Tuesday, October 18, 2016

How Much is Good Enough?

How much is good enough?

Ever since 1975 children with disabilities have been promised a free, appropriate public education (FAPE).  The question is, what exactly does that mean?  The courts have pretty much decided that free means at no cost to the parents.  Therefore, schools cannot charge back to a parent’s health care policy the cost of related services such as speech or occupational therapy that might look like a health care cost that is covered by the parent’s health care insurance.  In doing the charge back, the parent’s benefits under that policy could be diminished; thereby, incurring a cost to the parent.
One of the bigger issues has been, what exactly equals appropriate.  There is no question but that is a kind of wishy washy word.   One parent’s appropriate is one school system’s over the top expectation.  Consequently, parents have done what Americans always do, they have gone to court.  The courts have all agreed that to be appropriate the child must receive educational benefit from the education.
However, even the courts cannot agree on what exactly is educational benefit. 
In Endrew vs. Douglas County School District, the Justices of the Supreme Court have agreed to take up this very question.  The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled last year that a Colorado student with autism had received “some educational benefit” from his Individual Education Plan (IEP) before his parents withdrew him over a dispute with the school district.  However, at least one other federal appeals court has adopted a standard requiring that the IEP provide a “meaningful benefit” in order to provide FAPE.  Of course, meaningful is not exactly measurable either but it does give parents some leverage over the word "some" that could mean anything at all.
The Obama administration has said that the interpretation of the 10th Circuit is out of synch with the text, structure and purpose of the Individuals With Disabilities Education Act (IDEA).    Now it will be up to the Supreme Court to decide.  The Court is working with only eight Justices so that will also have a bearing on the outcome.
If the Court decides to go with the higher standard, many school districts across the country are going to be impacted.  One of the criteria for children receiving paid tuition in non-public approved schools is the failure of the local school district to deliver FAPE.   If the Court comes down on the side of “some” a lot of kids are going to be shortchanged.  But if the Court goes in the other direction, good enough will also need to be meaningful.

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