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[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]

        SPECIAL EDUCATION: IS IDEA WORKING AS CONGRESS INTENDED?

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 28, 2001

                               __________

                           Serial No. 107-12

                               __________

       Printed for the use of the Committee on Government Reform

  Available via the World Wide Web: http://www.gpo.gov/congress/house
                      http://www.house.gov/reform

                                _______

                  U.S. GOVERNMENT PRINTING OFFICE
75-592                     WASHINGTON : 2001

____________________________________________________________________________
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                     COMMITTEE ON GOVERNMENT REFORM

                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland       TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut       MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida         EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York             PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California             PATSY T. MINK, Hawaii
JOHN L. MICA, Florida                CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia            ELEANOR HOLMES NORTON, Washington, 
MARK E. SOUDER, Indiana                  DC
JOE SCARBOROUGH, Florida             ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio           DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia                    ROD R. BLAGOJEVICH, Illinois
DAN MILLER, Florida                  DANNY K. DAVIS, Illinois
DOUG OSE, California                 JOHN F. TIERNEY, Massachusetts
RON LEWIS, Kentucky                  JIM TURNER, Texas
JO ANN DAVIS, Virginia               THOMAS H. ALLEN, Maine
TODD RUSSELL PLATTS, Pennsylvania    JANICE D. SCHAKOWSKY, Illinois
DAVE WELDON, Florida                 WM. LACY CLAY, Missouri
CHRIS CANNON, Utah                   ------ ------
ADAM H. PUTNAM, Florida              ------ ------
C.L. ``BUTCH'' OTTER, Idaho                      ------
EDWARD L. SCHROCK, Virginia          BERNARD SANDERS, Vermont 
------ ------                            (Independent)

                      Kevin Binger, Staff Director
                 Daniel R. Moll, Deputy Staff Director
                     James C. Wilson, Chief Counsel
                     Robert A. Briggs, Chief Clerk
                 Phil Schiliro, Minority Staff Director

                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on February 28, 2001................................     1
Statement of:
    Guard, Patricia J., Acting Director, Office of Special 
      Education Programs, U.S. Department of Education; Melinda 
      Baird, JD, Knoxville, TN; Gary Mayerson, JD, New York, NY; 
      Bill East, executive director, National Association of 
      State Directors of Special Education, Inc.; and Ed 
      Amundson, National Education Association...................   123
    Hooley, Hon. Darlene, a Representative in Congress from the 
      State of Oregon............................................    38
    Lamontagne, Ovide, Manchester, NH; Ginger Brown, Columbus, 
      IN; Stephanie Fry, Indianapolis, IN; Pat Antenellis, 
      Framington, MA; Carolyn Nunes, special education program 
      manager, San Diego, CA; Kevin McDowell, general counsel, 
      Department of Education, Indianapolis, IN; and Marca 
      Bristo, chair, National Council on Disability..............    44
Letters, statements, etc., submitted for the record by:
    Allen, Hon. Thomas H., a Representative in Congress from the 
      State of Maine, prepared statement of......................   330
    Amundson, Ed, National Education Association, prepared 
      statement of...............................................   310
    Antenellis, Pat, Framington, MA, prepared statement of.......    85
    Baird, Melinda, JD, Knoxville, TN, prepared statement of.....   137
    Bristo, Marca, chair, National Council on Disability, 
      prepared statement of......................................   104
    Brown, Ginger, Columbus, IN, prepared statement of...........    65
    Burton, Hon. Dan, a Representative in Congress from the State 
      of Indiana:
        Charts concerning special education......................     3
        Prepared statement of....................................    22
    East, Bill, executive director, National Association of State 
      Directors of Special Education, Inc., prepared statement of   301
    Fry, Stephanie, Indianapolis, IN, prepared statement of......    72
    Guard, Patricia, J., Acting Director, Office of Special 
      Education Programs, U.S. Department of Education, prepared 
      statement of...............................................   127
    Hooley, Hon. Darlene, a Representative in Congress from the 
      State of Oregon, prepared statement of.....................    40
    Kucinich, Hon. Dennis J., a Representative in Congress from 
      the State of Ohio, prepared statement of...................   332
    Lamontagne, Ovide, Manchester, NH, prepared statement of.....    47
    Mayerson, Gary, JD, New York, NY, prepared statement of......   198
    McDowell, Kevin, general counsel, Department of Education, 
      Indianapolis, IN, prepared statement of....................    93
    Morella, Hon. Constance A., a Representative in Congress from 
      the State of Maryland, prepared statement of...............    35
    Nunes, Carolyn, special education program manager, San Diego, 
      CA, prepared statement of..................................    56
    Waxman, Hon. Henry A., a Representative in Congress from the 
      State of California, editorial entitled, ``Special 
      Education, Discarded Vow,''................................    31

 
        SPECIAL EDUCATION: IS IDEA WORKING AS CONGRESS INTENDED?

                              ----------                              

                      WEDNESDAY, FEBRUARY 28, 2001

                          House of Representatives,
                            Committee on Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 1:45 p.m., in 
room 2154, Rayburn House Office Building, Hon. Dan Burton 
(chairman of the committee) presiding.
    Present: Representatives Burton, Morella, Shays, Horn, 
Barr, Davis, Platts, Weldon, Putnam, Schrock, Waxman, Owens, 
Maloney, Norton, Kucinich, Tierney, and Schakowsky.
    Also present: Representatives Cunningham, Pence, and 
Sununu.
    Staff present: Kevin Binger, staff director; Daniel R. 
Moll, deputy staff director; S. Elizabeth Clay, Nicole 
Petrosino, and Jen Klute, professional staff members; Marc 
Chretien, senior investigative counsel; Sarah Anderson, staff 
assistant; Robert A. Briggs, chief clerk; Robin Butler, office 
manager; Michael Canty and Toni Lightle, legislative 
assistants; John Sare, deputy chief clerk; Corinne Zaccagnini, 
systems administrator; Sarah Despres, minority counsel; Ellen 
Rayner, minority chief clerk; and Earley Green, minority 
assistant clerk.
    Mr. Burton. Good afternoon. A quorum being present, the 
Committee on Government Reform will come to order and I ask 
unanimous consent that all Members' and witnesses' written and 
opening statements be included in the record, and, without 
objection, so ordered.
    I ask unanimous consent that all articles, exhibits and 
extraneous or tabular material referred to be included in the 
record, and, without objection, so ordered.
    During the 106th Congress we began looking at the increased 
rates of autism. As we did that, we repeatedly heard from 
families that they were facing serious challenges obtaining 
services from their schools. Any family that is raising a child 
with a developmental delay or a learning disability or a 
physical disability faces tremendous challenges on a daily 
basis.
    Through this investigation, we have already learned that 
families are physically, emotionally and financially exhausted. 
Why is it that when we have a 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? And it's very costly.
    The committee received thousands of e-mails, telephone 
calls, and letters and faxes from families, teachers, 
administrators and organizations about the implementation of 
the Individuals with Disabilities Education Act [IDEA]. 
Congress has focused on the educational needs of the disabled 
for over 25 years. In 1975 Congress passed the Education for 
All Handicapped Children Act, the EHA Act, and the EHA 
guaranteed that eligible children and youth with disabilities 
would have available to them a free appropriate public 
education.
    We have heard a great deal in the past hearings about the 
increased rates of autism, and my family's been touched by 
that. In 1999 there were 2,462 children ages 3 to 21 in Indiana 
diagnosed with autism. With the dramatic rise of autism--in 
fact, we have a chart that shows the increase and how it's been 
rising--with the dramatic rise of autism will be a dramatic 
rise in requests for special education services. Are schools 
across the country prepared to handle the needs of children 
with autism? It used to be 1 in 10,000 children were autistic. 
Now, it's 1 in 500 and in Indiana, my home State, it's 1 in 
400.
    [The information referred to follows:]

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    Mr. Burton. 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? In the State of Indiana, requests for special education 
services for children with autism increased by 25 percent in 
just 1 year. What does this mean for the local school 
districts?
    The Indiana Resource Center for Autism is piloting a parent 
training program. This program helps parents of newly diagnosed 
children with autism spectrum disorders understand the impact 
of autism on their child and their family. They explain the 
various program options available, how to support and educate 
their child, how to access services across Indiana and how to 
identify and access appropriate and effective special education 
services, including their rights under the Federal law.
    While we focus our discussion on the educational challenges 
of families with autistic children, the implementation of IDEA 
and the importance of schools complying with congressional 
intent applies to all children, all children with special 
education needs. We have tremendous input from parents with 
children with Attention Deficit Disorder, with Downs Syndrome, 
children who are hearing and/or vision impaired, and children 
with physical limitations.
    President George W. Bush said with the introduction of his 
education blueprint, the Federal role in education is not to 
serve the system, it is to serve the children. And that's all 
of the children.
    I agree with President Bush 100 percent. While there are 
many issues we could look at regarding special education and 
the implementation of IDEA, what we must keep in mind as we do 
this, is that it is about our children. We are talking about 
making sure that each child, every child, has an opportunity to 
excel to the best of their own abilities through a free and 
appropriate public education. I just noticed they put my 
grandkids up there, and if you want to know what my grandkids 
look like, there they are. The one that's smiling is my 
granddaughter, and the one who is not smiling is our grandson 
Christian, who is autistic.
    The President's blueprint offers four objectives: 
increasing accountability for student performance, focusing on 
what works, reducing bureaucracy and increasing flexibility, 
and empowering parents.
    As we heard from thousands of families across the country, 
we found similarities in their desires in the four objectives 
of the President's education blueprint. We repeatedly heard 
that parents did not want their children to be warehoused or 
placed in classes where they were 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.
    We heard from families that they want their children to be 
in programs that are going to improve their children's lives. 
For some children with autism, that might be 1 hour of speech 
therapy 5 days a week, rather than 30 minutes 2 days a week.
    For other children it may be 40 hours a week of applied 
behavioral analysis at an early age to improve the child's 
educational experience and ability to interact and communicate. 
For a child with physical limitations, it may mean having a 
full-time aide assigned to assist them in a regular classroom 
or access to a computer with special communication software. 
Smaller classroom size in both special education and regular 
education classrooms was repeatedly mentioned.
    We also have heard from teachers and administrators about 
increased paperwork burdens. We need to find the proper balance 
in meeting reporting requirements while taking advantage of new 
computer technology that can make these reporting requirements 
easier and less burdensome.
    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. And that is almost 
criminal. The law requires that these parents get the help they 
need and not have to go to the legal remedies necessary to get 
these services.
    We repeatedly heard from families that the schools do 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 children as well as to hire lawyers to 
fight for their children's educational needs, and some of these 
people have been forced almost into bankruptcy because of that.
    Today we will hear from a broad spectrum of witnesses. 
Unfortunately, one of our witnesses, a very good friend of 
mine, Ms. Sally Duncan Griffith, could not be here as planned. 
She had a valuable story to tell about raising a disabled 
child. Unfortunately her child was hospitalized this weekend, 
in critical care, and our prayers go out to the family.
    I'm pleased that Congresswoman Darlene Hooley of Oregon is 
here today. She has introduced H.R. 659, a bill to achieve full 
funding for Individuals with Disabilities Act, Part B, by 2006.
    Congress made a commitment that the Federal Government and 
State and local governments would share in the expense of 
educating children with disabilities. We made a commitment to 
contribute up to 40 percent of the average per-pupil 
expenditure of educating children with disabilities, and to 
date the Federal Government has never contributed more than 
14.9 percent. We pledged 40 percent. This has got to change and 
we are going to try to help get that done.
    The chart shows that Congress has repeatedly increased 
funding of IDEA even above what prior administrations have 
requested and we are talking about Republican and Democrat 
administrations.
    I will be working with my colleagues in the Congress to 
ensure that we step up to the plate and fulfill our commitment 
to the IDEA and to the disabled children of this country. And 
as we do this, it's important the schools use this money for 
special educational children and not for other projects.
    The intent of a Federal investment in special education is 
to fund the additional cost of providing educational services 
to disabled children. These funds may mean better pay for 
teachers and aides, more teachers and aides for the classroom, 
more and better training for regular and special education 
teachers on specific disabilities such as autism, and better 
educational tools. 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 these services. The role of special education 
directors, teachers, and administrators is to serve the 
children and not the system.
    The new mantra at the Department of Education is that no 
child be left behind, and you have heard that several times 
recently. It is very important that no child be left behind, 
including any child with any kind of disability.
    Our new First Lady is to become an ambassador for 
education. She is going to devote her energies to recruiting 
teachers across the country. And I applaud her in this endeavor 
and will be sending her a personal letter. And I'll ask my 
colleagues, Henry Waxman, the ranking Democrat, and others on 
both sides to sign that letter, making sure that she include in 
that recruitment special educational teachers, speech and 
occupational therapists that we desperately need in our school 
systems across the country.
    We in Congress may also have to be creative in special 
education career development. For instance, maybe we should 
look at developing student loan repayment programs similar to 
medical school repayment programs; this loan repayment program 
would be for individuals who will become special education 
teachers or speech therapists who will teach for a 5-year 
period in rural or inner city schools or areas identified to be 
in desperate need of special education teachers and/or speech 
therapists.
    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 6 months or a year, which is a lifetime in many kids' 
lives, delaying all services until the school evaluation is 
obtained.
    With an autistic child, early and aggressive intervention 
is universally recognized as imperative. A 6-month delay can 
have a detrimental effect on the child for years and maybe 
their lifetime. The delay may also mean that over the long-term 
the child will have fewer communication skills.
    When Congress passed IDEA we never envisioned that schools 
would tell parents if we provide it for your child, then we'll 
have to provide it for everyone. We repeatedly 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 the same access that 
is appropriate.
    And I'd just like to say that for those of you who don't 
know it, my grandson is autistic. I went with my daughter to 
her school. We went there because she was getting 1 hour of 
help a week with his speech impediment, his speech problem, and 
they talked to us for about an hour, and they decided that 1 
hour was sufficient, even though they had correspondence from 
doctors on his case that said he needed at least 2 hours of 
speech therapy a week. And I asked them, because it became 
apparent during the meeting--this is in my District, 
incidentally--it became apparent during the meeting they had 
made the decision before we even got there. I said to them, why 
did we even come here if you've already made up your mind? Why?
    Now, you know, I'm chairman of this committee and Henry's 
one of the leading Members of Congress on the Democrat side. If 
we go to a school with an autistic child or grandchild and we 
get this kind of response, what does that mean for the average 
citizen that doesn't have any influence? And that's why a lot 
of people feel like they don't have any place to turn. Well, we 
are going to try to change that and I know that people on both 
sides of the aisle, Democrats and Republicans, feel this way, 
and we are going to do everything we can to make sure that 
happens.
    Now, I recognize my colleague Mr. Waxman for his statement.
    [The prepared statement of Hon. Dan Burton follows:]

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    Mr. Waxman. Thank you, Mr. Chairman, for recognizing me and 
I want to thank you for holding this hearing. And I will join 
with you on that letter to the First Lady encouraging her to 
include special education as part of her mission.
    I'm pleased that we're holding this hearing to examine the 
implementation of an important civil rights law that protects 
children with disabilities, the Individuals with Disabilities 
Education Act [IDEA]. This legislation was passed to ensure 
that children with physical, mental and emotional challenges 
receive a free and appropriate public education provided, to 
the extent possible, alongside children without disabilities, 
in mainstream classes, using any accommodations needed to 
support his or her placement.
    Unfortunately, implementation of and compliance with IDEA 
throughout the Nation is inconsistent. The National Council on 
Disability, the independent Federal agency that monitors IDEA 
implementation, found that former Education Secretary Riley's 
efforts to monitor compliance and take enforcement actions were 
more aggressive than any of his predecessors' efforts combined; 
yet, despite Secretary Riley's efforts, Federal enforcement of 
IDEA continues to be ineffective.
    What that means in practical terms is that some children 
who are by law entitled to educational services don't get them 
and must seek legal recourse. Part of the blame for this 
situation lies with Congress. IDEA calls for the Federal 
Government to provide up to 40 percent of the additional costs 
of educating children with disabilities. However, Congress has 
historically appropriated funding for only 12 to 13 percent of 
these costs. That's wrong. Instead of appropriating the $17 
billion that would be necessary to meet our full Federal 40 
percent obligation to the States, Congress for this year, 
fiscal year 2001, has appropriated only $6.3 billion, and that 
in itself was more than a 20 percent increase over the $5 
billion that was provided in fiscal year 2000.
    When the Federal Government does not do its share, every 
dollar that a State must divert from regular education to cover 
special education costs that Congress should have paid for is a 
dollar that leaves our students and our schools shortchanged. 
As the Los Angeles Times put it last Thursday in an editorial 
entitled, ``Special Education, Discarded Vow,'' without 
substantial help, school districts end up raiding other 
instruction, pitting child against child. And I'm going to ask, 
Mr. Chairman, that this editorial be made part of the record.
    Mr. Burton. Without objection.
    [The information referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T5592.024
    
    Mr. Waxman. In the last Congress, former Education and 
Workforce Chairman Goodling introduced legislation that would 
have authorized full funding for IDEA by 2010. This legislation 
was supported by every member of the Government Reform 
Committee on both sides of the aisle. Mr. Goodling's bill 
passed the House but stalled in the Senate. There are several 
bills pending in the House again this year, including one 
introduced by our first witness, Representative Hooley, and I 
hope that we can all agree to meet our obligation to the States 
and to the children who need this funding and follow 
Representative Hooley's leadership.
    Another issue that I want to raise is a little-known 
loophole in that 1997 amendment to the IDEA that permits local 
school districts to shift education funding to noneducational 
purposes. As a result, local school districts this year could 
shift $270 million that would otherwise have been spent on 
special education into their general treasuries. This number 
will only continue to rise the more we commit at the Federal 
level to IDEA.
    I commend Mr. Tierney and Mr. LaTourette, both members of 
this committee, for their bipartisan introduction of H.R. 714 
which would close this loophole and require that all funds 
allocated for IDEA be spent on educational expenses. Other 
members of this committee, including Mrs. Morella and Mr. 
Lantos, Mr. Kucinich and Mrs. Mink, have joined me in 
cosponsoring this important bill, and I hope this legislation 
helps ensure that all the money designated for education is 
spent appropriately.
    I do not want to convey the impression that IDEA has been a 
failure. It has not. Before 1975 when the first version of the 
law was enacted, many children with disabilities were not 
educated at all. The original Education for All Handicapped 
Children Act brought about 1 million disabled kids into the 
education system for the first time and provided services for 
millions more who were attending school without the support 
they needed to overcome the challenges of their disabilities.
    In the years since, the educational rights of children have 
been expanded and today approximately 6 million children with 
disabilities receive services under IDEA. Today we're going to 
look at ways those children are helped by the law and how we 
can do a better job of providing the educational and related 
services they need.
    I want to thank all of the witnesses for coming today. I 
look forward to their testimony. I want to indicate to the 
witnesses and others here that, unfortunately, different 
committees scheduled their hearings at the exact same time, so 
I'm going to be bouncing back and forth, but we will have the 
record, and that record will be very helpful for all of our 
colleagues to be educated further on this issue.
    Mr. Chairman, I thank you for your leadership and we look 
forward to taking this record and trying to correct the problem 
to make sure this law, which was a good one, is implemented the 
way it should be. Thank you.
    Mr. Burton. Thank you Mr. Waxman.
    Further discussion? Mr. Barr.
    Mr. Barr. Thank you, Mr. Chairman.
    The only thing I'd like to mention is as we conduct our 
oversight today and throughout this session under your 
leadership, Mr. Chairman, regarding IDEA, while the primary 
focus will be funding and to take steps to ensure that the 
program is meeting the needs of the American people as 
addressed already by Congress, there are some perhaps what 
might be considered tangential but very important issues that I 
hope we address.
    One is to address the issue of violence in our schools and 
to ensure, as we tried to address in the last Congress, that 
some of the perhaps unintended consequences of IDEA do not 
hamper local schools from protecting students. If a student who 
falls under the provisions of IDEA poses a danger to the other 
students or to teachers, for example, by bringing a weapon to 
school, we don't want to see the danger perpetuated by IDEA, 
tying the hands of the local school to take disciplinary steps 
to protect the other students.
    That's something, as the chairman is aware, we addressed in 
the last Congress. It remains somewhat unresolved, and I would 
hope that would be part of our oversight because, of course, 
throughout all of these efforts, Mr. Chairman, first and 
foremost must be the protection of our students and our 
teachers. So I do hope that remains and will be part of our 
oversight efforts regarding IDEA.
    Thank you, Mr. Chairman.
    Mr. Burton. Thank you Mr. Barr. Mr. Tierney.
    Mr. Tierney. Thank you, Mr. Chairman, and thank you for 
having this hearing today on a very important subject. I thank 
all of our witnesses whose written testimony has already been 
helpful to many of us, and I'm sure the record of this hearing 
will continue to be helpful.
    Let me just recount a little bit of the history on this. 
The Federal role in education has always been a limited one and 
for some period of time didn't exist. I think most people 
realize that. The obligation to educate our children rests 100 
percent with the States, and I think that's something we 
shouldn't forget. The absolute fundamental obligation to 
educate our children, all children, is with each and every one 
of the States in this country.
    Unfortunately, we found out before the 1960's that 
obviously States are not meeting that obligation. They were not 
educating and identifying many, many, many children with 
special needs. As a result, a series of acts were enacted by 
the Federal Government, giving States the option, if they chose 
to get Federal help, to meet certain standards, thresholds, 
with which they had to comply; virtually, State opted to accept 
the Federal assistance and to take the help that was available.
    Now, in the early authorizations, it was authorized that 
the Federal Government would contribute up to 40 percent of 
moneys expended on IDEA. That was certainly a noble goal but 
unfortunately something that the Congress at that time 
apparently knew it wasn't going to be able to meet, because 
since the very first appropriations the amount was far less 
than that 40 percent.
    I commend my colleague, Ms. Hooley, for putting the bill 
before us--she's going to speak to it today--to raise that 
amount, and I think it is appropriate to try to do that. I just 
think we should not lose focus that this is the Federal 
Government hopefully coming in to be helpful, hopefully setting 
some standards, minimum thresholds, and hopefully encouraging 
States to live up to their commitment and their obligation to 
educate children.
    The last part of that is I thank Mr. Waxman for making 
comment on the bill that I filed with Mr. LaTourette and which 
others on this committee, Mrs. Morella, Mr. Lantos, Mr. 
Kucinich and Mrs. Mink, have cosponsored also. The way the law 
is currently constructed, we could continue to give a higher 
percentage of Federal money and some of that may well go right 
out the window. If our intention is in fact to make sure that 
we increase the percentage of Federal money that's given 
through IDEA, then we're going to have to close that loophole. 
We're going to have to make sure that once we hit the $4.1 
billion mark that States aren't able to draw out 20 percent of 
that amount and put it somewhere else. Right now, we would have 
no way of telling where they're going to put that, and it 
amounts to some $270 million so far.
    At the very least, we ought to obligate the States to keep 
that $270 million in the field of education, and if we're 
entirely successful, hopefully they'll put as much as is needed 
into special education so this program works the way it's 
intended for everybody.
    So we look forward to working with the chairman and the 
rest of this committee, as well as the Education Committee on 
which I and some others also serve, to get this job done. And 
we thank everybody for making their testimony available us to 
here today. Thank you, Mr. Chairman.
    Mr. Burton. I think that's a very good bill, and I wish you 
would add me to your bill with Mr. LaTourette.
    Mrs. Morella. Thank you. Mr. Chairman in the interest of 
time, my excellent statement that I have before me urging that 
IDEA be raised to the Federal commitment of 40 percent I will 
ask be included in the record, and I am concerned about a 
backlash toward those students with disabilities if we don't 
fulfill our commitment. Thank you, sir.
    [The prepared statement of Hon. Constance A. Morella 
follows:]

