May 25 2004 LDA News From Washington - Learning Disabilities Association of America

CONGRESSIONAL ACTIVITIES

SENATE REAUTHORIZATION OF IDEA

On May 13, after two days of debate, the Senate passed the reauthorization of IDEA as amendment 1350 to S 1248 by a vote of 95 to 3. Three Senators - Jeffords (I VT), Leahy (D VT) and Stabenow (D MI) voted against the bill because it did not include mandatory full funding. A new section of the amendment requires the Comptroller General to conduct a review of

the extent to which personnel in schools actively influence parents in pursuing a diagnosis of attention deficit disorder and attention deficit hyperactivity disorder;
the policies and procedures among public schools in allowing school personnel to distribute controlled substances; and
the extent to which school personnel have required a child to obtain a prescription for substances covered by section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)) to treat attention deficit disorder, attention deficit hyperactivity disorder, or other attention deficit-related illnesses or disorders, in order to attend school or be evaluated for services under the Individuals with Disabilities Education Act and

not later than 1 year after the date of enactment of this Act, to prepare and submit to Congress a report that contains the results of the review.

This language is not as intimidating as the Child Medication Safety Act provisions in the House bill.

The Senate voted on the following amendments.

The mandatory full funding amendment, sponsored by Harkin (D-IA) and Hagel (R-NE) would have provided mandatory $2.2 billion increases over the next six years to reach the 40 percent mark promised by Congress almost 30 years ago. Because the Harkin-Hagel amendment did not carry offsetting cuts for the mandatory funding it would have required, the Budget Act required 60 votes for passage of the amendment. The final vote was 56-41, so the amendment failed.

The Senate adopted, 96-1, a competing amendment by Gregg (R-NH) that would authorize discretionary funding to reach the 40 percent mark by 2011, a provision similar to the House bill.

The other amendments were adopted by voice vote. These were:

The Gregg Enzi-Grassley amendment on attorneys' fees which states "In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs
``(I) to a prevailing party who is the parent of a child with a disability;
``(II) to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or
``(III) to a State educational agency or local educational agency against the attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of action was presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation passed" This codifies an earlier court decision on frivolous law suits. This language is an improvement over the House bill, which would allow the Governor to set a cap on attorneys' fees.
The Gregg-Santorum amendment on paperwork reduction would allow the Secretary of Education to "grant waivers of statutory requirements of, or regulatory requirements relating to, this part for a period of time not to exceed 4 years with respect to not more than 15 States based on proposals submitted by States to reduce excessive paperwork and non-instructional time burdens that do not assist in improving educational and functional results for children with disabilities." However, "The Secretary shall not waive any statutory requirements of, or regulatory requirements relating to, applicable civil rights requirements." Moreover, "Nothing in this subsection shall be construed to
``(I) affect the right of a child with a disability to receive a free appropriate public education under this part; and (II) permit a State or local educational agency to waive procedural safeguards under section 615.
The Clinton Amendment to the Children's Health Act of 2000 makes the Department of Education a key partner in the development and implementation of the National Children's Study, a comprehensive study of the effects of the environment on the health and development of children from birth until age 21.
The Murray-DeWine Amendment would improve special education for homeless and foster children with disabilities and children with disabilities in military families by:
- Improving special education services when children transfer school districts and coordination between school districts on assessments and evaluations;
- Clarifying which appropriate adults can advocate for children with regard to their special education services;
- Improving coordination between McKinney-Vento and IDEA and overall representation of homeless and foster children in IDEA;
- Strengthening services for infants and toddlers with disabilities who are homeless, in foster care, or in military families;
- Ensuring that homeless and foster children with disabilities, children with disabilities in military families and their advocates are represented on state policy committees; and
- Improving inclusion of children with disabilities who are homeless, in foster care, and in military families in research and training grants.

On May 12, the Administration issued a statement on S. 1248, stating support for

discretionary authorization, rather than mandatory funding for IDEA;
strengthening of parental notice and consent to evaluate children; and
using research-based practices for identifying and evaluating children with disabilities, especially those with specific learning disabilities.

Further, the Administration

would strongly oppose any amendment to undermine the accountability provisions of NCLB;
supports provisions that would "reduce IEP paperwork burdens and free teachers to teach while preserving protections for children with disabilities and their parents;"
opposes new and extensive data requirements, such as reporting on the incidence and duration of disciplinary actions by race/ethnicity status and by disability category;
supports the concept of using Part B funds for pre-referral services, but supports amending the bill to more clearly identify the costs that can be paid for with Part B funds and ensure that non-disabled children are not served indefinitely with those funds; and
opposes the provision that requires an unworkable and mechanistic enforcement system that would automatically trigger state sanctions.

"The Administration will work with the Senate to improve S. 1248 so that it: (1) simplifies provisions relating to the allocation and use of funds; (2) provides a flexible option for States and local school districts to set aside sufficient funds to serve children who need high cost services; (3) ensures that special education teachers who provide direct instruction in core academic subjects to students with disabilities are "highly qualified" and demonstrate subject matter knowledge for the appropriate grades; (4) offers parents more choices in selecting a school for their children with disabilities; and (5) addresses properly other important legal (including constitutional) and policy issues."

