Fwd: IDEA Reauthorization Briefing #31

[Guest guest]

Let's not faulter in the final hours.

Joe

______________________________________________________________

Date: Thu, 6 Nov 2003 16:40:53 -0800

From: " Preserve IDEA " <preserveidea@...> Add To Address

Book

Subject: IDEA Reauthorization Briefing #31

<jcautill@...>

>From the Disability Rights Education and Defense Fund

(DREDF)

preserveIDEA@...

IDEA Rapid Response Network (RRN)

News Briefing #31 November 6, 2003

TO JOIN THE RRN: Visit www.dredf.org and complete our online

subscription form. Earlier Briefings

can also be found on our website: www.dredf.org.

SENATE TIMETABLE: The Senate IDEA bill (S. 1248) was reported

out of the Senate Health, Education,

Labor, and Pensions (HELP) Committee on November 3, 2003 and

is now in the queue to go to the

Senate floor for a vote. To read the bill, go to

http://thomas.loc.gov/cgi-bin/bdquery/z?d108:s.01248:

The bill has been placed on the Senate Legislative Calendar

under General Orders: Calendar No. 362.

S. 1248 SINCE JUNE: There have been multiple technical

changes to the Senate bill since the

original HELP Committee version on June 25, 2003. We

anticipate several amendments from each party

when it comes to the floor: The Democrats will propose

Senator Harkin's full funding amendment and

an amendment concerning service provisions for homeless

children. The Republicans will propose a

provision for attorney fee limitations and something on

paperwork reduction. We do not anticipate

further action on discipline or vouchers.

Sen. Lamar (R-TN) has withdrawn his plan to change

No Child Left Behind (NCLB) to exclude

children with disabilities from the Adequate Yearly Progress

(AYP) calculation if a school is

determined to be failing because of the scores of students

with disabilities. Nevertheless, we

need to continue to make clear that our children cannot be

excluded from assessments and school

accountability.

ATTORNEY FEES-KEY THREAT: There will be an amendment limiting

attorney fees similar to the one in

H.R. 1350 (see RRN #25

(http://www.dredf.org/rrn/briefing25.html) and the analysis

below. This is

the issue we must speak out most strongly about to say WE

WANT NO AMENDMENT ON ATTORNEY FEES added

to the Senate bill.

BACKDOOR THREAT-POSSIBLE SNEAK ATTACK: The Republicans are

making efforts to stall on bringing the

bill to the Senate floor for a vote. That may seem at first

glance a good thing-after all, the

longer the reauthorization process drags, the longer current

law stays in effect. However, the

strategy may be to attach the House bill to an omnibus act so

that HR 1350 becomes law. Therefore,

much as we still find problems with the Senate bill, we want

it to come up for a vote.

WHAT HAPPENS NEXT: Once brought to the Senate floor,

amendments will be proposed and discussed and

a roll call vote taken. As S. 1248 differs markedly from

H.R. 1350 passed by the House, members

will likely take action to bring IDEA to a conference.

Usually some version of a compromise

between two differing bills emerges from conference to be

signed into law. This process can take a

long time. So even if the Senate should discuss and pass a

bill next week, it will likely not be

until into 2004 that an IDEA reauthorization statute is

signed. During this period, as has been

the case throughout reauthorization discussions, current law

(that is, IDEA 1997) stands.

WHAT YOU CAN DO: We must focus now on speaking out against

any effort to limit attorney fees and

making it clear that we will not tolerate any sneaky moves to

make the House bill law and bypass

the Senate. So fax and email your Senators urging two

things.

1. Bring S. 1248 to the floor and vote on it.

2. Do not allow any limits on families' ability to find legal

counsel to represent their children.

Please copy Senate Party Leaders Frist and Daschle (contact

information at the end of this

briefing) as well as DREDF: preserveIDEA@... (email) or

510-841-8645 (fax) or 2212 Sixth

Street, Berkeley, CA 94710 (post).

SENATE ANALYSIS: See RRN #30 at www.dredf.org for specific

issues in the S. 1248. There is much to

applaud in the Senate bill, especially when it is compared

with H.R. 1350. There remain provisions

we are unhappy about, no doubt. But from a strategy

perspective we need to face the fact that, the

votes are falling against us and there remain formidable

forces arrayed in opposition to our

children's best interests. Thus we should consider ourselves

as having dodged a bullet if we can

emerge from conference with a bill more closely resembling

the Senate's than the House's. And

hence our need to guard against a stall that leads to the

House bill becoming law through a

backdoor strategy.

That said, we don't want simply to be silent as the process

unfolds. It is important that the

other side not being able to say, as they said in

contradiction of the evidence during House

discussions, that they did not hear from parents and

advocates. So we urge you to continue to tell

your stories to the Senators in your state, to your House

member, and to key members of the House

and Senate committees, with a focus right now on the Senate.

