Recently, the U.S. District Court for the District of Columbia ruled that the U.S. Department of Education engaged in an illegal delay of the implementation of the Obama-era rule to identify significant disproportionality by racial or ethnic status in the administration of the Individuals with Disabilities Education Act (IDEA). The rule was slated to take effect on the first of July of 2018. But in February 2018, the Department of Education proposed a two-year delay. Just over a year later, the DeVos delay was derailed by an organization that shows just who stands up for special education students, an organization that will be even more needed in coming years as public school special education faces enormous strain.
Who challenged the federal government’s directive to delay measures to determine if race plays a role in special education?
The NAACP? No. The school administrator’s organization? No. The ACLU? No. Disability groups? No.
Then who was it who stood up?
It was COPAA, the Council of Parent Advocates and Attorneys, a 20-year-old organization focused on protecting the legal and civil rights of students with disabilities and their families.
COPAA’s challenge to the USDOE for abdicating its responsibilities is emblematic of the reality that IDEA is the only parentally enforced federal law on the books. It is a law where violators pay little to no consequences while children and families suffer neglect and are denied services to which they are entitled by law. The worst thing that can happen to a school district found in violation of IDEA is that it must abide by the law. No certifications are revoked; no jail time assigned; no slow-walking, call-ignoring, barrier-building administrator is reprimanded or gets a letter in the personnel file. Those who slow-walk, stonewall, and use the prescribed timetables in the law to their maximum, are the school district’s warriors in a battle fought tens of thousands of times each year: a parent-led battle over the enforcement of IDEA, a battle over money.
IDEA, last authorized in 2004, is antiquated when considered against the advancements made in the bio-neurological sciences, behavioral analysis, and adaptive technology. IDEA should have been reauthorized in 2014; in 2019 there is hardly a glimmer of activity toward taking on what will be a donnybrook of a reauthorization process. Since the birth of social media, disabilities organizations have bulked up more than a football player on supplements. They will be loaded for bear, and public education is the default target, default because others who should own the problem won’t.
Most of the children in special education have disabilities that are neurologically or biologically based. In other words, they are medical, not educational, in origin. Yet, we have called on schools to treat these problems. We’ve known the etiology of disabilities like autism and dyslexia for three-quarters of a century, but the 1970’s-era laws created to make sure kids with disabilities weren’t excluded from public education focused solely on access. But, access is no longer adequate. Endrew F., the U.S. Supreme Court’s 2017 ruling that children with disabilities must be more than minimally served, sets a higher bar for school districts and puts wind in the sails of COPAA.
So, one might ask, since many special education disabilities are medical in nature, where’s the health insurance industry in all this? The answer is dug-in and breathing very quietly, hoping not enough people ask that question. Since 2005, autism advocates have fought with health insurance companies to cover behavioral treatments for autism. The autism forces, led by Autism Speaks, advanced and won ground. Some 47 states passed laws supporting insurance coverage for autism treatment.
But there’s money involved, and the health insurance industry has deployed its A-Team to delay, dodge, deny, and discredit the rising industry of behavioral analysis, the most research-backed treatment for autism. The latest feckless behavior of the insurance industry was manifested last month in South Dakota, where the health insurers ran through a loophole, leaving families enrolled in small group or individual health policies with no coverage for autism treatments.
The ferocity with which health insurance providers and Medicaid are protecting their turf from responsibility for autism and battling the growth of behavioral analysis as a treatment for autism (and a large array of behavioral problems) bodes poorly for public education. The health insurance lobby in Washington and in state capitals is among the nation’s most powerful. In no way, shape, or form will the health insurance industry allow itself to become responsible for the neuro-biological issues addressed by the well-meaning, poorly-trained, under-financed, and politically-weak world of public school special education.
With no reauthorization of IDEA on the horizon, with a national shortage of special education teachers, with the number of children with autism and a host of other developmental delays and sensitivities growing by leaps and bounds, with Endrew F. calling for more from schools, with disabilities groups flexing their muscles, and with no help coming from insurance companies, special education is in for a long, hard stretch.
And COPAA is going to be busier than a cash register on Black Friday.