Whose IDEA is it Anyway?
from the Disability Rights
Education and Defense Fund (DREDF), April 12, 2003
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The House Committee on Education
and the Workforce voted on Thursday, April 10, to send H.R.
1350, "Improving Education Results for Children with
Disabilities Act" to the House floor. In a press release posted
on its website on Friday, April 11, 2003, the committee
pronounced that the bill was "hailed by school administrators as
'the best special education policy revisions we've seen in
advocates, the bill weakens IDEA in sweeping ways including the
Representative Ed Case (D-HI) introduced an amendment on
attorneys fees which passed with a 27-21 majority. All other
Democrats voted to restore the current provisions. The amendment
gives the governors of each state the authority to determine
rates for awarding fees to attorneys who represent children with
disabilities in special education cases. Advocates believe the
amendment will make it harder for disadvantaged families to find
representation for their children and argue that it assigns
rates for attorney fees unlike those in any other area of civil
Under current civil rights fee provisions, it is the court that
sets attorney fee rates based upon lawyer experience, prevailing
rates in the community in which the lawyer works, and the
difficulty of the case before it. Although Rep. Case argues that
his amendment is an alternative to strict caps on attorneys
fees, his proposal allows states to set caps, even where the
state is the defendant.
Advocates are also concerned that the provision will further
deter attorneys from taking cases on behalf of parents. Parents
who cannot pay out of their own pockets are already having a
difficult time finding attorneys willing to take cases on a
contingency basis because of a recent Supreme Court case that
denies fees in cases that settle.
The House bill allows any child with a disability to be sent to
an alternative placement indefinitely, whether or not the
"offending" behavior was caused by the disability. A simple
amendment to require a determination about whether the behavior
was caused by the disability was defeated in committee.
Congresswoman Susan Davis (D-CA) introduced an unsuccessful
amendment to mandate mediation. Advocated expressed concern that
the amendment was rejected by the Chair in favor of a far
stricter provision already contained in the House bill requiring
parents to attend an IEP meeting to "explain" their complaint to
the school district, amounting to what advocates call "mandatory
mediation without a mediator". The House provision also
precludes attorney fees for these mandatory sessions.