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Bill on Legal Fees in Special-Ed. Cases Clears a Panel; Riders Cloud Passage

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Washington--The outlook for a bill that would allow parents to collect legal fees in special-education lawsuits has been clouded by provisions added by a Democrat-controlled House panel but opposed by the Administration and House Republicans.

The bill, HR 1523, enjoyed bipartisan support until last week, when the House Subcommittee on Select Education approved an amendment that would incorporate federal regulations protecting the rights of all handicapped individuals into the statute--thus barring changes in the rules without Congressional approval.

Secretary of Education William J. Bennett, in the department's first comment on the bill, said in a letter to the House Committee on Education and Labor that he opposed the codification of the regulations on the grounds that it would "inappropriately limit our capacity to administer and enforce an important civil-rights statute."

Supreme Court's Ruling

Introduced by Representative Pat Williams, Democrat of Montana, the bill was fashioned in response to last year's U.S. Supreme Court decision in Smith v. Robinson, which declared that parents who win cases under P.L. 94-142, the Education for All Handicapped Children Act of 1975, cannot receive legal fees. (See Education Week, March 20, 1985.)

The subcommittee, chaired by Representative Williams, unanimously approved the bill as amended last week.

The bill has the support of most disability-rights groups. However, the National School Boards Association, which tentatively backed the bill at a hearing last month, said it cannot support the legislation in its present form.

Legal Fees Barred

Prior to the Supreme Court's decision, most parents filed cases under both P.L. 94-142 and Section 504 of the Rehabilitation Act of 1973, because legal fees are available under Section 504.

However, the Supreme Court ruled that when a remedy is provided under P.L. 94-142 "with more clarity and precision" than under Section 504, a plaintiff must file suit under P.L. 94-142. It also ruled that "Congress intended [P.L. 94-142] to be the exclusive avenue through which a plaintiff may assert an equal-protection claim to a publicly financed special education."

The opinion virtually precludes the filing of special-education cases under Section 504, therefore barring awards of legal fees and preventing parents from seeking protection under the federal civil-rights regulations. Section 504 broadly protects the civil rights of all handicapped individuals; P.L. 94-142 sets forth detailed procedures to protect the rights of special-education students in school.

Focus of Dispute

The dispute over the House bill focused on an amendment offered by Representative Mario Biaggi, Democrat of New York, which states that "with respect to preschool, ele-mentary, secondary, and adult education programs and activities, Section 504 of the Rehabilitation Act of 1973" must be carried out in accordance with the regulations now in effect, unless expressly changed by a joint resolution of the Congress.

The amendment, which passed 6-4, would prohibit the Education Department from changing this interpretation of Section 504 without Congressional approval, Representative Biaggi said.

"This is really a question of civil rights," he added. "This is really the guts of the bill."

Many special-education advocacy groups have expressed concern that the Administration will try to change Section 504 regulations and weaken enforcement efforts.

Changes that might cite the Supreme Court's Smith ruling to curtail Section 504's applicability to complaints involving handicapped schoolchildren would deny them any recourse to direct federal rights enforcement, the groups argue.

But a spokesman for the Secretary of Education's office said last week that the Administration has no plans to change the federal regulations.

Under current policy, the Education Department's office for civil rights and office of special education and rehabilitative services share enforcement and monitoring responsibility for the federal laws protecting the handicapped. ocr is responsible for enforcing Section 504, through direct investigation, while osers has monitoring and technical-assistance responsibility for P.L. 94-142.

Education Department's Stand

The department objects primarily to Representative Biaggi's amendment.

"The dynamic field of special-education may necessitate revisions to current regulations, or addition of completely new provisions, to reflect changed terminology or professional practice with respect to such matters as testing and evaluation, educational placement, or the provision of services to children with particular handicapping conditions," Mr. Bennett stated in his letter. "These useful and needed changes, no matter how small their impact, would be barred by the bill."

Representative Steve Bartlett, Republican of Texas, backing the Administration's stance, said that including the language of Section 504 in the bill would hamper its chances for passage.

'Jeopardize Bipartisan Support'

"It's a solution in search of a problem," he said. "There is no reason to codify 30 pages of regulations into this statute. It simply does not belong there." The Texas Representative stopped short of saying he would not support the bill in its present form, but did say inclusion of the Section 504 language would "seriously jeopardize bipartisan support of the bill."

"We knew the Administration3had concerns," said S. Gray Garwood, staff director for the subcommittee. "As Representative Williams said in his opening statement, we recognize that legislation is dynamic, not static, and we will continue to discuss refinements. That objection will be one of the things discussed." The bill is expected to be considered by the full House committee April 16.

Mr. Garwood said the Education Department's objection leaves the door open to changes in Section 504 regulations, despite Mr. Bennett's avowal, in a letter to Representative Williams last month, that he does not foresee such changes "at this time."

"They may be thinking about changes," Mr. Garwood said. "Whether that's ominous or not, one doesn't know."

'Guts of Protection'

Frederick Weintraub, speaking for the Consortium for Citizens with Developmental Disabilities, an umbrella organization representing more than 20 advocacy groups for the handicapped, said the consortium supports such language because "the disability community has more faith in the Congress than it does in the Administration--and this is not unique to this Administration. The feeling is that if Section 504 is really the guts of protection for the handicapped, it should be embodied in statute."

Arlene Mayerson, directing attorney for the Disability Rights Education and Defense Fund, said her group would not accept the bill without the codification.

On the Agenda

Deregulation of Section 504 "has been on the agenda since Reagan took office," Ms. Mayerson said, adding that the Education Department's objection to the bill is "one more indication" of its plans to6slacken enforcement of Section 504.

However, even if the regulations are not codified, they would be difficult to change without general public acceptance, Congressional aides said, pointing to the overwhelming opposition the Education Department met in attempting to amend P.L. 94-142 regulations three years ago.

Patricia Morrissey, senior legislative aide to Representative Bartlett, also pointed out that the relationship between Section 504 and P.L. 94-142 is maintained in another section of the bill, which states that "nothing in this title shall be construed to restrict or limit the filing of a civil action" under Section 504.

Administrative Level

The panel approved, 6-2, another amendment by Representative Biaggi that would allow courts to reimburse parents for legal fees incurred in administrative proceedings when the state or local education agency initiates the proceedings, and when the court finds violations of the procedures under P.L. 94-142, unless that violation can be "substantially justified."

Representative Bartlett argued against the awarding of legal fees at the administrative level, saying it would protract litigation.

No Informal Mediation

Another significant amendment to the bill would delete the informal-complaint procedure included in the original draft. This amendment allows the bill to "return to existing policy, under which school districts are encouraged but not required to use informal mediation procedures prior to due-process hearings," Representative Biaggi said.

Hearings for a similar Senate bill, introduced by Senator Lowell P. Weicker, Republican of Connecticut, are expected to be held in May.

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