[Congressional Record Volume 147, Number 153 (Wednesday, November 7, 2001)]
[Senate]
[Pages S11511-S11519]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
[[Page S11511]]
THE DISTRICT OF COLUMBIA APPROPRIATIONS ACT, 2002--Continued
Amendment No. 2107
The ACTING PRESIDENT pro tempore. The Senator from Nevada is
recognized.
Mr. REID. The Senator from Louisiana, the manager of this bill, needs
4 extra minutes. I ask unanimous consent that she be given 4 extra
minutes and that Senator DeWine be given 4 extra minutes in relation to
this amendment.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The Senator from Louisiana is recognized.
Ms. LANDRIEU. Mr. President, I yield 2 minutes to the Senator from
New Jersey.
The ACTING PRESIDENT pro tempore. The Senator from New Jersey is
recognized.
Mr. CORZINE. Mr. President, I rise to voice my very strong support
for the District of Columbia's efforts to cut HIV/AIDS transmission
through its needle exchange program and strongly oppose the Allen
amendment. First, I compliment the leadership of the chairwoman, the
distinguished Senator from Louisiana, for her efforts in making sure
that democracy works in the District of Columbia, that we leave to the
local folks home rule regarding those matters we leave to home rule all
across this country. I can only argue that the District of Columbia
should be able to use its own funds as it sees fit, the same as do
other localities in the country.
Let me start with the bottom line on the fundamental issue. Needle
exchange programs work and they save lives. Facts speak for themselves.
The Senator from Illinois was very articulate in bringing out a lot of
them. I will go over a little more of that. There are over 130 needle
exchange programs operating in the Nation, in 80 cities and 31 States.
They work. These programs, like the District of Columbia's programs,
are supported at the local level by people who want to attack this
scourge of drug addiction and HIV/AIDS in our communities. They are
supported by States and a huge amount of private funds in the country.
Again, the simple reason is that they work.
Countless government and private scientific studies have proved the
effectiveness of the needle exchange programs. They limit the spread of
HIV/AIDS. Fact. They do that without any sense or any kind of objective
evidence that they do anything to spread drug use. The Centers for
Disease Control, the University of California, and the U.S. General
Accounting Office, among a whole host of others, have shown that these
programs substantially reduce the transmission of HIV/AIDS without
encouraging drug use.
I want to give an example. Beth Israel Medical Center in New York
studied needle exchange programs in the city and found that the program
reduced infections by two-thirds--a very substantial program. The study
found that injection drug use did not increase at all in the city at
the same time. Similarly, a 1997 study by the National Institutes of
Health concluded that needle exchange programs reduced HIV by at least
30 percent and reduced risk behaviors among drug injecting drug users.
In fact, needle exchange programs serve as an effective link to drug
treatment programs. So you get a double-edged benefit; not only do you
limit the spread of HIV/AIDS, but you introduce people to drug
treatment programs.
According to the recent CDC Morbidity and Mortality Weekly Report, 95
percent of needle exchange programs refer clients to substance abuse
treatment. Last year, the Surgeon General found that needle exchange
not only reduces HIV transmission but many may also reduce injection
drug use for these people who are in the programs. Reference to drug
treatment programs is a good thing. That is how we reduce this scourge
in our country.
Mr. President, the District of Columbia and communities nationwide
are facing a two-pronged public health crisis of injection drug use and
a persistent and growing HIV/AIDS epidemic. As many as half of all HIV
infections are caused by the sharing of HIV-contaminated injection
tools.
I conclude by saying this is an important program that needs the
Senate support. We can do a lot to make a big difference in our
communities.
I thank the Chair.
Mr. KENNEDY. Mr. President, more than 40,000 people a year become
infected with HIV, the virus that causes AIDS. Half of all new HIV
infections in the United States occur among drug users.
In addition, approximately 4 million Americans have been infected
with the hepatitis C virus. Injection drug use is responsible for at
least 60 percent of those infections.
Numerous authorities, including the National Academy of Sciences, the
Surgeon General, the Centers for Disease Control and Prevention, the
American Medical Association, the Academy of Pediatrics, and the
American Public Health Association have concluded that needle-exchange
programs reduce the transmission of HIV and hepatitis C without
encouraging the illegal use of drugs.
It is indefensible for Congress to tell the citizens of the District
of Columbia that they cannot spend their own money on programs that
stop the spread of fatal, infectious diseases. It is irresponsible for
members of Congress to oppose a locally funded program on the ground
that it encourages illegal drug use, when every major health
organization in the United States says that the opposite is true.
People's lives are at stake. I urge my colleagues to oppose the Allen
amendment.
Mrs. CARNAHAN. Mr. President, the Senate is currently considering the
fiscal year 2002 District of Columbia Appropriations bill. I would like
to recognize Senators Landrieu and DeWine for their strong leadership
in moving this important bill through committee.
The District of Columbia shares a unique relationship with the
Federal Government. It is the only locality in the country whose budget
intersects so directly with Congress. Congress is charged with
approving both the Federal and local budget for the District.
Consequently, the city cannot move forward with its own new budget
until the Congress finishes its work and approves the bill. I encourage
the Senate to approve this bill as quickly as possible.
Several amendments may be offered to this bill that impose Federal
restrictions on how the District of Columbia spends the money that it
collects in local taxes. The District of Columbia is fortunate to have
such an able leader in Mayor Anthony Williams. This past year, the
mayor, along with the city council, have put together a budget for the
city that reflects its own priorities that meet local needs. I do not
intend to support amendments to this bill that impose restrictions on
how the District spends it money.
I would not want Congress telling St. Louis or Kansas City how to
spend their local tax dollars. The same standard should be applied to
the District of Columbia. The District of Columbia is our Nation's
Capital and an international symbol of democracy. The Congress should
honor the unique status of this city by allowing the District to make
its own decisions on how taxes raised from its own citizens should be
spent.
The ACTING PRESIDENT pro tempore. The Senator from Louisiana.
Ms. LANDRIEU. Mr. President, I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The ACTING PRESIDENT pro tempore. Who yields time?
Ms. LANDRIEU. I yield time to the Senator from Rhode Island.
The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
Mr. REED. Mr. President, I strongly support Chairman Landrieu's
intention in the District of Columbia fiscal year 2002 appropriations
bill to allow the city to use its own funds to support a needle
exchange program in the city, and I oppose Senator Allen's amendment to
restrict the use of those funds. The current ban on the use of Federal
funds for this program remains intact in the legislation before us.
This issue truly is about the ability of an independent jurisdiction
to use its locally raised revenue to support a program that its elected
officials have deemed appropriate.
In my own State of Rhode Island, for example, a needle exchange
program
[[Page S11512]]
called ENCORE has existed in the city of Providence since 1995,
supported by local funds. This has been, and continues to be, a very
successful program. Many of the other programs in the 34 States that
currently have either state-funded or city-funded needle exchange
programs also have been successful in decreasing the spread of HIV/
AIDS.
There are currently well over 100 different needle exchange programs
around the country working to effect this positive change.
The ENCORE program in Rhode Island has enrolled over 1,500 clients
and provides education, counseling, access to sterile syringes, and
referrals to substance abuse treatment programs. Followup studies and
date continue to show that participants in this program have
substantially reduced their risk behaviors.
