Attorneys' fees add up for DOE
By Derrick DePledge
Advertiser Washington Bureau
WASHINGTON — Mark Isenmann knows that his son, Marcus, can be impossible. Autistic and extremely hyperactive, the 9-year-old poses such a danger to himself and others that he requires round-the-clock care.
But as overwhelmed as Isenmann is in coping with his son's condition, he is equally weary of dealing with the state Department of Education, which provides for his son's education and treatment. So he hired a lawyer.
"I think that without an attorney, they would have railroaded us," said Isenmann, a builder.
Parents of children with special needs are increasingly challenging the state Department of Education, turning to lawyers to secure rights that are guaranteed under federal law.
The number of due-process hearings, where parents and school officials resolve their differences, increased from 76 in the 1998-99 school year to 174 in the 2001-02 school year and is on track to be about the same this year.
During roughly the same period, attorneys' fees, paid by the state only when parents prevail, have climbed from $303,000 a year to $1.4 million a year, according to state education officials.
"I guess families feel they should go directly to a hearing," said Paul Ban, director of special education at the state Department of Education. Department officials do not comment on individual cases.
This adversarial relationship between parents and the Department of Education comes as many schools are straining to educate and care for students with special needs, which can involve special transportation, medical care, tutoring and supervision, all at taxpayer expense.
The federal Individuals With Disabilities Education Act, passed in 1975 and updated in 1997, is intended to ensure greater access to public education for more than 6 million students nationwide with mental or physical disabilities, behavioral problems or learning difficulties. The federal government was supposed to cover 40 percent of special-education costs, but Congress has never fully financed the act — it now provides about 16 percent — leaving much of the responsibility to states.
Congress is re-evaluating the bill, promising more federal money and reforms to reduce school paperwork, give parents the chance to get additional help from outside resources, including private groups, and allow schools to discipline special-needs students like other students.
The House of Representatives is scheduled to vote on its version of the bill this week. A Senate version is still being drafted, and the two chambers will likely produce a final bill later this year.
Rep. Ed Case, D-Hawai'i, who serves on the House Education and the Workforce Committee, added an amendment to the House bill that would authorize governors, rather than the courts, to set attorneys' fees in special-education cases.
While the issue seems peripheral to the larger debate, some parents of children with special needs in Hawai'i and national advocates for the disabled call it a backhanded assault on civil rights.
"It was almost like a slap in the face," said Naomi Grossman, president of the Autism Society of Hawai'i, who said some attorneys might be discouraged from taking special-education cases if they thought they might not be able to recover their fees.
Allowing governors to set attorneys' fees effectively gives the losing side the right to determine how much the winner is compensated, advocates say.
Attorneys' fees in special-education cases are now awarded by the courts based on prevailing rates in the community and the rates of lawyers with comparable expertise. The courts have the option of reducing the fees if parents drag out a case or if attorneys ask for exorbitant fees.
Case said there are not enough checks and balances on attorneys' fees. Under his amendment, governors would set hourly rates for attorneys in special-education cases each year. "I don't think it's unreasonable," the congressman said.
Attorneys' fees traditionally have been available to the victors in civil-rights cases, in part as an incentive for lawyers and their clients to vigorously pursue what are considered fundamental legal rights. Some parents of children with special needs feel at a disadvantage when they go up against state education officials, who are usually more familiar with the complexities of the law.
"School systems have an unlimited amount of taxpayer dollars to make their case," said Paul Marchand, a public policy advocate for The Arc and United Cerebral Palsy. "It just makes sense that parents would be better off if they have sound legal advice."
Case said parents of children with special needs should be able to protect their rights through an attorney, but he is also concerned about the rising costs to the state. He said he would consider changing his amendment so a third party, such as the federal government, would set attorneys' fees, although he doubts lawyers would back that option.
"The financial burdens are crushing," Case said of special education's effect on states.
In Hawai'i, the state Department of Education is bound by the Felix Consent Decree, which stemmed from a federal lawsuit over the state's treatment of special-education students.
The state Department of Education serves more than 23,000 special-education students, 12.7 percent of the student population. Nearly half of special-education students are classified as having a learning disability, which mirrors the special-education population nationally.
Special education accounts for $221 million, or 22 percent, of the department's estimated $1 billion annual budget.
Mediation is rarely used in Hawai'i to settle differences between parents and schools, most likely because what is discussed during the talks cannot be used later at due-process hearings. Yet, about two-thirds of cases headed to due-process hearings are settled before a final decision is reached, according to state education officials.
The House version of the IDEA bill would require school officials to offer parents voluntary binding arbitration instead of a due-process hearing. It also would require one last "resolution session" between parents and school officials before a complaint advances to a due-process hearing.
For parents such as Isenmann, the experience has been frustrating. He moved his son from their home on Maui to a psychiatric hospital in Honolulu, where Marcus also attends a school for children with special needs. He has since built a cottage for his son on his property on Maui and wants the state to cover expenses so he can oversee his son's care at home.
"He's a nice little kid, but he's a danger to himself," Isenmann said. "I don't know what else to do. We worry that he's going to be in an institution for the rest of his life."
