Thursday, March 23, 2017

A Supreme Court unanimous decision on IDEA

Fire Power
Below is a news item from ACCSES, a national disability provider organization. On 3/22/17, the U.S. Supreme Court overturned a 10th Circuit Court decision on IDEA, the Individuals with Disabilities Education Act. They ruled in favor of parents who sent their child to a private school after the school district failed to provide a Free and Appropriate Public Education (FAPE), to their child. 

Neil Gorsuch, who has been nominated to the Supreme Court by President Trump, was part of the lower court decision against the parents. 

According to an article in the Los Angeles Times from 3/22/2017

"Asked about the issue on Wednesday, Gorsuch said he was a part of a unanimous three-judge panel that had sought to follow a Supreme Court standard set in 1982.

"Several liberal groups described the court's decision as a direct rebuke of Gorsuch.

"However, Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) noted that Gorsuch was not part of the three-judge panel whose ruling was directly reversed in the court’s decision in Endrew F. vs. Douglas County"


An ACCSES News Alert, 3/22/17, from Kate McSweeny, Vice President of Governmental Affairs & General Counsel:

Today, the United States Supreme Court handed down a unanimous decision in Endrew F. v. Douglas County School District, deciding that children with disabilities are entitled to an Individual Education Plan (IEP) that will provide challenging objectives appropriate for the individual. 

Many of you who came to ACCSES’s Summit in Savannah or attended ACCSES’s Education Policy Committee call earlier this month will recall that the underlying case was brought by the parents of a boy with autism, whose IEP had been virtually unchanged during the time he had spent in the school system from pre-school to the fourth grade. The parents moved Endrew to a private school that focuses on students with autism, where their son did much better. They also sued the local public school system for its failure to provide a “free appropriate public education” (FAPE) to their child as required under the Individuals with Disabilities Education Act (IDEA).

Endrew and his parents lost before an administrative law judge, a federal district court, and the United States Court of Appeals for the Tenth Circuit. The Tenth Circuit determined that a child’s IEP is adequate so long as it is calculated to confer “an educational benefit” that is “merely more than de minimis.” By applying this standard, the Tenth Circuit determined that Endrew’s IEP had been “reasonably calculated to enable him to make some progress”; therefore, he had not been denied a FAPE. The Supreme Court granted certiorari and heard oral arguments in the case in January.

In the decision handed down today, the Supreme Court disagreed, and vacated the Tenth Circuit decision. Rather than the low de minimis standard, the Supreme Court stated:

“To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” While the Court declined to establish a specific standard, it expressly stated that “a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly . . . awaiting the time when were old enough to drop out.’ The IDEA demands more.” (Citations omitted.)

You can read the decision at this link. It’s a good read.

Wednesday, March 15, 2017

The Health Care Debate and People with DD

The news on proposals to "Repeal and Replace" the Affordable Care Act (Obamacare) have been disturbing, to say the least. Potentially radical changes to Medicaid and eventually Medicare, the availability of health insurance, and how it will be paid for are being rushed through Congress apparently without due consideration for the effects on our most vulnerable populations, including those with intellectual and developmental disabilities. 

Couple that with a windstorm that swept across Michigan and knocked out electrical power to 800,000 customers in Southeast Michigan where I live, and you can imagine how difficult it has been for me to know where to start in making sense of either crisis . The best commentary I have read on the health care debate comes from the VOR Weekly News Update for March 10th, 2017:


VOR and YOU: Health Care

Much has been said about the recent "Repeal and Replace" activities in Congress. VOR is very concerned about this as well. We have people on both sides of the aisle, and we try not to let our personal views on some issues get in the way of the issues that we have in common, the best interests of our loved ones with I/DD. We all know that the system that preceded the ACA was untenable. We all agree that there are problems with the ACA. but that some aspects of the act should be preserved. We may also agree that the current process of replacing the ACA with the AHCA has not been a smooth or reassuring one.

So what do we know? What can we agree on? 

To begin, we know that there is not enough money to properly deal with the needs of everyone with an intellectual or developmental disability. There are people on waiting lists, many of whom have been on these lists for over a decade. We have people who are receiving services that fall short of their needs. As a result, we do not have a unified community, but one in which each of us is trying to protect what we have or else trying to get what we can by taking from someone else. There is not enough to go around, yet neither party is proposing increasing the amount of money to be spent on the I/DD population.

Second, we see that not enough money is spent to provide long-term caregivers a living wage. As the minimum wage rises for many workers, many direct-care professionals are being left behind. We need to make sure that we have a well-trained, responsible, and loving workforce to look after the needs of individuals with I/DD. We can only maintain such a workforce by giving them wages that are fair compensation for the services they provide.