ATTORNEY FEE CAP ANALYSIS: The House IDEA reauthorization

bill, H.R. 1350, was amended by Rep. Ed

Case (D-HI) to include a provision that allows the Governors

of each state to set the rates for

attorneys who represent the parents of disabled children in

disputes with school districts. The

Senate bill, S. 1248, does not include a similar fee cap, but

we expect one when the bill reaches

the Senate floor.

IDEA is a fee-shifting statute that provides for payment of

fees by the school districts to parents

who prevail at administrative hearings and in court

( " prevailing party " ). These provisions are

modeled after and are identical to other civil rights fee-

shifting provisions designed to allow

poor and low-income and minority and non-English-speaking

plaintiffs access to attorneys. This

provision is a disaster for parents of disabled children who

already face striking disadvantages

when going up against educational institutions. Moreover,

this provision presents a dangerous

precedent for the setting of attorney fees in other areas.

DREDF is indebted to southern California special education

attorney Marcy for the five

reasons this is a terrible idea for IDEA.

1. There are existing standards for determining " Reasonable

Fees. "

HR 1350 provides that the governor of each state will

determine the rate for the " kind and quality

of services furnished. " The current statutory provision takes

many factors into consideration for

legal rates. Under the IDEA, in order to recover fees a

party must not only be a " prevailing

party " but the amount of fees awarded must be " based on rates

prevailing in the community in which

the action or proceeding arose for the kind and quality of

services furnished. " 20 U.S.C. §

1415(i)(3)©. There is no need for further legislation on

this.

2. The IDEA attorneys' fees provision already

discourages " frivolous " lawsuits because parents only

recover fees when they substantially prevail.

Under the IDEA, fees are awarded only if the parent is

a " prevailing party. " Under case law, this

means not just a " technical " win; there must be success on

a " significant issue in litigation " that

results in a benefit. This means that a parent gets no

reimbursement for fees if their case lacks

merit. Thus, there is already an effective mechanism for

discouraging " frivolous " suits.

3. Parents only recover fees when the school district does

not make a reasonable settlement offer.

Under the IDEA, a school district can eliminate its liability

for attorney fees in a litigated

dispute by the simple expedient of making an appropriate

settlement offer more than 10 days before

a due process proceeding commences. If the parent rejects

the offer and then does no better in due

process, the parent is not entitled to recover any attorneys'

fees.

4. Most parents cannot afford to hire a lawyer.

Parents do not have deep pockets. Because having a disabled

child creates enormous strains on a

family, both emotional and economic, it is very difficult for

families to pay an attorney for all

the fees incurred as a case proceeds. A fee limit will make

it even more difficult for parents to

obtain representation.

5. School districts have no constraints on what they pay

their own attorneys.

School districts have no limit on what they can pay their own

attorneys. School districts also pay

their attorneys for every hour of their time, with no court

oversight as to whether what they are

paying is reasonable. School district attorneys do not have

to wait to get paid until the end of

the case, and they get paid whether they win or not. This

explains why there are a number of large

law firms that represent school districts, while the vast

majority of attorneys who represent

parents are sole practitioners.

WHOSE IDEA IS IT ANYWAY?

PRICE REDUCED-THE IDEA T-SHIRT: Wear a bright red IDEA and

advertise your support of special

education and civil rights for students with disabilities!

Design: is a red light-bulb face with electric hair that

spells out Individuals with Disabilities

Education Act and the slogan is, " Whose IDEA Is It, Anyway? "

White, with red DREDF logo on left

sleeve and purple SEIU logo on right sleeve.

Specifications: heavyweight 100% cotton, U.S. made and union

printed, available in Youth Large and

Adult Large and Extra Large sizes.

Shirts are $12, plus $2.50 postage and handling. Buy 3 or

more for $10 each. We don't have the

capability to process online orders, but you can print out

the order form from our website:

http://www.dredf.org/ and send checks to DREDF, 2212 Sixth

St., Berkeley, CA 94710. The order form

has an illustration of the shirt to check out also. Remember

to specify quantity and size.

We are also offering these shirts as a special thank you to

individuals who donate $100 or more for

our work.

Thanks from DREDF and the RRN Staff

******************************

SENATE MAJORITY LEADER: REPUBLICAN

SENATOR BILL FRIST (R-TN)

461 Dirksen Senate Office Building

United States Senate

Washington, DC 20510

T 202-224-3344

F 202-228-1264

E-mail: Web Form: frist.senate.gov/index.cfm?

FuseAction=AboutSenatorFrist.ContactForm

****************************

SENATE MAJORITY LEADER: DEMOCRAT

SENATOR TOM DASCHLE (D-SD)

509 Hart Senate Office Building

United States Senate

Washington, DC 20510

T 202-224-2321 (or toll-free from South Dakota: 800-424-9094)

F 202-224-6603

E-mail: Web Form: http://daschle.senate.gov/webform.html