ambiguous

as to whether mapping is a related service, see Petit, 578 F.

Supp. 2d at 154–59. Taking a contextual approach to the IDEA,

the District Court concluded that the fact that the “medical

device exception is situated within the definition of related

services . . . creates ambiguity as to whether the medical device

exception applies to services related to those devices (i.e.,

mapping).” Id. at 157 (citation omitted). The District Court

then concluded that, at Chevron step two, the Mapping

Regulations were permissible, based on, inter alia, the

Department’s determinations that mapping need not be offered

at school for a child to benefit and that mapping must be

provided by highly skilled experts. See id. at 159–60.

 The District Court then addressed and rejected Appellants’

claim that the Mapping Regulations substantively lessen the

protections afforded by the 1983 regulations. See Petit, 756 F.

Supp. 2d at 18. The court recognized that the 1983 regulations

provided for “audiology services.” See id. at 15. However, the

District Court concluded that this did not conclusively indicate

that the 1983 regulations encompassed mapping. The District

Court thus deferred to the Department’s interpretation of the

1983 regulation, finding that the interpretation was not plainly

erroneous or inconsistent with the regulation. See id. at 16–18.
15

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 the District Court.” Holland v. Nat’l Mining

Ass’n, 309 F.3d 808, 814 (D.C. Cir. 2002) (citations omitted);

see also Troy Corp. v. Browner, 120 F.3d 277, 281 (D.C. Cir.

1997). Upon our review of the record, we will uphold the

Department’s action, unless we find it to be “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law,” 5 U.S.C. § 706(2)(A), or “in excess of

statutory jurisdiction, authority, or limitations, or short of

statutory right, id. § 706(2)(C). 

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. Where a “legislative delegation to an agency on a

particular question is implicit rather than explicit,” the

reviewing court must uphold any “reasonable interpretation
16

made by the administrator of [that] agency.” Id. at 844.

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 by 5 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 (1998); see also Thomas Jefferson Univ. v.

Shalala, 512 U.S. 504, 512 (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; Thomas Jefferson Univ., 512 U.S. at 512. 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

(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. The substantial deference

due agency interpretations of ambiguous regulations is “all

the more warranted when . . . the regulation concerns a

complex and highly technical regulatory program, in which

the identification and classification of relevant criteria

necessarily require significant expertise and entail the
17

exercise of judgment grounded in policy concerns.” Id.

Id. at 163 (alterations in original).

B. The “Mapping” of Cochlear Implants Is Not Required

by Section 300.113 of the Department’s 2006

Regulations

During oral argument before this court, Appellants’ counsel

suggested that mapping of cochlear implants was encompassed

by Section 300.113 of the 2006 regulations. This provision

states that school districts are responsible for the “[r]outine

checking of hearing aids and external components of surgically

implanted medical devices.” Final Regulations, 71 Fed. Reg. at

46,764 (codified at 34 C.F.R. § 300.113 (2011)). Appellants’

claim resting on Section 300.113 was never raised with the

agency or the District Court, nor was it raised by Appellants in

their brief to this court. It is therefore waived. See Catawba

Cnty., N.C. v. EPA, 571 F.3d 20, 38 (D.C. Cir. 2009) (per

curiam) (holding that petitioners waived two statutory

arguments by failing to raise them in opening briefs); World

Wide Minerals, Ltd. v. Republic of Kaz., 296 F.3d 1154, 1160

(D.C. Cir. 2002) (“As we have said many times before, a party

waives its right to challenge a ruling of the district court if it

fails to make that challenge in its opening brief.” (citations

omitted)).

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 Section 300.113 is wholly

without merit. Mapping necessarily falls outside of Section

300.113, because this regulatory provision covers only the

routine checking of external components. Mapping, as we

understand it, is designed to target the internal component of the

implant. At oral argument, there was some confusion over

whether mapping primarily affects the external or internal

component. Appellants’ theory of this case, however, has never
18

included a claim that mapping is equivalent to manipulating or

replacing an external component such as a battery. This is

hardly surprising, because the record indicates that mapping

refers to the process by which the internal component of the

implant is calibrated. See Neault Letter 1, J.A. 48

(“Programming (mapping) of a cochlear implant processor alters

the electrical stimulation that the implant provides to the

surrounding tissue inside the inner ear.” (emphasis added)).

