Position paper states: HR 1350 and Senate 1248 are harmful to children with special needs and do not promote a free and appropriate education for these children, nor do these bills protect the due process rights of their parents/guardians who must go to court to defend their children's rights. The National Committee of Parents and Advocates Organized to Protect IDEA represents millions of citizens who have come together to protect the educational guarantee required by IDEA. The undersigned national, state and local organizations are united in opposition to the House and Senate bills that amend and reauthorize IDEA. Both of these bills weaken the rights and protections necessary to ensure that students with disabilities are not left behind.

At this critical time when states, districts and schools are being held accountable for improved student achievement, there is no justification for weakening IDEA – to make it easier to remove our children from school, to disrupt their education, to burden parents with additional procedures before addressing their children's educational needs, or to weaken the Individualized Education Program (IEP), a parent's strongest tool for holding schools accountable for their child's learning to high standards. We cannot afford to wait and to watch the existing achievement gap grow between our children and non-disabled students. Time is precious and the clock is running.

The Senate bill, S.1248, and the House bill, H.1350, eliminate existing rights and protections from IDEA – rights and protections specifically designed to ensure that our most vulnerable students NOT be left behind but instead receive a free appropriate public education consistent with their State's education standards and tailored to address their individual needs.

Listed below are some of the provisions in the House and Senate bills that will weaken the rights and protections of children with disabilities.

* Both bills eliminate the right of students to "stay-put" in their current educational placement during disciplinary proceedings for proposed removals in excess of 10 school days, even when the behavior is unrelated to drugs, weapons or otherwise dangerous activities. We are also concerned that the behavior may often be a manifestation of the student's disability or the result of an inappropriate IEP or the failure to implement an appropriate IEP. The elimination of the right to "stay put," and the disruption that occurs as a result, will increase the achievement gap between these students and their non-disabled peers.

* The House bill eliminates the right to a review to determine if a student's behavior is the manifestation of his or her disability before using the disciplinary procedures that apply to non-disabled students. The Senate bill allows for a manifestation determination review, but eliminates the most critical component –examining whether the student's IEP is appropriate and whether it is being implemented. In addition, the burden of proof is shifted to the parent.

* The Senate bill eliminates required short term objectives or benchmarks in the IEP, and the House bill eliminates them for all but students with the most significant disabilities. Measurable steps toward achieving annual goals, including academic content standards, are essential tools which enable teachers and parents to assess whether the child is learning and making effective progress.

* Both bills will allow for three year IEPs. The House will allow them for all students, while the Senate bill will allow them for students who are in their final three years of school. Both undermine efforts to close the achievement gap and to hold schools accountable to parents.

* The House bill permits 10 states and the Senate bill permits 15 states to negotiate paperwork reductions with the US Department of Education without having defined "paperwork" and without seeking input from parents and advocates on whether those "paperwork reductions" would adversely affect the right to a free, appropriate public education.

* Both bills will make it more difficult for the very small percentage of parents who are able to pursue their administrative and/or judicial remedies in order to obtain their children's full rights and protections under IDEA. The Senate bill creates the fear that parents or their attorneys may have to pay fees for the school system's attorney. This fear will intimidate some parents from exercising their right to due process. The House bill imposes a cap on the rate of attorney's fees that can be reimbursed to parents when they are the prevailing party.

* Neither bill requires mandatory full funding of IDEA to support the additional cost of educating students receiving special education services.

The House and Senate IDEA bills should not proceed to conference unless the committee is prepared to negotiate legislation that will protect these critical rights. The rights and protections of students with disabilities must be preserved in order to improve the educational outcomes of these students.

BACKGROUND:
A National Contact Campaign Begins
Thursday, June 3, 2004
And will continue until IDEA is safe from harmful changes!

Beginning June 3, 2004, parents and advocates in each state are asked to contact state and local chapters, parents and parent support groups, service and advocacy agencies who share the commitment to preserving a strong Individuals with Disabilities Education Act (IDEA).