Immediately following the passage of the Senate bill, the House Committee on Education and the Workforce issued a press release praising the Senate bill. Committee chairman John Boehner (R-OH).stated "While some important differences remain between the House and Senate versions, both bills passed with bipartisan support, both include paperwork reduction for teachers, and neither would create a new big-government entitlement spending program through so-called 'mandatory' IDEA spending. House Republicans are eager to work with our Senate counterparts in conference as soon as possible to ensure President Bush has the opportunity to sign legislation this year that will boost support for teachers and improve results for students with special needs."

CONFERENCE IS NEXT

The expanded Eligibility for Learning Disabilities in the Senate bill is expected to be in the final bill. Controversial issues are expected to be Highly Qualified Teachers, Discipline, and Monitoring and Enforcement. LDA has prepared a comparison of the House and Senate bills on these issues. Senator Kennedy reiterated his intent to seek a bipartisan "pre-conference" agreement with the House on the key aspects of the bills. Without such an agreement, the Senate Democrats, as they have done several times recently, will not allow the appointment of conferees to formally resolve the huge differences between the bills. Without conferees being appointed, the bills would die.

THE FAMILY OPPORTUNITY ACT

After three years, on May 6, 2004, the Senate passed the Family Opportunity Act of 2004 or Dylan Lee James Act which amends title XIX (Medicaid) of the Social Security Act (SSA) to: (1) give States the option of allowing families of disabled children to purchase Medicaid coverage for them; and (2) add to the list of persons eligible for Medicaid home and community-based service waiver programs individuals under 21 years of age requiring inpatient psychiatric hospital services. The bill was sent to the House.

REAUTHORIZATION OF THE CARL PERKINS VOCATIONAL AND TECHNICAL EDUCATION ACT

On May 11, 2004, the Bush Administration released its revised Blueprint for the reauthorization of the Perkins Act. The goals for this program titled "The Carl D. Perkins Secondary and Technical Education Excellence Act of 2004 include (a) ensuring that career and technical education (CTE) programs complement the academic mission of No Child Left Behind and the workforce development mission of the Workforce Investment Act, (b) helping youth in CTE to receive a challenging academic education, (c) ensuring that all CTE pathways offer a smooth transition into a postsecondary program, (d) making high quality CTE pathways widely available to both youth and career-changing adults through a variety of institutions, and (e) connecting CTE pathways to workforce investment systems to strengthen workforce quality and economic competitiveness." The proposal is available on the U.S. Department of Education's website at http://www.ed.gov/about/offices/list/ovae/index.html

LEAD-FREE DRINKING WATER ACT OF 2004

On May 4, 2004, Senator James Jeffords of Vermont introduced the Lead Free Drinking Water Act of 2004 to strengthen the Federal rules governing lead testing and regulations in our public water systems to ensure that our most vulnerable citizens--infants, children, pregnant women, and new moms--are not harmed by lead in the drinking water. An identical bill, HR 4268, was introduced in the House by Congresswoman Norton of DC and Congressman Waxman of California.

THE ASSISTIVE TECHNOLOGY ACT HR 4278

The Committee on Education and the Workforce unanimously endorsed HR 4278 that reauthorizes the Assistive Technology Act. The bill, the Improving Access to Assistive Technology for Individuals with Disabilities Act of 2004, was a bi-partisan effort led by Subcommittee Chairman McKeon (R-CA), Committee Chairman Boehner (R-OH), Ranking Member Kildee (D-MI) and Ranking Member Miller (D-CA). Rep. Jim Langevin (D-RI), co-chair of the Bi-Partisan Disability Caucus, also played a critical role in developing the legislation. The bill is expected to go to the House floor when Congress returns the first week in June.

The Consortium for Citizens with Disabilities (CCD), of which LDA is active member, worked closely with congressional staff to help improve the bill as it moved through subcommittee and committee.

EXECUTIVE BRANCH

ENVIRONMENTAL PROTECTION AGENCY

The EPA has extended the public comment period for an additional 60 days before they review all of the comments and come to a decision about the proposed rule changes regulating mercury emissions from utility plants. The proposed rule changes would have lowered the target for emission reductions, extended the time period in which reductions would be required, and allowed for credit trading between "clean" power plants and "dirty" power plants. EPA received a record number of comments on these changes to the Clean Air Act, over 440,000 to date, and 44 Senators signed a "dear colleague" letter asking EPA Administrator Michael Leavitt to reconsider his position on changing the rules.

COURTS

On May 17, in a 5 to 4 decision, the U.S. Supreme Court ruled that Title II of the Americans with Disabilities Act allows private citizens the right to seek money damages in federal court if states fail to provide equal access and accommodations as required under the statute. Tennessee v. Lane, 02-1667 (U.S. 2004).

LDA News from Washington is a monthly publication of the Learning Disabilities Association of America. Written by Justine Maloney; Jane Browning, Editor. Paper copies by mail are available free to members upon request. Call 1-888-300-6710 or email info@ldaamerica.org

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