Even if mapping has an impact on the external component

of the implant, it still would not be covered by Section 300.113.

Paragraph (b)(1) of this provision says that “[s]ubject to

paragraph (b)(2) . . . each public agency must ensure that the

external components of surgically implanted medical devices are

functioning properly.” Final Regulations, 71 Fed. Reg. at

46,764 (emphasis added) (codified at 34 C.F.R. § 300.113(b)(1)

(2011)). Paragraph (b)(2), in turn, states:

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 postsurgical 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 34 C.F.R. § 300.113(b)(2)

(2011)). 

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 provided by the

cochlear implant that is necessary for long-term post-surgical

follow-up of a cochlear implant.”); see also Letter from Marilyn

W. Neault to Senator Judd Gregg (Apr. 3, 2003) (“Gregg
19

Letter”), J.A. 15–16 (describing mapping as “optimizing the

programming of electrical stimulation levels in [an] implanted

device[]”); McCulloch Letter, J.A. 26 (“‘Mapping,’ or

programming of the Cochlear Implant to deliver an amount and

type of electrical stimulation appropriate for the user, is a

complex device maintenance procedure . . . .”).

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. Section 300.113 is perfectly consistent with this

position. Our task is to determine whether the Mapping

Regulations are valid.

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 implants. The relevant provisions of the

statute read as follows:

(26) Related services
20

(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.

(B) Exception 

The term does not include a medical device that is

surgically implanted, or the replacement of such

device.

20 U.S.C. § 1401(26). As can be seen from this language, the

term “audiology services” is listed but not defined in subsection

(A). And subsection (B) makes it clear that “a medical device

that is surgically implanted, or the replacement of such device”

is excluded from the definition of “related services.” In other

words, neither subsection (A) nor (B) gives a clear indication as

to whether mapping is a related service. Appellants’ best

argument is that the term “audiology services” so clearly

embraces mapping that there is nothing more to ponder.

It is true that “the absence of a statutory definition does not

render a word ambiguous.” Natural Res. Def. Council v. EPA,
21

489 F.3d 1364, 1373 (D.C. Cir. 2007) (citation omitted). In the

absence of an express definition, we must give a term its

ordinary meaning. See FCC v. AT&T, Inc., 131 S. Ct. 1177,

1182 (2011) (citation omitted). And the ordinary meaning of

“audiology” is “[t]he study of hearing disorders through the

identification and measurement of hearing impairment as well

as the rehabilitation of persons with hearing impairments.”

STEDMAN’S MEDICAL DICTIONARY 169 (27th ed. 2000); see also

Appellants’ Br. at 23 (providing additional definitions). At first

blush, this definition seems to encompass mapping. Indeed,

even the Department does not appear to contest that mapping

qualifies as an audiology service under standard medical

definitions of “audiology services.”

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., 636 F.3d 650, 661 (D.C. Cir. 2011).

Instead, they “must show that the statute unambiguously

forecloses the [agency’s] interpretation.” Id. (citation omitted).

Put another way, they must demonstrate that the challenged term

is susceptible of “‘only [one] possible interpretation.’” Cnty. of

L.A. v. Shalala, 192 F.3d 1005, 1015 (D.C. Cir. 1999) (quoting

Sullivan v. Everhart, 494 U.S. 83, 89 (1990)).

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, 131

F.3d 1044, 1047 (D.C. Cir. 1997) (citations omitted) (internal

quotation marks omitted); see also Gen. Dynamics Land Sys.,

Inc. v. Cline, 540 U.S. 581, 600 (2004) (confirming that we may
22

look to the “text, structure, purpose, and history” of an agency’s

authorizing statute to determine whether a statutory provision

admits of congressional intent on the precise question at issue).

