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QUESTIONS FROM SEN. NICKLES DIRECTED TO MARY TATRO

WHO WAS YOUR LEGAL REPRESENTATIVE DURINGYOUR ADMINISTRATIVE AND LEGAL
PROCEEDINGS?

1.

Our legal representative was Craig Enoch, an attorney from Dallas. He represented us
up until we had to go back to court the second time for a sanction motion against the
school district. Mr. Enoch represented us thru the Due Process, the State Appeals,
the 5th Circuit Court the first time, the remand to Federal District Court in Dallas,
and the first contempt of court motion before the Federal District Court. Mr. Enoch
also was present at several IEP meetings. This was necessary because the school district
had legal council. For instance at one IEP meeting, set for 7:30 a.m. we arrived only
to find the attorney for the school district present. We had to call Craig Enoch at
home at 7:30 a.m. and ask him to come to the school. He did so that we would have
legal council in view of the fact that the district had their attorney in attendance.

During the time our case was going thru the many courts, Governor Clements appointed
Craig Enoch 101st Civil District Court Judge (Dallas, Texas). At that time we had a
petition for sanction before the court on a second contempt motion (both times the
school district had stopped doing clean intermittent catheterization even tho they had
been issued a court order to provide same). At that time Judge Enochs partner, Charles
Fuquay represented us in the court on the contempt issue. Charles was not familiar
with school law and it was then necessary to try and locate an attorney who was
familiar with PL94.142 and .504 and the school laws. Judge Enoch contacted Advocacy,
Inc. and they agreed to help us at that point. Advocacy, Inc. is located in Austin,
Texas (four hour drive from Dallas).

2.

IF IT WAS NOT THE TEXAS PROTECTION AND ADVOCACY AGENCY ESTABLISHED BY

THE FEDERAL GOVERNMENT, WHY NOT?

First of all, we were never notified anyone that there wa "free" legal aid, nor
that Advocacy, Inc. was set up to handle this for parents. However, I talked with
Advocacy, Inc. this morning in regards to "who", "when" and etc. they handle cases.
I was advised by the Attorney that even had we contacted them they do not know if
they would have been able to handle the case in the beginning. There are 396,000
handicapped children in the State of Texas. Advocacy only has four attorneys. The
reason they took over after we had been thru a fourth of the process was because the
case would impact a large number of children (win or lose) and Amber is developmentally
delayed. We were NEVER TOLD BY THE SCHOOL DISTRICT that there was legal advise
available. The school districts sometimes never even give out the "little grey"
rights booklet and in fact even now when they do, sometimes it is after you have had
your meetings. Nevertheless, we were never told we could get help and it is very
doubtful we could have gotten assistance from Advocacy at this point. I was advised
today that they always encouraged local attorneys when help was available. The agency

was set up to protect the rights of disabled children but it is impossible for Advocacy to handle all cases. Reed Martin is the attorney I talked with this morning and he also advised this morning that last year in the State of Texas there were only 12 hearings in the entire State. This was due to the Smith vs. Robinson decision and that because of this decision parents can not hire attorneys to represent them and their disabled children. The problems have not gone away but parents are unable to defend the rights of the children due to the Smith vs. Robinson case. Advocacy, Inc. can only take a limited number of cases. Advocacy tries to work with the schools and the state prior to any litigation but the schools know the parents can not hire attorneys due to the decision and consequently work toward the parents forfeiting the rights of their children when they can not acquire the legal assistance they need to battle the school districts.

3. WHAT WAS THE FINANCIAL IMPACT OF THE LEGAL COSTS OF YOUR FAMILY?

The impact of this case was more than legal costs. There is also a question as to health impairments due to the stress on the family. However, I would like to answer the costs factor first.

We were fortunate in that both of us work. However we would like to be able to

use our funds for such things as medical care, housing, and the normal things a family has to have. My husband paid for the due process costs up-front out of our funds. However, when the State Board illegally overturned the hearing officer and the commissioner we had to make a $5,000 down payment to the attorney. This time we had to borrow money. When the case went back to the court for the second contempt motion, we had to again borrow $2,000 just to keep the case going. At this time we still owe the attorney the balance of the award from the Court, around $28,000. Even two working people can't afford these kind of fees, especially if they have the responsibility of a disabled youngster. This legal battle also took all of my vacation time as I used a day at a time as I needed it so I could be in court, at the IEP meetings, or whatever time it took. During all of this our child also had five operations, three of them major. I had never had any blood pressure problems, and in fact there is no history of high blood pressure in my family. I am now on medication for extremely high blood pressure which my doctors feel was brought on by the stress caused by the school district. This also had a negative affect on my performance at work, especially when the school is calling or walking into the office. There are some things that money can't buy, one of them is your health and emotional state, I truly suffered during this

case.