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[GRAPHIC] [TIFF OMITTED] T5592.260

    Mr. Burton. Thank you, Chairwoman Morella. It shall be 
done. Did you have a comment, Ms. Schakowsky?
    Ms. Schakowsky. Just briefly, Mr. Chairman, and thank you 
for holding this hearing. I want to thank Representative 
Hooley. I look forward to her testimony and give a very special 
welcome to Marca Bristo who is chair of the National Council on 
Disability, from Chicago, my hometown, and a very good friend 
and really one of the Nation's leading advocates for persons 
with disabilities. Thank you.
    Mr. Burton. Thank you, Ms. Schakowsky. Further discussion, 
Mr. Horn.
    Mr. Horn. Just briefly, I want to commend you, Mr. Chairman 
for getting this important topic. There are thousands of people 
and parents that will be welcoming this airing of the issue.
    Over a year ago, Charles Bass, colleague from New 
Hampshire, had told us that we should assume that 40 percent, 
because we've never got it up to the full level, it ought to be 
there because it is squeezing other students out of the system 
to get enough money to help the students that we are talking 
about.
    Mr. Burton. Mr. Shays.
    Mr. Shays. Thank you, Mr. Chairman. Not an eloquent written 
statement, just a heartfelt one. Thank you for holding these 
hearings. I thank my colleagues for being here and thank our 
witnesses for their willingness to wait and our panelists for 
participating; and also to say that I, too, want to join others 
in saying that every year we should work toward full funding of 
IDEA. Thank you, Mr. Chairman.
    Mr. Burton. Thank you, Mr. Shays. Mrs. Davis. Mr. Putnam.
    Very well. We now will recognize the gentlelady Mrs. 
Hooley, and I would like to start off by saying I appreciate 
you introducing your bill and I wish you would add me to it. I 
think we should have strong bipartisan support for it, and 
anything I can do to be of help I will do. Can you turn on your 
mic and pull it closer to you, Ms. Hooley.

STATEMENT OF HON. DARLENE HOOLEY, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF OREGON

    Ms. Hooley. Thank you, Mr. Chairman. I appreciate your 
comments and I would like to associate myself with those as 
well as Ranking Member Waxman, and thank you for allowing me 
this opportunity to testify. And I'm going to be very brief 
because you have the really important people sitting behind me 
that you want to hear from.
    And this is an issue as has already been introduced as 
talking about children with special needs. Again, this bill was 
introduced almost 26 years ago, and it was estimated at that 
time that the cost of educating a special needs child would be 
about twice what other students cost, and that we said we would 
pay 40 percent of that excess cost, and you are all aware we 
haven't done that. This year was the best year we've ever done, 
to bring it up to 14.9 percent.
    But let me give you an example of a typical student with 
disabilities from my district. We'll call this student Susie. 
She's an autistic child, like your grandson. The cost of a 
special education teacher for Susie is about $64,000. An 
instructional aide costs a little over $29,000. Susie requires 
3 hours of physical therapy per month. The cost is a little 
over $1,100 per year. An autism specialist consultant comes in 
to work with Susie 9 hours per month, which costs $3,647. Other 
costs include $627 for 2 hours per month with a registered 
nurse, $500 for special supplies and equipment, and $14,800 for 
transportation services. When you add all of that up, Susie for 
1 year costs $109,377.
    Now, other children in the school without special needs are 
$5,675. We thought when we enacted this--we didn't think it 
would be that high, but it is. And if you looked at one school 
district where there are 98 children that have disabilities, if 
they all required the same amount of time and effort that Susie 
requires, their bill would be over $10 million a year. Now, 
they don't all do that, but that's just to give you some 
numbers.
    Special education can be expensive, but I don't think 
anyone will argue that these children deserve the services 
they're receiving, and likely more. And as you talked about, 
Mr. Chairman, a lot of these children don't get the services 
they need.
    By not paying our share of the costs, the Federal 
Government is putting States and local communities between a 
rock and a hard place. When the State of Oregon and the Salem-
Keizer School District have to make up that money we aren't 
providing, they're taking that money for someone else or 
they're not providing the services.
    I have introduced legislation, with many of you sitting up 
there, that would really try to address this 40 percent issue, 
and it is time we talk about it, we pass resolutions and then 
we don't put our money where our mouths are, and this would 
take the next 5 years and say we are going to increase the 
funding by $3 billion a year to get to the 40 percent by 2006. 
I think that is a reasonable plan, you know, and it is really 
based on somebody's wonderful idea when we increased funding 
for the National Institutes of Health, but we said we're going 
to double it in 5 years. I think we need to get IDEA's funding 
up to 40 percent in the next 5 years, and I think with all of 
your help we can do that. I think it's time we kept the 
promises we made to our children.
    Thank you. Happy to answer any questions you have.
    [The prepared statement of Hon. Darlene Hooley follows:]

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    Mr. Burton. Well thank you, Ms. Hooley. I think you've 
covered it very well and we certainly will support your 
legislation.
    Ms. Hooley. Thank you.
    Mr. Burton. The costs that you talked about, let me just 
ask one or two questions, and make a comment.
    Ms. Hooley. Sure.
    Mr. Burton. The costs that you're talking about for 
children with various physical disabilities and handicaps such 
as autism.
    Ms. Hooley. Right.
    Mr. Burton. They're not all that expensive.
    Ms. Hooley. No they're not all that expensive.
    Mr. Burton. The child you mentioned had some physical 
handicaps as well as being autistic?
    Ms. Hooley. Right.
    Mr. Burton. So I wouldn't want my colleagues to think that 
every child is going to cost $100,000 a year because they have 
disabilities. Many of them--and I'll take my grandson as an 
example--he only requires 1 extra hour a week of speech 
therapy. And so a lot of the children are like that. Some have 
the majority of problems, greater or less, and so I don't know 
what the average cost would be. But I think our colleagues, 
when they start thinking about the budget we're facing and the 
budget the President prepared last night, the first thing they 
think is, oh, my gosh, we are going to blow the budget out the 
window if we start doing some of these things.
    The fact of the matter is, if you averaged it all out, it 
would be something that's manageable, workable, as long as we 
meet our commitment.
    Ms. Hooley. It is something that is manageable for all of 
us, and again, this was an example of a very high-end child. 
You're right, there are some that are twice. There are some 
that are one-third more, some like your grandson that are a 
little bit more. So the range is huge but it is--what I tried 
to do is illustrate that you do have this wide range, and for 
school districts also to provide the services--and we want them 
to provide the services and we want them to be willing to 
provide the services, but we also need to do our share. And 
that's really the only point I'm making, is it's time that we 
step up to the plate and do our share.
    Mr. Burton. Ms. Schakowsky, do you have any questions? Any 
questions Dr. Weldon?
    Mr. Weldon. Thank you, Mr. Chairman. One of the things I'm 
interested in is medical costs associated with dealing with 
these children. The intent of the law was to make sure that 
they get a proper education. But often there are medical issues 
that get tied up in the proper education and I think that's one 
of the issues we are struggling with. You mentioned physical 
therapy on the child that you cited. You don't have any more 
details on that at all----
    Ms. Hooley. I don't.
    Mr. Weldon [continuing]. That you could provide me? Maybe 
in the future you could.
    Ms. Hooley. I would be happy to get more details and 
provide those for you.
    Mr. Weldon. It's a fine line sometimes: When is it medical 
and when is it educational? And you can't educate them unless 
their medical needs are being taken care of. But when you start 
looking at these very expensive kids, a lot of times the health 
issues are becoming a major factor.
    I appreciate your leadership on this, and I do want to 
thank you so much for your testimony, and I'll be looking at 
your bill as well. And I have signed letters to the effect of 
increasing the funding to the full 40 percent level in the 
past, and I hope that I'll be able to sign on to your bill as 
well this year. Thank you so much.
    Ms. Hooley. Thank you. I just want to make one response to 
your comment. And you're right; it is sometimes a fine line. 
But when you talk about physical therapy, sometimes that is how 
to hold a pencil or pen in your hand so that you can actually 
do the work. Thanks.
    Mr. Burton. Any more questions from any Members? Any other 
questions? Mr. Horn.
    Mr. Horn. I'd simply like to short-circuit the system, and 
please add me to your bill.
    Ms. Hooley. Thank you.
    Mr. Burton. Any further comments or questions?
    Ms. Hooley. Any other people that would like to be added, 
you can just raise your hand. Thank you.
    Mr. Burton. OK. Well, thank you very much Congresswoman.
    Ms. Hooley. Thank you so much.
    Mr. Burton. Appreciate it. We'll now have our next panel 
come forward, and if I don't pronounce your names properly, 
forgive me.
    Mr. Ovide Lamontagne; Ginger Brown of Columbus, IN; 
Stephanie Fry of Indianapolis; Pat Antenellis from 
Massachusetts; Carolyn Nunes, special education program manager 
from San Diego; Kevin McDowell, general counsel, from the 
Department of Education in Indianapolis; and Marca Bristo, 
chair of the National Council on Disability. And we will have 
some of these very fine individuals introduced by Members of 
Congress who have been here with us today.
    And first of all, let me ask you all to be sworn, those of 
you--would you stand and raise your right hands?
    [Witnesses sworn.]
    Mr. Burton. I'll now recognize the great Congressman from 
the great State of New Hampshire, Mr. Sununu, for an 
introduction.
    Mr. Sununu. Thank you, Mr. Chairman. I'm grateful to see 
the number of members that have come to the hearing today and 
certainly pleased that you are engaged in this extremely 
important discussion about education first and foremost. And we 
heard in the President's address last night, and of course in 
the comments of the committee members today, how important that 
issue is and, in particular, your focus on IDEA and in special 
education.
    This is a critical issue, not just here in the Nation's 
Capital, but back at home. Anyone that's visited with parents 
and teachers, school board members and administrators have 
heard many of the concerns that have been echoed here today 
raised. This is a significant unfunded Federal mandate. Despite 
the fact that as a member of the Budget Committee, I am pleased 
that we have doubled funding over the last 4 years, we know 
there's much more work to do, and moreover it's not just a 
matter of resources. This is a complex problem. It is a complex 
Federal regulation. It has issues regarding administration and 
planning, adjudication, resolution, the issues of health care 
as well that were just raised by Congresswoman Hooley and 
Congressman Weldon and others. We need to make sure that this 
program works, that it works effectively, that it delivers a 
benefit and addresses the needs of students.
    And I'm very pleased to be here today to introduce a 
resident of my district, a teacher, former member of the Board 
of Education in New Hampshire, a former chair of the Board of 
Education in New Hampshire, Ovide Lamontagne.
    Ovide has a professional experience dealing with education 
in general, and special needs education in particular, in his 
capacity on the board of education. He's also worked, of 
course, as a lawyer and as a counsel for the State Senate in 
New Hampshire and had to wrestle with these issues in a 
professional sense, but he also is able to provide a personal 
perspective as a parent as well. And I think we're fortunate to 
be able to draw as legislators on a panel like this that is 
represented by not necessarily elected officials, but by 
parents, administrators, teachers, with that personal 
experience administering special needs education, working with 
the unfunded mandate, dealing with some of the cost constraints 
back home, to bring their perspective here and to ultimately 
help us to make this important program work better for the 
parents and the teachers back home.
    It's my distinct pleasure to introduce Mr. Ovide 
Lamontagne.
    Mr. Burton. Welcome, Mr. Lamontagne. I have got that name 
correct now. I'm going to work on my French. And, 
Representative Sununu, welcome back. You were a very valued 
member of this committee for some time and we miss your smiling 
face and your great intellect as well. Mr. Lamontagne.

 STATEMENTS OF OVIDE LAMONTAGNE, MANCHESTER, NH; GINGER BROWN, 
COLUMBUS, IN; STEPHANIE FRY, INDIANAPOLIS, IN; PAT ANTENELLIS, 
   FRAMINGTON, MA; CAROLYN NUNES, SPECIAL EDUCATION PROGRAM 
   MANAGER, SAN DIEGO, CA; KEVIN McDOWELL, GENERAL COUNSEL, 
 DEPARTMENT OF EDUCATION, INDIANAPOLIS, IN; AND MARCA BRISTO, 
             CHAIR, NATIONAL COUNCIL ON DISABILITY

    Mr. Lamontagne. Thank you, Mr. Chairman.
    Mr. Burton. Incidentally, before you start, because we have 
so many panelists, if you could try to keep your remarks as 
close to 5 minutes as possible, we'd appreciate it.
    Mr. Lamontagne. Will do. Thank you very much, Mr. Chairman, 
members of the committee, committee staff, guests and fellow 
witnesses. First of all, thank you, Congressman Sununu, for 
that kind introduction. I had the pleasure of being on the 
campaign trail at the same time that Congressman Sununu was as 
an initial candidate, and we are indeed pleased and fortunate 
to have Congressman Sununu representing not only the State of 
New Hampshire but also the national interests here in Congress.
    I have prepared remarks which I have submitted to the 
committee, and I would like to stray from those remarks with 
your permission, Mr. Chairman, to address a couple of points.
    First of all, I do have experience as a former chairman of 
the State Board of Education of New Hampshire, working 3\1/2\ 
years as a volunteer, 20-hour-a-week job, basically as a 
volunteer, as most people do who work in the State boards, and 
I can tell you, Mr. Chairman, that not a day went by in my 
service when I did not receive a call from at least one parent 
every day, one parent at least calling me, pleading with me to 
try to do something to help them in their situation with their 
children.
    And your particular experience, Mr. Chairman, relating that 
even you as the chairman of the committee attending a school 
district IEP planning meeting, feeling that if it that's 
difficult for your family to achieve the services you feel is 
important, how much more difficult must it be for our working 
families, those families who have children in need of services 
to obtain those services.
    I must say that in my view the appropriate role for the 
Federal Government and the States is somewhat like 
Representative Tierney alluded to, which is that primarily the 
role of educating children should remain with the States. But 
in 1975, Mr. Chairman and members of the committee, this 
Congress acting then assumed for the Nation a priority, a duty 
that the Nation would require and encourage the States to 
educate every child with or without special needs--in this case 
with special needs--and in exchange for that imposition of 
duty, this Congress provided a mechanism which included funding 
to meet that national duty.
    President Bush in his State of the Union Address was quite 
correct in challenging us as a Nation to leave no child behind. 
In 1975, as a matter of public policy, this Congress tried to 
articulate that for our most vulnerable of children, those with 
special needs.
    The 40 percent target was never met as part of the quid pro 
quo, if you will, for States to elect to participate in IDEA. 
And it is important, I think, to understand this is an elective 
system. The standard that the duty to provide an adequate 
education, a free appropriate education to all children is not 
elective. The program itself is elective.
    And in 1995 I commissioned a task force in New Hampshire to 
evaluate special education, and the first question I asked the 
task force of citizens, educators, board members, was to answer 
the question, should New Hampshire continue to participate in 
IDEA. We decided after evaluating it that, yes, we should, for 
all the right reasons. And we're asking the Congress and I'm 
asking the Congress on behalf of the State of New Hampshire and 
on behalf of all State leaders in education to meet the 
obligation of fully funding IDEA.
    Now, I must also address a point which I think is a 
misconception about IDEA. IDEA is not a reimbursement program 
for services. Forty percent is not keyed to the amount of money 
that is spent by a State in providing educational services. 
Forty percent is a formula that's derived by counting the 
number of children who are identified with special needs times 
the average per-student expenditure of the State times 40 
percent. It is a block grant in that sense, but it is not a 
reimbursement formula.
    And the first point that I ask the Congress to consider 
here is to change the funding mechanism of IDEA so that we 
empower people to access those services. We empower, 
incentivize the system to access the services on a 
reimbursement basis, not on a State grant basis alone.
    Second, we need to empower parents and put the power of the 
decision about where those moneys are expended in the hands of 
parents. If we can do it through--by amending the IDEA to 
include some voucher provisions, to the extent that services 
are available in the community outside of the regular employees 
of the school district, that will empower parents, and allow 
parents to opt-out of an IEP if there is not meaningful 
assessment and not meaningful results for that IEP.
    And last, in order to avoid continuing to divert moneys 
into the legal proceedings and legal process, I urge Congress 
to require, as an intermediate step, ombudsmen to mediate, if 
you will; mediators to meet with parents and school districts 
to resolve disputes before the due process provisions and 
proceedings can begin, before lawyers get involved and before 
those funds are diverted.
    The Congress has a great opportunity now to meet its 
obligations. I'd ask this Congress to look at both fully 
funding and making meaningful reforms to IDEA for our millions 
of children. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Lamontagne follows:]

