Congressman Dan Burton, chairman of the Committee on Government
Reform, is deeply committed to issues on how the government relates to
autism, vaccinations and special education, as he has been personally
touched by a child with disability, his grandson, Christian, who has autism.
At the Congressional Hearing on the Individuals with Disabilities
Education Act (IDEA), last Wednesday, February 28, he related the struggles
of his own daughter in obtaining educational services for his grandson. He
has attended IEPs with his daughter and was shocked to find the recalcitrant
system that we have all grown so accustomed too. He stated that if this
happens to a child who has a Congressman for a grandfather, he could not
even begin to imagine what is happening to other families and other
children. His experience with the special education system is what
motivated him to investigate the implementation and enforcement of IDEA.
The following is my own personal impression and observations of the
Congressional Hearing and my own opinions:
Congressman Dan Burton from Indiana, Chairman of the Government Reform
Committee, opened the hearing, which was titled, "Special Education: Is
IDEA Being Implemented as Congress Intended?" What follows are excerpts of
his opening statement:
.... Why is it that, when we have federal law that requires that every
child receive a free and appropriate public education, many families are
having to go to court to receive these services?... The committee received
thousands of e-mails, telephone calls, letters and faxes from families,
teachers, administrators, and organizations about the implementation of the
Individuals with Disabilities Education Act (IDEA)... Are teachers and
administrators trained in the changes in the Federal laws regarding special
education? Are families fully informed early in the process about their
rights?
He quoted President Bush, "the federal role in education is not to
serve the system. It is to serve the children," and stated that he was in
100% agreement with that statement. He also stated:
... We repeatedly heard that parents do not want their children to be
'warehoused,' or placed in classes where they are not intellectually
challenged. We repeatedly heard from the disability community and families
about the need for accountability for schools that do not comply with the
law." "...Families across the country do not feel that their schools are
following the IDEA law.
A majority of over 2,500 families we heard from had to fight for
services. We repeatedly heard from families that the schools did not inform
them of the programs available to their children or of their rights under
the law. We also learned that families spend tens of thousands of dollars
out-of-pocket to obtain educational services for their children, as well as
to hire lawyers to fight for their children's educational needs...
It was never Congressional intent that taxpayer dollars be spent on
hiring attorneys to fight parents in long and expensive court battles that
will keep children from getting services. The role of Special Education
Directors, teachers, and administrators is to serve the children, not to
serve the system.
The new mantra at the Department of Education is that "No Child Be
Left Behind.' It is very important that no child be left behind, including
any child with a disability.... When Congress passed legislation to require
a free and appropriate public education to all children with disabilities,
we never envisioned that parents would have to fight for these services.
We never envisioned that schools would refuse to accept the diagnosis
of a doctor and then not evaluate a child for six months or a year -
delaying all services until the school evaluation is obtained... A six month
delay can have a detrimental effect on the child for years... When Congress
passed IDEA we never envisioned that schools would tell parents, 'if we
provide it for your child, then we will have to provide it for everyone!'
We repeated heard from families that schools used this as an excuse
not to provide services. If the service is an appropriate service to meet
the educational needs of a disabled child, any child with the same
disability in the school should be offered access to that appropriate
service...
Marca Bristo, Chairperson of the National Council on Disability,
beautifully delivered the major findings and major recommendations of NCD's
Back to School on Civil Rights report regarding the poor implementation of
IDEA and the lack of enforcement actions. Back to School on Civil Rights
was entered into the Congressional Record.
Patricia Guard, Acting Director, Office of Special Education Programs,
U.S. Department of Education, testified. Congressman Burton interrupted her
testimony reminding her that what she was stating was what IDEA law says and
that Congress is fully aware of what IDEA says. What they want to know is
why is not being implemented and what needs to be done to improve it?
He asked her for specific recommendations from OSEP, but OSEP was
unable to provide any, aside from increase in funding. Ms. Guard indicated
that she had to get back to the Committee with specific recommendations.
It's hard for me to resist offering my editorials, so I'm not going to
resist the temptation... for OSEP not to even have a set of recommendations
to improve IDEA implementation and enforcement is so tragic that is almost
comical!
For me, the absolute highlight of the hearing was the testimony of
Melinda (Maloney) Baird, Esq. From Knoxville, Tennessee, now in private
practice previously involved with the Weatherly Law Firm, followed by the
testimony from Mr. Gary Mayerson, Esq. From New York, a parent attorney. I
wish I would have had a video camera so that we could all relive the moment
together... I will do my best to describe what I observed...
The following are excerpts from Ms. Baird's testimony:
I am an attorney in private practice in Knoxville, Tennessee, and have
been working in the field of special education law for almost sixteen years.
My practice is devoted exclusively to the representation of school districts
in special education matters.
I formerly served as an attorney in the Office of Special Education
Programs for the Tennessee Department of Education and as Associate
Publisher for Education and Disability Publications for LRP Publications.
Over the past twelve years, I have provided hundreds of workshops and
in-service training seminars for thousands of teachers, administrators, and
parents of students with disabilities....
For the past four-and-a-half years, I have represented school
districts in Tennessee, Alabama, and Florida in litigation concerning the
IDEA and Section 504 of the Rehabilitation Act of 1973... Despite the best
efforts and good intentions of lawmakers, the paperwork burden for special
education has increased rather than decreased...