However, the HIV/AIDS epidemic continues to be very serious in my
State, particularly as individuals with the disease are able to live
longer and therefore constitute a greater percentage of the State
population. That is why the State of Rhode Island continues to look for
new methods to deal with the spread of this disease, and why programs
like ENCORE are so important.
The Surgeon General echoed this report in one of his own studies in
March 2000, stating that ``there is conclusive scientific evidence that
syringe exchange programs, as part of a comprehensive HIV prevention
strategy, are an effective public health intervention that reduces
transmission of HIV and does not encourage the illegal use of drugs.''
That has been the case in my own State, and that will be the case if we
allow the District of Columbia to take a similar approach with its own
funds.
The District of Columbia has the highest rate of HIV and AIDS in the
country, and therefore desperately needs the ability to tackle this
problem in its own way. Unfortunately, the city has been prevented from
using its own locally raised revenue to deal with this issue since 1999
in this appropriations bill.
In addition, in last year's D.C. appropriations bill, even private
funds were prevented from being used to support a program.
Today we have an opportunity in the bill before us to change this
attitude and allow the city to enact a targeted and aggressive program
to attempt to eradicate this deadly disease from a vulnerable
population.
Several important public health organizations support this move,
including the American Medical Association, the American Nurses
Association, the American Public Health Association, the American
Academy of Pediatrics, and the U.S. Conference of Mayors, as well D.C.
Mayor Anthony Williams and D.C. Police Chief Charles Ramsey. It is
imperative that we add our support to this effort as well.
To reiterate, I commend the leadership of Senator Landrieu from
Louisiana. Her position and the position of the committee is that the
District of Columbia should be allowed to spend its own money on a
needle exchange program. This is a program that has been embraced in 34
States and over 100 cities. One of those cities is Providence, RI.
Providence has Operation ENCORE in which they provide a needle exchange
together with education, counseling, and drug rehabilitation referrals.
The program works.
I come today with facts, with success, to argue that the District of
Columbia should be allowed to use its own money to replicate successful
programs in other urban areas. They have a huge problem with AIDS in
their community. This is a sensible, proven way to help people avoid
the scourge of infection with AIDS, and we should support it, not try
to deny them this opportunity.
It is no surprise, based on the experience of Providence, which is,
at this point, enrolling over 1,500 individuals successfully, that this
program has been heralded by the Surgeon General as a great success. In
his words, in March of 2000:
There is conclusive scientific evidence that syringe
exchange programs, as part of a comprehensive HIV prevention
strategy, are an effective public health intervention that
reduces transmission of HIV and does not encourage the
illegal use of drugs.
``Conclusive scientific evidence,'' and today we are here to try to
refute conclusive scientific evidence, which is at the heart of the
proposal to strike this provision, and also to override the judgment of
local authorities which is commonplace throughout this country in the
over 100 municipalities that are running a program such as this.
If we want to rely upon science and also on the authority of
localities to use their local funds as they wish, we have to reject
this Allen amendment and we have to support the position of the
committee.
This position that drug programs featuring needle exchanges are
effective is supported by a host of organizations: The American Medical
Association, the American Nurses Association, the American Public
Health Association, the American Academy of Pediatrics, and the U.S.
Conference of Mayors. It is clearly supported by the mayor of the
District of Columbia, Mayor Williams, and the police chief.
Those with the most interest in this program, with the most at risk,
the most at stake, are asking us to give them the chance to use their
resources to provide for a needle exchange program to reduce the
transmission of AIDS and, as the Surgeon General pointed out, in no way
will this encourage the illegal use of drugs. I cannot think of a more
sensible position to support.
I urge my colleagues to reject the Allen amendment and support
Chairman Landrieu's position.
I yield the floor.
The ACTING PRESIDENT pro tempore. Who yields time?
The Senator from Louisiana.
Ms. LANDRIEU. Mr. President, our side rests its case. I believe our
speakers have concluded. Senator Durbin and I have some closing
remarks, and I have some things to submit for the Record. I understand
the Senator from Virginia may have some time remaining on his side. I
understand from the leader he would like to get to this vote as soon as
possible. I inquire of the Senator from Virginia what his intentions
are and how much time he intends to use.
The ACTING PRESIDENT pro tempore. The Senator from Virginia.
Mr. ALLEN. Mr. President, I say to the Senator from Louisiana, I have
a few minutes, no more than 3 or 4, maybe 5 at most, of concluding
remarks. The others on our side who wanted to speak are elsewhere, and
the vote will get them back here.
Ms. LANDRIEU. Mr. President, I ask unanimous consent that the Senator
from Virginia have 5 minutes and that we have 2 minutes for closing
remarks, and then we will be ready to vote.
The ACTING PRESIDENT pro tempore. Is there objection?
The Senator from Nevada.
Mr. REID. Mr. President, I certainly have no objection to the
request. We have a number of Senators who have inquired as to when the
vote will occur. I wonder if the two Senators can agree we can have the
vote at 11:15 a.m.
Mr. ALLEN. Agreed.
Ms. LANDRIEU. Agreed.
Mr. REID. I pose that, Mr. President, as a unanimous consent request.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The Senator from Louisiana had requested in her unanimous consent
request that the Senator from Virginia have 5 minutes and that she have
2 minutes.
Mr. REID. There will be time left over. That sounds great to me.
The ACTING PRESIDENT pro tempore. The Senator from Virginia.
Mr. ALLEN. I thank the Chair.
Mr. President, in conclusion, as Senators are getting ready to vote
on this amendment, my amendment actually keeps the policies the way
they have been in prior administrations. I cited General McCaffrey who
was the drug czar under President Clinton. General McCaffrey stated the
problem is not clean needles, the problem is drug addiction.
One thing that has arisen a great deal in this debate is not the
message we are sending, although I think it is the wrong message if we
actually say we are going to use taxpayer funds in the District of
Columbia to give drug users, drug addicts, clean needles and syringes.
The evidence is clearly mixed on it. We can get evidence, I suppose,
from those who are drug addicts. I would not consider them the most
[[Page S11513]]
credible witnesses under any cross-examination. Indeed both sides cite
studies. Whether it is a study in New York or Vancouver or various
other studies, these needle exchange networks only create networks for
drug users to exchange information and drugs and have no positive
impact whatsoever on drug use nor do they have an impact on stopping
HIV transmission.
Of course, I do think AIDS and HIV ought to be addressed, but, as
General McCaffrey states, the way of doing it is not to encourage and
facilitate drug delivery devices that are cleaner than one would
ordinarily use.
The main argument, though, is a jurisdictional one. I have the same
general sentiments as the Senator from Illinois when we are talking
about local control. I really do not like it. Notice Virginia, of
course, is not one of the States that allows needle exchange. I am one
who generally, as a matter of philosophy, trust the people in the
States. I believe the 10th amendment is very important as a part of our
Bill of Rights granting to the people in the States those rights that
are not specifically granted to the Federal Government. But this is an
issue that has to do with the District of Columbia.
The District of Columbia is under the purview and oversight of the
Congress because it is the seat of Government. The part of the District
of Columbia that remains is that which was ceded for the seat of
Government by the State of Maryland. Virginia also granted some land,
which is now Arlington County. It was not necessary, and it was retro-
ceded to Virginia.
