JANUARY 28, 2004
WHAT SHOULD I SAY OR WRITE TO MY SENATORS?
OK, weve been telling you for a while now to please contact your senators. Please visit, call, or write (fax or email) them and tell them your concerns about the Senate bill, S.1248. But thats easier said than done, right? I mean, it sure would help to have an outline, wouldnt it?
Well, your wish is my command! Below please find some talking points that you can use. You can incorporate some, or all, of these points into your communications, or if you want to have some fun with this, you can choose one of the campaigns at the bottom of our Home page, and use these points in conjunction with the campaign of your choice.
I hope this outline helps you feel confident enough to express your concerns directly to your senators. [These talking points will remain at the bottom of our Home page, and are also stored in our ezBoard archives at: pub60.ezboard.com/fourchildrenleftbehindfrm28.showMessage?topicID=29.topic] Time is of the essence, and every voice counts, so please raise yours in support of a good IDEA!
PARENT TALKING POINTS FOR THE SENATE BILL (S.1248)
The Senate bill (S.1248) was amended in November, 2003, and the current bill (called the substitute bill), while in some ways preferable to the House bill (H.R.1350), is still much worse for children with disabilities than current law (IDEA 97). Below are the major problems with S.1248:
Discipline
While S.1248 retains the requirement that the school utilize functional behavior analyses (FBAs), behavior intervention plans (BIPs), and manifestation determinations (unlike H.R.1350, which deletes these requirements), the language regarding manifestation determinations has been watered down such that the burden of proof shifts from the school to the child/parents. S.1248 no longer requires a consideration of whether the current IEP was appropriate; under the Senate bill, if an inappropriate IEP was properly implemented (i.e., implemented as written), then the behavior will be found not to constitute a manifestation. This creates an incentive for schools not to put together appropriate IEPs in the first place.
S.1248 (like H.R.1350) eliminates the stay put provision of current law. Stay put allows a child to remain in his/her current education setting (subject to exceptions for dangerousness or drugs/weapons) while proceedings (manifestation determination, parent appeal, etc.) are pending. Without stay put, the child can be unilaterally removed from the current education setting and sent to an alternative setting, even if the child is not dangerous and no drugs/weapons are involved, and even if the school later turns out to have been wrong in its decisions.
Paperwork Reduction
In the name of paperwork reduction, S.1248 (like H.R.1350) eliminates the requirement that IEPs contain short-term objectives/benchmarks. The idea is that progress reports under No Child Left Behind (NCLB) make these unnecessary. The problem is that NCLB only tests certain academic subjects; it does not address many of our childrens goals, such as speech, motor skills, behavioral and social skills, etc. Without short-term objectives/benchmarks, therefore, there will be no accountability to parents and no way for parents and teachers to effectively monitor a childs progress in these critical, non-academic areas.
A paperwork amendment to the Senate bill is expected once the bill hits the Senate floor. This amendment could be similar to the provision in H.R.1350 that would allow 10 states to conduct a pilot program in which those states would receive waivers of any and all IDEA paperwork. With no limits imposed on this waiver, states could theoretically waive ALL IDEA paperwork, including the IEP itself!
Due Process
A. Attorney Fee Caps
An amendment regarding attorney fees is expected once the bill hits the Senate floor. This amendment, if similar to that added on the House floor to H.R.1350, would be devastating to families and children.
Under current law (IDEA 97), there is no cap on attorney fees recoverable by a successful parent litigant in due process or court. The court itself decides whether the parent was sufficiently successful to recover fees and whether the amount being claimed is reasonable. This is similar to the process in all other civil rights statutes.
However, the fee cap provision in H.R.1350 (which could be offered as an amendment to the Senate bill as well) would allow the governor of the state to set an arbitrary cap or limit on the amount of fees a successful parent could recover from the school. Not only does the governor have no experience in these issues, but the governor also has a conflict of interest (as the State itself is often a defendant in these cases, and the State budget is impacted by the award of fees).
The result of a fee cap such as contained in H.R.1350 is that fewer attorneys will be willing to take parents cases on contingency, so that parents would have to pay upfront and could not recover their full fees. Under these circumstances, only wealthier parents would be able to afford attorneys to enforce their childrens rights under IDEA. (The cap does NOT affect the amount attorneys can charge parents; it ONLY affects the amount schools must reimburse parents who succeed at due process or in court.)
B. Statute of Limitations
S.1248 imposes a two-year statute of limitations on a parents ability to file for due process (while the House bill imposes an even shorter period of one year). The Senate bill also has some reasonable exceptions that are not found in the House bill, such as where the school withholds information from the parents or falsely tells the parents they are working to correct the problem. Also, the Senate bills statute of limitations runs from the date the parents knew or should have known of the triggering event, not from the date the event occurred (which is more reasonable for parents).
Still, current law does not contain a statute of limitations at all. The problem with statutes of limitations for IDEA cases is that parents often are unaware of the problem for lengthy periods of time, and parents often try to work with the schools for a long time before finally giving up and filing for due process. A statute of limitations could therefore create a disincentive for parents to give the school a chance to correct the problem, thereby creating more, rather than less, litigation.
C. Mandatory Pre-Due Process Meetings
S.1248 (like H.R.1350) adds another layer to the due process procedure, in essence creating yet more hoops for parents to jump through in order to vindicate their childrens rights under IDEA.
S.1248 requires parents to attend a mandatory pre-due process meeting before being able to file a due process complaint. The purpose of this meeting is supposed to be to inform the school district of the problem and attempt resolution. Attorney fees are not recoverable for this meeting, even though it is mandatory.
This meeting is unlikely to yield any helpful information since parents typically work with the schools for quite a while before deciding to file for due process. Instead, this meeting will simply add to the delay parents face in enforcing IDEA rights.
While the Senate bill adds a caveat that is not in the House bill (that the school district cannot have an attorney present at this mandatory meeting unless the parents also have an attorney present), this provision only slightly helps to level the playing field, as the school district typically has access to an attorney before, during and after the meeting, while most parents do not.
Funding
S.1248 does not currently require mandatory full funding of IDEA When IDEA was passed, more than 25 years ago, the federal government promised to fund 40% of the excess costs of educating students with disabilities. They have never come close to keeping that promise. Full funding amendments are expected on the Senate floor. If full funding is not made mandatory, the likelihood that it will ever actually happen is low.
S.1248 (like H.R.1350) allows the schools to use 15% of already inadequate IDEA funds for non-IDEA children. Called pre-referral, this in effect allows schools to access IDEA money without IDEAs strings. Children being served with these funds will not be entitled to IDEAs safeguards and protections, and there is no time limit on the schools ability to keep children in such limbo. While pre-referral may or may not be a good idea, it is clearly not a good idea to use IDEA funds rather than general education funds for this purpose.
Sandy Alperstein, today's parentvolunteer@ourchildrenleftbehind.com
©2004 Our Children Left Behind.
Our Children Left Behind [OCLB] was created and is owned/operated by parent volunteers (Sandy Alperstein, Tricia & Calvin Luker, Shari Krishnan, and Debi Lewis). Permission to forward, copy, and/or post this article is granted provided that it is unedited and attributed to the author(s) and www.ourchildrenleftbehind.com. For more about OCLB or to share information, please contact parentvolunteer@ourchildrenleftbehind.com.