Then together we will reach out to our fellow citizens and state and local elected officials and urge them to assist us in stopping the weakening of the IDEA. We will ask them to stand with us and to call The White House and our members of Congress with a clear and consistent message:

The House and the Senate Bills are harmful to students with disabilities and leave our children behind!

OPPOSE the Conference Committee Report!

Tell them that a Conference Committee consisting of representatives from the House and Senate could be appointed at any time.

Help everyone understand that the next step for the Conference Committee will be to reconcile the differences between the two bills.

Committee members usually adopt language from either the House or Senate bills or agree on additional language and then write those agreements into a Committee Report.

It is the Committee Report that will be referred to Members of the House and Senate for their approval!

Last Spring the U.S. House of Representatives passed H.R.1350, its version of a bill to amend and reauthorize IDEA. This bill was opposed by virtually every parent and advocacy organization in the nation because it greatly weakens the current IDEA law.

Two weeks ago the U.S. Senate passed S. 1248, its version of the bill. The Senate bill is an improvement over the House bill in some respects, but it also significantly weakens the current IDEA law.

Listed below are a number of provisions in the proposed House and Senate bills that will weaken the rights and protections of children with disabilities.

• The Senate bill eliminates required short term objectives in the Individualized Education Program, and the House bill eliminates them for all but students with the most significant disabilities.

• Both bills will allow for three year IEPs. The House bill will allow them for all students, while the Senate bill will allow them for students who are in their final three years of school. Both undermine efforts to close the achievement gap and to hold schools accountable to parents.

• Both bills will make it more difficult for families to pursue their right to due process. The Senate bill seeks to intimidate parents from participation in exercising due process by threatening sanctions, and the House bill seeks to limit the fees of parents' attorneys when parents are prevailing parties.
The Senate Bill, S.1248, contains new language on attorneys' fees and sanctions that can be imposed on parents and their attorneys for complaints that are frivolous complaints or filed for an improper purpose. It is a three-part amendment introduced by Senator Gregg and approved by the Senate. The Gregg amendment is much better than the House amendment on attorneys' fees, although it may be subject to misuse.

1. If a parent is the prevailing party in due process, then the Court can, in its discretion, award reasonable attorneys' fees. This is the same as under the IDEA right now. It is much better than the House bill, H.R. 1350, which would allow state officials to set the attorneys' fees for parents as low as they want. This would enable states to deter attorneys from taking IDEA cases and enforcing the law--while letting school districts spend as much money on their attorneys as they want. Allowing parents to recover reasonable attorneys fees--if the school district breaks the law--is an important way of enforcing civil rights laws like the IDEA.

2. Frivolous cases. If a state educational agency or a school district is a prevailing party in an IDEA action (whether a due process case or case in district court), the court has the ability to order a parent's lawyer to pay the defendant's attorney's fees if (1) if the complaint or cause of action is "frivolous, unreasonable or without foundation" or (2) if the lawyer continues to litigate "after the litigation clearly became frivolous, unreasonable or without foundation." This is the test from the Supreme Court's decision in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), a Title VII (employment discrimination) case. Frivolous cases should not be brought. They only cause judges to get upset and make bad law. They waste the time and resources of the courts.

As Senator Gregg explained,

Quote:
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"It is important to note that this is a very high standard and prevailing defendants are rarely able to meet it and obtain a reimbursement of their attorney's fees. The Supreme Court has said: to award attorney fees to defendants in a civil rights suit, the plaintiff's action must be meritless in the sense that it is groundless or without foundation; the fact that plaintiff may ultimately lose his case is not in itself sufficient justification for fee award."
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This is important; Senator Gregg is the sponsor of the amendment and what he says carries a lot of weight. So, Christianburg sanctions aren't awarded just because a school district employee or officer thinks the parent's complaint is unreasonable; the complaint has to be objectively groundless and without foundation. This is very important. "Frivolous, unreasonable, or without foundation" is a term of art that means groundless and without foundation. Frivolous cases should not be brought. They only cause judges to get upset and make bad law. They waste the time and resources of the courts. But, very few cases are frivolous. In rare situations, however, plaintiffs do things like lie on the witness stand, or assert a claim that has no legal basis, assert a claim that is completely and absolutely contrary to the law, or bring a case where they have no evidence. These kinds of things can result in a Christianburg award. But it does mean that parents should carefully consider whether their claim has any legal basis.