In my opinion and based on my experience, local school districts are
doing an ADMIRABLE (emphasis added) job of providing appropriate special
education and related services to these students, and are rising to the
challenge of meeting the mandate and increasing expectations of the law....
I annually prepare a yearly summary of federal and state court decisions
affecting special education, which I have attached for your information and
review...
I think it is remarkable that, on average, less than one hundred
lawsuits are filed in federal and state court out of a total of more than
six million students receiving special education and related services. The
Committee members should remember that in each state there is a federally
funded agency providing free or low-cost legal representation to parents of
students with disabilities.
Therefore, families of students with disabilities are able to initiate
a legal action against their local school district either at no cost or low
cost whenever their child's rights have been violated. Parents also have the
option of filing a complaint with the Office for Civil Rights and their
State Department of Education, and of requesting formal mediation at no cost
to them.... The law provides a complex scheme of procedural rights and the
availability of free or low-cost legal representation for parents of
students with disabilities.
I can testify that the parents I encounter are well aware of their
legal rights and freely take advantage of the legal process. My husband is
a retired educator with twenty-eight years of experience as a special
education teacher and administrator... It would be wrong to assume that all
complains filed against school districts are without merit.
It would also be wrong to assume that all complaints filed against
schools have merit. The fact that we have disputes between school districts
and parents of children with disabilities is proof that the system is
working, not proof that the system is flawed...
Then the hero of the day, Mr. Gary Mayerson, from New York, who by the
way was borne and raised in Miami, Florida, provided the accurate
information regarding the state of affairs regarding special education
litigation. He stated:
Unfortunately, while there apparently are enough lawyers and law firms
prepared to work on a steady retainer basis for school districts (or the
insurance companies which insure school districts), there are relatively few
lawyers in the country who are ready, willing and able to represent
children...
The subject matter is complicated, the learning curve is steep, the
pay is uncertain and erratic, and the risks of failure can be catastrophic
to the child and the child's family. There clearly are easier ways to earn
a living...
Mr. Mayerson included as Appendices to his written testimony, a
seminar brochure entitled "Special Education and The Law, a private briefing
designed for school board members, central office administrators, special
education directors, etc." Page 2 of the Program agenda announced a session
titled "Special Education for Early Childhood Autistic Students - How to
Avoid Parent Demands for Lovaas/Teach Methodologies," and also another
session titled, "How to Avoid Liability in Lovaas Cases."
Mr. Mayerson also attached a copy of "workshop" brochure from our
esteemed LRP Publications tiled "Building a Blueprint from Defensible Autism
Programs," with Melinda (Maloney) Baird as the workshop's presenter. He
also testified to Ms. Baird's presentation in Tennessee back in November
2000, titled "The New Reauthorization - Back into Hell?" We are all too
familiar with these workshops and "private" conferences at taxpayers
expense.
Congressman Burton and Congresswoman Maloney from New York did not
find Ms. Baird's "catchy" titles amusing at all, to say the least. As one
observed proper and posed Congressman Burton's increase in facial color,
becoming redder by the second, Ms. Baird was asked several questions
regarding Mr. Mayerson's appendices and testimony.
Among the questions asked of Ms. Baird, was an explanation of how
could she put on "private" conferences with taxpayer dollars designed to
teach school people how to break the law and get away with it. OK, we can
all relish the moment now..... SMILE, SMILE, SMILE....
Of course, this refers to the famous LRP's "National Institute on
Legal Issues of Educating Individuals with Disabilities," which caters to
school boards and school board attorneys who attend these conferences at
taxpayers expense to learn how to win against parents in court.
Congresswoman Maloney from New York literally yelled at Ms. Baird,
stating that this practice could not be legal and that she would get this
under the Sunshine Law. Ms. Baird was not a happy camper.
At the end of the hearing, it was observed how Ms. Baird found refuge
and comfort among her friends from OSEP, Ms. Patty Guard, Ms. Joleta
Reynolds and Ms. Ruth Ryder, who were all there. Whose interest is OSEP
protecting? Do we have any doubts left? How could anyone in their right
mind expect that OSEP would ever enforce IDEA, much less sanction state
education agencies that allow its local school districts to violate the law?
In conclusion, for the first time I feel confident that IDEA is
getting the attention it deserves (THE CAT IS OUT OF THE BAG). Thank God
for little boys and little girls like Christian, Congressman Burton's
grandson, who through the miracle of their very own existence raise the
level of awareness of those who are in a position to make a difference, the
horror of their disabilities notwithstanding. What would the rest of us do
without them?
Again, I encourage all parents and advocates for children with
disabilities to make recommendations to improve IDEA. It is scary to hear
the recommendations that I heard at the hearing coming from school people
and from uninformed legislators. The school people complain bitterly about
the burden of paperwork and about the discipline of children with
disabilities.
What they really mean to say is that paperwork makes them somewhat
accountable and they just don't like that. They also stated that they miss
the days when the parents "trust" them. We need to demand accountability,
not necessarily through "paperwork" (I'm not interested in killing trees),
but through technology (instead of paper and pencil tasks) and, of course,
through measurable student outcomes.
God blessed me with the opportunity to attend the hearing with a
24-hour notice! I encourage every child advocate and every parent to contact
Congressman Burton's office with recommendations to improve IDEA
implementation and enforcement. The record will remain open until March 15,
2001.