4. IF YOUR LEGAL REPRESENTATIVE WAS PROVIDED BY THE TEXAS P&A, DID THEIR

SERVICES COST YOU ANYTHING ?

The services provided by Advocacy, Inc. was not charged to us.

QUESTIONS FROM SEN. STAFFORD TO MARY TATRO

1. As a parent, do you feel that you could have represented Amber at the

Administrative Due Process Hearing without Legal Representation?

NO!!!! The entire Due Process Hearing we went thru was stictly set up as a Court. The Due Process Officer acted as the Judge, and in fact was addressed as "Your Honor", the evidence was presented in accordance with law, the testimony was taken by a court reporter and the entire hearing was set up as a court of law. I knew nothing of the law at that time except that what we were asking for was being done in other school districts and for some reason the Irving Independent School District was refusing Amber the same things others were already doing.

This proceeding are set up in this manner in the entire State of Texas. Unless a parent is a lawyer they would not stand a chance. One of the things you have to submit is written documents to the hearing officer. I certanly could not have submitted suitable transcripts to anyone and we would have certainly lost. I do legal work in my position as a surety bond specialists, however, I could not have done the transcripts necessary for this due process.

This testimony lasted five hours before the hearing officer with witness' called from both sides, including the Dr. for Amber. The school had their witnesses, including the R.N. in charge of School Health Programs from the Irving ISD., the Physician, who by the way was also a member of the School Board, and on and on.

As a matter of record, I have been told by some parents who wanted to go to due process that they would have to furnish $5,000 up front just to get started. And that was just for the due process hearing.

RESPONSES BY EDWIN W. MARTIN TO SUBSEQUENT QUESTIONS

Response of Martin to Senator Kerry:

It has been my observation, Senator, that the responsibility

for compliance monitoring and related activities should involve

both the Office of Civil Rights, and the Office of Special

Education Programs.

In 1976 and again in 1980, I played a part

in the development of inter-agency agreements concerning monitoring

[blocks in formation]

Civil Rights has continued discrete compliance reviews (I do not

have available to me comparative figures for recent years), it is

my understanding that a number of features of the agreement which

were felt to be critical to effective monitoring and compliance were not being observed as recently as six months ago. Hearings

held August 1, 1984 by the House Select Education Subcommittee

provide information in this regard presented in considerable detail

by the Coalition for Citizens with Developmental Disabilities.

I am pleased to learn that the Assistant Secretary for

Special Education and Rehabilitation, Mrs. Madeline Will, has

directed the Office of Special Education Programs to develop a

new and more vigorous approach to compliance monitoring and those

As difficult and sometimes controversial,

efforts are now underway.

as compliance activities are

you will be criticized on both

sides

it is clear that responsible monitoring is necessary to

bring about changes of the kinds envisioned by this law.

Response to Senator Stafford:

I was pleased to have the opportunity to work with you,

Senator Stafford, and your colleagues in the drafting of

P.L. 94-142, and I have greatly admired your effective leader

ship in the House and the Senate on matters affecting the lives

of people with disabilities, as well as I might add all Americans,

as we are affected by our Environment about which you have expressed

such strong concerns.

I don't believe the concerns are valid as expressed by some

spokespersons for school districts that the proposed legislation

will spark adversity between parents and school personnel which would harm parent participation under the Act. First, as I

mentioned in my statement, the record of the implementation of

the Act is now well established over a number of years, and there

are very few hearings, less than a fraction of a fraction of 1%,

and only a tiny percentage of these go to court. When legal fee relief was available before Smith v. Robinson, the number of

hearings was still quite small and in fact, declining.

It should

be noted that parents would still have to go through this terribly painful appeal and/or judicial process and then would have to have their position supported to be eligible for expenses. The risk of failure certainly deters frivolous actions. There is nothing to gain for parents here, only the opportunity to break even at best

and only when they are judged correct.

When the bill was being considered by the Congress, I believe

all parties felt it was critical that the parents have sufficient

impact, through the hearings process to provide local level

solutions to problems.

This process, even when it led to the

courts in a fraction of cases, was a much-to-be-desired alternative

to a federal Executive branch review and decision-making process

which might have been an alternative to assure the appropriate

expenditure of federal funds.

As you know, the school systems select the hearing officers,

are represented at hearings by trained psychologists and educators

and have tax-paid attorneys available.

Parents need some balancing

resources to even begin to confront this establishment, not as

troublemakers, but in the exercise of this legitimate role as

caretakers for their children.

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