Even if the case is frivolous and groundless, the court doesn't necessarily make the parent's lawyer pay all of the school's attorneys fees. The courts do consider the plaintiff's ability to pay. The school district or SEA's fees have to be reasonable, and its still in the court's discretion to decide whether, or how much of the fees the parent's attorney should pay.

3. Cases filed for improper purposes. Finally, the amendment would let courts to award attorneys fees against a parent, or his/her attorney, for making a complaint or filing a case "for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." Unlike the Christianburg portion, this portion allows the judge to order the parent to pay the SEA's or school district's attorneys fees. As Senator Gregg explained, it comes from Federal Rule of Civil Procedure 11. Rule 11 prevents lawyers from filing cases in federal court that are not grounded in fact and law or that are filed for an improper purpose. It is intended to prevent misuse of the court system. When cases are meritless and frivolous, courts have considered them to have been filed for improper purposes. One way to look at the Gregg amendment is closing a loophole: it applies Rule 11 standards to due process cases, not just to federal court cases.

As Senator Gregg points out, "we do not want to discourage parents from seeking redress when they believe their child is not getting what is promised under the IDEA.' So, the amendment provides a very limited ability of school districts to obtain their attorneys fees. He gave as an example of a harassing case a parent who filed many complaints and requests for due process hearings over and over and over, making the school district to spring into action to defend and having to hire lawyers, only for the parent to drop the cases. When closely examined, it is clear that the cases were filed to harass or retaliate against the school district.

I would make clear to any school district in my correspondence that I wanted to work with them to help the child get the education she/he needed, and the services he/she needs to learn. I would always make sure that my focus was on what the child needs to get FAPE, not on being mad at the school district, or threatening the school district. Sometimes, clear statements of the facts are very persuasive - simply telling the story about what happened, and a neutral third party looking at that kind of letter can see the parent's purpose is to get the child FAPE.

When bad things happen to our children, we are hurt; we are angry. It may be tempting to say something like "I'm going to make that school district pay," or "I'm going to hire a lawyer and she'll make their lives a living nightmare." But, the real reason we are angry is that our children have been or will be harmed. We are angry about the denial of FAPE. And, IMHO, it is important that this be the focus of correspondence and what we say and what we post on the internet. Indeed, if you are filing due process complaints to make an administrator's life a living nightmare, or to impose mounds of paperwork on a school district or state, or to retaliate for something, you may really want to think twice about this. I don't think its going to help anyone.

Once a case is filed in federal court, Rule 11 applies. So, if a school district or SEA files a lawsuit for attorneys fees, and a court finds that it was filed for an improper purpose, such as to harass, cause unnecessary delay or needlessly increase the cost of litigation, the court could make the school district pay sanctions under Rule 11.

Over the coming months, the Conference Committee will have the task of harmonizing H.R. 1350, which would let state governors set parents' attorneys fees as low as they wanted, with S.1248, which does not allow this, but does allow sanctions for frivolous lawsuits and those filed for improper purposes. Since the Gregg amendment is a much more well-reasoned amendment than H.R. 1350's provision, it will probably be included in the final bill. Because of how Conference Committees work, the Committee won't have the choice of just keeping the current law. if the IDEA bills do become law, and if the Gregg amendment is in the final bill, it will be important to pay attention to these issues.
(J. Butler)

• Neither bill requires full funding of IDEA at the promised funding level to support the additional cost of educating students receiving special education services. (Despite the fact that the Federal government only funds about 18% of the total cost of educating students with disabilities).

• The House bill permits 10 states and the Senate bill permits 15 states to negotiate paperwork reductions with the US Department of Education without having defined "paperwork" and without seeking input from parents and advocates on what those reductions should entail.