Appellants are correct that we must start with the statute’s

text. See, e.g., Natural Res. Def. Council, Inc. v. Browner, 57

F.3d 1122, 1125 (D.C. Cir. 1995) (citations omitted). But the

meaning we ascribe to statutory text must reflect the statute’s

“context.” Bell Atl. Tel. Cos., 131 F.3d at 1047. For, as this

court has explained, “[t]he literal language of a provision taken

out of context cannot provide conclusive proof of congressional

intent, any more than a word can have meaning without context

to illuminate its use.” Id.; see also PDK Labs., Inc. v. U.S. Drug

Enforcement Admin., 362 F.3d 786, 794 n.1 (D.C. Cir. 2004)

(“[O]ne cannot understand a statute merely by understanding the

words in it.”); Cnty. of L.A., 192 F.3d at 1014 (“[T]o prevent

statutory interpretation from degenerating into an exercise in

solipsism, ‘we must not be guided by a single sentence or

member of a sentence, but look to the provisions of the whole

law.’ . . . ‘[W]e consider not only the language of the particular

statutory provision under scrutiny, but also the structure and

context of the statutory scheme of which it is a part.’” (citations

omitted)). Thus, in interpreting “audiology services,” we must

consider not only the ordinary meaning of this term, but also,

among other things, “the problem Congress sought to solve” in

enacting the statute in the first place. PDK Labs., Inc., 362 F.3d

at 796.

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
23

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., 750 F.2d 1077, 1084 (D.C. Cir. 1984) (“It is well

settled that issues and legal theories not asserted at the District

Court level ordinarily will not be heard on appeal.” (citations

omitted)). Second, even if the argument is implicit in the

Department’s theory of the case, as the agency now seems to

suggest, it nonetheless lacks merit. After the 2004 amendments,

mapping could unambiguously qualify as a related service but

not as an assistive technology service. The mere existence

within a statute of two terms with overlapping but distinct

definitions does not necessarily render either provision

ambiguous.

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, 578 F. Supp.

2d at 157. Even the Department does not defend this analysis on

appeal. The fact that Congress expressly did not intend for

schools to provide surgically implanted medical devices as a

related service says nothing with respect to whether Congress

intended schools to provide the programming and maintenance

of those devices as a related service.

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
24

education . . . designed to meet their unique needs and prepare

them for further education, employment, and independent

living.” 20 U.S.C. § 1400(d)(1)(A); see also id. § 1401(9)

(defining “free appropriate public education” to mean “special

education and related services”). Furthermore, the “related

services” provision makes clear that school districts are required

to provide “developmental, corrective, and other supportive

services” – the categories of services that parenthetically include

“audiology services,” see id. § 1401(26)(A) – only “as may be

required to assist a child with a disability to benefit from special

education,” id. In other words, the services must be related to

something – i.e., special instruction and the IDEA’s standard of

a free appropriate public education. That standard is limited.

Based on the structure and purpose of the IDEA, the

Supreme Court has refused to interpret “free appropriate public

education” “to require . . . the furnishing of every special service

necessary to maximize each handicapped child’s potential.”

Rowley, 458 U.S. at 199. Such an expansive interpretation

would push the IDEA “further than Congress intended to go.”

Id. Instead, the Court has interpreted the phrase to guarantee

children with disabilities only a “‘basic floor of opportunity.’”

Id. at 200 (citation omitted).

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., 526 U.S. at 74–75 (“It is thus settled that the phrase ‘medical

services’ in § 1401(a)(17) [of the IDEA] does not embrace all

forms of care that might loosely be described as ‘medical’ in

other contexts, such as a claim for an income tax deduction.”).

The term might instead refer to those services provided by

educational audiologists – services that do not typically include

mapping. See Gregg Letter, J.A. 15 (distinguishing mapping

from educational audiology services such as the “provision of
25

proper classroom acoustical modifications, speech and language

therapy, FM educational amplification systems, educational

support services such as pre-teaching and post-teaching the class

lessons, and even replacing batteries and detecting malfunctions

of the externally worn cochlear implant speech processor”);

McCulloch Letter, J.A. 26; see also EDUC. AUDIOLOGY ASS’N,

SCHOOL-BASED AUDIOLOGY SERVICES (2009), available at

http://www.edaud.org/associations/4846/files/AdvocacyState

ment_1_core.pdf.

There are two considerations that amplify our conclusion

that “audiology 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., 362 F.3d at 800

(Roberts, J., concurring in part and concurring in the judgment).