Just to show how Congress recognizes its special role in oversight as
far as the District is concerned, both the House and the Senate have
authorizing subcommittees specifically to address the needs of the
District. There is no Chicago committee or Kansas City committee or
Oklahoma City committee or Los Angeles committee in the House nor a
subcommittee on them.
To argue this is a States rights issue or 10th amendment issue
negates and clouds the reality that we have a responsibility in the
Senate to have oversight over the laws and the activities, the safety
and the conduct in the District of Columbia.
It is my view that it would be the wise and prudent course of conduct
to not have the Senate in any way condone granting free needles, or
free syringes to those who are engaged in and, in fact, are illegal
drug addicts. I hope my colleagues in the Senate will stand for that
principle for the District of Columbia, which is looked upon as not
only our Nation's Capital but also the home of our legislative body,
and of freedom of our representative democracy by people all over the
world.
I thank the Chair. I yield back my time.
The PRESIDING OFFICER (Mr. Reed). The Senator from Louisiana.
Ms. LANDRIEU. Mr. President, I thank the Senator from Illinois for
his usual force and clarity in outlining many good arguments supporting
the tabling of the Allen amendment.
I ask unanimous consent to have printed in the Record letters from
the American Public Health Association, the District of Columbia
Housing Authority, the nonprofit organization called Prevention Works,
as well as the Whitman-Walker Clinic, Inc.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
District of Columbia
Housing Authority,
Washington, DC, June 5, 2001.
Hon. Ted Stevens,
Chairman, Senate Appropriations Committee, U.S. Senate,
Washington, DC.
Hon. C.W. Bill Young,
Chairman, House Appropriations Committee, House of
Representatives, Washington, DC.
Dear Chairmen Young and Stevens: As required by Section
150(b) of the District of Columbia Appropriations Act for
Fiscal Year 2001 (Public Law 106-522), the District of
Columbia Housing Authority Police Department (DCHAPD) submits
to the House and Senate Committees on Appropriations its
report on illegal drug activity at or near any public housing
site where a needle exchange program is conducted.
During the reporting period from January 1, 2001, to May
31, 2001, Prevention Works was the only organization
administering a needle exchange program near a public housing
development. Distribution locations were at 15th and Ives
Streets, SE, which is near Hopkins Apartments located at 1430
L Street, SE; Central and Southern Avenues SE, which is near
East Capitol Dwellings located at 5725 East Capitol Street,
SE; and 21st and H Streets NE, which is near Langston Terrace
located at 21st and Benning Road, NE. During this period,
there were no needle exchange distribution sites in operation
directly on public housing properties.
During the reporting period, we monitored each of the areas
where the needle exchange van operated near a public housing
site so as not to impact the behavior of needle exchange
clients. Based on our observations, the maximum amount of
time that the van remained at any one site was approximately
90 minutes. The activity in and around the van did not cause
any disturbances. People visiting the van were there long
enough to receive their supplies and usually left the area
immediately. There was also no evidence that the presence of
the needle exchange van led to increased crime. It should be
understood that the needle exchange ``sites'' are not
permanent sites, but rather stops on a weekly schedule of van
routes. It should also be noted that in addition to the
exchange of needles, the Prevention Works van provides free
food and coffee to anyone approaching the van. During the
reporting period, we received no resident complaints or
concerns regarding the operation of the needle exchange
program near the three public housing developments.
The DCHAPD will continue to monitor all disbursement sites
located near our public housing developments and report
accordingly. If you have need for further information, please
feel free to call DCHAPD, Chief Madison Jenkins, Jr., at
(202) 535-2588.
Sincerely,
Michael Kelly,
Executive Director.
____
American Public Health Association,
Washington, DC, September 25, 2001.
Hon. Robert Byrd,
Chairman, Senate Committee on Appropriations,
Washington, DC.
Dear Chairman Byrd: The American Public Health Association
(APHA), consisting of more than 50,000 public health
professionals dedicated to advancing the nation's health,
strongly urges you to oppose any amendment to the FY 02
District of Columbia Appropriations bill that would place
further restrictions on the District's needle exchange
programs. While APHA opposes any provision to ban the use of
federal, local or private money to fund needle exchange
programs, we are encouraged that the House Appropriations
Committee did not include last year's extraordinarily
burdensome restrictions on the operation of needle exchange
programs in the District. We urge your Committee to follow
the House Committee's lead and at a minimum, oppose last
year's operational restrictions.
Since 1994, APHA has advocated for the development,
implementation, evaluation, and funding of needle exchange
programs to help prevent HIV infection. All APHA public
policy is passed by the Association Governing Council and is
required to meet strict scientific criteria. APHA policy on
needle exchange is no different--an enormous body of
published research, including more than seven federally
sponsored reports, demonstrates that needle exchange programs
reduce the spread of HIV while not increasing drug use by
program participants or others in the community where the
program is conducted. These findings are also reflected in a
March 2000 report released by Surgeon General David Satcher
reviewing all of the scientific research on needle exchange
programs completed since 1998.
The current epidemiology of HIV/AIDS is clear--women and
children are affected disproportionately by heterosexual HIV
infection associated either directly or indirectly with
transmission from injectable drug users. These new cases of
HIV/AIDS that are linked to injectable drug use largely can
be prevented through the provision of sterile needles to drug
users coupled with other public health tools including health
education and condom distribution.
Needle exchange programs increase the contact that health
professionals have with injectable drug users, thereby
increasing opportunities to conduct health education and
disease prevention activities, including drug treatment and
counseling. The efficacy of these programs is proven--placing
further restrictions on funding and operations threaten the
District's efforts to reach those individuals most at risk of
HIV infection. Public health and saving lives must take
precedence over politics. Your opposition to any further
restrictions on these important public health programs is
critical.
Thank you for your consideration of our views and your
attention to this critical public health matter.
Sincerely,
Mohammad N. Akhter, MD, MPH,
Executive Director.
____
Whitman-Walker Clinic Inc,
Washington, DC, September 3, 2001.
Hon. Mary L. Landrieu,
Chair, Committee on Appropriations, Subcommittee on the
District of Columbia, U.S. Senate, Washington, DC.
Dear Senator Landrieu: As Executive Director of the
Whitman-Walker Clinic, the largest HIV/AIDS service provider
in the Washington, D.C. metropolitan area, I again urge you
not to include language in this year's DC Appropriations bill
that would restrict the District's ability to prevent the
spread of HIV/AIDS.
[[Page S11514]]
In previous years, the Congress has added a series of
overly restrictive prohibitions on the District's AIDS
prevention needle exchange program. This year, under your
leadership, we hope that you will respect the decisions and
policies of the District's elected officials and not include
such provisions in the bill. Further, we ask that you oppose
any efforts to add such restrictions by others during
consideration of the D.C. appropriations bill.
Sadly, the District of Columbia has one of the highest
rates of HIV/AIDS in the nation. As of December 31, 2000,
more than 13,000 people had been diagnosed with AIDS, and
more than 6,600 people were living with AIDS in the District.
Approximately, one-third of all AIDS cases in the District
are attributed to intravenous drug use. It is estimated that
1 in 20 adults is HIV positive.
