CeleRate
11-07-2003, 11:45 PM
preserveIDEA@dredf.org
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 Lamar Alexander (R-TN) has withdrawn his plan to change No Child Left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@dredf.org (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
Tiffany 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)(C). 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.
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 Alexander (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@dredf.org (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
Tiffany 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)(C). 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.