Therefore, according to Appellants, absent an express limitation,

a general term usually encompasses everything within its

standard definition. See, e.g., U.S. Telecom Ass’n v. FCC, 359

F.3d 554, 592 (D.C. Cir. 2004) (“[A]n agency cannot, absent

strong structural or contextual evidence, exclude from coverage

certain items that clearly fall within the plain meaning of a

statutory term.”). To reinforce this point, Appellants point out

that the “medical services” component of the “related services”

provision does contain an express limitation; school districts

must provide only those medical services that are “for diagnostic

and evaluation purposes.” 20 U.S.C. § 1401(26)(A). 

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
26

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.

Appellants thus urge that, because the “medical services”

and “nurse services” components of the “related services”

provision contain express limitations, we should hesitate to find

an implied educational limit on “audiology services.” This

claim would be compelling were it not shortsighted.

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 too 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
27

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 a 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, 524 U.S. 206,

211–12 (1998). After all, “the fact that a statute can be applied

in situations not expressly anticipated by Congress does not

demonstrate ambiguity. It demonstrates breadth.” Id. at 212

(citation omitted) (internal quotation marks omitted). Similarly,

the Court has explained that the “title” and “headings” of a

statute are “of use only when they shed light on some

ambiguous word or phrase. They are but tools available for the

resolution of a doubt. But they cannot undo or limit that which

the text makes plain.” Bhd. of R.R. Trainmen v. Balt. & Ohio
28

R.R. Co., 331 U.S. 519, 528–29 (1947). But these warnings are

inapposite here. Unlike the statutes at issue in Yeskey and

Brotherhood of Railroad Trainmen, the IDEA does not

expressly resolve the relevant interpretive question. Therefore,

we must consider the statute’s context.

In our view, the term “audiology services” in 20 U.S.C. §

1401(26)(A) does not unambiguously encompass mapping of

cochlear implants. Therefore, Appellants cannot prevail under

Chevron step one. 

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, 467 U.S.

at 843. At step two, we focus on “whether the [agency] has

reasonably explained how the permissible interpretation it chose

is ‘rationally related to the goals of’ the statute.” Village of

Barrington, Ill., 636 F.3d at 665 (citation omitted); see also

Northpoint Tech., Ltd. v. FCC, 412 F.3d 145, 151 (D.C. Cir.

2005) (“A ‘reasonable’ explanation of how an agency’s

interpretation serves the statute’s objectives is the stuff of which

a ‘permissible’ construction is made . . . .” (citations omitted));

Bell Atl. Tel. Cos., 131 F.3d at 1049 (“[W]e will defer to the

[agency’s] interpretation if it is reasonable and consistent with

the statutory purpose and legislative history.” (citations

omitted)). As noted above, in order for Appellants to prevail on

their Chevron step-two claim, we must find that the Mapping

Regulations are “manifestly contrary to the statute.” Chevron,

467 U.S. at 844 (citations omitted). We can make no such

finding on the record in this case.

The Department justified the Mapping Regulations based on

a number of related considerations. We think each is rationally
29

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 the day,” because such services “provide the

student with ‘the meaningful access to education that Congress

envisioned.’” 526 U.S. at 73 (citation omitted). And in Tatro,

the Court was even clearer in stating that “if a particular

medication or treatment may appropriately be administered to a

handicapped child other than during the school day, a school is

not required to provide nursing services to administer it.” 468
30

U.S. at 894.

Appellants counter that in the preamble to its final

regulations, the Department acknowledged that “allow[ing] 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 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.

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 526 U.S. at 69–73; 468 U.S. at 890–91. This

conclusion is buttressed by the administrative record here, which

illustrates that even certain audiology services must be provided

during the day – i.e., checking the batteries, settings, and cables

of cochlear implants. Furthermore, the Department has not said

that school districts are categorically excused from providing

other services whenever those services could be provided

outside of school hours, so we have no reason to address this

issue. Should the Department take this position in the future,

affected parties will be free to challenge it.
31

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, both of which can be

performed by trained lay persons, teachers, and school nurses.

Final Regulations, 71 Fed. Reg. at 46,571. The Department was

also clearly aware of the fact that – due in part to the expertise

required to map a cochlear implant and in part to the cost of

equipment and software – mapping imposes a substantial

financial burden on school systems. See, e.g., Neault Letter,

J.A. 48; Academy Letter, J.A. 44.

