[Congressional Record Volume 150, Number 134 (Friday, November 19, 2004)]
[Senate]
[Pages S11543-S11553]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                  IDEA

  Mr. KENNEDY. Mr. President, a little later today, the House and the 
Senate, Republicans and Democrats, will come together for a monumental 
achievement to strengthen special education for millions of children 
with disabilities.
  The agreement we have reached demonstrates what Americans have to 
come to realize--that students with disabilities are a far too 
important priority to be used as a political tool or cast aside because 
of an election schedule. Their education is not a partisan issue. It is 
an issue that touches families in every State and in every community.
  This has been a long and arduous march for our country as we fought 
to recognize the civil rights of children with disabilities. When 
Congress first passed IDEA, disabled children were shuttered away. They 
had no place in our society. We have all heard the horror stories. 
There is no need to revisit those dark days, but we should never, ever 
forget from where we have come.

  Then they were sent to separate schools. We know from another battle 
for integration that separate and equal are not synonymous. All of our 
children must be educated under the same schoolhouse roof.
  Gradually, they were allowed to attend regular public schools, but 
had to remain in separate wings in those schools. Still, separate and 
unequal.
  At long last, America is coming to know what parents of disabled 
children have known all along--that their children have hopes and 
dreams, just like every other child--that they have parents who love 
them and want the best for their children, just like any other parent.
  America is coming to learn that children with disabilities want to be 
asked what every other child is asked: ``What do you want to be when 
you grow up?''
  America is coming to understand that disabled does not mean unable--
that we shortchange our communities when we deny them the gifts and 
contributions of those with disabilities.
  So today, all children in America--including those with disabilities 
have--the right to a free and appropriate education. No one can take 
that away. And now, 6.5 million children with disabilities attend 
public schools, and two-thirds of them spend most of the day in a 
regular education classroom.
  The IDEA is about making a better life for children like Zachary 
Morris of Newton, MA, who has Down's syndrome. Zachary enjoys reading, 
and loves to play the characters in Dr. Seuss books in class.
  It is about Valerie Sims of Attleboro, MA. When her mother Katie 
noticed her daughter was having difficulty reading at home, she asked 
her school for an evaluation. The school discovered that Valeria has a 
learning disability. She spends a couple hours a day in a special 
classroom and now is able to read at grade level.
  The bill before the Senate is a milestone. With this legislation, the 
debate is no longer whether children with disabilities should learn 
alongside all other children, but how best to do it. That is why this 
bill strengthens services to disabled children, works with their 
parents, improves teaching, and provides practical help to their 
schools.
  This bill also involves changes in the IDEA law, changes which I know 
cause uncertainty and anxiety for many parents here today, especially 
when it comes to the proposed new discipline procedures. With the help 
of Senator Sessions, I believe we have reached a workable compromise. 
It makes sure no child is ever punished for behavior that is caused by 
their disability or has to go without the educational services they 
need to meet their goals. And for students whose behavior is caused by 
their disability, they will get new help under this compromise.
  I know that around other issues related to discipline, many parents 
are worried that the changes in this bill will take away their rights 
to fight for their child. I want to address several of these issues to 
clarify what the intent of the conference committee was in making these 
changes and to reassure parents that we are not, in any way, taking 
away their rights.
  Parents must be trained to be knowledgeable about the changes that 
were made in this bill and to be skilled advocates for their children. 
We must assure that misinformation is corrected so that parents do not 
believe that this bill stripped them of rights to advocate for their 
children and if necessary have representation by lawyers.
  For example, this bill incorporate for the first time, well 
established civil rights guidelines setting forth the rare 
circumstances when school districts can recover fees from parents or 
their attorney's. These standards were developed in Christiansburg 
Garmet Co., v EEOC, 1978. Defendants can only get fees against a 
parent's attorney if the case is wholly without legal merit and against 
parents only in the most egregious case where the parent acts in bad 
faith, knowingly filing a complaint for the sole purpose of 
embarrassing or harassing the school district. Since we know that 
parents of children with disabilities are far too busy to file 
complaints on these grounds, we do not expect this provision to be used 
by Local Educational Agencies and State Educational Agencies. No parent 
should be

