Parent Lead, Burdened with Individuals with Disabilities Education Act Enforcement Challenged
[Advocacy groups decry necessity for parent litigation to get any of
all 50 states to comply to the Individuals with Disabilities Education Act
(IDEA) as an unfair burden.]
http://www.copaa.net/national/ncd_report_statement.html
Statement of The Council of Parent Attorneys and Advocates on the report of
the National Council on Disability "Back to School on Civil Rights"
Toward Greater Accountability
The Council of Parent Attorneys and Advocates (COPAA) endorses the
investigative findings of the report of the National Council on Disability,
"Back to School on Civil Rights" ("NCD Report"). The NCD Report provides
full, fair and undeniable evidence that all fifty states have been and
continue to be out of compliance with the IDEA.
More to the point, the NCD Report's exhaustive documentation of this
failure casts serious doubts on the validity of the basic premises
underlying the IDEA compliance structure and process. A self-regulatory
monitoring system - federal oversight of state implementation of local
compliance - that does not achieve its desired goals after 25 years of
development and modification is incapable of assuring compliance.
By contrast, there is widespread agreement that compliance has been
significantly enhanced through litigation instituted by parents of children
with disabilities and their representatives. These improvements have
occurred despite the substantial impediments parents face in securing and
defending their children's right to the free and appropriate public
education promised by Congress.
COPAA does not believe that litigation by parents can or should be the
primary method for assuring compliance with IDEA. However, children with
disabilities cannot wait another two decades to secure the rights
established by IDEA. Accordingly, COPAA concludes that fundamental and
effective improvements in IDEA compliance can be substantially achieved by
"leveling the playing field" established by IDEA. It therefore recommends
changes to IDEA designed to achieve the following objectives:
$ Equal access to public information
$ Improved access to legal and advocacy assistance
$ Competent and impartial administrative hearing system
$ Independent systemic compliance mechanisms
Increased training and support of education and service providers
1. Equal Access to Public Information
The cost of access to many of the basic documents required by parents
and their representatives to ascertain what the law requires is prohibitive,
even though they are public information. By contrast, this information is
widely available to school districts and their advisors because it is funded
by taxpayers. This imbalance can be easily remedied through use of the
Internet as follows:
a) Require states immediately to post all current hearing decisions on
a public web site.
b) Require states to add historical hearing decisions over a sliding
scale period of up to three years depending upon the number of historical
decisions, e.g., those with the most decisions would have the longer time
period.
c) Require OSEP to post all "policy letters" (current and historical)
within two years (itself or through contractor).
d) Authorize a grant program for posting on public web site of state
and federal court decisions within three years, and include funding for
maintenance (updating).
2. Improved Access to Legal and Advocacy Assistance
School districts routinely have access to counsel; parents do not -
despite the possibility of recovering attorneys' fees. These are the facts:
parents cannot realistically expect to win administrative hearings without
an attorney; there are extremely few attorneys who represent parents; even
if an attorney is available, most parents simply cannot afford legal fees in
addition to the other financial burdens they must bear.
This has resulted in enormous inequities. School districts have denied
needed services knowing that their decisions cannot be reviewed pursuant to
IDEA's procedural safeguards. Parents who invoke those safeguards without
representation by an attorney stand little chance of success. And most
school district attorneys are far better equipped, by experience and
resources, to represent the district's interests.
This imbalance must be addressed by:
a) Authorizing a grant program to increase public and private legal
assistance, for example, financial support to fund one publicly supported
special education attorney or experienced advocate per every 20,000 children
in each state on IEPs through P &A's, etc.
b) Authorize Federal financial support to provide a basic (capped) fee
payment for private attorneys to represent those children who lack
resources.
c) Authorize a grant program for development of minimum criteria and
training for "advocates," e.g., persons with special knowledge, 20 USC
§1415(b)(1).
d) Authorize Federal financial support for "in-house ombudsman"
positions in school districts located in large metropolitan areas.
e) Establish extensive training programs about IDEA for juvenile court
systems - including judges, probation officers, prosecutors and public
defenders nationwide.