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
32

Garret F. and Tatro. Schools are required to provide “medical

services, except that such medical services shall be for

diagnostic and evaluation purposes only.” 20 U.S.C. §

1401(26)(A). In other words, certain medical services are

excluded from coverage. To clarify what services are excluded,

the Department adopted regulations in 1983 that, inter alia,

define “medical services” as “services provided by a licensed

physician.” Tatro, 468 U.S. at 892 (citation omitted) (internal

quotation marks omitted); see also 34 C.F.R. § 300.13(b)(4)

(1983). In Tatro, the Court held that clean intermittent

catheterization – which clearly qualified as a related service –

was not excluded as a “medical service,” noting that it could be

provided by nurses, rather than by licensed physicians. In

reaching this holding, the Court explained that the Department’s

interpretation of “medical services” was “a reasonable

interpretation of congressional intent.” 468 U.S. at 892. The

Court continued: “[T]he Secretary could reasonably have

concluded that [the “medical services” exclusion] was designed

to spare schools from an obligation to provide a service that

might well prove unduly expensive and beyond the range of

their competence.” Id. The Court reaffirmed this holding in

Garret F. See 526 U.S. at 74 (“[In Tatro, w]e referenced the

likely cost of the services and the competence of school staff as

justifications for drawing a line between physician and other

services, but our endorsement of that line was unmistakable.”

(citation omitted)); see also id. at 77 (explaining that

Department was entitled to “[d]efin[e] ‘related services’ in a

manner that accommodates the cost concerns Congress may

have had”).

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
33

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 trained personnel to help handicapped children, such

as ‘trained occupational therapists, speech therapists,

psychologists, social workers and other appropriately trained

personnel.’” Tatro, 468 U.S. at 893 (citation omitted). But we

do not believe that the Mapping Regulations are inconsistent

with that intent. Even under the Regulations, schools may still

be required, pursuant to a child’s IEP, to train personnel to

perform routine monitoring of the external components of

cochlear implants and acoustical hearing aids as well as to hire

or retain specialists to provide other supportive audiology

services “such as speech and language therapy, assistive

listening devices, appropriate classroom acoustics, auditory

training, educational interpreters, cued speech transliterators,

and specialized instruction.” Final Regulations, 71 Fed. Reg. at

46,570. Thus, we think that the Mapping Regulations satisfy the

IDEA’s educational purpose.

Appellants separately argue that the Mapping Regulations

fail at Chevron step two, because the Department made an error
34

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.” 20

U.S.C. § 1401(26)(B), (1)(B). Yet, surprisingly, the Department

explained that the Mapping Regulations “reflect[ed] the

language in the Senate Report (S. Rpt.) No. 108-185, p. 8, which

states that the Senate committee did not intend that mapping a

cochlear implant, or even the costs associated with

mapping . . . be the responsibility of a school district.” Final

Regulations, 71 Fed. Reg. at 46,569–70. Appellants, on the

other hand, contend that the drafting history demonstrates

Congress’s intent that mapping be considered a related service

and that the Department relied on an obsolete committee report

to contravene that intent.

At the outset, we agree with Appellants that the

Department’s citation of the Senate Report in the preamble to

the rulemaking 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.
35

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 already

discussed the various, valid policy considerations that informed

the Department’s rulemaking.

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. [Intervenor’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.

636 F.3d at 666 (citation omitted) (internal quotation marks

omitted). Appellants are urging the inverse proposition,

however – i.e., that an agency frustrates Congress’s intent by not

attaching dispositive weight to an inference that can be drawn
36

from unenacted text. And we are aware of no authority

supporting that approach to statutory interpretation. See Edison

Electric Inst. v. EPA, 2 F.3d 438, 451 (D.C. Cir. 1993) (per

curiam) (“[W]e need only note that the deletion of a word or

phrase in the throes of the legislative process does not ordinarily

constitute, without more, evidence of a specific legislative

intent.” (citations omitted)).

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., 501 F. Supp. 2d at 1143–44; Beth P., 2003

WL 260728, at *4–5. But these decisions do not render the

Department’s construction of the IDEA impermissible. The

Supreme Court confronted a comparable situation in National

Cable & Telecommunications Ass’n v. Brand X Internet

Services, 545 U.S. 967 (2005). There, the Court explained that

when an agency adopts an interpretation of a statute that

conflicts with a prior, otherwise controlling court decision

interpreting the same statute, the judicial decision

“trumps . . . only if [it] holds that its construction follows from

the unambiguous terms of the statute and thus leaves no room

for agency discretion.” Id. at 982. This proposition “follows

from Chevron itself.” Id. And here, none of the pre-2004

decisions dealing with mapping under the IDEA are binding in

this Circuit, and none held that the Act is unambiguous with

respect to mapping. Thus, none of those decisions can “trump”

the agency’s construction of the statute.

