rights litigation.

It is important to note that the fact that

attorneys' fees were occasionally available and awarded did not spark a "flood" of special education litigation across the country. Far from being a flood, special education litigation has been merely a trickle.

The law contains numerous disincentives to pursuing litigation. It establishes a requirement that the child will stay in the "then current" placement during the pendency of the review procedures. A recent Supreme Court decision in Town of Burlington illustrates that any parent who unilaterally withdraws a child during the pendency of the procedures and subsequently places the child in a private program does so at the parents' own financial risk. Thus it is clear that it is in the parents' best interest to reach the speediest possible resolution of any contested issue in the child's educational program. The advantage of delay and procrastination in the hearing process rests solely with the school district.

A cadre of private attorneys specializing in special education litigation have begun making their services available to defend school districts. The school districts' ability to pay attorneys' fees on a regular basis encourages development of the private bar. Parents in special education proceedings, however, have not been able to generate similar interest by private attorneys due to lack of sufficient and regular funding. Given the fact of ready and regular sources of funding and the inherent advantage to school districts in delaying and obfuscating the hearings, Congress' initial intent to equalize the positions of

the participants in the due process procedure have been

completely obviated.

Since the Smith v. Robinson decisions, I have met with many parents of handicapped children who express valid challenges to the school districts' proposed program for their children. Issues involving the appropriateness of placement, the need for related services, the identification of their childrens' special education needs, have all been brought for review. Parents often have some familiarity with special education laws and expect assistance through the due process procedures and subsequent appeals to obtain a quick resolution of the issue on behalf of their children. They are all faced with the pressure of time as they readily acknowledge that their children have only a limited number of years available in public education. I am now forced to candidly advise them that, even if they challenge the school districts' position through the due process procedures on their own, they are likely to face a highly skilled attorney as their opposition. If the parents are represented, the school district's attorney will, in all likelihood, utilize the time consuming and costly procedures available through various administrative procedure acts, through court rules in extensive discovery procedures,

increasingly rigorous and legalistic due process hearings, and in the drafting and presentation of extensive legal briefs. In order to succeed in the due process procedures, the parents are going to have to respond in kind, despite the fact that the basic and underlying issue might be relatively simple and straightforward.

Five years ago, the cost to parents to obtain representation

If a

in special education hearings might have averaged a total of $500 to $750 for a case. It was likely that the conflict could be resolved through effective negotiation prior to a hearing. hearing was necessary, there was some possibility of obtaining reimbursement of all or a portion of their attorneys' fees. Parents are now advised that in the event an appropriate settlement of their dispute is negotiated with the school district, the negotiation itself may cost $1,000 to $1,500, with no chance whatsoever of recovering that sum. Should full litigation be necessary, the cost may well reach $15,000 to $20,000 through the initial hearing and initial appeal to the State or Federal trial court. As a result of the Smith case, there is no fee recovery even if parents are found to be correct in their position regarding the child's program. For all of the parents who have brought cases to me subsequent to the Smith decision, this advice has had a "chilling" effect, causing frustration and anguish. All have been discouraged from following through with the procedures notwithstanding the fact that they may have had a very

valid substantive claim.

The lack of availability of attorneys' fees in both the administrative and any subsequent court proceedings has resulted in such an inequality of positions between the parents and the school districts, as to make a mockery of the due process procedures set forth in the Act and regulations. The only way to bring this situation back into balance is to reinstitute the situation that pertained prior to the Smith decision. Parents should be allowed to present to the court justifications for an

award of attorneys' fees in both administrative and judicial proceedings subject to the courts' review, discretion and approval.

S. 415, in a simple, clear-cut and completely understandable piece of legislation, provides the appropriate redress to ensure the equality of both parties to mitigate the inherent advantage to school districts of procrastination through legal devices. It re-establishes Congressional intent to resolve disputes in a speedy and efficient process. If the promise of Public Law 94

142 to parents is to be realized, they must have a meaningful opportunity to actively participate in the development of their child's program. The expertise offered by the parents can only be effectively injected into the planning procedure when the school district perceives that it is at some financial jeopardy if it refuses to negotiate with the parents on an equal basis and in good faith. To protect the original civil rights focus of this most meaningful piece of legislation, Senate 415 is thus dramatically required.

WLED:rmf

Senator WEICKER. Senator Stafford has another committee meeting that he has to attend but he will be submitting questions for the record.

And I agree with you, Counsel, that people like Mary and Ed are to be complimented for waging a fight, clearly not just for their own children, but for the principles that apply to thousands of other children.

Mary, I understand that the school system was repeatedly ordered by both the hearing officer and the courts to provide catheterization for your daughter, Amber.

How did the school system respond to these orders?

Mrs. TATRO. We had a court order from the judge in Dallas, to get her into school and to do the catheterization. Twice they stopped. They kept saying, well, you did not give us the proper medical forms. I kept sending forms and returning them. They were medical forms provided to me by the school district. Everytime they would find something wrong with it, whether it was a period in the wrong place or whatever.

So one day they just called my attorney and said, "We are not doing the catheterization", and they stopped. It took us months, and months, and months to get back into the courthouse. My friend went to the school and did the catheterization for me, because I work in Dallas and there is no way that I could go from Dallas to Irving to do it.

Senator WEICKER. How long did it take from the time that catheterization was ordered by the hearing officer until it was consistently provided for your daughter?

Mrs. TATRO. You know, we finally got her in school the latter part of the second year that she should have been there. They provided CIC for a couple of months and then we started back in school in September, and that day they called and said that they were not doing catheterization that year, even though we had already given them the new medical forms that they wanted, because we lived close to the school.

But then she went to the hospital and it was some 4 months before we finally got back in school. At the ARD meeting to get her back from homebound into the school system I took a copy of the court order from the judge and a copy of the judgment and I passed it out to all the committee and we were again denied catheterization, even with a court order. The school district brought in doctors from the community, I suppose to overturn my doctor's decision, but they refused to do that. They did state that the prescription was valid and that is what the order said, with a valid medical prescription, they were to provide catheterization.

It took some 3 more months to get back into the courthouse and this time, he says, I do not want you to stop, more or less. The judge was really aware at that time that they were not being very reasonable. It seems that everything that we were doing was being harassed, you know, like when they stopped catheterization, they also tried to change the placement to another school. It was across town and not only did they stop the catheterization, but they stopped her bus, so that we also had to provide transportation to and from school.