HANDICAPPED CHILDREN'S PROTECTION ACT BECOMES LAW
On August 6, 1986 the President signed into law the Handicapped Children's Protection Act. The bill, a major civil rights victory, amends the Education for All Handicapped Children Act (P.L. 94-142) to provide for the payment of legal fees for parties who successfully sue under the Act. P.L. 94-142 provides funds to assist states and local agencies in educating handicapped children. Parents must be allowed to assist in the development of an Individual Education Plan (IEP) for their children and are entitled to a hearing by the state education agency in the event they find the IEP inappropriate. If dissatisfied with the hearing decision, they can file suit in state or federal district court.
The bill was introduced in response to the Supreme Court's decision in Smith v. Robinson, which established that while P.L. 94--142 should be the primary legal device for enforcing handicap rights in education, it does not authorize payment of legal fees. The bill had been stalled since its passage by both the House and Senate last year because of two amendments unacceptable to the disability community. The Senate version had an amendment, pushed by Senator Orrin G. Hatch (R-UT), which provided that any organization receiving federal, state, or local monies could be reimbursed only for the actual cost of bringing the litigation and could not receive attorneys fees at the prevailing market rate. The 'cost based provision' would have penalized poor families who generally have access only to public?interest and legal services lawyers, because school districts would have had much less incentive to settle with these lawyers, than with private attornys. Operating under such a provision, poor people's lawyers would have had 1?imited resources with which to represent their clients. This amendment was also seen as an attempt to 'limit the civil rights activities of legal service type organizations. In the House bill, a "sunset" amendment would have restricted attorneys fees for the administrative process that precedes court action to four years. This could have led school districts to delay cases to allow the four year period to expire.
Both restrictive amendments viere dropped in Conference as opponents successfully argued that the amendments would place an undue and unique burden on the parents of poor handicapped children, a major proportion of whom are minorities. Senator Lowell P. Weick?er Jr. (R-C0,11N) was quoted as saying: "Without this remedy, many of our civil rights uould be hollow pronouncements available only to those who could afford to sue for enforcement of their rights" (Cong. Quarterly, July 26, 1986, p. 1690).
A notable feature of the bill is a retroactive provision allowing successful parties to all cases initiated and pending since the Supreme Court's decision to collect legal fees.