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    Mr. Burton. Thank you Mr. Lamontagne. I will have some 
questions for you, as my colleagues will in just a few moments. 
We'll now recognize the Congressman from the great State of 
California, Mr. Cunningham, for an introduction, and thank you 
for being with us today. This gentleman was an ace in Vietnam, 
one of the great pilots that we ever had during the Vietnam 
War. He's a legend among the pilots in the U.S. Navy. He taught 
at the top gun school. In fact, he even showed Tom Cruise how 
to act like a pilot in that movie Top Gun, and so we'll now 
recognize the gentleman from California.
    Mr. Cunningham. Thank you, Mr. Chairman, but now I'm just 
an old fat guy.
    Mr. Chairman, I'm very honored to be able to introduce 
Carolyn Nunes to the committee and to you. The San Diego City 
School Superintendent is a man named Alan Bersin. He was a 
Clinton appointee. I'm Republican, but he's got my full 
support.
    I was the subcommittee chairman that rewrote IDEA. I'm now 
on the Appropriations Committee so I have got my heart into 
this area. And the reason that I'm honored to introduce Carolyn 
Nunes is that Alan Bersin has met with the parent groups many, 
many times and has had an outreach program, realizing that many 
of the children have been underserved within the IDEA program. 
That's why he put Carolyn Nunes in charge of the administration 
of the IDEA program for special needs of San Diego City School 
District, one of the largest city school districts in 
California.
    I know what's in her heart. She's been a teacher for 22 
years, and now an administrator. She went into the profession 
to help children with special needs. That's where she wanted to 
teach, to make sure that no child, as Mr. Lamontagne said, that 
no child is left behind. But I think it's important to realize 
and understand from the parent groups, from the teachers in 
many areas, what are the limiting factors on the schools that 
prevent the services that Carolyn and the superintendent want 
to get to give to the children and to the parent groups.
    That's why I'm very honored to introduce Carolyn Nunes. I 
know what's in her heart because she's my sister-in-law. She's 
the sister of my wife, Dr. Nancy Cunningham, who is the 
director for Education of Encinitas Union School District. My 
whole life is filled with educators and I have two built in 
lobbyists and I'm very honored to introduce Carolyn Nunes. 
Carolyn.
    Mr. Burton. Welcome. You have to push the button on the 
mic.
    Ms. Nunes. Thank you, Chairman Burton, and committee 
members, and thank you, Congressman Cunningham.
    For the past 22 years I have served in San Diego City 
School District in the field of special education as a special 
day class teacher and currently as an administrator for the low 
incidence programs and related services for students from birth 
to 22. In addition, I coordinate the input for the collection 
of data on special education students. I appreciate the 
opportunity to address the committee today regarding the 
implementation of IDEA and the challenges in special education.
    The San Diego Unified School District currently serves over 
142,000 students in 184 schools. Of those students, almost 
16,000 have active IEPs and receive special education services. 
Ninety-two percent of our current budget provides direct 
instruction for the support of students receiving special 
education services. The following addresses some of our current 
issues, as well as our recommendations for possible solutions.
    Nationally we have witnessed an alarming increase in the 
number of students identified with autism. Families are 
bombarded with the latest in the new forms of treatment for 
autism. All who view and read this information in the media 
make assumptions that such services are research-based and 
conform to best practice.
    There are a variety of instructional strategies and 
methodologies that are available. As educators we realize that 
using only one instructional strategy for all students is not 
appropriate.
    Today, a multiple of agencies are funding services for 
students with special needs. These agencies, although funded by 
Federal dollars and driven by Federal legislation, are under 
different rules in different systems. Although these agencies 
have a common purpose, to provide services for students, these 
systems become a barrier. At times, although with good 
intentions, Federal laws frequently promote the system of 
disconnect.
    More emphasis must be placed in the area of research in 
educational approaches which will promote student achievement 
based upon the student's ability and level of independence. 
School districts are currently finding the need to retrain 
teachers in strategies and techniques used for students with 
autism.
    We would recommend the development of special grants for 
the purpose of ongoing professional development for the 
training of certificated and classified staff in the field of 
autism. Although Congress placed limitations on the recovery of 
attorney's fees in the 1997 IDEA reauthorization, little has 
been done to reduce the significant rules such fees continue to 
play in the decisions that school districts, and even parents, 
make regarding appropriate educational programs for students 
with disabilities.
    Early independent review, without all the formal 
requirements of a due process proceeding, may temper each 
side's expectations and lead to a quicker and fairer 
resolution. I suggest mandating school districts to participate 
in alternate dispute resolution in all due process proceedings 
and reducing reimbursement for attorney's fees proportionately 
for parents when they fail to participate.
    I believe that special education has resulted in a system 
driven more by the need to comply with numerous requirements of 
both Federal and State laws and regulations than in genuine 
educational needs of students with disabilities. The California 
Department of Education has developed a process of sanctioning 
school districts who do not meet the zero tolerance level of 
compliance with the time lines for review of annual IEPs and 3-
year reviews, and the system does not allow for reporting 
extenuating circumstances for missed time lines.
    While our district has made great strides in electronic 
capture of information regarding the status of students 
receiving special education, 100 percent of compliance is 
difficult to achieve. At times, IEP teams are faced with 
breaking one regulation in order to meet another. Requests for 
data collection and reports by various agencies at the 
national, State and local level impose a strain on the 
district's ability to provide information in a timely manner.
    Data collection at the State level should allow for 
reporting extenuating circumstances that prevent time lines 
from being met. Definitions regarding placement settings, 
disability categories, and designated and related services 
should be consistent across agencies. Data repositories should 
be developed so that they can be accessed by any interested 
agency from a central location.
    Thresholds of compliance should reflect on the percentages 
of students reported. Compliance should be driven by quality 
and student outcomes as opposed to checklist compliance.
    On behalf of the San Diego City School District, we 
appreciate the opportunity to comment on these issues. We also 
hope that our comments are helpful to the committee as they 
continue to investigate the IDEA. Thank you.
    [The prepared statement of Ms. Nunes follows:]

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    Mr. Burton. Thank you, Ms. Nunes, and we'll have some 
questions for you as well.
    We now, I think, have Congressman Pence from Indiana, one 
of our new Members, and a very good friend of mine. He's 
actually only 21 years old. That gray hair is just to make him 
look older, but Congressman Pence has an introduction. Welcome.
    Mr. Pence. Thank you, Mr. Chairman. It's an honor to be 
with you today and it's an honor to take a moment to introduce 
a distinguished fellow Hoosier from my hometown of Columbus, 
IN, Ginger Brown. Ginger is the proud mother of two, but she 
is, Mr. Chairman, the courageous mother of young Bobby Brown, 
age 5. And as we will hear today, Ginger fought an 
extraordinary fight over the last year and a half to bring the 
strictures of the IDEA to bear on the local school system in 
Columbus, IN, particularly championing the Applied Behavior 
Analysis Approach.
    I'm honored to introduce Ginger to this committee today, 
and I'm honored to call her a constituent. She seems to me to 
be a wonderful example of citizenship and, more importantly, 
parenthood. So I give you Bobby's mom, Ginger Brown.
    Mr. Burton. Ms. Brown. Congressman Pence, thank you very 
much.
    Ms. Brown. Thank you, Chairman Dan Burton, for inviting me 
here to speak on behalf of my son, Bobby Brown. I would like to 
just go over the last year of his school, which would be from 
August 1999 to the year 2000. When Bobby began the school year 
he was unable to do anything independently. He was not able to 
put his coat on. He was not able to brush his teeth. He sat 
around and he banged his head on the floor. He did hand 
flapping, stereotypical behavior of children with autism.
    I looked forward to putting him into an early childhood 
program, hoping I would see lots of success or at least forward 
motion in Bobby's advancements. As the year progressed, I only 
received notes from his teachers that Bobby was not making the 
gains. Bobby was unable to even understand the smallest of 
steps in order to be taught the larger steps. The teacher 
suggested that I seek out an independent behaviorist and have 
my son evaluated and try to implement a program.
    I sought out a behaviorist in Applied Behavior Analysis 
from New Jersey who designed a program for my son. I asked her 
to implement the program both in the home and in the school to 
help Bobby to be able to tolerate being in the school and being 
able to sit at circle time and music time and participate with 
his peers.
    When the program was designed, the teachers felt like it 
was not adequate and did not want to pursue it in the school. I 
decided to go ahead and pursue the program on my own. The 
school year was coming to an end, and I approached the director 
at the time, and explained to her what I was seeking was a one-
to-one program of Applied Behavior Analysis with my son. I went 
ahead and hired a team of girls to work with my son. It was a 
40-hour a week program. Remember, my son was not independent in 
any way. He was unable to use the restroom.
    Within 3 months he was able to be potty trained. He was 
able to sit for 1 hour at a table and work. He was able to 
relate to his sister. He was able to relate to me and to his 
father.
    Bobby continued his progress and the school year was 
nearing to start for the year 2000 and 2001. When the year 
began, I went to the school and asked the school if they would 
be willing to help me continue the program. I had data sheets, 
I had video footage and I had graphs. I took the behaviorist 
from New Jersey in with me and explained to them exactly what 
Applied Behavior Analysis was, the importance of one-to-one 
teaching for a child like Bobby.
    What the school actually told me was that unfortunately a 
mistake had been made in the computers in the State of Indiana 
and that too much money had been given to their district. They 
now were held accountable to repay $1 million and would not be 
able to educate my son. I also asked them if they could help me 
fill out an application to send in to the State, and they said 
they would do that.
    We filled out the application. We sent it in to the 
Department of Education of Indiana. I got the letter back and 
it made perfect logical sense to me when I read it, and I 
called and talked to a director who informed the reason why the 
application was turned down is it didn't match the IEP. There 
was nothing in the IEP that reinforced the needs of what Bobby 
was getting, that I was giving to him.
    When I went back to the school and explained this to them, 
they said that they understood Bobby was making progress. The 
teacher supported that he had made incredible gains since last 
year. He had made gains in areas that they had no way of 
teaching him, but still they were not going to help me out 
financially. They said that it was entirely too expensive for 
them to take on.
    I actually spent five meetings with the school district in 
IEP meetings, a total of 20 hours, trying to resolve the issue. 
Still, I was paying for Bobby's program. I was paying to send a 
trained aide in ABA into the school. I was paying for his in-
home program, and I was still getting no assistance. They did 
finally say that they would call the Indiana Resource Center 
and ask for someone to come in and give a 2-day overview of 
what ABA was. ABA cannot be learned in 2 days. It cannot be 
taught to someone in just a matter of 2 days to take over and 
do the data sheets, fill out the graphs and report back to the 
head person in charge of the ABA program.
    Actually, what the Indiana Resource Center suggested to 
them was that they continue with the people that I had in 
place, that it was beneficial to Bobby. Still, the school 
denied this. I was left no option but to go ahead and continue 
the due process.
    During this time period, the directors actually switched; 
the one resigned, and we had a new director come into the 
community. The new director was a little bit more open to this, 
but we still went ahead with due process. But now I can say 
that my son has received a free, appropriate public education, 
but unfortunately it has cost a lot more both to the district 
and to myself because of having to go due process.
    When people ask me what I would like to see, I would like 
to see the schools be open-minded when parents go in and they 
have data sheets that show last year for 9 months my son made 
zero progress, but in 3 months I potty trained him. That's a 
hard task to do with a child with autism, but it was successful 
for my son.
Applied Behavior Analysis is the way of the future of education 
with some children. I would like to see the districts have an 
open mind.
    Thank you.
    [The prepared statement of Ms. Brown follows:]

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    Mr. Burton. Real briefly, can you tell us how much you 
personally had to expend to get those benefits?
    Ms. Brown. I personally spent $30,000 out of my pocket to 
do the ABA program for my son, and then I spent an additional 
$17,000 in attorney's fees.
    Mr. Burton. So it cost you almost $50,000.
    Ms. Brown. Yes, sir.
    Mr. Burton. I will now go to Ms. Fry. Ms. Fry, I'll 
introduce you. Since we don't have some good-looking young 
Congressman, you have to settle for one of these old fogies up 
here. So, Ms. Fry, you're recognized.
    Ms. Fry. Thank you for inviting me here to testify. My name 
is Stephanie Fry.
    Mr. Burton. Excuse me, Ms. Fry, you're one of my 
constituents, I understand.
    Ms. Fry. I believe so.
    Mr. Burton. Well, can I shine your shoes or anything?
    Ms. Fry. We'll think about it. I have three children, three 
boys, all born on Fridays in October. All of my children have 
autism. I brought pictures so everybody can see. They don't 
look any different from anybody else. They may act different. I 
don't expect any special red carpet treatment for them. All I 
want from a school is an education for my children.
    My oldest son was diagnosed in June 1991 with autism. The 
doctor told me, here's your diagnosis, come back and see us in 
3 months. What am I supposed to do now? So I called the parent 
support group and I found a preschool in our community that did 
early childhood intervention and they took him on during this 
summer.
    Mr. Burton. Would you pull the mic a little closer so we 
can hear you better?
    Ms. Fry. He went to school for about a month and then was 
off a month for summer break. During the month he was off, he 
regressed quite significantly. He still was not speaking more 
than 20 words. He was not toilet trained. He could not play 
appropriately. He had stem behavior. There were many, many 
issues.
    The administrators at the preschool told me when he went 
back that fall that once he turned 3 years old they could no 
longer take him, but the new law had been passed that school 
districts were required to take a child at age 3 and teach 
them. So I called the local school district and I spoke to the 
director of special ed and she said that they had to do a 
psychological testing on him before he could attend their 
school. There was no possible way that he could go before the 
testing was done. And I said, well, I have a doctor's diagnosis 
that says my child has autism. And she said, well, he may not 
be autistic enough. And I'm still wondering what ``autistic 
enough'' is.
    He did go to school on his third birthday, having known no 
one there, did not know the teacher, did not know the students, 
had never been there, and for an autistic child it is a very 
difficult transition. I sent him to school and waited as 
patiently as I could for him to arrive on the big bus, just 
like all the other kids. And when I went to get him off the 
bus, he had a fat lip, a very large fat lip. And I said, what 
happened? And all the bus driver could tell me was he fell. I 
had not been called by the administrators. I had not been 
called by the teacher. I just got the surprise of taking him 
off the bus, and this was our first experience with public 
school. I later found out that he had been following the 
teacher because he knew that she was in charge, and she turned 
and he ran into a table, but I was just very, very concerned at 
that point.
    He did learn. He learned very, very well. He learned to 
comply with them, he learned to sit in circle time. He liked to 
listen to the songs. He did everything he was supposed to do. 
He was in a classroom with a teacher, two aides and eight 
students. We moved to Warren Township, school district in 
Indianapolis, in 1993. He started the preschool there. That 
year he was due to go to kindergarten. When the time came to 
place him, he had been in preschool about 2 years, and I was 
concerned that moving him to a regular classroom, even though 
he had made so many gains, it would not be enough. I was told 
least restrictive environment, this is what you get. So I said 
OK, and we put him in.
    They told me they had to ask the kindergarten teacher if 
she would accept an autistic child in her classroom before they 
could place him. She agreed and so he was there. She had no 
training in autism. The resource teacher that he had, the part-
time special ed teacher did have training but was not in the 
classroom at all times.
    He did very very well in kindergarten with 18 students, 1 
teacher, a part-time aide and a part-time resource teacher. He 
learned, and again he was moved on to first grade. This was a 
whole new transition because this was a whole day of school 
instead of half a day. He had more academic things asked of 
him, more patience issues asked of him. He became frustrated, 
sensory overload, and had many crying episodes. The teachers 
did not know what to do with him, and they tried peer tutors, 
which is regular students helping to keep him on task. He did 
not deal well with that. What he did was, he would sit under 
his desk and cry. So they would send him to the office. He 
spent more time in the office than he did in his classroom.
    I did not know what to do. I expected the school district 
to do what was best for my child, and they didn't. He moved on 
to second grade because he did learn. That year our school 
district started year-round classes. He moved to another 
school, new teachers, new special ed teachers. He did fairly 
well, but again the frustration issues were there. He had 
trouble complying with what they were asking him to do, but he 
learned. He still learned, despite all this. And that's one 
thing I'd like to say. He--through it all, the kids are able to 
do so much, even though we don't know the things that are in 
there.
    He was promoted to third grade. At the annual case review 
going into third grade, the resource teacher asked me to cut 
his hours back and said that he didn't need as much help as he 
was getting, which was 25 to 50 percent. So we're down under 25 
percent of the time of a full school day that he would get 
help. I said OK. She said if there was any trouble it could be 
easily changed. That was the worst year that we had. The third 
grade is when they start adapting to new curriculums, extra 
harder work, things like that, and he could not maintain with 
what the other students were doing. He had acted out. They put 
him in a resource classroom, which is when they put all the 
students with learning disabilities or other disabilities in 
the same room, only to get a blanket service so they can 
qualify all their services for each person at the same time.
    I don't feel this is right. I have been told over the years 
that teacher training is not necessary. Over that whole time we 
have never had a teacher that's been trained in autism, a 
regular education teacher, and he has always been in a regular 
education classroom.
    The teachers called me to ask what I had done to cause him 
to be upset. They called me often to ask me things that were 
very, very rude. I was also told--I asked for an aide because I 
thought that would help--if we give you an aide we'll have to 
give everyone an aide. We don't need to train the teachers 
because we won't see another autistic child in our regular 
classroom for another 10 to 15 years. There were a lot of 
things I was told that were very, very wrong, but I didn't know 
that the parents had rights.
    I didn't know that I did not have to sign an IEP that I 
didn't agree with. And my son was in fourth grade before I 
found that out. The school district did not tell me what was 
available. All they'd said was, this is what we can give you, 
we cannot give you any more due to funding.
    I have two other children with autism. My youngest is in a 
moderate to severely handicapped classroom. He is moderately 
autistic. He has made great strides in the last year but is 
still very far behind.
    My middle son is Autism/Asperger Syndrome. He is in regular 
classroom with no support. He does extremely well. Academically 
he is at or above his peers. He does not need any resource help 
or anything else. Last year in kindergarten his teacher was 
very argumentative. She would call me often and ask me to come 
in and calm him down. He would not comply with what she asked 
and he understands verbal language very, very well. She would 
stand next to him and call me, and I could hear him in the 
background crying because he knew she wanted me to take him out 
of there.
    Mr. Burton. Ms. Fry, can we get on with your children when 
we get to questions? I have a number of questions I'd like to 
ask you. This was the Warren Township School System?
    Ms. Fry. Yes.
    Mr. Burton. And they're still in the Warren Township School 
System?
    Ms. Fry. Yes.
    Mr. Burton. OK. Can I ask you some questions after we get 
through some of the other witnesses?
    Ms. Fry. OK.
    Mr. Burton. Be with you in just a few moments.
    [The prepared statement of Ms. Fry follows:]

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    Mr. Burton. Ms. Antenellis.
    Ms. Antenellis. Yes.
    Mr. Burton. Would you like to address the committee?
    Ms. Antenellis. Sure.
    Ms. Antenellis. First of all, because I couldn't bring him 
for our sanity, I brought you a picture of my son Connor. My 
story is probably very similar to other stories----
    Mr. Burton. How old is Connor?
    Ms. Antenellis. Connor is 6 now. But I'd like to thank you 
and the committee members for inviting me here to testify. I 
believe that my experience as a mother of an autistic child, 
and now as a provider of services for autistic children, will 
give you information that will help you make some changes. The 
main reason I have come to Washington is a simple one: to 
encourage the special education system to provide access to 
Applied Behavior Analysis for young children diagnosed with 
autism.
    My story is one of a legal battle with the educational 
system that turned out to be the ultimate success. Depending 
upon whom you talk to in my town, I'm either a tireless 
advocate for my son or the mother from hell.
    My son Connor's story is very typical. He had a very normal 
early childhood, and at 16 to 18 months lost all his skills. He 
lost his eye contact, he lost his language. He started to abuse 
himself and gouge his eyes. At that time I was told there was a 
75 percent chance he would never speak and an 85 percent chance 
he would be retarded, but I was determined that Connor was not 
going to be one of those odds.
    I pressured the Department of Health in our Early 
Intervention System to provide us with an ABA program, which 
they did do. In 9 months Connor made over 15 months' gain. When 
he started ABA he had a 7-month speech and a 10-month cognitive 
level and he was 27 months old. So he was 15 months behind in 
all levels. At the end of 9 months he had gained a minimum of 
15 months in almost all areas and was able to be back in our 
world. If I called his name, he said ``What?'' He came to me, 
he was able to understand things that I asked of him, when a 
year before the house could burn down and he wouldn't get out, 
but he could hear a Cheerio drop at 50 paces.
    I began the transition to the school system about 6 months 
prior to his third birthday. It was my understanding that the 
school system would provide Connor with a program that would 
help him achieve his maximum feasible benefit, and that was 
Massachusetts standards at the time. I was mistaken. The school 
system felt it had to offer only what they deemed was an 
appropriate placement. It did not take into account the 
recommendations from the medical professionals from Children's 
Hospital nor the progress that he had made under his current 
program. They felt they knew better than anyone else what 
Connor needed.
    They did offer an integrated classroom program but it 
lacked the learning tools that had been so successful for 
Connor. He was entitled to an education that would ensure he 
would reach his maximum potential. That meant he needed his 
school program supplemented with an ABA program. Then began a 
3\1/2\ month battle with the school system.
    As a credit to the school system, it did continue his ABA 
program while we negotiated services. On a personal level, it 
was the worst 3 months of my life. I lived in fear that they 
would take away the services Connor so badly needed. Without 
these services, Connor would regress and never make the strides 
he had the potential to make. I truly felt as if I was in a 
fight for my son's life and his future. It seemed to me as if 
my son had a form of cancer and ABA was the chemotherapy that 
would cure it. What right did the school system have to deny 
him the services that had proven so successful? Of course, it 
all boiled down to cost and not the best interest of my son.
    I tried to negotiate with the school system on my own but 
got nowhere with them. I couldn't afford to hire a lawyer but 
in the end, to get the services needed, I got legal 
representation. The battle was finally settled in mediation, 
one step short of a formal hearing. The school agreed to 
provide 12 hours of ABA, down from the 20 he was receiving. I 
accepted it because I knew I couldn't afford more. In total, I 
paid over $5,000 in legal bills. This was my own money, spent 
to obtain the services that my child should have had from the 
beginning. In addition, I supplemented out of pocket for an 
additional 2 years, the ABA services that the school system did 
not provide.
    When the dust finally cleared, Connor had a good program. I 
felt that I had done the best within my powers and financial 
limitations to provide what he needed. The program stayed in 
place for 2 years, and Connor made gains which can only now be 
considered phenomenal. It is clear from the evidence that the 
education provided works.
    Today, Connor is a success story. He turned 6 last month. 
He has defied all odds, and today he reads at a 10-year old 
level, has an above age level vocabulary, has no self-abuse 
behaviors, and has his first best friend. Remarkable for a 
child who had a 75 percent chance of never speaking and an 85 
percent chance of being retarded.
    Does he still have issues? Yes, but we're working on them. 
Will he ever be cured of autism? No, but he will be able to 
function as an active and productive member of society, 
probably making more money than I will.
    I credit much of Connor's success to the hard work he has 
done and the constant vigilance that I keep on his program. I 
go to the school once a month. I watch his classroom, I watch 
his teachers. The minute they are out of line I'm on them. They 
don't have an option not to answer to me.
    But I also see in the system the other children in his 
classes don't get that. No other child in the school system 
diagnosed with autism, some as severe or worse than Connor, 
they don't get the services. And when they ask me how I got 
them, I said I fought for them. They have no idea how to even 
begin. I have never seen a child go to a school system and be 
offered ABA. I actually had a special education director once 
tell me, we provide services for early intervention now through 
the State of Massachusetts, and he wrote to me and said, what 
will my money buy me? Not what's in the best interest of the 
child or how can your services help me, but what will it buy 
me.
    And I think the long run of IDEA is that we either pay for 
these children now or we pay for them for the rest of our 
lives. If these children can't make the gains when they're 
young and they're early--and as you know, autism is not an easy 
disability--we will pay for them when we're long gone, and 
society will pay much more than the 40 percent that you talk 
about now. And the only sort of disheartening thing that I 
heard today is that 40 percent hopefully by the year 2010. 
Well, by 2010, Connor will be almost graduating from high 
school. I really hope that it will be within your power to fund 
that sooner so the children that are there and in the system 
now can get what they really need.
    Thank you.
    [The prepared statement of Ms. Antenellis follows:]

