TO: NDSC Members and Affiliated Parent Groups
FROM: Susan Goodman, Director, Governmental Affairs
DATE: January 31, 2007

In this issue:

• Budget Victory
• I.D.E.A. Update and Issues
• Tell Your Transition Story

Successful Budget Efforts for Disability Services

NDSC and many other national non-profit organizations were part of a successful effort to have $2.3 billion added to the federal Fiscal Year (FY) 2007 budget. Among the additions were the following:

• A $250 million increase for Title I Education funding which includes additional funding for the No Child Left Behind Act.
• A $200 million increase for Grants to States for Special Education to help school districts better serve almost 7 million students with disabilities.
• A $207 million increase for Community Health Centers which provide low-cost primary care, pediatrics, preventative health screenings, mental health care, and dental care.

1. Attorney's Fees
   
   The Problem: Parent's ability to collect attorney's fees has been made almost impossible because of application of Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources.

   • This case held that holding that there must be a judicial order (order from the Court or administrative hearing) in order for the prevailing party to collect attorney's fees.
   • Parents cannot recover fees (even if they are the prevailing party) when there is a settlement agreement in which an attorney is involved if there is not an order by an administrative hearing officer or state or federal judge.
   • Discourages parents from exercising due process rights and attorneys from taking special education cases on behalf of parents because of their inability to be reimbursed for attorney's fees.

   NDSC's Concern: I.D.E.A. clearly authorizes award of attorney fees for parents who settle their cases favorably by listing circumstances in which they award of fees to a prevailing party may be reduced.
   
   
2. Expert Witness Fees
   
   The Problem: Parents are unable to collect expert witness fees, as part of "costs" because of the Supreme Court case, Arlington Central School District v. Board of Education.

   • Arlington held that expert witness fees could not be considered part of "costs" as the term is defined by federal law.

   NDSC's Concern: The legislative history of the Handicapped Children's Protection Act of 1986 makes clear that Congress intended the preparation of reports, consultations, observation of an individual child to be part of "costs and expenses" that can be awarded to a prevailing party.
   
   
3. Mandatory Resolution Sessions
   
   The Problem: According to the law, the purpose of the mandatory resolution session is "for the parent and child to discuss the due process complaint, and the facts that form the basis of the due process complaint, so that the local educational agency (LEA) has the opportunity to resolve the dispute that is the basis for the due process complaint."

   • This session must be held before a parent may exercise their due process rights.

   NDSC's Concern: Use of the new provision in I.D.E.A. calling for "mandatory resolution sessions" before rights to a due process hearing can be exercised is being used by schools to intimidate parents and delay their rights to due process.
   
   
4. Removal From the Regular Education Setting
   
   The Problem: The new discipline provisions of I.D.E.A. increased the instances in which students could be removed from their regular educational setting into an "interim alternative setting" or "home-based instruction."

   • According to the statute they must still be provided with a free appropriate public education.
   • The standard under the previous IDEA for students in interim alternative settings was to "appropriately progress" in the general curriculum and "appropriately advance" toward achieving goals in IEP.
   • The standard in the new law states that the standard for determining FAPE is that the student only has to continue to "participate in the general curriculum" and make "progress toward meeting the goals set out in the child's Individualized Education Program (IEP)."
   • The Department has stated, in their discussion in the final regulations that:

   We believe that using the statutory language in the regulation is appropriate because the Act specifically uses different language to describe a child's relationship to the general education curriculum in periods of removal for disciplinary reasons than for services under the child's regular IEP in section 614(d) (1) (A) (i) (IV) of the Act.
   NDSC's Concern: This language explicitly lowers the standard for the students removed from their educational settings.
   
   
5. Burden of Proof
   
   The Problem: Because of the Supreme Court decision in Schaffer v. Wiest the burden of proof in a due process hearing now falls on the party bringing the action.

   • The parents are overwhelmingly the party to request hearings.
   • Parents now must prove that the student's needs are not being met - previously the school district had to prove that the needs were being met.
   • Justice Ruth Bader Ginsburg appropriately stated, in her dissent in Schaffer, that "the school district is in a far better position to demonstrate that it has fulfilled its (statutory) obligation that the disabled student's parents are in to show the district has failed to do so."

   NDSC's Concern: This is another example of the increasingly difficult burden that both the law and the Court have placed on parents.