Reasons to yawn: Wrap up analysis of two recent SCOTUS cases involving IDEA


On 11/8/16 I wrote

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.

Turns out that this analysis was essentially correct regarding the separate cases of Endrew and Fry.

In the Fry case the issue at hand turned out to hinge on the concept of 'administrative exhaustion' or whether or not a family had to satisfy IDEA due process rules before bringing an ADA lawsuit.  According to the decision, if the issue is not related to IDEA, there is no such requirement.  In this case the Fry family was not arguing about educational rights - they were arguing about wanting a monetary award for emotional distress.  Since the 'gravamen' of the concern was not IDEA the Court ruled that there was no need to exhaust IDEA due process.

This will have little to no impact on service delivery in school systems.  Over time we may see more lawsuits filed against schools earlier in the process, with savvy lawyers parsing out IDEA concerns and other non-IDEA concerns like 'emotional distress.'  Schools will have to respond differently to the possibility of dual-process complaints.

Bottom line: this was not an IDEA case.  It was a case that outlined rules for lawsuits under the ADA, wrapped in poor reporting and media obsession with the click-bait of little disabled children and their cute dogs.  The media got their clicks, the family got to sue under the ADA, lawyers have new strategies for making money, and the rest of us can go about our work.

++

The Endrew case was specifically related to IDEA as it wrestled with the central question of FAPE and what was considered 'appropriate.'  There have been a number of interpretations about FAPE criteria - most of the criteria discussed openly in courts but not openly in IEP meetings.  At issue was whether or not a de minimus standard could be considered 'appropriate' and the Court ruled that it was not.

That won't do many families much good because I don't  believe that most IEP teams sit around the table and design plans aimed at that low bar - and even if that is the end result of their efforts you would be hard pressed to ever find that recorded.  Schools will always believe that they are reaching for the stars.  An analysis of the mission statement of any school district shows the public proclamation that the goal is to create exemplary world citizens blah blah blah.

So even if the issue of FAPE came up in meetings before it was generally answered with 'We don't have to provide the BEST program; we have to provide a program they can BENEFIT from.'  In simple terms that is known as the Rowley standard, related to a previous SCOTUS decision.  Again, most school districts do not openly publicize that their definition of benefit is a de minimus standard.

The Endrew case is interesting in that it shuffles the words on FAPE, now indicating that a school has to provide an individualized education program that is reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.  That is a rejection of the de minimus standard - something that a word-parsing lawyer might argue in court but that I have never heard as a guiding policy around an IEP table.

Unfortunately, from the perspective of real world guidance, now you will hear schools say that their IEPs are designed in light of the child's circumstances and that they are reasonable.  The Court affirmed the role of schools acting in a good faith effort based upon local professional judgement - and specifically stated that they have no interest in developing a "bright-line" standard for schools to follow.  Deference is based on the expertise and judgement of the schools.  Plain and simple.

If you want to understand what the SCOTUS did with this case, look at this video, and imagine the bullets as 'the definition of FAPE'



As such, this decision also will not amount to much.  The definition of FAPE is no more clear today than it was under Rowley.  Perhaps the only thing that changed is that some lawyers will no longer make the de minimus argument.

++

Neither of these cases will have much lasting impact on everyday work in school systems.  They only clarify strategies to be used and avoided by lawyers when the rare case actually gets into a court.


Comments

Post a Comment

Popular posts from this blog

On retained primitive reflexes

Each year I receive several emails from colleagues about 'retained primitive reflexes.'  I am also seeing an increased number of reports from local 'health care' providers who are documenting these alleged problems so I thought I would write a summary of my opinion on this topic.   Predatory 'health care' providers including some OTs, PTs, chiropractors, and behavioral optometrists are creating a new 'market' for treating this alleged 'problem.'  Parents should be very wary of these practitioners and other professionals should challenge these practices whenever they are seen. The following is the kind of information that causes concern and was provided to me by a colleague as a sample from a student's IEP: The student continues to demonstrate the following retained primitive reflexes that at times interfere with his ability to demonstrate appropriate adaptive responses: Fear Paralysis Reflex, Moro Reflex, Palmer Reflex, Tonic Labyri...
Read more

Deconstructing the myth of clothing sensitivity as a 'sensory processing disorder'

Please note first that there is no formally recognized clinical designation of  'sensory processing disorder.'   It is a term constructed by occupational therapists that has not been formally recognized by the larger medical community. In our clinic we receive many referrals from local pediatricians when parents have concerns about children being overly sensitive to their clothing.  Most often the children referred are from four to seven years old and the families are severely disrupted by the children's behaviors and responses to clothing issues.  Commonly, children will have severely constricted tolerance for certain outfits, want to wear the same clothes repeatedly, complain that clothing is itchy/scratch/bumpy/wiggly/ouchie, and this all leads to disruption of daily dressing routines.  There is no doubt that the behavioral concerns are very real. The pediatricians tend to be appropriately conservative and provide families with good behavioral manage...
Read more

Occupational therapy education: How to navigate in a Perfect Storm

Image
Please click on and read all of the links - they include critical information that is required for this analysis.   A little over four years ago I stated that there are too many occupational therapy educational programs in New York State .  At the NYSOTA conference legislative information session in 2023 I stood up and suggested that we should all stop taking jobs at these institutions that were seeking to develop new programs.  I thought that if we did not take those jobs that the problem would be solved.  That was not realistic or correct, even if the intention was good. Well karma tends to strike when you make public pronouncements, so I thought I should expand on my perspectives on this topic. At current count there are still ~22 occupational therapy programs and ~11 occupational therapy assistant programs in NY.  Most of the programs are delivered at the master's level.  There are a very small number of entry level doctoral programs, but some of t...
Read more