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    Mr. Burton. Before we go to our next witness, let me just 
say that I agree with you, and we ought to move as fast as we 
possibly can, and you may rest assured that we will. And I 
personally apologize to every parent that has a child with a 
disability, because I was ignorant of the facts until it 
happened to me. That's one of the big problems that we face: Do 
we have to wait until we're hit in the face with a shovel 
before we realize the need? And I plead guilty to that, but we 
are going to do our best to rectify that. And I know Ms. 
Schakowsky and others feel that way as well, because you're 
absolutely right, if these kids who are autistic and who are 
disabled now, for whatever cause, if they're not helped while 
they can be helped, they will be a huge burden on society later 
on and we will pay a great deal more than we'll have to if we 
don't deal with it right now.
    Mr. McDowell.
    Mr. McDowell. Thank you, Mr. Chairman. And I also 
appreciate being sworn in today rather than being sworn at, 
which seems to be the experience of State agency personnel.
    My name is Kevin McDowell. In 1972 I was drafted into the 
Army.
    Mr. Burton. You're from the great State of Indiana.
    Mr. McDowell. Great State of Indiana and also the Sixth 
Congressional District.
    Mr. Burton. Yes, and I think I talked to one of your 
compatriots at the agency today, if I'm not mistaken.
    Mr. McDowell. Pardon me, sir?
    Mr. Burton. I think I talked to one of the people at the 
Department of Education today. That's where you work; is that 
correct?
    Mr. McDowell. Yes I work for Dr. Suellen Reed. I'm the 
general counsel for the Department of Education.
    Mr. Burton. Yes.
    Mr. McDowell. In 1972 I was drafted into the Army, that 
being the only lottery that I've ever won, but as I left the 
Army, I found myself in Fort Gordon, GA, which is near Augusta, 
which is the mecca for all golf. But for those who are 
literary-minded, that is also near Wrens, GA, the birthplace of 
Erskine Caldwell who wrote Tobacco Road and God's Little Acre. 
And there's a stretch of road that runs for 20 miles from 
Augusta to Aiken that's called Horse Creek Folly; has a road, 
but most of the roads are unimproved and the people poverty 
stricken. And my first teaching job was with delinquent 
children, extreme poverty, under a Title I program that was in 
place at the time.
    From there I have had the opportunity to come back to 
Indiana to teach both in institutions with students who had 
emotional disturbances--at that time autism was not a separate 
category, it was included with emotional disturbances--both in 
institutions and in the public schools and in the private 
schools.
    And from that time for the last 15 years--I was in private 
practice as an insurance defense lawyer--and the last 15 years 
my responsibilities have been with the Department of Education 
and its 28 divisions and offices, not the least of which is 
Special Education.
    As I indicated in my written testimony, during those years 
I have observed a number of different things, not the least of 
which is that parents of students with disabilities tend to go 
through the same stages that Dr. Elizabeth Kuebler-Ross 
described as those who come to grips with a terminal illness. 
And I hate for that to sound so ghoulish or Draconian, but you 
will find that is the case. And that was my observation then 
and it was my observation in 1985 when I found out that my own 
daughter had autism. It was a surprise, and thus became an 
odyssey that brought to bear many of the experiences I had 
already had dealing with families of children with significant 
disabilities well before that had ever occurred.
    That is mostly an irony. It's not the reason for what I do, 
because I would have done what I'm doing today anyhow. But 
there are a number of different things that have occurred over 
time, and certainly Public Law 94-142 which Mr. Chairman 
mentioned at the beginning, and its progeny, including the 
reauthorization in 1997, have been major laws that have 
provided services that would never have occurred at all, and 
it's not because there are people out there who are not well 
intentioned. They are. But sometimes some things do need to be 
done in order to benefit the whole.
    However, that does not mean that the law itself does not 
have areas that require some tinkering, for want of a better 
term. And, Mr. Chairman, the list you gave me was a number of 
different areas that you wished for me to address and I will, 
very quickly. I will not elaborate upon the written testimony I 
gave you, but it does serve as the basis for some of the 
comments I do have today, including addressing your concern 
about the empirical data that needs to be collected, which I 
also notice that Patty Guard will be later testifying about 
what efforts there are in this regard.
    To go through the list of questions that were posed to me, 
you want to know if schools are following Federal laws and 
providing a free and appropriate public education. There are 
some things that I will bring to your attention now. I'm not 
going to list every single thing that I see in my office that 
prevents this from working as it should, because to do so would 
require me to put all of my ``begs in one ask-it.'' And I think 
maybe it might be a better situation that later on as you move 
into more specific areas, my office would be more than happy to 
provide you an abundant amount of information regarding all 
these different issues, including the legal analyses in transit 
we identify that's on our Web site, which is also a part of the 
written testimony that I gave you, some things that are 
occurring that are preventing parents from working together 
with schools, things you would not imagine.
    For example, a number of schools enter into collective 
bargaining agreements that restrict the meeting of IEP teams to 
contract hours. That means that if a parent wants to have an 
IEP team meeting, whatever it may be called from State to 
State, they can only meet during contract hours, not before and 
not after. Makes no difference if you're a single parent that 
has a job and if you miss one more time you're going to lose 
your job. These IEP meetings occur right now, and I'm sure that 
some of the parents can tell you they have had those 
experiences. Some of the administrators have likewise had 
those. We don't know those occur until they come to us.
    Other provisions in the collective bargaining agreements 
restrict who can make decisions about grade placement. Well, 
that's an IEP team decision. That raises an issue. Some give it 
solely to the student's teacher. And you also have the other 
problems that have occurred in those areas and that we heard 
one today about the kindergarten teacher. The kindergarten 
teacher has to agree to take a student? You know, that does--
unfortunately, that sounded like an Indiana case, and we 
actually have had some situations where when we found them out 
we have corrected them.
    That is not how it works. You don't ask someone whether or 
not you take a student into your classroom in that stint; but 
on the other hand, that teacher needs to have specific 
training, not just in autism, because autism's not a very good 
descriptor. You have to have training in how autism is 
manifested in that student. That is not a good descriptive. In 
fact using the term ``autism'' is not. And that's why in our 
rules implementing them under disorder, to cover them all, so 
that schools and parents will make decisions based upon the 
need for educational services, because there are some 
conditions that adversely impact educational performance; 
because if we just use the term ``autism,'' the student with 
Asperger syndrome down here is not under autism as that's 
defined in the DSM-IV. It's not. And so you get this problem; 
school officials say, well, it's not autism because it's not in 
the DSM-IV, therefore, they don't need services. Not right.
    And we've told schools before that when we talk about 
educational performance, and I give 35 to 40 different 
presentations in Indiana alone every year to all these various 
groups, there's a number of things I stress to them. 
Educational or academic performance is not the only concern.
    In Western culture we certainly prize academic performance, 
but we prize social adeptness more than we do academic 
performance. And that may sound strange. I've been teaching for 
27 years, and those who have taught and those who have observed 
know that if you're socially adept, a multitude of sins and 
transgressions will be forgiven. But if you have ineptness, 
that sets you apart, no matter how gifted you are in other 
areas. So it's not just academics. That's not the sole 
determiner.
    As far as legal costs involved in resolving disputes and 
who pays those fees, I think you heard from Mrs. Brown today. 
What she described was our extraordinary funding system that we 
created in Indiana where we will wrap services around a student 
so they don't have to go to residential facilities; but the 
school has to demonstrate to the State that there is 
educational justification for that service. That educational 
justification is in the student's individualized education 
program, the IEP. They didn't put it in Mrs. Brown's IEP. And 
what happens, we wrote our rules in such a way as to say, 
Schools, if you don't put it in your IEP, you may be 
responsible for the cost of that service. You need to justify 
it.
    That's born out of a class action lawsuit that schools 
initiated against us--unfortunately, litigation is one of the 
things that I have to do--so we made sure that we put that in 
there so that we don't have people who are trying to pass 
services along that they don't agree with. But rather than 
discussing that with the parents, they try to pass it along to 
the State and then make the State look like a bad guy, which is 
pretty much what happened in Mrs. Brown's case.
    She can certainly give you her own rendition of it.
    As far as attorneys' fees, the attorneys' fees provision in 
IDEA is not really encouraging a lot of attorneys to go into 
this area. As a result, parents do not have available to them 
competent counsel who can help them.
    I realize a lot of people say, maybe we should keep the 
attorneys out. I'll tell you right now, as an attorney who 
represents a State agency--and we get involved in these 
hearings a lot--I would much rather have the school and the 
parent being represented by counsel who understands the law. 
But unfortunately the way the funding has been set up over the 
years, protector advocacy, LSO and a lot of the other services 
like that cannot handle these cases anymore. As a result, they 
really are not available to parents, competent counsel. If you 
have competent counsel, these things typically don't go to 
hearings.
    Mr. Burton. Mr. McDowell, I don't know how many questions 
the staff has sent to you.
    Mr. McDowell. They sent me two pages full of questions.
    Mr. Burton. Did they? Were they answered in your statement?
    Mr. McDowell. Not all of them, because I needed to know 
what data was sent to you from our Division of Special 
Education. For that--we coordinated that together. I realize 
that I've gone over time.
    Mr. Burton. That's OK. Could we do this? Could we go to Ms. 
Bristo? And the questions that you think are relevant and we 
need to talk about--and we will be asking you questions in just 
a few moments--maybe we could get back to that.
    Mr. McDowell. Sure. Yes, sir.
    [The prepared statement of Mr. McDowell follows:]

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    Mr. Burton. Ms. Bristo.
    Ms. Bristo. Good afternoon, Chairman Burton and the 
distinguished members of the committee. Thank you very much for 
inviting NCD, the National Council on Disability, to 
participate in this important hearing.
    As you know, the National Council on Disability is charged 
to provide policy guidance and research support to Congress and 
the White House about Federal statutes and programs pertaining 
to people with disabilities. Before 1975, the educational needs 
of more than 8 million students with disabilities were not 
being met.
    Since 1975, when IDEA was passed, the doors have been 
opened to untold numbers of students with special education 
needs in America. However, over the years, parents have told 
us, and we have found, that the promise of IDEA is not being 
fulfilled, and too often parents and families bear an undue 
burden of enforcing IDEA. We were delighted last night to hear 
President Bush reaffirm his commitments to the New Freedom 
Initiative and to ``leave no child behind.'' Taken together, 
they represent a new opportunity to improve the implementation 
of this important civil rights legislation.
    We agree with our President that increased funding and 
enhanced accountability by our public schools are two critical 
elements to ensuring that no child will be left behind, 
including the 6 million students served through IDEA.
    It saddens us to tell you that NCD's research embodied in 
our report, ``Back to School on Civil Rights,'' which I will 
leave for the record, indicates that all 50 States were out of 
compliance to varying degrees with the main provisions of IDEA. 
It is also troubling to report to you that there were no 
serious consequences for continued and persistent noncompliance 
with IDEA.
    All too often the burden of enforcement rests on the 
shoulders of parents. NCD believes that preventing 
discrimination and ensuring educational equality of opportunity 
is an appropriate role of our Federal Government. It is time to 
put that responsibility back to the Federal Government in 
upholding the constitutional guarantees afforded to millions of 
children with disabilities.
    A complete copy of our report has been entered into the 
record. I would just like to summarize a few key findings and a 
few key recommendations.
    Ninety percent of the States had failed to ensure 
compliance in the category of general supervision where States 
are expected to hold local school districts accountable; 80 
percent of States failed to ensure compliance with the law's 
free appropriate public education requirements; and 72 percent 
of the States failed to ensure compliance with the placement in 
the least restrictive requirements of IDEA.
    NCD made a variety of recommendations in our report. I'm 
only going to point on a few priorities here today.
    First, the Departments of Education and Justice should 
develop national compliance standards with enforcement triggers 
and mechanisms and with involvement of stakeholders.
    Second, Congress should authorize and fund the Department 
of Justice to independently investigate and litigate IDEA 
cases.
    Third, increases in IDEA funding should include portions to 
build enforcement complaint handling and technical assistance 
to ensure top to bottom accountability.
    Congress crafted a statute in 1975 that, if faithfully 
implemented, will consistently produce quality outcomes for 
students with disabilities. We firmly believe that if IEPs are 
based on the unique needs of students, if instruction is 
individually designed, if IEPs are faithfully implemented, if 
the least restrictive environment requirements are followed, 
and if there is failure to comply with IDEA that there will be 
real consequences, students will achieve quality outcomes while 
enjoying maximum independence in interactions with their 
nondisabled peers.
    Compliance with these IDEA requirements is a sufficient 
condition for quality outcomes. Funding and accountability are 
interconnected parts of the solution.
    Improvement in the implementation of IDEA will take the 
concerted efforts of parents, advocates, State and local 
governments and leaders such as those conducting this important 
congressional hearing.
    I want to express our deep appreciation of the important 
work we are engaged in here today. And to the chairman, to 
welcome you on board for the important journey of opening 
opportunities for people with disabilities. Thank you.
    [The prepared statement of Ms. Bristo follows:]