3. Competent and Impartial Administrative Hearing System
The integrity and utility of IDEA's procedural safeguards is
substantially premised on a competent and impartial administrative hearing
system. Based upon the available evidence, there are overwhelming
indications that many, perhaps most, state administrative hearing systems
meet neither of these criteria. A competent and impartial hearing system
benefits everyone, by reducing litigation and related costs, instilling
confidence in the system and assuring the realization of IDEA's goals.
Moreover, if courts could increasingly rely upon sound and well-reasoned
administrative hearing decisions, judicial burdens might even be reduced.
The following steps would go a long way toward providing a level playing
field:
a) Fund an independent study of all state due process systems, including
hearing structure and practices, hearing officer qualifications, hearing
officer authority, method of selection and training of hearing officers and
general review of fairness of decisions.
b) Propose the key elements of a model code for due process
procedures, including hearings, and alternative dispute resolutions, with
the objective of reducing the complexity and overall cost of hearings.
c) Require that each state's hearing officers be subject to the state'
s code of judicial ethics and require each state to have a mechanism for
complaints about hearing officers.
d) Specify the criteria for assuring that administrative hearing
officers are impartial (begin by barring attorneys who represent or, within
the last five years, have represented schools or parents, and persons who
were formerly employed by school districts).
e) Require that parent and advocacy groups participate and concur in
the selection and award of contracts for hearing officer training.
f) Bar the appearance in an administrative hearing of an attorney by a
school district where a parent appears alone or with a parent advocate.
g) Clarify that hearing officers have the authority and obligation,
when required by the facts of the case, to order all remedial steps
necessary to provide a child with FAPE including, when necessary,
system-wide (local or state) remedies.
h) Authorize and define criteria for "class actions" at an
administrative hearing level with special masters to address systemic issues
within specific districts.
4. Independent Systemic Compliance Mechanisms
A quarter century's experience with IDEA has provided valuable insight
into a complex system of oversight and litigation. Compliance with IDEA
would be significantly improved by the following steps:
a) Provide funding for NCD to conduct comprehensive reviews of the
state of IDEA compliance on a regular basis.
b) Develop explicit criteria for what constitutes noncompliance with
IDEA, define the consequences for noncompliance, and establish an
independent entity or office to seek compliance by state education
agencies.
c) Specifically authorize private actions against the Department of
Education for not enforcing IDEA and permit recovery of damages.
d) Contract with one independent entity in each state to respond to
complaints about the state and local education agencies. For example, state
control and responsibility for IDEA would be enhanced by establishing within
each state's attorney general's office a division to act upon complaints.
5. Increased Training and Support of Education and Service Providers
While it is difficult to isolate the most serious consequence of
Congress's failure to fully fund IDEA, certainly one of the worst effects
has been the failure of school systems to develop and implement the
statutory mandate for a Comprehensive System of Personnel Development.
Teachers and service providers cannot be expected to serve children with
disabilities if they have not been trained to do so - indeed, without such
training, attempts are quite likely to be counterproductive. The following
changes should be made:
a) To ensure licensure of teachers or, if teacher shortages exist and
waivers are being granted, funding should exist to ensure that a parent may
have the option of privately funded services up front during the time period
that a licensed teacher is not available.
b) Provide additional financial incentives to states who serve special
education students by the use of teachers who have status as master
teachers.
c) Establish a National Training Center for Teachers and Related
Services Personnel Who Work with Children with Disabilities to create and
design promising practices for teaching of the child with a disability.
Practices would be widely disseminated throughout the U.S. to help states
provide assistance to districts. Moreover, states experiencing severe
teacher shortages in special education areas could contract for additional
resource assistance to train teachers.
Many of the recommended changes, particularly those concerning public
information, legal and advocacy assistance, and the administrative hearing
system, do not require amendment of IDEA and can be undertaken immediately
by the U.S. Department of Education within existing statutory authority. For
this reason, we urge the Department to begin the rule-making process
necessary to implement these changes without hesitation or delay, as an
indication of its commitment to making IDEA work for its intended
beneficiaries: children with disabilities.
Sonja D. Kerr, Esq. S. James Rosenfeld, Esq.
Chair Executive Director
December 13, 2000 on behalf of the Board of Directors
Source: FEAT Daily Newsletter