Third, we know that a good portion of the money that is in the CMS [Centers for Medicare and Medicaid Services] budget goes is being misspent.We believe that the best way to spend this money is make sure it goes directly to care and related services. Far too much of it goes to agencies and programs that lobby against others in the community, to P&A's and DD Councils that often spend these funds working against the interests of some in order to promote ideologies of integration and one-size-fits-all solutions that completely ignore the needs of many of the most severely disabled.

Finally, we know that choice is important to people with I/DD and their families and guardians. We believe that the I/DD population is diverse, and that their needs are too diverse to be met by any simple solutions. Our loved ones are individuals. No two are alike, and while some have similar problems, they don't always react the same to any one given treatment. We believe that residential choice in all forms is vital and we believe that individuals need a variety of employment options, that competitive, integrated employment, sheltered workshops, day programs, and farmsteads are all vital parts of a healthful and productive occupational platform. And we know that with choice comes responsibility - the responsibility to maintain each facility or program to maximize its efficiency and effectiveness, while providing a safe, comforting environment to the individual.

There are no easy solutions being proposed that would solve our health care crisis. We have a complex and underfunded system, and there will always be some people who gain and some who lose. Whatever comes in the months ahead, we know that we must continue to speak up for the needs of the I/DD community, to emphasize the true meaning of Olmstead, and to find political leaders who are willing to help us in our cause.

Wednesday, March 1, 2017

New York Minority Report on DD Services: Olmstead Misinterpretation

This is from the New York State Assembly minority task force report on the Olmstead Decision and its impact on the state's developmental disability community. The C.A.R.E.S. Plan (Championing Aid, Rights, Equality and Services) makes recommendations to correct the unintended consequences resulting from a misinterpretation of the 1999 Supreme Court Olmstead decision by the U.S. Department of Justice and the State of New York. 

[pages 3-4 of the C.A.R.E.S. report]


On June 22, 1999, the United States Supreme Court held in Olmstead v. L.C. that unjustified segregation of persons with disabilities constitutes discrimination in violation of Title II of the Americans with Disabilities Act (ADA). The Court held that states are required to place persons with developmental disabilities in community settings rather than in institutions when (1) such community placement is appropriate; (2) the affected persons do not oppose the transfer from institutional care to a less restrictive setting; and (3) the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities.

In 2009, President Obama directed federal agencies to vigorously enforce the civil rights of Americans with disabilities. Since then, the Department of Justice (DOJ) has made enforcement of the Olmstead Decision a top priority. As such, the DOJ has created a technical assistance guide to assist individuals in understanding their rights under Title II of the ADA and its integration mandate. However, when explaining what factors are relevant in determining whether an individual does not oppose an integrated setting, the DOJ simply states that in cases where the individual wishes to stay in an institutional setting, that such individuals who have been institutionalized or segregated have been given very little information and are unable to make an informed decision. Therefore, public entities must take “affirmative steps” to remedy this history of segregation regardless of the individual’s wishes to stay in institutionalized care.

The DOJ also states that segregated settings include, but are not limited to: (1) congregate settings populated exclusively or primarily with individuals with disabilities; (2) congregate settings characterized by regimentation in daily activities, lack of privacy or autonomy, policies limiting visitors, or limits on individuals’ ability to engage freely in community activities and to manage their own activities of daily living; or (3) settings that provide for daytime activities primarily with other individuals with disabilities. Therefore, any community service that provides day habilitation services for individuals with disabilities is considered segregation, according to the DOJ, and must be discontinued.

In October 2013, Governor Cuomo’s Olmstead Cabinet...released a report and recommendations titled “A Comprehensive Plan for Serving People with Disabilities in the Most Integrated Setting” which also ignores the second prong in the Olmstead Decision. The Cabinet made a blanket recommendation to “assist in transitioning people with disabilities into the community from developmental centers, Intermediate Care Facilities, sheltered workshops, psychiatric centers, adult homes, and nursing homes,” giving no deference to an individual’s wishes to stay in institutionalized care. In some cases, families have never been asked if moving their family member out of institutional care is even in the best interest of the individual.

This “one-size-fits-all approach” does not work in the developmental disabilities community as every person has different abilities and different wishes. Testimony was shared at each forum from people with disabilities currently employed at sheltered workshops and individuals expressed their passion for working there, seeing their friends, and receiving a pay check. If sheltered workshops are closed entirely, some parents of individuals with developmental disabilities are concerned that their child will not be able to be integrated into the community workforce since they will not be competitive with other available employees in the community. If sheltered workshops remain open, creating an integrated work environment, it will result in jobs being taken away from individuals with disabilities. At the Task Force forums, some individuals with disabilities stated that they prefer being with their friends in the sheltered workshops.

See also, "The Olmstead Decision Has Been Misinterpreted" from VOR