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    Mr. Burton. Thank you very much. And I'm sorry I'm a little 
late getting to the starting line. Let me just start off the 
questioning by asking the parents of children who are autistic, 
if we could, at what age did you notice your children were 
autistic?
    Let's start with you, Ms. Brown, real quickly.
    Ms. Brown. I noticed my son was autistic at 18 months, and 
he was legally diagnosed at 2 years and 4 months.
    Mr. Burton. OK, 18 months.
    Ms. Fry, when did you notice your children became----
    Ms. Fry. They showed signs at birth, all of them.
    Mr. Burton. All at birth.
    And Ms. Antenellis.
    Ms. Antenellis. Connor was 18 months.
    Mr. Burton. 18 months. And I guess you're the parents.
    Let me just ask you those of you who noticed the signs of 
autism at 18 months, had you had any kind of inoculations of 
the children in close proximity of the time that you noticed 
them to be autistic?
    Mr. Brown. Yes, I did.
    Mr. Burton. How close in proximity?
    Ms. Brown. I started noticing a difference at 12 months 
with the DPT, and 18 months is what I considered to be the 
final blow with the MMR.
    Mr. Burton. Ms. Antenellis.
    Ms. Antenellis. Same thing. He started to decline around 16 
months, right after his shots.
    Mr. Burton. Which shots were they?
    Ms. Antenellis. I think it was MMR, but I can't say that 
was it, because it was a very slow decline.
    Mr. Burton. Was this just the one shot, or did you have a 
series?
    Ms. Antenellis. We had all the shots that were required by 
law because that's what they told me I should do up until 18 
months. He had whatever shots there were at 18 months also, and 
he has not been vaccinated since.
    Mr. Burton. I was just curious about that.
    I guess this is a general question for all of you, and 
we'll start with you Mr. Lamontagne. Could you give us the top 
two or three things that you think should be done by the 
Congress or by the Justice Department to make sure that 
children who have these disabilities are taken care of 
properly? And we're going to write these down because we're 
going to try to pursue these through the Congress, at least I 
am, and I think my colleagues will.
    Mr. Lamontagne. I think the first and obvious one is to 
fully fund the Congress' commitment to IDEA; second, to 
incentivize the delivery of service by converting the funding 
mechanism from a pure block grant--I'll call it that for a lack 
of a better term--to a reimbursement-for-services program; and 
third is to shift the model from a bureaucratic one to a 
delivery-of-services model, which would mean having support 
services for parents at the school district level, including an 
ombudsman in the event of a disagreement between the school 
district and parents.
    Mr. Burton. So you're saying an ombudsman would solve the 
problem hopefully before there was any legal action?
    Mr. Lamontagne. Precisely. An ombudsman whose charge is to 
be a problem solver, not simply an advocate for one side or the 
other.
    Mr. Burton. Ms. Brown. Oh, Ms. Bristo has to leave at what 
time?
    Ms. Bristo. I need to leave at about 25 of.
    Mr. Burton. Why don't we go to you next, and then we'll 
come back to Ms. Brown.
    Ms. Bristo. The main message we have for you is what I 
reported to you today: Enforce the existing law. We have heard 
from parents all around the country that the problem isn't with 
the law; it's for the failure of any consequences to occur.
    In the course of our evaluation, we found that, for 
example, the Department of Education had only withheld funds 
once in the entire history of the law. We believe that as long 
as noncompliance is rewarded with continued funding, or no 
other real action to create improvements, we perpetuate the 
problem.
    Mr. Burton. Let's take the State of Indiana for instance; I 
talked with the people that were charged with the 
responsibility of making sure the law was followed regarding 
IDEA. They said when they were contacted by parents like my 
daughter, who were having a problem with the school, that they 
would get a hold of the local person in that particular county 
and that they would pursue it and tell the school if they 
didn't comply--or the school district, if they didn't comply--
the funds would be withdrawn.
    Is that what you're talking about?
    Ms. Bristo. Yes.
    Mr. Burton. So there is incentive for them to comply?
    Ms. Bristo. I would direct you to the substance of our 
report which looks at seven priorities, including at the State 
level, so you could take a look at your own State.
    I am happy to say that the Department of Education has 
recently begun a process to improve their monitoring mechanism 
and the National Council is encouraged by that; we believe 
that's a real step in the right direction. But we really 
believe that at the heart of this is putting too much of the 
burden for our civil rights on the shoulders of parents who are 
working very, very hard over time just to provide the basic 
services that other kids often take for granted.
    Mr. Burton. OK.
    Ms. Brown.
    Ms. Brown. I would like to see the schools held 
accountable, especially in a situation when the graphs and data 
and video footage has been presented for them, and how they 
could continue to deny a program for a child who has made 
progress under that specific program.
    The other thing I can only offer is that anyone who would 
be brought in as a neutral party to help supervise the IEP 
meetings and the school before parents have to go--due process, 
not be paid by the State, somehow the Federal Government is 
involved in that.
    Mr. Burton. If it was an ombudsman, no matter who paid 
them, they're supposed to be nonpartisan. But you think they 
would be if they were paid by the State?
    Ms. Brown. Right. The reason why I say that is because also 
this past year I attended a seminar, and at that seminar I saw 
many school officials in my district. The closing statement of 
that seminar was, ``The problem here is, parents who have 
children with autism want a Cadillac; and I am here to tell you 
all you have to offer is a Chevy.''
    Mr. Burton. Who made that statement?
    Ms. Brown. The conference I attended was Melinda Baird, I 
believe is how you pronounce her last name.
    Mr. Burton. Oh, she's going to be a witness here. We will 
ask her about that in a few minutes.
    Ms. Schakowsky, why don't I let you have some time, and I 
will get back to these folks.
    Ms. Schakowsky. Thank you, Mr. Chairman.
    Pretty much everything I know about disability issues and 
disability rights I've learned from Marca Bristo, and today you 
can continue my education if I could ask you a few questions.
    I wanted to ask if you thought the requirements for regular 
teacher certification should include training on special ed.
    Ms. Bristo. Absolutely. Increasingly, we're learning that 
the more we can educate all teachers for the diverse Nation 
that we are in, including people for whom English is a second 
language, people with disabilities, people in rural areas, the 
better educated our children would be.
    More and more of our disabled children are in mainstream 
classrooms, and we believe that the recruitment efforts that 
the First Lady will be undertaking, it's important to target 
those as well as enhance the requirements for certification to 
include more than just the basic Special Ed 101 training that 
currently is the case.
    Ms. Schakowsky. Are we providing services across the board 
equally or are some children with disabilities getting better 
results or access to IDEA than others?
    Ms. Bristo. The National Council looks at disability from a 
cross-disability perspective, so I will situate my comment in 
that context.
    I think you have heard from the parents here today, the 
children who received the best educational services under IDEA 
are the ones whose parents were lucky enough to find out what 
the law was, who had access to other people to help them 
through the maze, and if all else didn't work, had the ability 
to retain legal counsel.
    Now that's a lot to ask of our parents. Those people stand 
a much better chance of getting good results for their kids. 
And to that end we believe that there are existing mechanisms 
that Congress could support further than they have. The parent 
training centers, a national network to provide technical 
assistance to parents to help them understand the rules and 
regs and what to do when disability affects their lives, we 
believe is a good place to start.
    But in our efforts to reduce litigation, it's important to 
note that litigation is a really important part of the 
repertoire of tools. In those instances where the courts have 
taken some cases, we have some models of enforcement that we 
would be well served to look at. My own State of Illinois right 
now, is operating under a court order to implement the least 
restrictive environment aspects of the law with the same kind 
of enforcement triggers and mechanisms and standards that the 
National Council is calling for; and we're seeing considerable 
improvements.
    Ms. Schakowsky. We've heard testimony today about the costs 
of attorneys. Are there low-cost special education attorneys 
available to represent parents anywhere?
    Ms. Bristo. Again, no. As you probably can ask and have the 
parents here speak to, not only are there not a cadre of well-
funded and well-educated parents, there is also just a dearth 
of people who are really knowledgeable in this area of law. And 
increasingly, as people decide whether or not they are going to 
take these cases, the parents also have to prepare themselves 
many times for multi years of helping to front those legal 
expenses until the attorneys' fees kick in.
    A lot of people fall by the wayside before then. They 
simply give up. And I think we have to ask ourselves the 
question, in those instances when it gets just too burdensome 
to enforce the law for your child, is it not the children whom 
we are leaving behind?
    Ms. Schakowsky. And short of attorneys, are there not lay 
advocates or people who can help the parents, give them 
information about what their rights are and help them run their 
way through the system?
    Ms. Bristo. Yes, as I said, the parents' training networks, 
the independent living centers, the protection and advocacy 
programs; but again, often these organizations are stressed 
with an overwhelming number of requests for information, and 
more needs to be done in this important area.
    Ms. Schakowsky. I really appreciate the real testimony of 
real-life people and the kind of struggles that you're going 
through. And there are obvious holes that we have got to fill 
so that the burden is somewhat lifted and you can provide 
exactly what your children need; and I certainly pledge my 
support for that.
    Thank you, Mr. Chairman.
    Mr. Barr [presiding]. The time of the gentlelady from 
Illinois has expired.
    The Chair recognizes the gentleman from Florida, Mr. 
Weldon.
    Mr. Weldon. Thank you. I have a question which I guess I 
would like to direct to some of the education professionals we 
have here on the panel.
    IDEA was passed, I guess, 20 or 25 years ago, and there are 
a lot of people who are arguing that the incidence of autism 
began to increase significantly in our population. And a lot of 
times we say ``disability,'' and I think when they hear that, 
they're thinking the whole gambit of disabilities--cerebral 
palsy, mental retardation, etc.; but how much of what we're 
struggling with or dealing with is actually the possible 
increase--significant increase of autism, or are you seeing 
significant increases in all disability categories?
    Ms. Nunes. What we're seeing is--to answer your question in 
two components, we definitely are seeing an increase of 
students identified with autism. We are also seeing--I will 
speak to San Diego particularly. We are also seeing an increase 
in other areas, as well. As our medical profession achieves 
greater ability to help children who are premature, frequently 
these children will end up with some disabilities that we need 
to take care of in the education profession. So it is across 
the board, but the increase of autism is phenomenal.
    When I'm addressing issues regarding IDEA, though, from an 
educational point of view, I'm looking across all disabilities.
    Mr. Weldon. So if I understand you correctly, you're seeing 
everything increase, but you think autism is increasing more 
than the others?
    Ms. Nunes. At a more rapid rate, yes?
    Mr. Weldon. Does anybody disagree with that?
    Mr. McDowell. Yes, Representative.
    I would not disagree with that. Certainly that experience 
is being borne out across the country. There are some reasons 
for it, but no one knows all the reasons for it.
    One of the reasons we see the increased instances is 
because only comparatively recently did the Federal guidelines 
even mention it as a separate category; before, it was listed 
with emotional disturbance or emotional handicaps. In 1988, we 
created our own category for special education; we didn't wait 
for the Federal law to do it. So our reporting on the incidence 
of autism as an educational diagnosis, as opposed to a medical 
one, began in 1988, so we have data from that time. That's one 
of the reasons.
    The other ones, better identification, the refinement in 
mental health professionals on how they've been able to 
identify it. We don't know if they simply went undiagnosed or 
if there is some sort of an epidemic.
    I don't think they all went undiagnosed. There's no one who 
can explain why, other than it is a phenomenon that has 
occurred.
    Mr. Weldon. How much of your resources are expended 
dealing--and I realize you're just--I'm asking you to shoot 
from the hip and make estimations on dealing with emotional and 
behavorial problems associated with the disabilities that 
you're dealing with; is that a significant component?
    The impression I get in looking at a lot of these cases is 
that the pure educational components--in other words, having a 
teacher who knows how to teach subjects to a child with a 
disability--is a relatively--in many of these cases, a 
relatively narrow component of what you're dealing with and 
that a huge amount of the associated costs of teaching of 
educating these kids under the provisions of the act are 
related to things like physical therapy and behavioral therapy.
    I'm interested in that mainly because we call it the 
Individuals With Disabilities Education Act because we want 
these kids to get an education. And the costs are proving to be 
much higher than anybody estimated, and the reason for it is 
because of these associated, ancillary issues that you have to 
bring into play; and I think it's important. If we're going to 
sell to the Congress, our colleagues, why we have to begin to 
pony up significantly more money to address the issue.
    Mr. McDowell. Representative, at the time in question that 
was one of the major issues that the chairman asked us to 
address. I can say when Congress reauthorized IDEA at section 
1418 and 1474, Congress did ask for a study because you have a 
number of these competing interests who say this is drawing 
money away from that resource, you are robbing Peter to pay 
Paul. No one can refute that or support that.
    For that reason, the Office of Special Education Programs 
within USDOE has contracted with the Center for Special 
Education Finance of the American Institutes for Research, and 
they are presently involved in conducting this massive national 
study, of which Indiana is a part; and we have also opted to 
outlay additional money--$800,000 in fact--in order to get a 
State-specific study for Indiana that would break it down by 
exceptionality area to give student, building and district 
types of data to show what those expenses are in eight major 
areas.
    Unfortunately, the preliminary data tabulation will not be 
available until April 30 of this year, and the final report is 
due out October 31 of this year. And I am sure that Patty Guard 
can give you more information on that other than, we are 
involved in this.
    The type of data that they have requested is extraordinary, 
and the eight questions that they are prepared to answer cover 
all the questions that Congress has raised about where is this 
money going, what is it doing, is it really affecting other 
programs; and that's the type of information that this report 
is to generate.
    Mr. Weldon. I have just one other question if the chairman 
will indulge me and I realize my time has expired.
    One of the reasons you can, if you decide you want to go 
out to dinner, you can choose from a lot of good restaurants in 
most American towns, is because you have money in your pocket 
and everybody wants your money. One of the reasons you couldn't 
get a decent meal in the Soviet Union is, they had a different 
system obviously.
    There have been some people who have proposed, and I guess 
this is a question I'd really like to direct more to the 
parents: Should we really be thinking outside of the box, and 
instead of putting more money into the system, empowering 
parents by giving them the resources so they can go out and 
shop in their community to find the best environment for their 
kids?
    The reason I say this is, when I look through the e-mails 
from the State of Florida, from parents who have struggled in 
this area, some of them say they encountered very willing and 
cooperative teachers and school administrators that wanted to 
make a difference; but one of the themes you see over and over 
again is sort of a lack of customer friendliness to dealing 
with the problems that they are facing as parents.
    Your thoughts? Would you rather have the money so that you 
can shop around amongst various public and private institutions 
that are designed to teach kids with disabilities, or would you 
rather just see us put more money into the existing system--in 
other words, a so-called ``voucher.'' It's a dirty word, I 
realize, and nobody likes that term; it's been so demonized.
    That's really what I'm getting at.
    Ms. Antenellis. I think I could answer a little bit of that 
from a parent viewpoint.
    I think, No. 1--if there were standardized good programs 
out there, I think that is an option we would like, but in many 
cases my school was forced by me to put a program in. They had 
nothing, they had absolutely nothing, so I don't think we have 
a lot of restaurants to go to.
    Mr. Weldon. Well, there's no marketplace because there are 
no customers.
    Ms. Antenellis. But I also, second, think that you 
mentioned the medical end of it. We have a society where it is 
all forced upon the school system. Particularly with the 
disability of autism, no medical coverage provides services. I 
cannot get speech, I cannot get OT, I cannot get PET for my 
child because he has a developmental disability and our health 
insurance won't cover it. So it falls--it's incumbent to have 
the school system do it. That is the only access he has to the 
service.
    So there may be some definite medical issues that need to 
be addressed, but the health insurance piece has fallen back. 
Even in my town when we apply for Medicaid for our special ed 
kids, it doesn't go to the special education department; it 
gets kicked back into the town fund. So it is not supporting 
special education. It goes right back into our town's general 
fund, not to pay the specific needs of the children that 
they're billing for.
    Ms. Nunes. If I could continue on that conversation, when 
you were asking about the physical therapy and the related 
services, one of the increases that we saw was that as 
insurance stopped accepting students or providing services it 
fell upon the district or the school districts to then provide 
those services as a related service. And our definition is to 
provide access to the general education or to the educational 
environment. So, yes, there is always a domino effect when one 
piece of legislation or one decision is made that it will then 
roll back to usually the education department, to usually fill 
in.
    Mr. Weldon. Thank you very much.
    Mr. Burton [presiding]. Do you have some questions, and 
then we will go to my colleagues from California.
    Mrs. Davis. Thank you, Mr. Chairman. I'm not sure I have so 
much a question as I do a comment, but it sort of plays on what 
Representative Weldon said, that we don't have the marketplace; 
and maybe the reason for that is, I'm not sure that the parents 
know their rights. And I wish I had Ms. Antenellis back when my 
24-year-old was 12 years old, and I had a case where the 
pediatrician wrote a prescription to the school to test my 
child for a learning disability. But he looked normal, acted 
normal, and the school said he's just lazy and a daydreamer.
    He was not tested. They refused to test. I didn't know I 
had that right.
    That's my concern: Are we getting the cooperation? I'm 
hearing that now. I know that was 12 years ago with my son, I 
hear that now in my district that the school, the 
administration--I don't know if it's the teachers or where it's 
coming from--are not cooperating with the parents, not wanting 
to give them the information or even tell them what their 
rights are.
    My concern there is, is it because we're not funding? Is 
that the administration's and the bureaucracy's problem that 
they don't have the money, so therefore they don't want to tell 
the parents that they have the right because it would cost more 
money?
    We had a situation in one district where the school went 
outside of the county attorney and hired an attorney, spent 
$200,000 to fight a parent; and the parent spent, like Mrs. 
Brown did, a lot of money and won. But by the same token, we 
wasted $200,000 of taxpayers' money; and we have a problem, and 
I'm not sure how to fix it. And I'm open for suggestions.
    Mr. Lamontagne. I will just make the observation that I 
would wholeheartedly agree that simply fully funding IDEA is 
not the answer. It's fully funding IDEA, whatever that means 
under a reformed model, that creates more power in the hands of 
parents and creates more of a choice--a bottom-up, if you will, 
demand.
    That means an educated parent force, certainly. That means 
a system that looks to deliver services, not resist giving 
service. That also means removing what inevitably becomes sort 
of a battle of dueling agencies when you have social service 
agencies and educational agencies all competing for a limited 
resource of money, because they are in fact naturally 
antagonistic in this situation, much like you've alluded to, 
Representative.
    My wife and I--and she's here with my children--we've been 
foster parents for 12 years of a special needs child, and we've 
battled this on his behalf to try to deal with where the 
responsibility should lay, and lie. And I think it is very 
important the funding mechanism tries to wrap in, if you will, 
a package that is going to ultimately be paid by government, a 
package to deliver a full array of services to help children 
not only learn but be able to receive the services they need as 
they progress so they can become members of society.
    But to remove it now, which is a top-down bureaucratic 
system that I think kills, if you will, the ability of parents, 
that discourages and is a disincentive for parents to go out 
into the marketplace to look at opportunities. And there is no 
market out there to try to educate parents to find what is 
available for them.
    I would also say sitting here today, thank God for the 
mothers and fathers from hell, who have worked so hard for 
their children.
    Mr. McDowell. If I may add to the comments, I don't wish to 
leave the impression that school people are awful people. 
They're really not. When I speak to them, I remind them that 
even though this may be the third or fourth IEP team meeting 
you have today, this is the parent's first; and never forget 
that this is their first and don't rush them through it. Be 
considerate. Let them talk. Let them be a member. Don't sit 
down there and start dominating it because it's time sensitive.
    If you think about it, you have to constantly remind 
yourself, because having been there--I've been in thousands of 
IEP team meetings, and I have to remind myself of that too. 
Because I'll say, it's 4 o'clock, it's Mrs. Brown--it's just 
generic, not this Mrs. Brown--Mrs. Brown is coming in, and with 
luck I can get out of here by 5, and I can still make it and 
pick up so-and-so at 5:30. That is not an uncommon thing to 
occur.
    However, there are other things that are embedded in the 
idea that are having unfortunate results. One is, Congress put 
in a mediation part, trying to encourage mediation, but put a 
section in there that allows the school to essentially punish a 
parent who doesn't want to go to mediation by forcing them to 
talk to somebody about all the wonders of mediation, and if 
they only understood it, they would go to it. Well that's 
punitive, and it's off-putting.
    Other things embedded in there are simply the use of the 
term ``regular education,'' it's all throughout the IDEA, and 
that creates this polarization in schools between regular 
education teachers and special education teachers and that does 
not help. There is no such licensing pattern for regular 
education.
    My recommendation is, change it to ``general education'' 
because a child with a disability or a child without a 
disability is part of the school community and a teacher is a 
teacher is a teacher. And I can guarantee you, as I sit here 
right now with 27 years of teaching, I don't think anybody here 
is going to deny the fact that there is that polarization in 
schools. We're regular educators. That's a special ed problem.
    Mr. Burton. Any further questions, Mrs. Davis?
    Mrs. Davis. No.
    Mr. Burton. I will now yield to Mr. Cunningham from 
California.
    Let me say, before we do that, we probably do need to 
refine the law; and I think you have already worked on that in 
the past, Duke, you've worked on refining the law in the past, 
haven't you?
    Mr. Cunningham. Yeah, but what I put in there didn't come 
out of the White House.
    Mr. Burton. But the point is, what we want to get from you 
today are recommendations on changes in the current statutes 
that will perfect it and make it more user friendly for the 
parents, so they have don't have to go through these 
adversarial programs with the schools.
    And so I really mean what I said earlier: We want your 
recommendations. We want your input. We want your suggestions 
so we can draft some legislation that we can present to the 
Congress to try to correct these things, so the parents won't 
have to go through these things that these ladies and my 
daughter has.
    Representative Cunningham.
    Mr. Cunningham. Thank you, Chairman Burton. First of all, I 
guess I have to do a disclaimer. I'm not on this committee. And 
none of my thought would be going toward the committee, but I 
mentioned, both my wife and sister-in-law are both educators, 
but I was also a teacher and a coach, both in high school and 
college level, and dean of a college.
    And I also sit on the Appropriations Committee. I make the 
decisions whether IDEA gets more money or not, or cut. No one, 
like Chairman Burton, when you walk out of my office, you have 
no doubt where I stand. I don't tell you one thing and come 
back with another, and I'm very frank.
    On the Appropriations Committee, I support increased 
medical research. Is it shots that are causing it at the 18-
month or 2-year period? Is it genetic? Is a genome program 
going to help? And I think that's hopeful--maybe not to your 
children right now, but hopefully, we can help in the future in 
this whole area. And not just with autistic children, but 
across the board.
    I also support, I think, that our colleges should have 
basic instruction courses, not just the IEP or not just the 
credentialed teachers in special education, but all teachers to 
have increased courses. I think there ought to be funding for 
it. I think that ought to be one of your recommendations.
    Mr. McDowell. It is.
    Mr. Cunningham. I think both the schools and the Eisenhower 
grants that we put not just for what you call ``normal 
education'' or what the actual term should be, but those 
teachers should also receive an upgrade in the law as well as 
what the services are, not just credentialed people.
    When I first came here, there was 6 percent funding for 
IDEA. We've more than doubled that. And I think President Bush, 
when he talks about focusing some of the things that we are 
looking at--for example, the money going directly to the school 
and giving the parents the teachers and the community the 
ability to direct those dollars instead of Washington, I think 
that helps your cause because more money can be used for IDEA.
    A factor with an Education IRA to where you can set up 
$2,000 aside for that child the day they're born and when 
they're 10 years old it's not $20,000; that's over $48,000 with 
compound interest. You can use that without penalty for a 
special education child or save it for later on.
    What I don't support, the increase of IDEA money, I have 
witnessed one child in the State of California is receiving 
$150,000 a year to teach that child. I think that is 
unreasonable; and it hurts you and it also hurts the school.
    On the committee--I was co-chairman of the D.C. Committee--
I capped lawyer fees in Washington, DC. I saved $24 million. 
Did I put it in a general fund? No. I went out--and like you're 
talking about, you didn't have trained teachers--I trained 33 
special educations teachers that went into the classroom with 
aides to better teach and train you. I support that kind.
    But I don't want to increase it to 40 percent and see it 
going to trial lawyers. I want the money to go to students and 
their needs.
    And one of things I would like to ask Mrs. Nunes, my sister 
in law, she talked to me about zero tolerance. I think you need 
to know why. The schools aren't bad. I've seen her cry when a 
child was underserved, when she was a teacher and she was 
fighting for those children.
    But I know on the other side the zero tolerance that we 
have, and I would like her to just explain in plain words why 
this is hurting, just because of the paperwork, and it's 
becoming more of a check in the box than the administrators and 
teachers being able to go down to help the kids.
    I have seen teachers brutalized in the courtroom where 
they're quitting the service. You are losing good special 
education teachers just because of the paperwork and the 
pressure and stuff. I think you want to keep them there, the 
trained ones.
    Ms. Nunes. The component of the law that requires no IEP or 
triennial to be overdue, as I stated in the testimony, does not 
provide us with an opportunity, as we were reporting, to give 
feedback that there might be some extenuating circumstances 
that is a reason why the IEP is overdue. The parents may have 
requested that the IEP be held at a later date due to some 
family emergency. We may have a dispute in the assessment plan 
so we are not able to meet that time line.
    The reality of what happens is that reports go in and then 
they come back with sanction letters for us to then remediate 
or fix those situations, and what we end up becoming is a 
system of report generation as opposed to looking at the 
student and the student needs. And that's a concern to us.
    If I could just take my step here and answer your question, 
Mr. Chairman, about the issues that we would like to address as 
far as recommendations, when we talk about the funding, again 
we would like to stress the educational research. I think that 
my concern about hearing vouchers is that now you have agencies 
potentially that there's not a standard; that the educational 
approach isn't appropriate for the child, there needs to be 
some type of standard that says, OK, it's time to move on, we 
need to look at something different.
    As I stated before, there is not just one educational 
approach for students with autism or for any other students. 
For example, students with autism display a wide variety of 
ranges of ability levels. You may have one student with a 
diagnosis of autism who does not relate well in group settings, 
but does very well on an individual basis, as I think we have 
heard some of the examples here.
    However, I have personally been in the classroom with 
students and taught students with the diagnosis of autism for 
whom being in an individualized instruction programming such as 
called out in some strategies is not the best educational 
environment; and those students learn better in a group 
environment, in small groups.
    So I think that my concern is, we take into account the 
educational strategies and train teachers.
    When we talk about the higher education institutions, I 
applaud Mrs. Bush in going out and championing that cause for 
us. What I would like to see are competencies that higher 
education institutions have to provide more than just an 
awareness level of the strategies and techniques that are 
needed for all students and to really be able to demonstrate 
the knowledge.
    And that's the struggle that we're having right now, and 
that's the recommendation.
    Mr. Burton. Let me say, first of all, the panel has been 
very helpful, and we will take suggestions to heart. If there 
are further suggestions, real quickly, we'd like to have them 
because we want to move on to the next panel.
    But I would like to say this, the people who are in the 
profession of teaching and the experts that help with special 
needs children really do know what they're talking about, and 
they can be very helpful; but you also have to consider the 
parents, because they live with the child 24 hours a day, or at 
least when they're not in school, and on weekends and 
everything else. And if a parent feels like they are not 
getting the proper treatment or education from the system, they 
ought to have a very big say.
    That's why the idea that some form of choice for a parent 
ought to be there. So if the school isn't doing the job, even 
though they have the talent to do it, or because they don't 
want to do it or they have don't want to devote enough time for 
the child, which is the case of my grandson, then the parent 
ought to be able to make sure that child gets the proper 
attention.
    I always believed when there is an incentive to do things, 
people do it better. If a car salesman, for instance, knows 
that he will get a bonus if he sells 10 cars instead of 5, he's 
going to work a little harder. I believe in the educational 
field if a teacher or a school system is going to benefit 
because they're doing a little more outstanding job than the 
sister school, they're going to try harder.
    That's one of the reasons why a lot of us feel like there 
should be some competition in education instead of sticking a 
child, or a special needs child, into one facility that is not 
doing a job, when down the street, or a ways away, there is 
another school doing an outstanding job where they can put the 
child. If the parent has a choice, they're going to say, hey, 
I'm going to put my child where he or she is going to get the 
best education, the best special needs education, whatever it 
is. If the school that is not performing doesn't do it, they're 
going to be without students; and pretty soon they will get the 
message, they are all leaving, we'd better start doing our job 
a little bit better, or pretty soon we will be without students 
and maybe without a job.
    So that's one of the arguments, one of the major arguments. 
So I don't know whether it's vouchers or whether it's some kind 
of choice, but parents ought to be able to have a bigger say 
because some person who has more of a bureaucratic tendency 
says, we really think your child ought to get 30 minutes a week 
instead of 4 hours or 2 hours a week and the parent knows the 
child is not progressing.
    Yes, Ms. Antenellis.
    Ms. Antenellis. I want to take my moment in the sun to just 
give you my 2 cents worth of what I think you need to do.
    In addition to the teachers, most autistic children have 
aides in the classroom. These aides are usually just moms, who 
are probably the best people to deal with them, but they don't 
have the training, the training does not filter down to the 
frontline staff, the recess monitor, the aide, the person in 
the gym; so when the autistic child has a problem, they can't 
handle it. They don't get paid much. They don't get the 
teacher's salary, and they don't get the teacher training.
    So I think that the paraprofessionals that work with these 
children in the school systems also need to be trained and that 
needs to be included in the budget somehow.
    The other thing is, I think school systems that are 
constantly in violation of children's rights should be taken to 
task and be made to be accountable. Even if they have an IEP, 
if they're not providing what's in the IEP, they should be 
taken to task. If that school system is constantly going to 
State hearings and being found against, they should be taken to 
task.
    There is no accountability in the school systems in the 
States right now. Yes, they go back down again and then 2 weeks 
later, they're not providing the speech. And the parent has to 
go all the way through the process again to get the speech 
provided. There's no accountability, and they need to be held 
accountable.
    Mr. Burton. I can tell you, this morning I talked to the 
people in State of Indiana in the special education area, and 
they assured me if parents bring to their attention in that 
State--and maybe it needs to be done in every State--that 
there's violations and noncompliance, they will investigate it 
and they will withdraw the funds from the school system, and 
they'll tell them, you will not get these funds if you don't do 
the job. That's the carrot-and-stick approach that needs to be 
used all across the country.
    All of your ideas and suggestions will be looked at very 
thoroughly.
    Ms. Fry, you have one more comment, real quick?
    Ms. Fry. Yes, I have my recommendations.
    I have been told very often that there are gray areas. The 
reason they don't train teachers is because it's a gray area. 
We don't have to train them specifically. Their idea of 
training is to send one person to a seminar, have them bring 
back all the information, photocopy it, pass it out, and 
everybody gets to read it; therefore, they're trained.
    I don't buy it. I think it's time to color in the gray 
areas and make it a little more specific, get the teachers some 
training so they understand that when a child is exhibiting a 
certain behavior, it's not because they're acting out, it's 
because something is wrong. They're not doing it just to be 
mean.
    Again, accountability. The schools don't seem to have 
anybody to say, you're not supposed to do this.
    I feel that they should provide the education. I send my 
kids to school for an education. I would hope that's what 
they're going to get there.
    Mr. Burton. Well, we will take all of your suggestions into 
consideration. We will draft some revised legislation, and we 
may even send it out to you folks who testified here today to 
get your input before we present it to the Congress as a whole. 
In any event, we will excuse this panel and ask the next panel 
to come forward.
    Do the people who are coming forward need to take a break 
for about 5 minutes? I see pain on some faces. We will recess 
for 5 minutes, and we will get started as quickly as possible.
    [Recess.]
    Mr. Burton. We will reconvene and I would like for you to 
stand so I can swear you in, please. This is normal procedure. 
You are not being singled out.
    [Witnesses sworn.]
    Mr. Burton. OK. We'll let you have opening statements.
    We will start with Ms. Guard and we will just go right down 
the row here. Try, if you could--as you heard, restrict your 
comments to 5 minutes so we can get to the questions as quickly 
as possible.