The spread of HIV can be prevented, and one scientifically
proven way to do so is through needle exchange programs.
According to the Centers for Disease Control and Prevention,
the number of these programs is increasing, with 131 needle
exchange programs across the country in at least 81 cities
and 31 states, plus the District of Columbia. Four of these
programs are conducted in the State of Michigan, with two in
Detroit, one in Grand Rapids, and one in Kalamazoo. Almost 40
percent of all needle exchange programs receive public
funding. The good news is that recent data presented at the
2001 National HIV Prevention Conference shows that programs
are having an affect in decreasing new transmissions.
Moreover, exhaustive scientific studies have all concluded
that needle exchange programs reduce HIV infection and do not
increase drug use.
Needle exchange programs are supported by the American
Medical Association, the National Academy of Sciences, the
American Academy of Pediatrics, the American Bar Association,
and the U.S. Conference of Mayors, among others. Even the
recent United Nations Declaration of Commitment on HIV/AIDS,
signed by the United States, supports ``access to sterile
injecting equipment'' as one way of preventing the spread of
AIDS.
We have been heartened by your comments that you do not
support riders to the D.C. Appropriations Bill. We are also
pleased that, in transmitting the District's budget to the
Congress, the Bush Administration deleted section 150, which
placed unduly restrictive limitations on the operation of the
needle exchange program. We hope you will follow the lead of
the Bush Administration, and also delete these provisions
from last year's bill, and further, enable the District
government to fund the program as other cities are allowed to
do.
While the news of late has focused on the international
AIDS crisis, we have a crisis of our own in the District,
which particularly affects African Americans. District
leaders and health officials are doing their best to deal
with the HIV crisis at home. I know you care about the health
of the District's people, and trust that you will demonstrate
it when you consider the District's appropriations bill, and
the District life-saving needle exchange program.
Thank you for your continued support for the District of
Columbia. As you consider this issue, if you have any
questions or comments, please feel free to call me at 202/
797-3511.
Sincerely,
A. Cornelius Baker,
Executive Director.
____
Prevention Works,
Washington, DC, July 23, 2001.
Hon. Mary Landrieu,
Chair, Committee on Appropriations, Subcommittee on the
District of Columbia, U.S. Senate, Washington, DC.
Dear Senator Landrieu: I am writing as the Executive
Director of Prevention Works, the needle exchange program in
the District of Columbia. Our mission is to curb the spread
of HIV, hepatitis, and other blood-borne diseases among drug
users, their sexual partners, and newborn children. The
District has an AIDS rate over 10 times the national average.
According to Health Department statistics, 36% of people
living with AIDS here have been injection drug users. In
addition, almost a third (31%) of the cases attributed to
heterosexual contact involved sex with a drug injector. Our
outreach and education are crucial to the health of our
entire community.
Elected officials in the District are aware of the AIDS
pandemic here and its connection to drug use. That is why
they funded the needle exchange program from 1996 to 1998.
Since October 1998 Congress has prohibited the District from
using logically raised public funds to support needle
exchange. This lack of public funding has had dramatic
effects on our program and on our community, as has this
year's Congressionally-mandated relocation of all exchange
sites to a limited area of the city.
Program Instability: Prevention Works cannot guarantee the
same level of services each month because of insecure private
funding.
Service Reliability Impaired: Having to move our exchange
sites has resulted in a diminished client base because
clients can not find the program. The change appears
arbitrary to clients, and because sites no longer conform to
patterns of high drug activity, many clients have been lost
and may never reaccess services.
Program Services and Refferals Compromised: Having to
monitor Congressional activity and pursue smaller and more
numerous private funding streams means that valuable program
resources are directed to these administrative activities.
Resources for monitoring and improving services are lost and
the quality of linkages with drug treatment and other
services are compromised. Organizations that are allowed to
get larger and more predictable public funding do not face
this challenge.
Obstacle to Collaboration: Prevention Works may be a
client's first or only contact with the comprehensive network
of service providers in the District. However, our clients'
access to substance abuse treatment and the rest of the
public health infrastructure is hindered because community-
based organizations and government agencies are hesitant to
work with Prevention Works because of understandable fears of
repercussions on their own public funding.
Participants Concerns: Increased restrictions affect
program consumers and increase the general stigma associated
with needle exchange. This increased stigma drives clients
further underground rendering this population even more
difficult to reach. Increased restrictions do not result in
less drug use, but they do lessen trust among a predominantly
African American population that has been historically
alienated from the public health establishment.
Community Health Needs Ignored: Reducing HIV and other
health risks among people who inject drugs is a national
priority as defined in Healthy People 2010. Currently
prohibited by Congress from funding Prevention Works--the
only program with an established presence among this
marginalized and hidden population--the District has no
chance of effectively achieving these federally defined
objectives. In addition, because of new performance-based
funding guidelines, the ban on local funding for needle
exchange places future District funding in even more
jeopardy.
The federally imposed restrictions on needle exchange do
not improve the health of any District resident. They merely
limit effective outreach and prevention of deadly disease
among the city's most vulnerable residents.
Sincerely,
Paola Barahona, MPH,
Executive Director.
Ms. LANDRIEU. Again, I ask the Senator from Illinois for any closing
remarks he might add.
Mr. DURBIN. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. One minute and 10 seconds.
Mr. DURBIN. I thank all those who have joined me on this side,
including the Senator from Rhode Island and the Senator from New
Jersey.
The District of Columbia is facing the worst HIV/AIDS epidemic in
America, nine times worse than the national average. The medical
community and the law enforcement community of this city have asked us
to give them the tools and weapons to fight this epidemic.
The needle exchange program has proven successful in fighting this
epidemic. That is why we have to defeat the Allen amendment. To do
otherwise is to ignore the American Medical Association and every major
public health group that has told us that needle exchange programs
work. To reject the medical and scientific evidence and to take away
this weapon against the war on drugs and the war on HIV and AIDS is
wrong.
We appropriate less than 10 percent of the funds the district will
spend out of Congress. The rest is their own money, and they are only
asking to spend their own money as 34 other States do for programs that
they think are important to protect their citizens.
The Senator from Virginia may not be surprised to find some Virginia
license plates at the needle exchange program in DC. We need to keep
this program in place.
The PRESIDING OFFICER. The time of the Senator has expired.
Ms. LANDRIEU. Mr. President, I move the Allen amendment be tabled,
and I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. ALLEN. Mr. President, I ask unanimous consent that Senator
Nickles also be added as a cosponsor to this amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
[[Page S11515]]
The bill clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I ask unanimous consent that even though we
are probably a minute or so early, the vote begin now.
The PRESIDING OFFICER. Without objection, it is so ordered.
All time has expired. The question is on agreeing to the motion. The
yeas and nays have been ordered.
The clerk will call the roll.
The bill clerk called the roll.
The result was announced--yeas 53, nays 47, as follows:
[Rollcall Vote No. 328 Leg.]
