The importance of rational policy analysis for occupational therapists


The OT Capital Briefing in the November 7, 2016 OT Practice analyzes two Supreme Court cases that are summarized together as follows:

If the Supreme Court finds in favor of the families in both cases, the expertise occupational therapy practitioners provide will be more important than ever to ensure students with disabilities receive a meaningful education, and that schools fully comply with the ADA and Section 504.

This is a confusing summary because neither case has anything to do with OT specifically and in fact if the Supreme Court finds in favor of the families there may be unintended consequences that are damaging.

In the first case, Endrew F. v. Douglas County School District, the issue of concern has to do with what constitutes FAPE, or a free appropriate public education.  In this case the parents removed their child from school because they believed that his progress was insufficient as it relates to his autism condition.  The enrolled him in a private school instead and are seeking compensation to pay for that since they allege that the school did not provide FAPE.

The school rebutted that it was their responsibility to provide a 'non-trivial' educational benefit and various courts have indicated that the benefit has to be more than 'trivial' and at least 'substantial.'  This is the nut of this case - what exactly constitutes 'appropriate?'  It is a challenging standard and a fair analysis probably falls somewhere in the middle.

A biased analysis would hold that students who have disabilities should be allowed maximal benefit from education, but that is probably unreasonable given that even regular education students don't receive that level of maximal benefit.  There is no compelling reason why children who have disabilities should  be afforded a higher standard of excellence as compared to what is offered to every other student.  Additionally, if school districts had to pay for this maximal standard of excellence it would financially strain systems, and that would cause districts to cut back in other areas where possible.  This could be very problematic - both for families who need services as well as for the service providers.

No one has been able to define appropriate in FAPE yet with any standard, so 'reasonableness' needs to  be applied. That means something less than maximal and certainly something more than 'trivial.'  Sending a child to a self contained private school is likely more than some middle ground level of care that can be considered 'appropriate' in most circumstances.

Occupational therapists should hope that the Court finds a way to define this middle ground without allowing families to demand services that will strain and damage the educational system.

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In the second case, Fry v Napoleon Community Schools, the Court has to decide whether or not families have to exhaust due process procedures before filing an ADA lawsuit.  In this case the family sued a school district for allegedly inflicting emotional distress by not allowing a kindergarten aged child to bring a service animal into the school and because of the evaluation process that the school employed in determining if the service animal would be a viable option in the school.  The district gave the service animal a trial but then determined that they would instead offer a human aide. 

Due process would have required the family to go through a series of designated steps to attempt to resolve the differences at the local level.  The family did not utilize due process proceedings, removed their child from school, enrolled the child in another school, and initiated the lawsuit.

The school provided a reasonable accommodation to the child in the form of a human aide.  More importantly, the family failed to follow due process rules.  Those rules are important and protect families from all sorts of bad decision making and malfeasance.  If the Court rules in favor of the parents they are sending a message that due process proceedings are not always relevant and that families can simply bring suit for damages without first trying to resolve differences.  Due process is a two way street; if those proceedings are weakened then schools also could claim that some decisions can fall outside of that due process.  That would be horrible for families.

Occupational therapists should hope that the Court reaffirms the critical nature of due process proceedings and the importance of exhausting those mechanisms before advancing to higher court levels.  That will be the best outcome for families.

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In both of these cases it is important to carefully analyze the details of what is actually being litigated.  So often the truth of what is being discussed gets lost in poor reporting about the topics.  For example, many news outlets focus on the 'evil school district vs. the child in the wheelchair with Wonder the GoldenDoodle' meme instead of focusing on the decidedly less appealing 'what is the importance of due process' angle.

As OTs become more savvy with policy analysis they will avoid the bias-trap of media reporting and try to approach a more 'rational comprehensive' method of considering the actual facts.  They will also become more savvy by dropping the naive notion that just because an issue might have the superficial appearance of something that should be supported, it is important to dive deeply into the actual policy to make sure we are promoting what is best for the people who seek our services.


Recommended reading:

Birkland, Thomas A. (2016). An introduction to the policy process, 4th ed. New York: Routledge.

Saffer, A. (2016 Nov 7). Supreme Court weighs two cases on students with disabilities.  OT Practice, AOTA.

SCOTUS Blog http://www.scotusblog.com/case-files/cases/fry-v-napoleon-community-schools/

SCOTUS blog http://www.scotusblog.com/case-files/cases/endrew-f-v-douglas-county-school-district/

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