  STATEMENTS OF PATRICIA J. GUARD, ACTING DIRECTOR, OFFICE OF 
   SPECIAL EDUCATION PROGRAMS, U.S. DEPARTMENT OF EDUCATION; 
MELINDA BAIRD, JD, KNOXVILLE, TN; GARY MAYERSON, JD, NEW YORK, 
  NY; BILL EAST, EXECUTIVE DIRECTOR, NATIONAL ASSOCIATION OF 
 STATE DIRECTORS OF SPECIAL EDUCATION, INC.; AND ED AMUNDSON, 
                 NATIONAL EDUCATION ASSOCIATION

    Ms. Guard. Mr. Chairman and members of committee, last 
November we celebrated the 25th anniversary of the signing of 
the Education for All Handicapped Children Act, now called the 
Individuals With Disabilities Education Act [IDEA]. As we 
explore the implementation of IDEA, it is important to take 
time to reflect on the tremendous progress that has been made 
in the education of children with disabilities since the 
passage of this landmark civil rights legislation.
    Today, more than 6 million infants, toddlers, children and 
youths with disabilities are provided early intervention and 
special education services. Over 95 percent of students with 
disabilities are being educated in the public schools. Post-
school employment rates for youth served under IDEA are twice 
that of older adults with disabilities who did not benefit from 
IDEA in school, and the percentage of college freshmen 
reporting a disability has almost tripled since 1978.
    Despite this progress, significant challenges remain. As we 
review implementation of IDEA, it is important to recognize 
that this law calls for a Federal, State and local partnership.
    It's important to understand the roles of each of these 
entities in the implementation of this law. The Federal role is 
to serve as a steward for Federal investments, to develop 
improved interventions through research and development and to 
provide financial support and technical assistance to assist 
States in complying with the Federal law in correcting the 
systemic problems. The Federal role necessitates ongoing 
technical assistance to States. Periodic monitoring of 
compliance with IDEA, directives for corrective actions and 
different levels of enforcement and sanctions relative to the 
intensive pervasiveness and persistence of problems within 
States.
    The State role parallels the Federal role in supporting and 
ensuring the implementation of IDEA. By accepting Federal IDEA 
funds, States have an obligation to ensure consistent 
compliance with the IDEA statutes and regulations throughout 
the State. The State's general supervision role entails not 
only stewardship of the allocated Federal funds, but also of 
the much larger State investments that support children with 
disabilities.
    The general supervision role also necessitates an ongoing 
monitoring presence in the school districts and resolution of 
parent or student complaints filed with the State. The State 
agency has the obligation to ensure that each child with a 
disability is identified and receives appropriate services. In 
addition, the State plays a critical role in ensuring that 
districts have an adequate supply of appropriately trained 
teachers, administrators and other service providers to ensure 
that children with disabilities receive high-quality 
instruction.
    States also have responsibility for setting performance 
goals for students with disabilities and assisting school 
districts with meeting these goals through identification and 
support of promising practices, development of model 
demonstration projects in support of other effective research-
based practices.
    Local districts develop policies and procedures for 
practical implementation of the State and Federal laws in each 
school in the district. Local education agencies must make 
certain that staff throughout the district are knowledgable of 
the Federal and State requirements and that services are 
provided to students and families consistent with the IEP 
developed by a team of professionals and parents for each child 
with a disability.
    Parents play a key role, along with school personnel, in 
developing, reviewing and revising, if necessary, their child's 
IEP, and in determining the type and intensity of services the 
child needs and where the services will be provided. If the 
parent and local school district staff cannot agree on the 
content of the IEP, or the recommended placement, the parent 
can file a complaint with the State if they believe the school 
district has violated a requirement in the law. The parent can 
also ask for a due process hearing and mediation must be 
available to parents who request a due process hearing.
    The remainder of my testimony will elaborate on the Federal 
role. The Part B Grants to States program assists the 50 States 
and entities in meeting the excess cost of providing special 
education and related services to children with disabilities. 
Children with disabilities served under IDEA must be determined 
to be eligible under 1 of 13 categories.
    In recent years, with the exception of the category of 
autism, the number of students receiving special education and 
related services has remained relatively stable. The reported 
numbers of children receiving services under the category of 
autism grew disproportionately as States and local districts 
became aware that children with the disorder could be reported 
as such rather than under other disability categories. We also 
believe the increase in the category of autism is a result of 
improved identification and evaluation procedures.
    Most funds provided to States must be passed on to local 
education agencies. However, a portion of the funds should be 
used for State-level activities such as administration, 
monitoring, mediation, direct and support services, developing 
plans for the State improvement program and helping LEAs 
address personnel shortages.
    Mr. Burton. Excuse me, Ms. Guard. I think this is the 
information that you have already given to us in your opening 
statement about the law. I think we're familiar with all of 
that.
    Ms. Guard. OK. I'm just summarizing my statement. I'm just 
about finished. I will talk about the monitoring process.
    Mr. Burton. That's fine. Go ahead.
    Ms. Guard. OK.
    Another Federal role is monitoring and enforcement of IDEA. 
Our intent in the monitoring process is to work with States to 
identify problems as early as possible and then help State and 
local personnel to acquire the tools and skills they need to 
correct these problems. We have found that the longstanding 
systemic problems cannot be quickly corrected. We've tried to 
use tools and mechanisms that allow States sufficient time to 
make corrections that will be effective and sustained.
    The Department has at its disposal a number of enforcement 
tools. It is important, however, that these enforcement tools 
be used appropriately. We fully recognize the urgency of and 
our responsibility for ensuring compliance with IDEA. The time 
a child is not receiving appropriate services is time lost that 
cannot be regained.
    Another Federal role is to provide support for the 
development, dissemination and utilization of effective 
services programs to improve results for students with 
disabilities. States and schools must have access to research-
based practices that we know work to improve results for 
students with disabilities. The IDEA Part D National Activities 
program, which represents less than 1 percent of the annual 
national expenditure to educate children with disabilities, 
enhances the capacity of States to develop infrastructures to 
support the full range and effective implementation of IDEA 
through a variety of strategies including research, personnel 
preparation, technical assistance and dissemination, technology 
and studies and evaluations.
    For children diagnosed with autism and related disorders 
this has meant an increased OSERS focus on funding teacher 
training, including distance-learning projects to reach 
teachers in rural areas. It has meant developing model 
demonstration projects for children with autism that can be 
matched to the individual needs of the child. The National 
Academy of Sciences is conducting OSERS-funded research to 
examine the effectiveness of various interventions for children 
with autism. Findings of the study are expected to be released 
in July 2001.
    In closing, the IDEA is designed to make sure that children 
with disabilities have an equal opportunity to meet challenging 
academic standards, to learn, to stay in school, to graduate 
and move on to post-secondary education and the world of work. 
Many of the issues States are dealing with are complex 
educational issues that all of the education community is 
addressing. We believe that in most cases States and local 
districts are working in good faith to improve services to 
children with disabilities and to correct noncompliance. We 
also believe that no parent should bear the burden of 
enforcement just to get an education for his or her child. To 
that end, we recognize that if we are to fulfill our role, we 
must not simply monitor the States, but we must hold States 
accountable and have an ongoing presence providing technical 
assistance.
    By working collaboratively, we can improve the quality of 
education for children with disabilities. We can focus valuable 
time and fiscal resources on teaching and learning. Our 
children deserve nothing less.
    I will be happy to take any questions. Thank you.
    Mr. Burton. Thank you, Ms. Guard.
    [The prepared statement of Ms. Guard follows:]

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    Mr. Burton. Ms. Baird. If you have a prepared statement for 
the record, we will be glad to use it in the record; but if you 
could stay as close to 5 minutes, it really would be helpful, 
so we can get to questions.
    Ms. Baird. I will try to be unlike most of my colleagues in 
the legal profession and keep it short.
    Mr. Burton. Thank you.
    Ms. Baird. My name is Melinda Baird, and I'm very honored 
to be here today, and I appreciate the opportunity to speak to 
the committee.
    I'm an attorney in private practice in Knoxville, TN, and 
I've been working in the field of special education for 
approximately 16 years. It may not surprise you to know that I 
have a different perspective and view than some of the 
witnesses that have testified today. I believe very strongly 
that in most cases the IDEA is working.
    Over the past 12 years I have provided hundreds of 
workshops and in-service training seminars for thousands of 
teachers, administrators and parents of students with 
disabilities. I would like to say at the outset that I have the 
utmost respect and empathy for all parents of children with 
disabilities, including those with children who are autistic.
    For the past 4\1/2\ years I have been privileged to 
represent school districts in Tennessee, Alabama and Florida in 
litigation concerning the IDEA and section 504. One 
misconception I hope to correct is that parents are advocates, 
and school districts are not. I would also like to dispel the 
notion that school districts have unlimited funds and are 
anxious to pursue litigation.
    Litigation in special education is a major concern for 
parents and for school systems. However, I believe we do need 
to keep it somewhat in perspective. According to the data 
compiled by the U.S. Department of Education, more than 6 
million students were identified in 1998 and 1999 as being 
eligible under the IDEA.
    I annually prepare a yearly summary of all Federal and 
State court decisions affecting special education, and I've 
attached this to my testimony. For school year 2000-2001, my 
summary includes a total of 77 decisions. Of these, parents 
prevailed in 42 percent of the cases, and school districts 
prevailed in 58 percent of the lawsuits. I have prepared such a 
summary for approximately the past 6 years, and the edge of 
majority goes back and forth between parents and schools rather 
consistently.
    This number does not reflect the hundreds of decisions in 
due process hearings conducted at the administrative level. 
However, I think it is remarkable that on average each year 
less than 100 lawsuits are filed in Federal and State court out 
of a total of more than 6 million students receiving special 
education and related services.
    I know there's been testimony today concerning the 
federally funded protection and advocacy organizations. I can 
only speak to my personal experience and information. I can 
tell you that in the States of Alabama and Tennessee 
particularly, there are extremely active and aggressive 
protection and advocacy organizations providing free and low-
cost legal representation to parents of students with 
disabilities, including parents of children with autism. 
Families also have options that I know you're aware of, such as 
filing complaints with the State, with the Office for Civil 
Rights or with the U.S. Department of Education.
    Schools, on the other hand, must fund all of their legal 
costs with no Federal financial assistance. Most school 
districts do not have insurance coverage for these costs, and 
it is for this reason that school districts are very reluctant 
to pursue litigation unless they have carefully considered the 
merits of the case.
    Without exception, the cases in which I have represented 
school districts have involved a difference of opinion as to 
what services are appropriate and required to be provided. I 
can say that I have never worked with a school district that 
wanted to deny appropriate services to a student with 
disabilities. In every case I have encountered administrators 
and teachers who sincerely believe that they were providing 
appropriate services to these students and who wanted to 
provide these services.
    One of the most active areas of litigation involves 
parental requests for particular methodologies, and without a 
doubt the issue receiving the most national attention here 
today and across the country is educational methodologies for 
children with autism. As I said, I practice mainly in Tennessee 
and Alabama. In both of these States intensive statewide 
training has been conducted and is being conducted, and 
significant financial resources have been committed to provide 
local school districts with the latest training in a wide 
variety of methodologies, including Applied Behavior Analysis, 
Discrete Trial Training, and those being the methodologies used 
by the Lovaas methodology.
    I would like to give you some information that I obtained 
this morning, and I'll be happy to provide it to the committee. 
In doing research on Education Administration Online, which is 
an online data base reporting special education decisions, I 
was surprised myself to see a very startling trend, and I think 
it's a positive trend in the cases involving children with 
autism. There are a total reported of 218 cases involving 
children with autism. That includes 59 State and Federal court 
decisions and 159 due process hearing decisions from the 
administrative hearing. That is total, period. There are no 
cases reported prior to 1994.
    I can tell you from my own research that prior to 1996, 
parents won approximately two-thirds of all autism cases, but 
after 1996, parents are not winning that level, and schools, in 
fact, are winning two-thirds of the cases. The cases peaked in 
1998 with 52. In 1999, there were 33. In the year 2015--and 
this year so far there are no reported cases. About half of 
those cases involve parents seeking reimbursement for some of 
the methodologies that you have heard today. I think these 
statistics indicate that schools are receiving training and 
that they are getting their act together, so to speak, in 
knowing how to provide services for children with autism.
    The IDEA has done wonderful things for millions of children 
with disabilities and hopefully will continue to do so. I hope 
that the committee will recognize the efforts of schoolteachers 
and administrators to advocate on behalf of children with 
disabilities, not only those with autism.
    The IDEA was reauthorized, as you know, in 1997. We got 
Federal regulations in 1999. I have been on the road all over 
this country trying to help schools understand what they're 
supposed to do. It's a big burden, but I believe they have 
risen to the challenge. We don't need more laws and 
regulations. We do need full funding at the 40 percent promise.
    And I'd just like to say in closing that I think it would 
be wrong to assume that all complaints filed against school 
districts are without merit, but I think it would be equally 
wrong to assume that all complaints filed against school 
districts have merit. I think the fact that we have the small 
number of disputes that we have is, in fact, evidence that the 
system is working, not evidence to the contrary, and I thank 
you, and I'll be happy to answer any questions.
    [The prepared statement of Ms. Baird follows:]