YEAS--53
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Collins
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Edwards
Ensign
Feingold
Feinstein
Graham
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Leahy
Levin
Lieberman
Lincoln
Mikulski
Murray
Nelson (FL)
Reed
Reid
Rockefeller
Sarbanes
Schumer
Smith (OR)
Specter
Stabenow
Torricelli
Wellstone
Wyden
NAYS--47
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Byrd
Campbell
Cochran
Craig
Crapo
DeWine
Domenici
Enzi
Fitzgerald
Frist
Gramm
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Kyl
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (NE)
Nickles
Roberts
Santorum
Sessions
Shelby
Smith (NH)
Snowe
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
The motion was agreed to.
Ms. LANDRIEU. Mr. President, I move to reconsider the vote, and I
move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. Under the previous order, the Senator from
Texas is recognized to offer an amendment on which there shall be 60
minutes equally divided, 30 minutes of which are to be used at this
time.
Ms. LANDRIEU. Mr. President, if the Senator from Texas will yield for
just a moment as she prepares to speak on her amendment, as you know,
we have had a lot of consensus in this underlying bill. We have worked
very hard through many stages of our committee to bring consensus on
some of these issues. There is one issue that is going to require some
debate and discussion. I hope between what Senator Hutchison can bring
to this debate and Senator Durbin, we might be able to come to some
joint resolution. It is unclear at this point if that will happen. This
debate is going to move forward.
I have to say with all due respect to both Senators, with whom I have
visited at length about this issue--so has Senator DeWine--both have
genuine concerns for the schoolchildren of the District and the well-
being of the school districts. They are both very passionate about
these particular views. We were unable to come to a resolution. So this
debate will ensue.
I would like to speak about a couple of things which are of concern
to me as manager of this bill and as the appropriations chair for the
committee.
It is very disconcerting that we cannot get the kind of information
from the District, or the CFO, or the school board, or any other
financial entity to give us the details of outstanding judgments--how
much they are, how many there are, and that kind of information. We are
not able to verify some of the information that was sent to us, which
itself is a problem to me not only as manager of the bill but as chair
of this committee.
I hope we will be respectful of that issue as we debate whether it is
appropriate to have caps for attorneys representing children and
families with special needs--whether or not it is appropriate to have
caps based on the data. But if people are looking to us or to the staff
for some specifics, we have tried our best. It is a real problem, when
we don't have this information, to be able to explain to people for the
benefit of debate how much the judgments are that are outstanding, how
many there are, what moneys we may be saving, what moneys we may be
spending, and what the interest rates are. It would be very pertinent
in trying to resolve this issue.
I say to the Senator from Texas and to the Senator from Illinois that
we cannot really trust the documents we have. We will just do the best
we can.
I appreciate the Senators feeling so strongly about their respective
positions and hope the outcome will be something that will serve the
children of the District, their parents, the school system, and the
taxpayers in the fairest manner possible.
The PRESIDING OFFICER. Under the previous order, the Senator from
Texas is recognized.
Mrs. HUTCHISON. I thank the Chair.
Amendment No. 2110
Mrs. HUTCHISON. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Texas [Mrs. Hutchison), for herself and
Mr. Sessions, proposes an amendment numbered 2110.
Mrs. HUTCHISON. Mr. President, I ask unanimous consent that reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Under ``General Provisions'' insert the following new
section:
Sec. . (a) None of the funds contained in this Act may be
made available to pay the fees of an attorney who represents
a party who prevails in an action or any attorney who defends
any action, including an administrative proceeding, brought
against the District of Columbia Public Schools under the
Individuals with Disabilities Education Act (20 U.S.C. 1400
et seq.) If--
(1) the hourly rate of compensation of the attorney exceeds
300 percent of the maximum amount of compensation under
section 11-2604(b)(1), District of Columbia Code; or
(2) the maximum amount of compensation of the attorney
exceeds 300 percent of the maximum amount of compensation
under section 11-2604(b)(1), District of Columbia Code,
except that compensation and reimbursement in excess of such
maximum may be approved for extended or complex
representation in accordance with section 11-2604(c),
District of Columbia Code; and
(3) in no case may the compensation limits in paragraphs
(1) and (2) exceed $3,000.
(b) Notwithstanding the preceding subsection, if the Mayor
and the Superintendent of the District of Columbia Public
Schools concur in a Memorandum of Understanding setting forth
a new rate and amount of compensation, or a new limit
referred to in subsection (a)(3), then such new rates or
limits shall apply in lieu of the rates and limits set forth
in the preceding subsection to both the attorney who
represents the prevailing party and the attorney who defends
the action.
(c) Notwithstanding 20 U.S.C. Sec. 1415, 42 U.S.C.
Sec. 1988, 29 U.S.C. Sec. 794a, or any other law, none of the
funds appropriated under this Act, or in appropriations acts
for subsequent fiscal years, may be made available to pay
attorneys' fees accrued prior to the effective date of this
Act that exceeds a cap imposed on attorney's fees by prior
appropriations acts that were in effect during the fiscal
year when the work was performed, or when payment was
requested for work previously performed, in an action brought
against the District of Columbia Public Schools under the
Individuals With Disabilities Act (20 U.S.C. Sec. 1400 et
seq.).
Mrs. HUTCHISON. Mr. President, Senator Sessions and I are offering
this amendment for one simple reason: We want to improve the quality of
education for the District of Columbia. Our amendment will preserve an
estimated $44 million for special education funding in the District.
The amendment will continue a provision contained in the last three
DC appropriations bills that cap the allowable fees an attorney may
charge for a child's special education placement in the District of
Columbia. We raise the cap in the present law from $125 an hour to $150
per hour, and a per-case limit from $2,500 to $3,000.
Our amendment also continues a provision contained in last year's
bill that allows the District of Columbia, acting through the mayor and
school superintendent, to waive those caps if they believe it is in the
best interest of the D.C. students to do so.
I also point out that our amendment will prevent an estimated $32
million in retroactive attorney's fees from being awarded, as has been
threatened by the D.C. Circuit Court. That court has ruled that should
this fee cap be lifted, they will go back and actually undo the will of
Congress by awarding all the billed attorney fees in excess of the caps
during the last 3 years.
Our amendment is supported by the school board and the superintendent
of
[[Page S11516]]
schools in the District. And the mayor has told me he also has
supported this. They support it because it allows them to put the
dollars in education for the children. They are trying to use the money
for the education programs. In fact, they have put the money they have
saved since the caps were put in place, that would have gone to
attorney's fees, into the special needs programs, and they have
increased the number of children who now can be taken into the
programs.
Why is our amendment necessary? In fiscal year 1998, the District of
Columbia spent $14 million solely to pay attorneys who challenged the
District's placement of special education children. The next year, in
fiscal year 1999, the District spent $3.5 million in attorney's fees.
This meant that the District had approximately $10 million in
additional funds for the education of these children. The District
allocated all this money saved to improving the quality of their
special education programs.
And those programs have continued. Over the next 3 years, D.C.
allocated $32 million in funds that would otherwise have gone to pay
attorneys to improving special education programs for disabled and
special needs children.
This effort has significantly improved the availability and quality
of special education. They have also been able to reduce the backlog of
initial assessments of special education children from 1,805, before
the imposition of the cap, to 143 as of March of this year.
Now they are hiring new special education teachers, purchasing new
assistive medical devices, and providing new training and education for
existing special education teachers.
So what we are trying to do with this amendment is make sure the
education dollars, which are so crucial for the District to improve the
quality of education and the quality of special education, stay in the
education budget rather than going to pay lawyer's fees.