• Both bills weaken current protections for students with disabilities by making it much easier for schools to suspend or expel them, even when the behavior is part of the student's disability. Both bills guarantee that these children's education will be disrupted and that they will fall further behind because both bills eliminate the right of a non-dangerous, non-disruptive child to "stay-put" in his/her current educational placement when his/her parent complains about a suspension of more than 10 days or an expulsion, about punishing the child for his/her disability, or punishing the child whose disability is ignored and inappropriately addressed by poorly developed IEPs or even appropriate IEPs not implemented by highly qualified teachers.

• The Senate bill changes the definition of related services by excluding "a medical device that is surgically implanted, or the post-surgical maintenance, programming, or replacement of such device, or an external device connected with the use of a surgically implanted medical device (other than the costs of performing routine maintenance and monitoring of such external device at the same time the child is receiving other services under this Act)." How this exception will be interpreted is a concern for families of children with trachs, G-tubes, percutaneous cecostomies, and other surgically implanted devices that can and do come out at school and need to be replaced and/or maintained by school nurses or aides.

• The Senate bill creates an exception to FAPE by allowing children eligible for Sec. 619 preschool services to stay in Part C (early intervention programs) if they give up their right to FAPE. This provision is likely to be a source of confusion and school manipulation as schools shift costs to private providers, and will likely result in a system whereby the quality and intensity of services will be based on parent(s)'s income rather than the child's needs.

It is almost certain that any bill emerging from the Conference Committee will substantially weaken protections for children with disabilities and compromise their right to access a high quality education.

Parents and advocates can find out who their Representatives and Senators are and get their telephone numbers at www.congress.org, or they can call the U.S. Capitol switchboard at1-800-839-5276. The White House number is 202-456-1111.

Action Steps Starting on June 3rd:

Contact the White House, your member of Congress and your Senators.

You can find their contact information under "elected officials" in the advocacy section of the website: http://capwiz.com/ndss/dbq/officials/. If you wish to email a sample parent letter prepared by NDSS, or draft and email your own letter, you can use the "Take Action Now!" feature that appears at the top of this alert. If possible, take your child to meet with your member of Congress and your Senators, or their staff.
Go to the National Down Syndrome Society's Advocacy Center

Reach out to your family members, your friends, your neighbors and your state and local elected officials and urge them to assist us in protecting IDEA. Show them how easy it is to send an email from the NDSS website or add their names to your letter.
Starting on June 3rd we need to keep a loud, clear, continuous message going out to the White House and Capitol Hill! We need to keep up the campaign until this Congressional session ends. If IDEA is not reauthorized in 2004, the process starts over in 2005. We will keep current law until a reauthorization is accomplished.

The Message:

THE HOUSE AND SENATE BILLS ARE HARMFUL TO STUDENTS WITH DISABILITIES AND WILL LEAVE OUR CHILDREN BEHIND. THERE IS NOT TIME IN THIS SESSION TO NEGOTIATE LEGISLATION THAT PROTECTS THE RIGHTS OF THESE STUDENTS.
The House and Senate bills should not go to conference if the following problems can not be fixed.

Both bills eliminate the student's right to "stay put" in the current placement pending a disciplinary appeal. This makes it easier for schools to exclude children with disabilities by sending them to alternative placements for behavior that may be caused by their disability. Under the House and Senate bills, this can happen even if the behavior is unrelated to drugs, weapons or violence.

Both bills amend the current provisions for the reimbursement of attorney's fees and add procedures that make it more cumbersome for parents to file due process complaints.

Both bills undermine accountability and parent involvement (important tenets of the No Child Left Behind Act and IDEA) by weakening rights in the IEP process, including the right to have short-term objectives in the IEP.
For More Information:

Both the House and Senate bill fail to protect many critical rights in IDEA. The list above reflects the problems that the two bills have in common. However, the House bill goes even further than the Senate bill in diminishing the rights of students with disabilities, especially under the discipline and due process provisions of IDEA. For more details, click here to see the NDSS document "Summary of Key Provisions In the House and Senate IDEA Bills."