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    Mr. Burton. Mr. Mayerson.
    Mr. Mayerson. Yes. My name is Gary Mayerson, and I want to 
be sure we don't miss, Mr. Chairman and members of the 
committee, to thank you for giving me the opportunity to speak, 
and I will try to confine my comments to the 5 minutes, if I 
can.
    Mr. Burton. Sure.
    Mr. Mayerson. Initially, just by way of background, I was 
for many years a commercial trial lawyer, almost 17 years, and 
I left the practice of commercial trial in order to become a--
basically to launch my own firm concentrating in educational 
rights for children with autistic spectrum disorders, 
principally an IDEA-type litigation, and I did it because of 
what was going on around the country of children being denied 
those services. And I saw it time and again, and not in any 
particular geographic region. I saw it in New York. I saw it in 
Greenwich. I saw it in Tennessee. I did the first ABA case in 
Alaska, TX. I have now represented children with those autistic 
spectrum disorders in approximately two dozen States now. So 
while I never got my flying license, I know you made reference 
to Representative Lantos, I certainly do fly the IDEA statute 
around the country a lot.
    And basically I'm here asking Congress to put me out of 
business because what I'm hoping that will be done is that 
there will be the sufficient funding, not simply throwing money 
at school districts. I don't think that's the answer. I think 
it is a question of making sure that the money, just like with 
a charity, gets to the people it was intended to serve. That 
doesn't mean padded administration upon administration. It 
means money actually going directly to the services that are 
necessary.
    And the other one is the accountability context. There 
really are--I believe that while there are enough lawyers out 
there that are ready to take retainers to work for school 
districts, there are precious few attorneys who are ready, 
willing and able to represent children with disabilities, and 
in particular children with autistic spectrum disorders. The 
learning curve is very high, the pay is erratic at best, and 
the results can be catastrophic if for any reason you fail the 
child. So for all those risk factors I think a lot of people 
shy away from that. It's very difficult to find people who are 
willing to take on that kind of case.
    Now, I do agree that there are a number of school districts 
around the country who are doing a fine job complying with the 
IDEA statute or making every reasonable good faith effort to do 
so. I deal with a number of those districts around the country. 
I'm able to resolve cases before they become a full-blown 
litigated dispute. That's the way it should happen, and ideally 
I shouldn't even be involved with it. But unfortunately there 
are far too many school districts around the country who, 
because of whatever reason, fear of precedent, fear of 
finances, desire for control, whatever it is, it doesn't 
matter, they stonewall the parents. They tell the parents they 
can't provide it, they can't find the people to provide it, 
they don't have the money for it, or sometimes they even tell 
the parents, we are going to provide it, and then 6 months go 
by and nothing happens, and meanwhile the child who has this 
incredibly limited window of opportunity is dying on the vine.
    I must speak briefly about one intervention in particular, 
which is included in my submission. That is the Applied 
Behavior Analysis intervention. The reason why this is so 
important for these children is that it is the only 
scientifically supported intervention which is proven to 
remediate much of the symptomatology of autism and to get rid 
of the behaviors and the interfering behaviors that prevent 
these children from fully mainstreaming. There is a very 
seminal study from 1987; Dr. Ivar Lovaas. There was a 1993 
followup study. Both of these studies show with very intensive 
intervention of ABA, given over a 2 to 3-year period, 
approximately 47 percent of these children in these control and 
experimental groups were able to mainstream and go into regular 
education with their typically developed peers and be 
considered, ``indistinguishable.''
    Whether they're indistinguishable or not for me is not the 
important thing. The fact is they're succeeding in the classic, 
least restrictive environment setting, and I don't care that it 
is not 100 percent, because like any intervention or medical 
intervention, some people are allergic to penicillin. Does that 
mean we shouldn't give penicillin to children with ear 
infections? No. It's the first and only scientifically 
supported intervention that's come out to remedy the impact of 
autism. That's huge. We don't have any other interventions with 
that kind of track record.
    The Surgeon General of the United States in 1999 came out 
with a report on mental health where he called Dr. Lovaas' 1987 
study a, ``well-designed study;'' talks about 30 years of 
behavioral intervention and research on that. So this is not 
something that's experimental, it's not something that's new. 
It's just something that's been proven, and yet school 
districts will stonewall the parents and say, we are not going 
to give it to you, or we want to choose a different 
methodology, and our methodology is the same old special 
education that we've been giving for the last 50 years. That's 
not right. That goes against the whole grain of what the IDEA 
statute was designed to implement.
    I've got a number of important examples of how school 
districts have victimized families in my written presentation. 
Ms. Baird had mentioned the fact that she gives several hundred 
presentations, or she's given hundreds of presentations. One of 
the presentations that I have highlighted in my package is one 
called ``How to avoid Parents' Demand for LOVAAS.'' That's not 
what IDEA says. You don't go around spending taxpayer money 
educating people on how to avoid parents' demands; or Ms. 
Baird's own most recent one, How to Build a Legally Defensible 
Autism Program.
    And just in closing, I know that my time is already up. I 
could stand here for quite a bit of time, and I apologize if I 
have gone over at all, but my comments are contained in my 
written submissions. Thank you very much.
    Mr. Burton. Thank you, Mr. Mayerson.
    [The prepared statement of Mr. Mayerson follows:]

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    Mr. Burton. Mr. East.
    Mr. East. Thank you, Mr. Chairman.
    My name is Bill East, and I'm pleased to represent the 
State directors of special education here today. I am executive 
director of the National Association of State Directors of 
Special Education, an organization based in Alexandria, VA, 
with members in the 50 States and Federal jurisdiction.
    My organization supports State education agencies in 
providing leadership for the implementation of the Federal 
special education law, the Individuals With Disabilities 
Education Act. In celebrating the advances made possible by 
this law, we recognize that special education is a complex 
system with many challenges. The 1997 reauthorization 
significantly raised the bar for students, parents and schools. 
State directors of special education realize that the revised 
Special Education Service System can only be implemented with 
effective collaboration with general education, a strong focus 
on student and system results, and less emphasis on special 
education process and paperwork, sufficient numbers of properly 
trained personnel and full funding.
    Generally, most children with disabilities receive the 
services they need. However, the 6 million children served by 
this law could benefit from a system with higher expectations 
and increased accountability. While the needs of students with 
disabilities have always presented challenges for schools and 
families, the increasing numbers of children diagnosed with 
autism and learning disabilities have created more challenges. 
Further, the increasing number of students served outside the 
traditional school environments, such as charter schools, 
juvenile justice centers and other alternative environments, 
make it more difficult to ensure educational quality and 
procedural compliance. Schools are working to include students 
with disabilities in the general curriculum assessment and 
accountability systems in the context of increasingly higher 
standards.
    State directors of special education welcome these 
challenges, but know that the work force is not adequate to 
meet current demands. Schools are working to provide free 
appropriate public education to all students with disabilities. 
However, the system on any given day will probably never be in 
compliance if compliance means 100 percent student success rate 
or 100 percent adherence to many regulations put in place to 
implement the law. It is quite possible to have all the 
procedural paperwork in order without good teaching and 
learning going on.
    The system has adequate procedures to deal with the 
disputes between parents and schools with complaint, mediation, 
due process and litigation options. We must not necessarily 
equate disagreements between parents and schools with 
noncompliance. Even within a compliant system, disagreements 
about services will occur.
    State directors believe that monitoring efforts must be 
strengthened, but the focus needs to change from an emphasis on 
the special education process to an emphasis on student results 
and system accountability.
    With each IDEA reauthorization, new amendments and 
implementing regulations bump more legal costs into the system. 
Sometimes due process hearings and litigations are necessary, 
but other times the problems can be resolved in less 
adversarial and costly ways. State directors of special 
education believe that dispute resolution and mediation systems 
should be promoted as more desirable avenues for resolving 
complaints.
    Federal funding for special education programs has always 
been inadequate, and full funding is needed to ensure equal 
opportunity. Funds appropriated for special education are 
making it into the classroom, but more is needed. Federal funds 
utilized by State education agencies also benefit local 
schools. As increased funds are made available, State education 
agencies must receive more because they are accountable for 
implementing the IDEA.
    Families and schools face many challenges in providing 
services. While these differ from place to place, personnel 
issues are on everyone's list. The quality and availability of 
personnel is a critical matter demanding immediate attention. 
Higher education personnel preparation programs must be 
restructured to meet current needs. Schools must better 
recognize and utilize the expertise parents have related to 
their children's skills and abilities. And finally, the needs 
of children from other cultures and languages must be met as 
they often move into communities ill-prepared to receive them.
    In my written testimony I have some 10 suggestions that are 
ripe for support by the Federal Government, and I'll let you 
read those, and we may get to them in the questions, and I just 
want to emphasize three or four as I close: Continue efforts to 
fully fund the IDEA; help States provide sufficient numbers of 
properly trained personnel; hold States accountable for student 
outcomes, while providing increased flexibility as an incentive 
for results; and last, acknowledge the important leadership and 
oversight roles State education agencies play in implementing 
the IDEA, and support them with the resources to be successful.
    Thank you.
    Mr. Burton. Thank you, Mr. East.
    [The prepared statement of Mr. East follows:]

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    Mr. Burton. Mr. Amundson, did I pronounce that correctly?
    Mr. Amundson. That's close enough. Thank you. Thank you, 
Chairman Burton. You have my written testimony. I would like to 
apply adult learning theory and not read to you what you have 
in your hands, and just give you some other comments that may 
be relevant.
    My name is Ed Amundson, and I serve as the chair of the 
National Education Association's Caucus for Educators of 
Exceptional Children. In that role for the past 5 years, I have 
been involved in the reauthorization of IDEA as well as the 
implementation with the Federal partners that were created 
under the reauthorization of IDEA with ASPIRE, ILIAD and some 
of the other groups.
    I speak to you today not in that capacity. I speak to you 
today as a classroom teacher who is teaching for more than 20 
years. In fact, I can remember my career started when I was in 
fourth grade doing a carnival for muscular dystrophy. By the 
time I was in junior high school, I was working with aphasia 
children and working in summer camp programs. So this was a 
life decision that I do today.
    I'd like to tell you that NEA has long supported the 
Individuals with Disabilities Education Act. It's a good law 
that holds lots of promise. In fact, NEA played an integral 
role in the reauthorization. At one point when the law looked 
like it was going to fail, all the stakeholders, including 
parents, State directors of special ed, administrators, were 
brought into the building, and they came up with a compromise. 
With all compromises not everybody got what they wanted, but 
they got what they needed, and we all agreed it was a good law.
    I look around this room today, and I see many of those 
people, and I like to refer to it as the reunion of the class 
of 1997 that worked so hard on the reauthorization, but IDEA 
does hold a lot of promise. Unfortunately, lack of information, 
inadequate funding, misplaced emphasis on paperwork rather than 
teaching has created onerous burdens for educational personnel 
and have jeopardized the education for all students.
    I can remember before IDEA 97 was Public Law 94-142. When 
that law was passed, we would come together in an IEP meeting, 
and there was a sense of trust. There was a sense of 
accomplishment as we sat with parents, teachers, administrators 
and developed a program that would meet the needs of that 
child. We all felt good about what we did. We'd hold hands and 
sing Kumbaya and feel good that we had done something positive. 
Unfortunately today that trust has been broken.
    Many times parents come to an IEP meeting feeling that 
they're going to ask for things that the schools will not give 
them, and many times the schools are afraid the parents are 
going to ask for things they cannot give, and the trust is 
broken. We no longer have an atmosphere of cordiality. We have 
an atmosphere of hostility and lack of trust.
    I've talked with NEA members across the country who 
routinely express their frustration with the unwanted 
paperwork. It was not the intent of IDEA to create more 
paperwork. In effect, educators have made a real commitment and 
received additional training to teach special needs students; 
however, they find themselves filling in the boxes and less 
time filling in the kids. What we have now is we have more 
focus on the IEP product and no longer focused on the IEP 
process.
    Much of the paperwork burden stems from the people, the 
misunderstanding of what IDEA intended. Many times many State 
and local administrators apply paperwork requirements that are 
basically to assure they're in compliance, and that's the 
problem. Under 94-142, we used to look to see if people were in 
compliance. Today the focus is looking to see if people are out 
of compliance. That does not lead to good practice. That does 
not lead to good education.
    We need the Federal Government to provide leadership under 
IDEA 97, to let people know what they truly need and what they 
do not need in their monitoring process. Too often the district 
will have things in there that they do not need, and they're 
not told that you don't need this extra paperwork, and when 
they're told something is wrong, they don't change it. They add 
more to it.
    NEA also supports the appropriation of sufficient Federal 
resources to hire professionally certified medical personnel to 
provide safe quality medical services to our students. In the 
school district I teach in, we have over 5,000 special ed 
students. We have four full-time nurses assigned to those 5,000 
students. One of those nurses is full time in the school for 
children with severe disabilities. The other three cover the 
other 5,000. That's not an appropriate service for our 
children.
    Parents have the right to expect the highest quality 
services for their children and should not be forced to rely on 
ill-prepared educators to perform procedures for which they are 
not trained.
    NEA also believes that students who engage in violent or 
disruptive behavior should be subject to similar disciplinary 
actions, including suspension and expulsion, as their 
nondisabled peers, where the misconduct is unrelated to either 
their disability or improper placement. Too often, however, 
fear of litigation prevents schools from taking action even 
when students pose a danger to themselves, other students or 
school employees. The law allows people to do the job they can 
if the law is applied and due process is followed. 
Unfortunately many school districts are afraid of litigation 
and do not follow the process.
    NEA also supports the ramping up to the full 40 percent 
over the next 6 years for IDEA funding. Let's be honest, IDEA 
funding is a grant program. There was a promise by the Federal 
Government that we've never come close to reaching. The current 
law provides an excellent framework for ensuring the highest 
quality education for all students with disability. With the 
proper supports our special education system will meet the 
needs of all students with disabilities.
    I'd like to close to tell you that we have a parallel 
system operating today. The law now that we have before us 
allows for the different uses of the funds. We have permissive 
use of funds that can allow for early intervention programs 
that hopefully will avoid some of the problems we see today. I 
remember the day when students could not touch my special ed 
eraser if they were not special ed students. The law allows us 
that flexibility. However, we have students in the system that 
do not have that, were not available to them at that time, and 
they present special needs to us. We need to find a way to not 
only meet the needs of the students who are coming into the 
system today, but to also meet the needs of the students that 
are with us.
    And finally, when I talk to teachers around the country, I 
tell them that they're heroes. What they do every day, they're 
heroes. And a teacher said to me, I'm not a hero, I'm just an 
ordinary person; a hero is a fireman who runs into a burning 
building. Well, I would submit to the members of this committee 
that the teachers are heroes. They do run into burning 
buildings every day. Unfortunately, like firefighters, they're 
not adequately trained or prepared to deal with the problems 
that they will have to face when they run into that burning 
building.
    And last, when I talked to a group of teachers one time 
about a student with special needs that was about to be 
included in their school, we went around the room and posted on 
all four corners of the walls all the concerns these teachers 
had about educating this child, and at the end I asked them, 
now that we know what your concerns are, what are your fears, 
and the teacher looked at me and said, I am a good teacher, and 
if I do not know how to meet the needs of this child, I will 
fail, and as an educator I cannot do that.
    I ask that we look for providing the adequate training and 
resources to support the people who do the job every day, and 
I'd be happy to answer any questions.
    Mr. Burton. Thank you, Mr. Amundson.
    [The prepared statement of Mr. Amundson follows:]