I ask unanimous consent that a letter the president of the school
board and the superintendent of D.C. schools have written in support of
our amendment be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
District of Columbia
Board of Education,
Washington, DC, October 26, 2001.
Hon. Kay Bailey Hutchison,
U.S. Senate, Russell Senate Building,
Washington, DC.
Dear Senator Hutchison: On behalf of the District of
Columbia Board of Education and the DC Public Schools, we are
writing to strongly urge you to include language in the FY
2002 appropriations bill for the District of Columbia that
provides a cap on the amount of funds expended for special
education attorney fees. Specifically, we are requesting
language comparable to that contained in the District of
Columbia Appropriations Act of 2001, P.L. 106-522.
It is our determination that the exclusion of such language
could result in an additional cost of at least $44 million to
the District of Columbia Public Schools in FY 2002 (including
approximately $32 million in fees subject to the cap in FY
1999 through FY 2001 that could now be billed, plus at least
$12 million in new fees no longer subject to the cap). It is
our collective opinion that the result of such an expenditure
will seriously and adversely affect our ability to provide
educational materials, textbooks, and operational support to
the students, teachers, and staff of the DC schools. This
will, as a consequence, further jeopardize the opportunity of
our children to receive a quality education.
We are grateful for your past support of our efforts to
improve the quality of education provided to the children of
our City and we look forward to working with you to continue
to build upon our growing accomplishments. Your support of
this request will be a significant step toward further
realization of our mutual goals for education.
Thank you in advance for your consideration of this matter.
Should you have any questions or require additional
information, please do not hesitate to contact us.
Respectfully,
Ms. Peggy Cooper Cafritz,
President.
Dr. Paul L. Vance,
Superintendent.
Mrs. HUTCHISON. I would like to read briefly from that letter:
It is our determination that the exclusion of [the cap]
could result in an additional cost of at least $44 million to
the District of Columbia Public Schools in FY 2002. . . . It
is our collective opinion that the result of such an
expenditure will seriously and adversely affect our ability
to provide education materials, textbooks, and operational
support to the students, teachers, and staff of the DC
schools. This will, as a consequence, further jeopardize the
opportunity of our children to receive a quality education.
I urge my colleagues to vote for this amendment. It is a reasonable
cap. We are not trying to starve lawyers. We want legitimate lawyers to
be able to earn a living. But $150 an hour is quite a legitimate amount
to spend. I think if anyone has the legitimate interests of the school
district at heart, they will listen to the superintendent of schools
and the president of the school board to let them do what they believe
they need to do to improve the education in the schools. And they do
not want to spend this money on lawyer's fees.
They are doing the best they can. There are no complaints--or maybe
there are complaints; I guess there are complaints against every school
district, but there are no complaints that they are not making every
effort to increase the quality of and the number of children they can
serve in these special needs classes.
Madam President, I now would like to reserve the remainder of my
time. I ask that either Senator Durbin or Senator Sessions be allowed
to speak. Senator Sessions is my cosponsor. I do not know if Senator
Durbin wishes to speak first.
The PRESIDING OFFICER (Mrs. Carnahan). Who yields time?
Ms. LANDRIEU. Madam President, I yield time, as stated in the
unanimous consent agreement, to the Senator from Illinois for a
response to this amendment. Then probably, after the Senator from
Illinois speaks, the Senator from Alabama would like to speak. And then
Senator Murray could be recognized in morning business.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. I thank the chair of the subcommittee for yielding to me.
Madam President, several years ago Congress decided to pass a law
which was revolutionary. It said that in the United States of America,
if you had a child who needed special educational assistance, we were
going to try to help that child. It really was a commitment that had
never been made before.
I can recall, as a child growing up in my small hometown, that it was
rare to see kids with learning disabilities and physical disabilities
in my classroom. I do not know where those kids were. They were
certainly here on Earth, but they were not in the classroom.
So Congress said: We are going to change that. We are going to open
the doors of education in the schools across America to children with
special needs--kids who are disabled, mentally and physically, kids who
have learning disabilities. We are going to give them a chance.
That bill passed with an overwhelming, bipartisan vote because it
sounded so right and so American for us to stand up and say: That is
why America will be different.
We knew, when we passed that bill, it would not be easy because many
of these children really need special attention. I have seen it in
classrooms across Illinois and people have seen it across the Nation.
But the success stories are so gratifying, that children, who would
have been tossed in the trash heap just a few years ago, are given a
chance. With special education and special assistance, they can become
productive citizens in America and have a good, wholesome, and happy
life.
Democrats and Republicans said: This is a good thing for us to do.
But what are we going to do about school districts that turn these kids
down, that will not give them the chance to go into the schools, where
the parents are distraught, where they have no place to turn? What are
we going to do in that situation?
The law said, if it comes to that, if the school district will not
accept the child who needs special education, there may have to be a
hearing. Of course, hearings involve attorneys. An attorney would have
to stand up for that child and that child's family and try to give that
child the chance the parents want.
Who will pay for that attorney, because some of these kids are from
the poorest families in America. They are not all rich families and
rich kids. The law said, when it comes to that issue, the court will
decide. If the attorney representing that disabled child--a child with
a learning problem--prevails
[[Page S11517]]
in the lawsuit, the court can award attorney fees to the attorney who
represented the child, and the school district that resisted bringing
the child in for special education will have to pay the attorney fees.
I have just stated the law in America. Through her amendment, the
Senator from Texas wants to change what I have just described in one
city--the District of Columbia--to say that in this, the Nation's
Capital, we will not play by the same rules that Texas, Louisiana,
Ohio, and every other State, including Alabama, plays by. No. In the
District of Columbia we are going to do it differently. We are going to
say, in the District of Columbia, no matter how complicated the case,
no matter how many problems that child might have, no matter how many
hearings might be necessary, no matter how much effort is put up by the
school board to stop this child from coming into special education, no
matter how much is involved in it, no attorney is paid more than
$3,000, period--none, not a penny.
That $3,000 limit does not apply in Texas, does not apply in
Illinois, Washington State, Alabama, or any other State. The Senator
from Texas would have us apply that here in the District of Columbia.
So when you put a limit on the attorney's fees in complicated and
difficult cases, how easy is it for a person, a family, a mother and a
father, to find an attorney to represent their son or daughter? It
becomes increasingly difficult.
What the Hutchison amendment does is to close the courthouse door,
close the opportunity for administrative hearings for children who are
seeking special education in the District of Columbia.
Need I remind my colleagues, the District of Columbia is one of the
poorest cities in America. There are children in this city who, through
no fault of their own, came to the Earth in the usual way--as Harry
Chapin used to sing in a song--who came to the Earth in the usual way
with a lot of problems, disabilities. These kids, through no fault of
their own, will find the schoolhouse door is closed to them because of
the Hutchison amendment.
She has said these kids cannot have the same legal representation as
children all across America who are asking for an opportunity for
special education. Her war is against trial lawyers. I used to be one.
I plead guilty as charged, Your Honor. But I can tell you, to say that
no lawyer will spend more than 20 hours on any case involving special
education is just terrible. It is terrible when you consider the
outcome. The losers here won't be the trial lawyers. They will find
other work. The losers be will be the children and their families who
do not want to give up hope for these kids.
