Parents with autistic kids
fear disabilities act changes
By Susan Essoyan Some parents worry that a bill making its way through Congress will make it harder for children with disabilities to get the education they need, but legislators say the current system is so unwieldy that it must be overhauled.
sessoyan@starbulletin.com"Our major concern is that children who are fragile and vulnerable will not have access to their civil rights under this bill," said Naomi Grossman, president of the Autism Society of Hawaii.
"It is dismantling the current law."
She and a group of parents met with U.S. Rep. Ed Case yesterday in Honolulu to protest proposed changes to the Individuals with Disabilities Education Act that they say would diminish protections for children, including an amendment he introduced.
The law, passed in 1975 and amended most recently in 1997, authorizes federal funding to give disabled children a "free and appropriate public education" and spells out what parents can do to challenge authorities if that is not provided.
While it has given children with disabilities greater access to public schools, critics say the law has overwhelmed schools with paperwork, allowed disruptive students who are disabled to remain in class, and spawned costly lawsuits that drain school resources.
House Resolution 1350, introduced by U.S. Rep. Mike Castle, R-Del., is designed in part to address such concerns. The bill passed the House Committee on Education and the Workforce on April 10, by a 29-19 vote, and is headed to the full House.
Among its provisions is the Case amendment, which would base attorneys' fees on rates set by the governor of each state. Currently, a lawyer who successfully represents a disabled child is entitled to recover fees, at prevailing community rates, at the court's discretion.
"Right now it's essentially carte blanche. Whatever is asked for is not likely to be disputed," said Case (D-Rural Oahu, Neighbor Islands).
"That's partly because there are no guidelines and partly because resources are stretched so thin that usually the state just decides not to take issue with the fees."
Case said attorneys' fees awarded in such disputes in Hawaii have doubled in the last two years, and his solution is moderate compared with the caps and limits pushed by some of his colleagues. Although the governor would set an hourly rate, the number of hours would not be limited and it should not pose a disincentive to lawyers, he said.
But attorney Chris Parsons, who represents parents, said that having the governor set rates would "give the fox the keys to the henhouse" and drive lawyers away from such cases.
"In most states, at least you have some division between the governor and the school district," he said. "Here you've got a governor whose budget is directly affected by these cases. You would be letting the person being sued set the rates. How smart is that?"
Army Capt. Roy Speaks, who brought his 4-year-old son from Schofield to the meeting with Case, said his family was able to get adequate care for him only after hiring a lawyer.
"This will further diminish the ability of families to acquire adequate legal representation," he said. "The purpose should be to get a guy like this into treatment as soon as possible."
Although Case ultimately voted against HR 1350 in committee, his amendment did pass, and Case expects the bill to clear the full House.
The bill would also make it easier to discipline children with disabilities. Currently, families can challenge efforts to remove such students from class for more than 10 days in a school year, unless the violation involves weapons or drugs, or the child is likely to injure himself or others.
The measure would allow such students to be sent to alternative educational settings for up to 45 days, just like other students, whether or not their misbehavior was linked to their disability. Schools now must prove the misbehavior is not related to the disability in order to do so.
The bill also creates a one-year statute of limitations on the right to present complaints, and gives the school 30 days to resolve a complaint before it goes to a formal hearing involving attorneys. It also streamlines requirements for meetings and paperwork.