August 8, 1997-----------------------------------------------------------------------------Number 54

PRESIDENT CLINTON SIGNS THE BUDGET

Washington, D.C.- President Clinton signed The Balanced Budget Act of 1997 and The Taxpayer Relief Act of 1997 into law Tuesday at the White House. He was accompanied by Congressional leaders from both parties including Speaker of the House Newt Gingrich and Sen. Frank Lautenberg (D-NJ). Many children's health advocates who had worked to ensure the inclusion in the legislation of $24 billion for children's health programs were in attendance.

President Clinton, in his remarks, said "because we have acted, millions of children all across this country will be able to get medicine, and have their sight and hearing tested, and see dentists and doctors for the first time."

Passage of the funding for children's health requires that we thank those who helped make it possible: your Senators and Congressman; advocates within numerous organizations; and the untold numbers who made their voices heard to Congress and the White House.

It is important, however, to note that the fight is not over. In the coming weeks, each of the states will be making critical decisions on how block grants for children's health will be used within their jurisdiction. The Friday Fax will continue to monitor state implementation, and report to you what is going on. Please let us know what is happening in your state, and we will share it with the rest of the country.

RIGGS PRISON AMENDMENT LURKING IN THE SHADOWS

In response to extreme pressure from California's Governor Pete Wilson, Congressman Riggs is still seriously considering offering an amendment to IDEA in the appropriations bill when Congress returns in the Fall. The amendment would restrict the U.S. Department of Education from ensuring that youth over 18 who are incarcerated in adult prisons receive special education and related services.

Introduction of this amendment would seriously violate the bipartisan agreements reached in the long and arduous negotiations to reauthorize IDEA. This proposed amendment would not only undermine bipartisan agreements but reflects severely misguided and counterproductive public policy.

This amendment would have serious impact on youth with learning disabilities, emotional problems and mental retardation that are currently over represented in the population. With many youth in adult prison released after the age of 21, this represents the last opportunity for individuals with disabilities for appropriate educational interventions.

It has also been found that individuals in prison who receive educational services have a lower recidivism rate than those who did not. In addition, the Office of Juvenile Justice and Delinquency Programs has issued a fact sheet (Fact sheet #53, February, 1997) that demonstrates the number of juveniles who are waived to adult courts has risen significantly in the last ten years, thereby increasing the number of juveniles entering the adult system.

If youth over the age of 18 are categorically excluded from IDEA coverage, the same financial argument may be used 18-21 year old coverage in general, and especially against 18-21 year olds who are in mental health or developmental centers.

Contributed by Diane J. Lipton, Esq., Legal Counsel for DREDF and a parent of a child with a disability.

ADVOCATE SPEAKS OUT ON THE HARTMANN DECISION

In a stunning display of judicial ego and bias, a three-member panel of the U.S. Court of Appeals for the Fourth Circuit overturned and dismissed the district court findings in favor of the Hartmann family, acting on behalf of their son Mark.

Mark is an elementary age youngster with autism who was successfully included in his neighborhood school in Lombardy, Ill., before his family moved to Loudoun County, Va. In Virginia, Mark was placed in his neighborhood school that lacked educators with the training and experience to meet Mark's needs as a youngster with autism and significant communication disabilities.

At the end of that school year, the Loudoun County School Board brought due process against the Hartmann family, claiming that Mark required a segregated classroom for kids with autism located across town in another community. The hearing was protracted and ugly. The hearing officer found in favor of Loudoun County.

Fearing a threat from the Loudoun lawyer that she would seek an injunction to remove Mark from his neighborhood school should the family appeal, Roxanna Hartmann moved with Mark to Blacksburg, Va., where teachers and administrators were knowledgeable about their responsibilities under the Individuals with Disabilities Education Act (specifically, the right to receive supports and services in general education classrooms and the requirement to seek out, learn and implement "promising practices" in the education of students with disabilities). Mark has completed his second successful year at his local elementary school in Blacksburg, where he is fully included with age-appropriate peers.

In finding for the Hartmann family, the District Court took a common sense approach and focused on the "bottom line" without effective special education supports Mark was "doomed to failure." With effective supports, Mark benefited from his general education classroom and did not disrupt or threaten the safety or learning of his classmates. Period.

So, what are we to make of Judges Wilkinson, Luttig and Copenhaver? First, the Fourth Circuit has taken issue with Mark's right as a citizen to go to court to dispute the decisions made in local and state administrative proceedings. Once set on this line of thinking, then it follows that the Fourth Circuit takes strong issue with the district court in hearing additional information and evaluating for itself the information generated in the original Due Process hearing and the subsequent appeal to a state-appointed bearing officer. In fact, they accuse the district court of substituting "their own notions of sound educational policy for those of the local school authorities".

This argument by the Fourth Circuit, along with a 'quote-per-page" of their own decision in a previous case (De Vries) whose only link to the issues in Mark Hartmann are the words autism and mainstreaming, are chilling in light of the facts of the case, the clear requirements of IDEA, and other decisions such as 0berti, which are much more relevant, but are not mentioned by these judges.

But perhaps most damaging to students with disabilities is their interpretation of the Rowley case decided by the Supreme Court. The Fourth Circuit now chooses to bestow upon public school officials or teachers, expert knowledge on just about any subject having to do with teaching youngsters with disabilities by virtue of the Act that they are certified or licensed by the State and have been hired by the school.

The appeals court maintains that IDEA doesn't require "service providers to have every conceivable credential relevant to every child's disability". Granted. But IDEA does require t