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    Mr. Burton. First of all, I'd like to ask all of you if you 
could--I'd like to ask all of you the same things that I have 
asked the other panel, and that is, suggestions that you might 
have that could improve the IDEA program. I think it's 
important that we realize that there are some shortcomings, and 
we're not pointing fingers at any individuals or any group of 
individuals, and if we can figure out a way to make it better, 
make it more effective without creating more bureaucracy and 
more paperwork, then I think that would be a giant step in the 
right direction.
    So while you're thinking about them, let me just ask a 
couple of questions.
    Ms. Baird, as Mr. Mayerson was saying, I'm looking at this 
program agenda, I guess, for one of your presentations. It 
says, special education for early childhood autistic students, 
how to avoid parent demands for LOVAAS/TEACCH methodologies. 
You know, I mean, maybe that's a legitimate topic, but it seems 
to me that maybe could have been worded a little bit 
differently, because parents are concerned about the well-being 
and the education of their children, and having been involved 
personally in one of these meetings and experienced it, I think 
that you know parents don't want to demand any more than they 
think is necessary for their kids. They want them to be 
educated. They want them to be able to be educated. They don't 
want them to be a burden on society.
    I mean, my grandson, I'm going to give you an example, he's 
going to be 6 foot 10. You know, I'd like for him to be in the 
NBA so he can support me, you know, and I'm kidding, of course, 
but the point is the doctor said he's going to be very big. 
Now, he's autistic. He ran around the house flapping his arms 
and--but he's doing much better now. His doctor, who is an 
expert in this field, said that he needs at least 2 hours a 
week of speech therapy, and so he can progress properly. The 
school, as you heard previously, had a meeting before we even 
got there and had decided that 1 hour was sufficient without 
even talking to my daughter or myself.
    And those sorts of things really bother parents because 
they have an expert in the field, a doctor who studied, who got 
his degree in that area, and who has worked with thousands of 
children, and a young lady who is 23 or 24 years old in the 
school system there, probably a very good speech therapist and 
good teacher, made a determination that half of that was 
sufficient. And so when I see something like this and a parent 
hears about that or hears you making a statement at a meeting 
that, you know, parents want a Cadillac, but you guys only have 
to give them a Chevrolet, explain that to me.
    Ms. Baird. I'd be happy to explain that, and I appreciate 
you giving me the opportunity to explain that. I suppose that 
the statements you're referring to, although I don't recall it 
directly, is from the program that I recently did. The title of 
the program was Building a Blueprint for a Defensible Autism 
Program. The intent of that----
    Mr. Burton. A defensible autism program?
    Ms. Baird. Yes. And never in my career have I had such a 
response from a title of a program. Let me explain and clarify.
    Mr. Burton. Sure.
    Ms. Baird. A defensible autism program is one that is 
appropriate for the individual child based on that child's 
unique needs. The whole intent of that program--and, frankly, I 
was a little personally affronted by it, because myself and 
Melissa Genaux, who was my colleague, who did the programs, 
developed those programs and went on the road to do that for 
one reason and one reason only, and that was to take 
information to school districts about what they were going to 
have to do to develop appropriate programming for children with 
autism. In no way was it in an effort to get around appropriate 
programming or to somehow avoid it.
    And I would love to explain the Chevy versus Cadillac 
analogy. That is not mine.
    Mr. Burton. Before we get to that, if you could explain how 
to avoid parent demands? I mean, gee whiz, you have a parent 
who's not a Congressman, who doesn't have all the ability to 
raise hell about these things, they don't know the legal 
process, and they see that you're talking to people in a school 
corporation and you're saying how to avoid parent demands, and 
they've got a child that's autistic, how are they supposed to 
interpret that?
    Ms. Baird. Well, again, Congressman, all I can tell you is 
that the intent of the program was to educate schools about 
providing appropriate programs. I'm not an expert on autism. 
Neither do I claim to be. I'm an attorney who's had some 
experience in this field. I have had a lot of experience with 
parents making demands for particular methodologies, including 
LOVAAS/TEACCH, the Orton Gillingham method for children with 
learning disabilities, different methodologies.
    So the intent of the program was not to say to a parent, 
you can't have what you want. The intent of the program was to 
educate school districts. And I might add that in every single 
session if you want to get down to the bottom line of the 
session, my message to school districts was, and here I will 
agree with Mr. Mayerson, that the LOVAAS methodology, which is 
conditioned upon the principles of applied behavior analysis 
and discrete trial training, has been scientifically proven to 
be a positive methodology for children with autism and other 
children with severe disabilities, and as a matter of fact, I 
have heavily advocated to my clients and to those people who 
have come to the seminars that they must include applied 
behavior analysis and discrete trial training in any effective 
and appropriate program they develop for children with autism, 
and I have been very consistent about that.
    Mr. Burton. I will have some more questions, but I will now 
yield to Mr. Allen for questions.
    Mr. Allen. Thank you, Mr. Chairman.
    Mr. Burton. I believe you have been here longer. Would you 
like to go first?
    Mrs. Maloney. Absolutely. And I was listening, I had some 
constituents who came to visit me, and I was out in the hall.
    Mr. Burton. And I know that you're very resigned to always 
being last and everything, but I don't want you to get upset 
today. So go ahead.
    Mrs. Maloney. Thank you, Mr. Chairman, but I really would 
like to followup on your level of questioning and the theme 
that you have presented.
    I'd like to ask Mr. Mayerson, are there sufficient remedies 
at present to ensure that school districts will comply with 
IDEA, and if not, do you have any recommendations for the 
committee?
    Mr. Mayerson. Well, I think as we've said today that really 
is the million-dollar question. I don't think I'll have to call 
my lifeline to answer that one. First of all, I think--the 
parents have to have faith in the integrity of the system. We 
start with that. That means in order to have an impartial 
hearing, it really has to not only be impartial in fact, it has 
to look impartial.
    For example, in the State of Utah, where there's a Federal 
lawsuit pending right now to challenge the way that they select 
their hearing officers, the fact of the matter is not a child 
has ever won in the State, has ever been the substantially 
prevailing party ever in the State of Utah, ever. No child has 
ever won. Now, that may actually have an impact on the kind of 
statistical data that Ms. Baird is collecting recently and have 
something to do with the fact that virtually all of the hearing 
officers that are on the list--to get on the list, virtually 
all of them are connected. They're either the special 
administration director of the neighboring school district, or 
they're the attorney for the neighboring school district, and a 
parent doesn't have a chance. So that's one thing, create an 
integrity in the system.
    Two, there's a section that you have in this Code of 
Federal Regulations, 34 CFR, section 300.403, and what this 
section does, it says that if the hearing officer finds that 
the parents engaged in some kind of inequitable conduct or 
unreasonable conduct, that a child that otherwise would have 
prevailed at the hearing, the hearing officer has the 
discretion to knock down the award or even to eliminate the 
award.
    You know what? That's fair, but what's fair is fair, too, 
and I say if you're going to have a section like that that 
basically puts the onus on parents, that if they're not 
unreasonable, that they could lose their child's award, that 
you must also have the same kind of accountability for school 
districts; and that if, in fact, you have the kind of examples 
of patent bad faith that I've appended to my submission, that 
if the parent can prove that and has to go through, as I've 
recently gone in Ms. Baird's home State of Tennessee, a 30-day 
hearing for a family that is teetering on the verge of 
bankruptcy, that if a family like that can prove bad faith, 
like almost a punitive damage kind of remedy, that I don't want 
to encourage litigation, but if it reaches a certain level of 
patent bad faith, and the hearing officer so finds, that's the 
kind of accountability that I believe that school districts 
will be very careful about, because right now if you're the 
school district, it's not like the parent that has to go and 
open a checkbook. Everybody can point the finger at everyone 
else. It's no one's checkbook because it's the district's 
checkbook. And if the district has to just give, at the end of 
the line of the litigation, after 30 days of hearing, precisely 
what they should have given without litigation, maybe some 
attorneys' fees, you know what, it's no big deal because many 
districts are afraid of precedent. They're saying, you know--
and it's in my submission--they say, we are afraid not of this 
child, but of the maybe six or seven other children we may have 
to pay for. So we would rather delay this child in a 30-day 
hearing and maybe we'll buy 2 years than to give all six of 
those children an intervention.
    And I just want to point out one other thing about the cost 
aspect in answering because this is a huge point. This is the 
point, the cost. There is a cost-benefit analysis that's 
appended to my papers, was published in a peer review journal, 
that shows that you might for these children with autism spend 
several hundreds of thousands dollars on an up-front basis to 
get them the right intervention, but if you don't do the 
lifetime costs of it are totaling several million dollars per 
child. That's something I think Congress can easily understand.
    Even if you look at this from the perspective of the 
administrator, who may be looking at just this year's budget, 
let's just fix this year's budget, you have to have a long 
view, and if you take a long view, it is more cost-efficient to 
provide the intervention up front even if it does take several 
hundred dollars. It's not cheap. We give children that need 
lifesaving operations $300,000 surgeries, and we should, but we 
shouldn't shirk from giving those children the same type of 
interventions if it is required to get them into--to have some 
kind of functioning so they can join society and have jobs and 
be in regular education.
    Thank you.
    Mrs. Maloney. Well, my time is up, but did you mention that 
Ms. Baird had visuals and brochures of how the school districts 
did not have to live up to their responsibility?
    Mr. Mayerson. Well, yes, there are----
    Mrs. Maloney. Could you give them for the record?
    Mr. Mayerson. They are in the record, and I put them in the 
record. One of them in particular is how to build a legally 
defensible autism program. Another one of the brochures is also 
in there. Apparently there's hundreds of them, and they are not 
for parents. I take issue--although some parents have been 
managed----
    Mrs. Maloney. They're not for parents? They're for the 
school district? Who are they for?
    Mr. Mayerson. No. The first brochure that I put in is 
called a private briefing for administrators, school districts 
and so forth. Maybe a parent might accidentally be able to get 
in and see what goes on, and that's, in fact, how I got the 
first brochure.
    Mrs. Maloney. Do you mean to tell me that they're handing 
out brochures on how school districts will not respond to 
parents or live up to the law; is that what you're saying? Is 
that what you're saying?
    Mr. Mayerson. Congresswoman Maloney, not only am I saying 
it, I have one of the brochures, which is tab 6 of my 
presentation. It's entitled ``A Private Briefing Designed for 
School Board Members, Central Office Administrators, Special 
Education Directors, Building Administrators and Regular 
Educators Focusing on Special Education Issues.'' It was 
presented by a law firm in Missouri called Peper, Martin, 
Jensen, Maichel and Hetlage, as well as the Missouri 
Association of School Administrators and the Missouri U.S. 
Insurance Council, which insures the districts when they get 
hit with due process complaints. And page 2 is entitled----
    Mrs. Maloney. Is that legal to hand out that kind of 
information on how to shirk the law basically?
    Mr. Mayerson. In fact, I wrote to everybody involved and 
expressed my outrage that taxpayer money, which obviously the 
school districts that attend this have to pay with taxpayer 
money to attend these seminars, and expressed my outrage that 
this--such money was going for such purposes, and all that has 
succeeded in doing is sanitizing these kind of presentations so 
now we have this thing called ``How to Build Legally Defensible 
Autism Programs.'' I think it's the same presentation, just 
under a different name.
    Mrs. Maloney. That's unconscionable.
    My time is up. Thank you, Mr. Chairman, for focusing 
sunshine on this issue. I think it's a very important one.
    Mr. Burton. I hope that you and possibly Mr. Allen and 
others on both sides of the aisle will work with us to create 
maybe some corrections to the IDEA law so that we can make sure 
that some of these problems are eliminated.
    Mr. Allen.
    Mr. Allen. Thank you, Mr. Chairman, and thank you for 
holding these hearings. I certainly appreciate the chance to 
focus on this particular area, I guess I should say.
    Let me just say a few words. I come from the State of 
Maine. I represent the district around Portland, ME, and over 
the last month I've had about four different meetings, actually 
about six, with parents and educators and teachers. In four of 
those meetings in specific school districts, we were running 
through a list of different problems that they were having, and 
in Maine you should know we have about 230 school districts. We 
are sparsely populated, we're spread out, and our school 
districts tend to combine several different municipalities at 
once.
    The No. 1 problem mentioned over and over again was the 
level of special ed funding from the Federal Government. The 
other two were how are we ever going to recruit new teachers, 
and how are we going to build new schools, but those were the 
three. Special ed was the top.
    In Maine I think we've got a special ed program that in 
broad measures works and works fairly well; 16 percent of all 
Maine children are in some form of special ed. We're doing a 
good job, I think, of identifying the kids who need it and 
making sure they get the services they need, but we do have 
resistance from school boards because despite the success of 
the program overall, there is a huge problem.
    Special ed spending at the local level is eating up a large 
part of the available increases in funding overall. So there 
are three groups that are impacted, special ed kids, kids with 
disabilities, and the property taxpayers who are now picking up 
an undue share of the expense. It seems to me that because the 
Federal Government issued a mandate for special ed and then 
didn't fund it at the goal of 40 percent, we're putting a 
tremendous financial burden on our municipalities and school 
boards, and it seems to me--oh, one other thing just by way of 
background, Maine does an educational assessment for 4th-
graders, for 8th-graders and 11th-graders, and it takes about a 
week. It covers a whole variety of subjects. One superintendent 
told me the other day that the fourth grade--in his fourth 
grade reading test, 14 percent of the kids failed. Of those, 
despite the special help, 60 percent were special ed.
    So one of my questions is to you, Mr. Amundson. I am 
concerned if we start to do relatively high-stakes testing, it 
seems to me we're going to come back to a problem of whether or 
not our special ed programs are working well enough so that 
kids who are getting these services being brought up to a par 
with regular students. That may not be possible, but it seems 
to me that the testing issue is very much connected to the 
funding issue.
    Before I let you speak, I want to say one more thing. I 
believe we need to do full funding now, no phase-in, no 
nothing, just go straight to full funding now. It is $11 
billion more than current levels for the next year, and this is 
probably the only time in the next 10 years that we can do it, 
and we can only do it if the tax cut, the proposed tax cut, is 
reduced by the $150 billion or $200 billion it would take to 
fully fund special ed over 10 years. That, I think, would 
transform the effect of this program on our local school 
districts, and I know you have been calling for it, and other 
people have called for it. This is the only chance I think 
we'll have to do it, and it seems to me it ought to be done, 
but I would like Mr. Amundson or anyone else to turn back for 
this question of how a testing--a tougher testing regime will 
affect the overall special ed program.
    Mr. Amundson. Well, Congressman, several months ago I posed 
this question to my special ed class, government class, 
seniors. In California they're instituting an exit exam for all 
high school seniors in order to receive their diploma, as well 
as we have the API, the Academic Performance Index, which is 
based on standardized testing at all grade levels, and schools' 
performances are judged on these standardized tests.
    As an organization, as a teacher, I believe in assessing my 
students. I believe that's important to find out the progress 
they're making, but I also believe the testing needs to be 
curriculum-based and based on the instructional strategies that 
I'm utilizing in my classroom and measuring what the students 
are learning. Too often the standardized test measures what the 
students do not know and doesn't really measure what they do 
know. I've heard students say that sometimes they just color in 
patterns on the test because it has nothing to do with the 
curriculum they have in the classroom, and we are using that as 
a measure of whether students or schools are succeeding. I saw 
a cartoon in the ``USA Today'' about today's curriculum the 
teacher's written on the board. We have art, poetry, recess, 
and then standardized testing, and that was today.
    I think the testing does have a role, but what I'm seeing 
now is many teachers are afraid to have special needs students 
in the classroom because if they're going to be assessed on the 
success of those students, and the appropriate accommodations 
and modifications necessary are not allowed for those children, 
then the scores in the classroom could well come down, though 
research does show in many cases scores actually go up when 
students with special needs are included, because not all 
students are learning-disabled or have academic difficulty. But 
what does happen is teachers are fearful that they will be 
measured on things that they cannot control when they were the 
ones who said, I want this child in my classroom, I want to 
educate this child, but now that I can't control an environment 
of the accommodations and modifications, I may be judged on 
that, and I may lose out on moneys or funds that will be given 
to the school, and I'm the one who volunteered to take this 
child.
    So it does have an impact, and I think the exit exam in 
itself, we're going to be creating two separate educational 
systems, one for children who are on a diploma track and one 
for children who are not, and I think that's the concern, 
because if you look at what the standards are based on, 100 
percent of the curriculum in high schools is geared toward the 
Carnegie units and how students apply to universities; 30 
percent of the graduate population goes on to complete a 4-year 
degree; 70 percent of our population is left out of the goal of 
the high school curriculum, and it's not just special needs 
students. There are general ed students that are going to be 
involved, too. So I think we have a bigger question, not just 
on the special ed issue, but it does severely impact in what 
people are trying to do.
    Mr. Allen. Thank you.
    Mr. Burton. If you'd like to ask more questions, I will get 
right back to you. Let me just followup on that, and this 
really, I guess, doesn't follow the topic of the hearing, but 
it seems to me that there ought to be some way to come up with 
some kind of a testing program that will be able to test 
whether or not the children across the country--some kind of a 
standardized test program that would take into consideration 
the special needs children and the other kids that are in the 
classroom, and I hope that the NEA will maybe work with those 
of us in Congress who believe that we've got to have some kind 
of a measuring device to decide whether or not kids are coming 
out with the kind of quality of education we want.
    I don't know that you need to make a big, long comment on 
that, but, you know, the President has said I think in his 
State of the Union Message and others that he wants testing to 
make sure kids at certain grade levels are achieving. And I 
understand the concern of teachers who have special needs kids, 
and there are others who may not be able to move up as rapidly, 
and the average would bring them down and make them look like 
they're not good teachers, but there ought to be some system 
devised with the help of the NEA and other teachers' unions to 
take that into consideration.
    Mr. Amundson. Well, briefly, Congressman, you should take a 
great deal of pride that the State of Indiana has a very unique 
testing system that does not just base itself on standardized 
testing, but also has a special three-prong program. Students 
can go through and take the standard tests to receive their 
diploma. There's a second pathway that students who are 
enrolled in a special instructional program, when it seems that 
they have difficulty, to be able to do better on the test, and 
they receive extra tutoring. And there's a third program that 
requires 95 percent attendance as well as a portfolio of 
assessment of the student given to them by the teachers of them 
to say they may not do well on tests, but they demonstrate 
knowledge. And I think Indiana is a model that we're looking at 
that other States should be incorporating.
    Mr. Burton. Well, that might be one of the things that you 
could recommend that we'll take a look at, and I will talk to 
my colleagues in the Indiana Education Association, ISTA, and 
talk to them about that.
    I don't want to get into a big, long debate about these 
issues. I know Ms. Baird has one position, maybe Ms. Guard has 
another, Mr. Mayerson has another, and Mr. East another. What I 
really would like to have is suggestions from you that we can 
all take a look at to make it--to make the IDEA program better, 
to make it more workable, to make sure that special needs 
children do get the best education possible. And so if you 
could just real briefly give me a couple of suggestions, or 
maybe if you're not prepared to do that right now, get them 
back to us. I really would appreciate it so that we can take a 
hard look at the current law and see if we can't make it 
better.
    Parents like my daughter, parents like the ladies and 
gentlemen who testified here today who have autistic children 
or special needs children, they're so frustrated, they don't 
know what to do. Some of them have almost gone bankrupt trying 
to take care of their families, make sure their children get a 
quality education. So something needs to be done to make sure 
they have confidence in the system, No. 1; and No. 2, that the 
kids do not become a burden on society when they become 6 foot 
10 and they're adults. I mean, my grandson is going to be a big 
guy walking around like Shaquille O'Neal, and I want him to be 
able to at least get a job. I don't want him to be sitting out 
under a tree someplace not able to deal with society. And I 
know parents all across the country feel like that.
    So give me some ideas that we can incorporate into our 
thinking, and I will start with you, Ms. Guard. Do you have any 
that you would like--or would you like to get back to us?
    Ms. Guard. Yes. I can certainly tell you some of the 
challenges that districts are facing as they implement the 
current law. I'm not in a position to talk about changes that 
we would recommend for them.
    Mr. Burton. All right. Well, would you do me a big favor, 
and if you could get back to Beth, that's my chief expert on 
these issues, if you could get back to her with some 
suggestions we'd appreciate it.
    Ms. Baird.
    Ms. Baird. Yes, thank you. I would like to reiterate a 
theme we've heard all day long, and that's increasing funding 
for special education programs and services.
    Mr. Burton. We're going to work on that.
    Ms. Baird. The other comments that I would make come to you 
from the many, many comments I hear from schoolteachers and 
administrators as I go out and talk with them. I know that 
there is pending legislation to retool or refine the discipline 
requirements in the IDEA. I can tell you from the local school 
base there's a lot of interest in doing that. I would hope that 
part of the increased funding could go for behavior management 
techniques and training for schoolteachers who are dealing with 
students with emotional problems and behavior problems and for 
alternative school programs.
    Reduction in paperwork is a major priority that the people 
that I talked to are interested in. The paperwork burden has 
increased, not decreased, after the reauthorization. And one of 
the final----
    Mr. Burton. Let me just interrupt on that point. We need 
some guidance on how you reduce the paperwork. Just to make a 
general statement, reduce the paperwork, I mean, there must be 
forms and documents that have to be prepared about a special 
needs child. What I'd like to have more specific is how do we 
reduce the paperwork, how do we consolidate the amount of 
questions that are asked so that we can get through that 
quicker.
    Ms. Baird. Well, it goes back to the requirements of the 
law, and I was about to say that in 1997 there were sweeping 
changes made in this law in order for school districts to 
document and prove that they are in compliance. And I agree 
with the comments Mr. Amundson made. Pardon me for 
mispronouncing your name. We have gone far beyond the original 
intent of what an IEP is supposed to be, and in order for a 
school to have a defensible appropriate program, it's an 
incredible amount of paperwork in terms of IEPs, goals, 
objectives, short-term objectives, manifestation 
determinations, and I'd be happy to provide a list of some of 
those things later.
    There's also another area, the last one I'll mention. I get 
a lot of input and interest from clients and school personnel 
on the category of emotional disturbance. There's a tremendous 
increase in the number of students with behavior problems in 
public schools and a tremendous amount of longing among school 
personnel for techniques in how to deal with those students. 
The law has always and still does exclude students with social 
maladjustment, but we have never had a definition of what that 
means, and those would be the comments I would make.
    Mr. Burton. Mr. Mayerson.
    Mr. Mayerson. I know you're looking into the causes of 
autism, and we really have no control over that.
    Mr. Burton. No. We have people who testified today that the 
children were autistic from birth. We have others who had 
autism, they believe, coming right after certain kinds of 
vaccinations.
    Mr. Mayerson. I think in that case I would defer to 
science, and I know that right now if you look at science, 
there is no testing for autism which is scientifically reliable 
before the age of about 15 months, so that I think--and I also 
agree with you, Mr. Chairman, when you say that you have to 
look to parents, because if they're doing it 24/7 with the 
child, they know things that other people just don't know.
    So anyhow, I would be saying that I would like to, with 
permission of the committee, I would propose to draft some 
proposed sections to modify the current statute in such a way 
that would, I believe, simplify; to provide a disincentive to 
school districts as well as to parents to engage in inequitable 
or bad faith conduct which nobody wants from either side; as 
well as the whole issue of oversight on the funding, where the 
money goes and how to make sure that it really gets to the 
children as opposed to just building up layers of 
administration and bureaucracy that nobody wants.
    Mr. Burton. We'll welcome your suggestions, and if you want 
to put those in writing, that would be very well received.
    Mr. Mayerson. I will do so.
    Mr. Burton. Mr. East.
    Mr. East. Mr. Chairman, we will put our thoughts in writing 
as well.
    I will just mention a couple of things. Once you get beyond 
the full funding issue, there are two things that really come 
to my mind that I hear from our members, and that is, there's 
just a critical shortage of properly trained personnel across 
this country that work with people with disabilities. That is 
not only special education teachers, but the general education 
teachers who are now dealing with special education students in 
their classrooms. They don't know what to do.
    Mr. Burton. Let me interrupt. We--I said in my opening 
statement, I don't know if you heard it or not, that we might 
come up with a program which would--in exchange for teachers 
being--getting their educational benefits provided for them, 
that would spend 4 or 5 years in special ed training and 
teaching of children in urban or rural areas, that they would 
get their expenses for education paid in exchange for the 
commitment to teach in that environment for at least 5 years. 
We do that for medical students. What do you think about that 
idea?
    Mr. East. I think that's an excellent idea. What I'm 
concerned about, though--and that would help us in the future. 
What I'm concerned about is all the thousands of teachers that 
are already out there, and they have children in their 
classrooms right now, and they need training and support of 
general and special education teachers, because IDEA 97 did 
change the way that we do business because we're exposing 
children with disabilities, more and more of them, to the 
general curriculum. That's good, but the teachers that are 
teaching that general curriculum don't know how to work with 
these children.
    Another thing is I think we need to continue to work toward 
a strong focus on student results and system accountability. 
State directors of special education promote this and support 
it. We have accountability now, higher standards, greater 
expectations for promotion and graduation. We want those for 
special education students as well, but we've got to focus on 
it. Special education for so long has been focused on do you 
have the paperwork in place, is everything in the folder in the 
right order. Now we need to focus on is the child learning, 
what are their scores on assessment, and what do they do in 
adult life after they leave us. And so the focus on results 
accountability is what we need to look at.
    Mr. Burton. If you could, we've written that down, but if 
you could send us any additional information you have, we'd 
like to have that.
    Mr. East. We'd be glad to.
    Mr. Burton. Mr. Amundson.
    Mr. Amundson. There'd be three things. No. 1, we do need 
strong leadership from the Federal level. Too often the Feds 
take too much blame and too much credit for things about 
education, but we do need strong leadership as to what States 
are expected to do.
    I also think that we need a maintenance of effort to assure 
that the increased funds that come in do not limit the 
obligation of State and local districts to what they're 
currently spending and to shift funds from one side to the 
other.
    I think the issue of training is very significant, both 
pre-service and in-service training for our teachers, because 
if they don't adequately prepare, they won't be able to do the 
job.
    I think your grant program is an excellent idea in some 
ways and the other way, one of the problems of special ed is, 
for many people it was the entryway into the education 
profession, and then after 5 years they leave when it becomes 
overly burdensome.
    The problem is, because of the constraints and some of the 
difficulties in special ed, they leave. We can have lawyers and 
laws all we want, but once that bell rings and Betty Bob walks 
in the door, the door closes, and Mrs. Miller does her job. She 
teaches. If the system we have today doesn't change, Mrs. 
Miller won't be there, no matter how much money we have or how 
many laws we have. We need to make a program that allows 
teachers to do the job they need to do, which is to teach and 
work with parents.
    I think those would be some of the key elements we need to 
look at.
    Mr. Burton. Do you think that the lack of discipline in 
schools is one of the major reasons why we're seeing an exodus 
of teachers?
    Mr. Amundson. I think the lack of understanding of how to 
implement the law in our schools is why we're seeing--in 
discipline.
    I heard in Tennessee an administrator told a teacher they 
could not file a police report on a special ed student even 
though the law is very clear they're allowed to do that, and 
Tennessee law requires that to be done. So we have 
misapplication of the law, and that's one of the problems with 
discipline. The law allows us to deal with the discipline of 
children if the procedural safeguards are followed. Too often 
fear of litigation and publicity does not allow administrators 
to properly implement what was put in IDEA 97 which does hold 
students accountable for their behavior.
    Mr. Burton. Maybe we need to clarify that a little bit more 
if we're going to----
    Ms. Guard. Excuse me, Mr. Chairman. We did recently issue 
guidance for administrators to follow, to let them know what 
their requirements are and how to implement those requirements.
    Mr. Burton. That was widely disseminated?
    Ms. Guard. On our Web site.
    Mr. Burton. I want to thank you all very much for your 
suggestions and your patience and your hard work. And hopefully 
you will have some suggestions that can help us make some 
changes.
    Thank you very much. We stand adjourned.
    [Whereupon, at 4:22 p.m., the committee was adjourned.]
    [The prepared statements of Hon. Thomas H. Allen and Hon. 
Dennis J. Kucinich follow:]

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