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
37

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 Section

1406(b)(2) of the IDEA

Appellants’ final claim in this case is that the Mapping

Regulations are invalid, because they substantively lessen the

protections afforded children with disabilities under the

Department’s 1983 regulations. As noted above, the IDEA

states that 

[t]he Secretary may not implement, or publish in final form,

any regulation prescribed pursuant to this chapter

that . . . procedurally 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.

20 U.S.C. § 1406(b)(2). Appellants claim that the Mapping

Regulations violate this statutory limitation, because the

Department’s 1983 regulations unambiguously provided for

mapping. The Department counters that the 1983 regulations

are ambiguous with respect to mapping. We agree with the

Department.

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., 512 U.S. at 512. Instead, we must give the

Department’s interpretation of its own regulation “controlling

weight unless it is plainly erroneous or inconsistent with the

regulation.” Id. (citation omitted) (internal quotation marks
38

omitted). With that standard in mind, we turn to the 1983

regulations.

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.

34 C.F.R. § 300.13(a) (1983).

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
39

individual amplification, selecting and fitting an

appropriate aid, and evaluating the effectiveness of

amplification.

Id. § 300.13(b)(1).

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 that the

term “audiology” as used in the 1983 regulations has no more of

a fixed meaning than it does in the IDEA itself. Appellants also

argue that, prior to 2004, a few district courts interpreted the

IDEA and the Department’s 1983 regulations to encompass

mapping. But it does not matter that some pre-2004 decisions

support Appellants’ position, because there is no binding

authority establishing that mapping unambiguously falls within

“audiology” as used by the Department’s 1983 regulations. See

Brand X, 545 U.S. at 982 (holding that a “court’s prior judicial

construction of a statute trumps an agency construction

otherwise entitled to Chevron deference only if the prior court

decision holds that its construction follows from the

unambiguous terms of the statute and thus leaves no room for

agency discretion”).

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, 857 F.2d 808, 811 (D.C. Cir. 1988).
40

Appellants then argue that mapping is covered under the 1983

regulations as “[d]etermination of the range, nature, and degree

of hearing loss,” 34 C.F.R. § 300.13(b)(1)(ii) (1983); or

“selecting and fitting an appropriate aid,” id. § 300.13(b)(1)(vi).

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., 512 U.S. at 512. We think Appellants’

efforts to bootstrap mapping awkwardly into these regulatory

examples do not satisfy that standard.

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.
KAREN LECRAFT HENDERSON, Circuit Judge, 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 

service[]” or other “related service[]” that must be provided 

under the IDEA. See 20 U.S.C. § 1401(26)(A). This, as my 

colleagues correctly note, is a “close question.” Majority Op. 

at 19.1 That said, I agree with them that 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,” id. at 24, and that the 

Department’s exclusion of mapping is a permissible 

interpretation of the statutory text, id. at 28. Nevertheless, that 

interpretation is far from satisfactory. 

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 30 C.F.R. § 300.34, the first of the two challenged 

Mapping Regulations. It provides an exception to the 

definition of “related services” that, at first blush, plainly 

excludes mapping: “Related services do not include a medical 

 

1

 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 34–37. 
2 

device that is surgically implanted, the optimization of that 

device’s functioning (e.g., mapping), maintenance of that 

device, or the replacement of that device.” Id. § 300.34(b)(1) 

(emphases added). But, as is often the case with agency 

regulations, the next paragraph of that section—paragraph 

(b)(2)—contains an exception to the exception: “Nothing in 

paragraph b(1) of this section . . . [p]revents 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. § 300.34(b)(2). Section 300.34 thus directs 

us to the second of the two challenged Mapping 

Regulations—34 C.F.R. § 300.113—to determine whether 

mapping constitutes the “routine checking of an external 

component . . . to make sure it is functioning properly.” 

