Petit v. United States Department of Education

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.
 5

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.
 10

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 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. (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 “post-
surgical”? 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”).