Month: January 2017

Special Education in 2017

The U.S. Supreme Court heard oral arguments in the Endrew F. v. Douglas County School District on January 11, 2017 (official transcript). The issue before the court is “What is the level of educational benefit that school districts must confer on children with disabilities to provide then with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act.”

Individuals with Disabilities Education Act (“IDEA”) passed in 1975, subsequently reauthorized and amended twice in 1997 and 2004, as the federal education law to provide a free appropriate public education (“FAPE”) to students who receive special education. In 1982, the U.S. Supreme Court interpreted the FAPE requirement in IDEA to mean schools must provide “some educational benefit” to their students with disabilities. Since then, IDEA has been amended to include the No Child Left Behind Act (“NCLB”). Further, the Americans with Disabilities Act (“ADA”) passed in 1990. The evolution of protections for our population of individuals with disabilities continues to address the needs of a growing segment of our population.

An attorney for the Petitioner, Jeff Fisher, argued to the Court that IDEA requires “for the school to provide instruction and related services to the child that are reasonably calculated to provide substantially equal educational opportunities.” Irv Gornstein for the Department of Education of the United States, argues in support of the Petitioner for a formulation that is “reasonably calculated to make progress that is appropriate in light of the child’s circumstances.”

In the event the Supreme Court rules in favor of Endrew F., there will be a substantive standard in states to provide a higher, meaningful education to children with special needs.

Later this month, the executive branch of the government will be headed by President-elect Donald Trump. Trump has picked Senator Jeff Sessions to serve as his Attorney General. In order to help predict future actions, we should visit the past. In May 2000, on the senate floor, Jeff Sessions stated “We have created a complex system of federal regulations and laws that have created lawsuit after lawsuit, special treatment for certain children, and that are a big factor in accelerating the decline in civility and discipline in classrooms all over America.” Sessions’ full statement is available on his website.

For more information on the Endrew F. case, click here for an Understood video interview Jack Robinson, an attorney for the parents of Endrew F.

Repeal of the Affordable Care Act

Many families with children with special needs received benefits in health care coverage due to several provisions of the Affordable Care Act (“ACA”).

Such provisions include:

  • Allowing adult children, up to the age of twenty-six, to be included in their parents’ health insurance policies;
  • Prohibiting health insurance companies from imposing a waiting period for coverage of a pre-existing condition;
  • Having a cap on out-of-pocket medical costs each year;
  • Prohibiting employer plans from including lifetime limits to coverage; and
  • Expanding Medicaid eligibility based on income to 138 percent of the Federal Poverty Level in states that chose to implement the expansion. Applicants who qualify for Medicaid benefits based on this expansion could start receiving benefits while waiting for eligibility based on a disability.

What are the changes taking place now? The Congressional Budget Act of 1974 allows for the expedited consideration of mandatory spending legislation. Recently, the U. S. Senate voted to approve a budget blueprint, by way of a reconciliation bill, to allow the removal of significant components of the ACA, without the interference of a filibuster. The U. S. House of Representative voted to approve a budget blueprint as well. A repeal to reform Medicaid is supported by many in congress.

To date a comprehensive reform bill has not been provided for review. President-elect Donald Trump has expressed approval for a couple of aspects of the ACA, such as the inability of insurer to deny coverage for people with pre-existing health conditions and allowing children to stay on their parents’ insurance policies longer. President-elect Trump’s ultimate goal is to repeal the ACA and replace it with a plan essentially simultaneously. Trump proposes his plan will provide “insurance for everybody” and that pharmaceutical companies are “politically protected but not anymore.”

Unfortunately, one cannot predict whether the two ACA mandates approved by Trump will ultimately be a part of TrumpCare. House Republicans have a Better Way plan that promises to protect patients with pre-existing conditions and allow dependents up to age twenty-six to stay on their parents’ health insurance plans.

Parents of children with special needs have valid concerns if the ACA is repealed. Will their children, especially those over eighteen years old, with pre-existing medical conditions have private health insurance? If not, will Medicaid be an option and if so, how long is the wait for eligibility for benefits?