Following this regulatory bread trail, however, reveals 

very little. Paragraph (b)(1) of section 300.113 provides that 

“each public agency must ensure that the external components 

of surgically implanted medical devices are functioning 

properly.” 34 C.F.R. § 300.113(b)(1). Because mapping 

ensures that the auditory processor (the external component) 

of the implant is calibrated so as to send the proper electric 

signals to the brain, see Pls.’ Compl. ¶22,2

 and because 

mapping is necessary for a cochlear implant to function 

 

2

 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. 
3 

effectively, see Final Regulations, 71 Fed. Reg. 46,540, 

46,569–70 (Aug. 14, 2006) (“[T]he cochlear implant must be 

properly mapped in order for the child to hear well in 

school.”), mapping plainly appears to be part of the “routine 

checking of an external component” of the cochlear implant. 

But paragraph (b)(2) of section 300.113 provides an 

exception to what must be provided under (b)(1). That 

paragraph provides that “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 the external component of the surgically 

implanted medical device).” Id. § 300.113(b)(2) (emphases 

added). Is cochlear mapping “post-surgical” programming of 

a surgically implanted medical device? In one sense, yes, as it 

occurs after (i.e., post) surgery. On the other hand, if the word 

“post-surgical” is to have real meaning, it must provide some 

limit to the otherwise all-encompassing exclusionary 

language.3

 After all, all maintenance, programming or 

replacement of a medical device that “has been surgically 

implanted” necessarily occurs after surgery. 34 C.F.R. § 

300.113(b)(2) (emphasis added). As we have often explained, 

judges should hesitate to treat words in a regulation or statute 

as mere surplusage—words of no consequence. United States 

v. Project on Gov’t Oversight, 616 F.3d 544, 561 (D.C. Cir. 

2010). Perhaps, then, “post-surgical” refers to the 

programming that occurs in the hospital immediately after the 

child’s cochlear implant surgery. 

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 

 

3

 A six-year-old child has his tonsils removed and twelve years 

later he graduates from high school. Is his graduation “postsurgical”? Of course not. 
4 

implant mapping under the IDEA. In the end, much of this 

uncertainty is legally irrelevant because, as my colleagues 

note, Majority Op. at 18-19, 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, 519 U.S. 452, 461 (1997) (agency’s interpretation of 

its own regulation has controlling weight unless it is plainly 

erroneous or inconsistent with the regulation). The 

Department, and more importantly, children with disabilities, 

however, would be well served if the Department were to 

clarify and simplify its regulatory framework. School districts 

across the nation must interpret the regulations in order to 

understand their obligations under the IDEA. It does little to 

advance the educational goals of the IDEA if the Department 

produces regulations that resist efforts to understand them. 

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 34 C.F.R. § 300.34(c)(1) (“audiology” 

includes “[d]etermination of children’s needs for group and 

individual amplification, selecting and fitting an appropriate 

aid, and evaluating the effectiveness of amplification”).4

 

4

 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 
5 

“[The] 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,” 

Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2491 (2009) 

(emphasis added), not only those children with disabilities 

that are more easily or cheaply corrected. While I cannot say 

that the Mapping Regulations are ultra vires in light of the 

deference we are duty-bound to afford them,5

 they do not, in 

my opinion, correctly and fairly implement the IDEA. 

 

functioning properly.” 34 C.F.R. § 300.113(b)(1). Indeed, the 

external components are the only components whose functioning 

can be monitored to ensure the implant’s efficacy. 

5

 As noted by my colleagues, Majority Op. at 23–24, the 

“related services” exception added to the statute in 2004—20 

U.S.C. § 1401(26)(b)—does not expressly exclude cochlear implant 

mapping. The exception plainly states that “related services” 

excludes the provision and replacement of surgically implanted 

devices only. 20 U.S.C. § 1401(26)(b) (“related services” “do[] not 

include a medical device that is surgically implanted, or the 

replacement of such device”). It says nothing about mapping and 

ordinarily we would not presume the Congress intended to exclude 

any service other than those expressly excluded. See, e.g., Lever 

Bros. Co. v. Dist. of Columbia, 204 F.2d 39, 41 (D.C. Cir. 1953) 

(under canon of expressio unius est exclusio alterius “specific 

exclusion would seem to indicate that [non-listed] factors should be 

included within the definition”).