Senator Hutchison says it is a matter of dollars and cents: Either
give it to the trial lawyers or give it to the school district.
Certainly, the schools of D.C. and schools across America need more
money. But does this meet the test of fairness and justice? Does it
meet the test of those who proudly voted for the IDEA legislation and
said they really cared about special education? It does not meet that
test.
Let me tell you something else that is unintended perhaps but has to
be said: When Senator Hutchison limits the amount the District of
Columbia can pay to any lawyer representing any child, no matter how
complicated the case, to $3,000, do you know what the D.C. courts have
said? They have said: We reject that. We are going to award to these
attorneys the fees to which they are reasonably entitled. We understand
the D.C. appropriations bill passed by Congress may limit how much
Congress can pay out to those lawyers, but that is not going to limit
our right under the IDEA bill to award these attorney's fees.
So what has happened?
Let's assume in a case that an attorney works long and hard for many
years on a special education case and the court says, you are entitled
to $10,000 in attorney's fees. The Hutchison amendment says, no, D.C.
can only pay $3,000. What happens to the difference; what happens to
the $7,000? The $7,000 is still an obligation of the District of
Columbia. Senator Hutchison is not doing the District any favor.
What is happening is all of these awards in court above the Hutchison
payment level continue to build up in the District of Columbia, and
interest is running on them. This mountain of debt for the District of
Columbia is going to be there whether Senator Hutchison or Senator
Durbin like it or not. It is a reality. In every city and school
district across America, they face their legal obligation--in Texas,
Louisiana, Alabama, and in Illinois. But Senator Hutchison would say we
won't face that legal obligation when it comes to the District of
Columbia.
The root problem is the weakness and poor performance of the D.C.
public school system. They come racing to us now and say, we don't want
the attorneys who want children to come in as special education
children to be paid what they are entitled to be paid by the court.
Litigation is merely a symptom of a larger problem. Fifteen percent
of the kids in the D.C. public school system are special needs
children, 10,500 children. The appropriate way to reduce the burden of
litigation on the D.C. public school system is for the system to comply
with the law and provide the services and education that children with
special needs deserve in every State in the Union, and every school
district in America plays by those rules. But not under the Hutchison
amendment. She has said there will be one exception: the District of
Columbia, one of the poorest cities in America with children suffering
from learning disabilities. That system, those children, those families
will not have the same legal representation as kids across America.
Singling out the District of Columbia is just plain wrong. This isn't
a war against trial lawyers. This is a war against poor children who
need a helping hand. That is just not fair.
I asked before in the earlier debate, why is it when this
appropriations bill comes to the floor, every Member of the Senate and
House wants to turn into a mayor or a member of the city council? Time
and again we defer these judgments to the city council and mayor. In
Springfield, IL, and Chicago, IL, we say: It is your call. When it
comes to the District of Columbia, no, we want to superimpose our
decision, our judgment. It is not fair for the District of Columbia
public school system to be standing here begging to be treated as a
home rule unit and then say to Congress: Make sure you carve out a
little exception for D.C. when it comes to special education students.
They want to have it both ways.
The mayor, whom I respect very much, has talked out of both sides of
his mouth on this issue. I don't know where he stands on this issue. I
can't follow it. I really respect this man. But eight members of the
D.C. city council have written a letter, a compelling letter. I ask
unanimous consent that the letter from the D.C. council of September 24
be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Council of the
District of Columbia,
Washington, DC, September 24, 2001.
Re: special education attorney fees.
Hon. Mary Landrieu,
Chairwoman, Subcommittee on the District of Columbia, Senate
Committee on Appropriations, Hart Senate Office Building,
Washington, DC.
Dear Senator Landrieu: As the Congress considers the
District's appropriation for fiscal year 2002 we understand
that the House has dropped any provision limiting attorney
fees in special education cases. We hope and urge that the
Senate agree.
As you know, the federal Individuals with Disabilities
Education Act (20 U.S.C. 1400 et seq.) mandates special
education for children with learning disabilities, and
provides that where a child must go to court to effect his or
her right that child (if he wins) is entitled to have his
attorney's fees paid by the government. That the District has
been singled out for the last three years with a limit on the
fees has been a matter of great controversy.
The position of the Council and Mayor is quite clear: we
adopted a proposed budget that contains no cap on attorneys
fees. Our objections to a fee cap include:
A cap makes it more difficult for children to obtain
special education to which they are entitled. It is a simple
fact: a cap on fees reduces the number of attorneys willing
to take such cases and, therefore, reduces access to counsel.
A cap discriminates against low income children. Affluent
families can afford legal representation; the cap affects
them but they still have an economic ability to help their
children.
[[Page S11518]]
The effect of the cap is to treat the children of the
District of Columbia differently--and less favorably--than
any other child in any other state in the nation. District
children have fewer rights with the cap.
The way to improve special education in the District of
Columbia must be programmatic--improve the programs rather
than limit the advocacy for special needs children.
We want public school children to obtain the best possible
education. Reforms must be done in a way that does not
disadvantage children. It is our strongly held view that the
cap on attorney fees places already vulnerable children at an
even greater disadvantage. For all of these reasons we ask
that the Senate follow the House and eschew any provision
limiting attorneys fees for prevailing parties under the
federal Individuals with Disabilities Education Act.
Sincerely,
Sharon Ambrose,
Ward 6.
David Catania,
At-Large.
Kevin Chavous,
Chairman Comm. on Education & Libraries.
Adrian Fenty,
Ward 4.
Jim Graham,
Ward 1.
Phil Mendelson,
At-Large.
Kathy Patterson,
Ward 3.
Carol Schwartz,
At-Large.
Mr. DURBIN. These include Republican as well as Democratic and
Independent members of the council. They write in part:
The position of the Council and Mayor is quite clear: we
adopted a proposed budget that contains no cap on attorneys
fees. Our objections to a fee cap include:
A cap makes it more difficult for children to obtain
special education to which they are entitled. It is a simple
fact: a cap on fees reduces the number of attorneys willing
to take such cases and, therefore, reduces access to counsel.
A cap discriminates against low income children.
The effect of the cap is to treat the children of the
District of Columbia differently--and less favorably--than
any other child in any other state in the nation.
I was a practicing attorney before I came to Congress, and there are
some wonderful people who are involved in pro bono--free--legal work.
They do great work. There are also some attorneys who can't find any
other kind of work; they are not up to it. I don't think we should put
the future and fate of these special ed kids in the hands of an
attorney who may or may not be qualified to handle the case. That is
exactly what we are doing.
This is discrimination against the special ed kids in the District of
Columbia. The District of Columbia school system should be ashamed that
they have called on this Congress to perpetuate this injustice. I hope
this Congress will think twice. If you voted proudly for IDEA, if you
really stand for children with disabilities, then for goodness' sake
give them the legal rights to pursue the right they have under law.
I yield the floor.
Ms. LANDRIEU. May I inquire how much time the Senator from Alabama
might need to speak on this amendment?
Mr. SESSIONS. I will finish the time of Senator Hutchison. How much
time does the Senator have?
The PRESIDING OFFICER. The Senator from Alabama has 8\1/2\ minutes.
