Wrightslaw - Congressional Hearing: Special Education: Implementation of IDEA (Feb 28, 2001)

Wrightslaw - Congressional Hearing: Special Education: Implementation of IDEA (Feb 28, 2001)



pecial Education:  
Is IDEA Being Implemented as Congress Intended?”
Congress of the United States 
House of Representatives
Committee on Government Reform
February 28, 2001

Prepared by Lilliam Rangel-Diaz 
Center for Education Advocacy
Miami, Florida 33156 
305-279-2428, Ext. 211 
E-mail address:  lillyrdiaz@aol.com

God blessed me with the opportunity to attend the Congressional Hearing on IDEA 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.    

Congressman Burton’s Personal Experiences 

Congressman Burton is deeply committed to this cause, as he has been personally touched by a child with disability, his grandson, Christian, who has autism. 

He related the struggles of his 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. 

Contact information:

Hon. Dan Burton, Chairman
Hose of Representatives
Committee on Government Reform
2157 Rayburn House Office Building
Washington, D.C.  20515-6143
Attn. Ms. Beth Clay 
Tel. 202-225-5074
E-mail address:  beth.clay@mail.house.gov

The following are my personal impressions 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 do families have to go to court to receive services?" 

“ . . . 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?”

The “Federal Role in Education: To Serve the Children not the System” 

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 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. 

How to Improve Implementation of IDEA? OSEP Has No Recommendations

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, that 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 have recommendations to improve IDEA implementation and enforcement is so tragic that is almost comical!

For me, the highlight was . . .

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 had a video camera so that we could all relive the moment together  . . . I will do my best to describe what I observed . . . 

Excerpts from Testimony of Melinda (Maloney) Baird, Esq., school board attorney

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…

Excerpts from Testimony of Gary Mayerson, Esq., parent attorney

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 . . .

“Private” Conferences for School Board Attorneys Funded by Taxpayers?

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 another session titled, “How to Avoid Liability in Lovaas Cases.” 

Mr. Mayerson also attached a copy of “workshop” brochure from our esteemed LRP Publications entiled “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. As one observed 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 infamous “National Institute on Legal Issues of Educating Individuals with Disabilities” by LRP, 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. 

OSEP Staff Comfort School Board Attorney 

At the end of the hearing, it was observed that 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?

“The Cat Is Out of the Bag”

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 Like Christian” 

Thank God for little boys and little girls like Christian, Congressman Burton’s grandson, who through the miracles of their existence, raise the level of awareness of those who are in a position to make a difference. What would the rest of us do without them?

I encourage all parents and advocates for children with disabilities to make recommendations to improve IDEA. 

Please Make Your Voice Heard 

It is scary to hear the recommendations that I heard at the hearing 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 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. 

Accountability & Measurable Student Outcomes

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 through measurable student outcomes.

Please feel free to contact me for additional information. 

Lilliam Rangel-Diaz

Center for Education Advocacy
8600 S.W. 92nd Street
Suite 204
Miami, Florida  33156
305-279-2428, Ext. 211
E-mail address:  lillyrdiaz@aol.com

IDEA Compliance Links at Wrightslaw:

Summary of Findings & News Release by National Council on Disability. 

Table of Contents, IDEA Compliance Report ("Back to School on Civil Rights") 

Recommendations from IDEA Compliance Report ("Back to School on Civil Rights") 

Search Tips -- Find Information in IDEA Compliance Report 

Keynote Speech by Lilliam Rangel Diaz, 3rd Annual Conference of Council of Parent Attorneys and Advocates, Houston, TX 

Other Links

National Council on Disability

Council of Parent Attorneys and Advocates

NOTE: The 4th Annual Conference of the Council of Parent Attorneys and Advocates is at the Hyatt Crystal City, Washington DC, March 8-11, 2001. For more information, pleasevisit the COPAA site.