Ms. LANDRIEU. That would be fine, of course, under the consent
agreement, because the Senator from Washington State is on the floor
and wants to speak not on this amendment but as in morning business. I
was just inquiring. The Senator from Alabama is entitled to proceed.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Madam President, the Individuals with Disabilities
Education Act has done a lot of great things. It has had a consistently
strong goal to mainstream disabled children into regular classrooms.
I have in the last year or so visited 20 schools in my State. I try
to take the opportunity each time to meet with the principals and
teachers in a conference and ask them about their problems, what are
their frustrations, what is working, what is not working, what can we
do in the Federal Government to help them.
The thing I hear over and over again--and I ask Senators if they hear
the same thing; I suspect they do--is that the Individuals with
Disabilities Education Act has become a legal nightmare. It has created
laws that are not helpful and are costing the schools tremendous sums
of money in litigation. It is not helping children in ways we would
like to help them. Yes, we want to mainstream every child who can be
mainstreamed.
I will share this story. I attended a wonderful, award-winning
elementary school in a mid-size town in Alabama. It was so well
decorated. It was the first week of the school year. The classrooms
were well appointed, well organized, with bulletin boards of first
quality. My wife taught elementary school a number of years, and I know
about those things and what you are supposed to do. The principal told
me this story.
He said: The first day of school, when we were working as hard as we
could to do all the things necessary to make that first day a great day
for the kids, I spent that afternoon and until 7:30 that night with 13
individuals, including a group of lawyers, over how long an individual
child should be kept in the mainstream classroom.
This child had a serious emotional disability and was not going to be
removed from school but would be put in an alternative setting where
the disability could be dealt with. But the parents and lawyers wanted
the child to be mainstreamed. In the previous year, I believe that
child had been in the classroom 1 hour a day. The principal had
concluded the child didn't need to do that. He was disrupting the
classroom and the child would not benefit from being in the classroom
an hour a day, and he decided to change that policy. So they did that
under the individual plan for the child. As a result, an objection was
raised. The compromise--he told me this, and I find this unbelievable--
was that the child was allowed to be in the classroom for 15 minutes a
day. After all of that.
As part of that settlement, the school was obligated to pay the
lawyer who brought the allegation because the child had prevailed--at
least in some part. So they had to pay the lawyer's fee for their
lawyers and the lawyer's fee of the people on the other side. The
teachers and all who had relevant information about this had to disrupt
their first day of school to meet and meet and meet. They had to
prepare and they had to talk to experts and have expert testimony about
this child and what they could do--all because of the Federal education
disabilities act.
We want to help children who can be in the classroom--children who
have sight disability, who can't hear, or children who have other
disabilities and are in wheelchairs; they need to be mainstreamed. We
want to achieve that. Nothing here would say otherwise. There are a lot
of problem areas, though, and there is a cottage industry of lawyers
who are filing lawsuits regularly.
The District of Columbia tells us they had nearly 2,000 cases last
year, and they are over the kinds of issues about which I am talking.
These children are not being thrown on the ash heap. The question often
is, What kind of program or benefit do they get? Do they stay in the
main classroom or go to a special education classroom.
We had a case in Alabama--and this is true all over America--where a
child was so unable to control himself--apparently unable, or at least
did not control himself--an aide was hired by the State to meet him at
the school bus stop in the morning, go to school with that child, sit
with him all day in the classroom, and come home with him in the
afternoon. This is happening all over America.
The lawyers and the regulations are impacting principals and teachers
who love children. They want to see children do well, and they want to
see every child reach their highest and fullest potential; but they are
being handicapped by complex regulations and litigation. I say that in
general. Then I will say this: $150 an hour is not unusual. There are a
lot of regulations that we have where the hourly fees are lower than
that. Criminal defense attorneys are paid less than that in most States
in America. $150 an hour is a 20-percent increase over the current law.
This Hutchison amendment is a 20-percent increase over current law in
the District of Columbia. This was requested by the District of
Columbia. They say, well, you don't cap other lawyer's fees. Other
lawyers don't have their fees capped.
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Let me say this: If someone cheats you on a contract and you sue them
and you win the lawsuit, they don't pay you anything for legal fees,
unless it is in the contract, which it normally is not. Most people in
America file a lawsuit, they pay their lawyer out of what they recover.
So we have given a special advantage to lawyers in disability cases and
in several other instances in lawsuits against Government agencies. We
have agreed to pay their legal fees, but they are not guaranteed
unlimited legal fees, guaranteed to be paid forever, however much they
want or whatever some judge may agree to award them.
So I think this is a reasonable amendment. It is a serious request of
the school board of this city, which is facing an avalanche of
lawsuits. There were nearly 2,000 last year. None of this money that is
expended--the $10.5 million that was saved last year is not being
thrown away. The $10.5 million that is saved can be used to help
disabled children and provide them better programs. If we pay out more
money in legal fees, from where do people think it is coming? It is
coming from the children. That is where it is coming from--the people
we want to help. We need to address nationally some of the litigation
that is arising with the Individuals with Disabilities Education Act.
There is not a superintendent of schools in America who has been on the
job very long, I suggest--or certainly very few who would suggest this
system is working effectively.
Principals tell me all the time it is a nightmare for them. It is
disrupting their ability to educate our children. They tell me the
child who is getting hurt is the average child. There are special
programs for the bright children and for those with disabilities, but
the average child is getting shortchanged. Oftentimes, teachers are so
frustrated they are leaving the profession. They are being sued for how
they handle difficult circumstances.
The PRESIDING OFFICER. The time of the Senator from Alabama has
expired.
Mr. SESSIONS. I thank the Chair and reiterate my support for the
Hutchison amendment.
The PRESIDING OFFICER. The Senator from Louisiana.
Ms. LANDRIEU. Madam President, I want to speak for a moment. The
Senator from Washington wants to be recognized. I want to say this: I
voted with Senator Sessions on the last amendment he offered on this
subject. I actually agreed very strongly with what he said. Many of us
on both sides of the aisle voted with him, as he has outlined so
beautifully some of the real problems with special education as far as
Federal rules and regulations go. We are all well intended. We all want
to help these children, but there is a major disagreement and debate
about whether the rules are actually helping or hurting.
The Senator is absolutely correct that many of our resources are not
being devoted to sort of mainstream children because of the complicated
rules about special needs and also gifted children. It is a problem and
it has to be worked out. I agree with the Senator. My disagreement is
that this amendment doesn't actually fix that problem, and it makes it
worse, not better, which is why I probably cannot support this exact
amendment and why we have tried to work out some compromise between the
Senators.
I wanted to say that for the record, and I want to also say that in
limiting the attorney's fees to $150 an hour, which doesn't seem to
many people to be much of a limit--that is quite a lot of money to
make, particularly in these times. But the problem the Senator, as an
attorney and prosecutor, should know is the real problem is the overall
limit of $3,000 per case.
So what happens is an attorney basically can only spend 2\1/2\ days.
That would allow them to process one or two motions and may not cover
them until the end of the case.
These are long and complicated and, as he has described, very
difficult cases. That is the problem Senator Durbin is trying to raise.
So I hope we can resolve it. Maybe the good prosecutor, my colleague
from Alabama, would have a suggestion about that to us.
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