[[Page S11544]]

in any way deterred from filing their legitimate complaint on behalf of 
their child.
  Another example is that this bill for the first time provides a 
timeline for when a parent must file a due process complaint. Although 
the complaint must be filed within 2 years of the alleged violation, 
the remedy for lost services is not limited to 2 years. For example, a 
parent might first realize that their child may have a learning 
disability in sixth grade. If the school should have assessed the child 
in first grade and provided services, compensatory education would need 
to cover the entire period. The child with a disability should never be 
deprived educational opportunity because the schools are not holding up 
their end of the bargain.
  This is also true for disciplinary matters. If the school has not 
developed an appropriate IEP or has failed to implement the IEP, the 
child should not be disciplined for conduct arising from the school's 
failure. It goes without saying that a child should never be punished 
for conduct that arises from the disability itself. Since the 
``manifestation determination'' is so critical, it is imperative that 
parents be trained how to be skillful advocates in the manifestation 
determination process. A child with a disability may engage in the same 
conduct as a child without a disability, but not have the same ability 
to understand or control the conduct. In these situations it is 
inequitable to treat the children the same for disciplinary purposes.
  This bill aims at remediation, not punishment. By adding strong 
requirements for functional behavioral assessments and positive and 
skillful behavioral interventions, we hope to address the conduct 
before it becomes misconduct. Suspensions and expulsions are the easy 
way out and I encourage school districts across the country to 
institute positive behavioral supports for all children. For the 
schools that have, the results have been remarkable. I strongly urge 
school districts to apply educational approaches and to use 
disciplinary approaches as a last resort.
  Regarding the important issue of attorney's fees a sentence in the 
Statement of Managers' language of the conference report that provided 
the explanation for the attorney's fees language was inadvertently left 
out. By adding at Note 231 sections detailing the limited circumstances 
in which Local Educational Agencies and State Educational Agencies can 
recover attorney's fees, specifically Sections 615(i)(3)(B)(i)(II) and 
(III), the conferees intend to codify the standards set forth in 
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).
  According to Christiansburg, attorney's fees may only be awarded to 
defendants in civil rights cases where the plaintiff's claims are 
frivolous, without foundation or brought in bad faith.
  The primary contribution of this legislation is that it strengthens 
the broader community of those involved in the education of our 
children, and gives them a greater stake in the success of our 
children.
  For our children, this bill provides at least 30,000 additional fully 
certified special education teachers in our schools. It will expand 
access to technologies that will help disabled children learn and 
become independent.
  And for the first time, we will ensure that students with 
disabilities are provided with job training and other services that 
enable them to support themselves after they graduate. Five years after 
they complete their special education programs, more than half of those 
with disabilities still are not working or are not involved in 
continuing education. We spend more than $12 billion for their 
education, only to abandon them once they finish school. Surely, we owe 
it to them, to their parents, and to our communities to provide the 
training and support they need to lead independent lives.
  Our agreement will simplify the rules for services that help disabled 
students make the transition from the classroom to the rest of their 
lives. It requires early planning, and that transition services begin 
at age 16. It requires the evaluation of all students with disabilities 
to assist them in meeting post-secondary goals, and to help them apply 
for jobs, after graduation.
  While the major transition provisions included in the Senate bill are 
not in this bill, Chairman Boehner assures me that they will be 
included in job training legislation next year.
  Students with disabilities, more so than their peers, need an 
education plan that takes into account their academic needs, but also 
their life goals. Because for children with disabilities, success means 
more than learning the three R's, it means being able to live 
independently after they leave school and to contribute and be a part 
of their community. For this reason, this bill makes sure that a 
child's education plan lays out a clear roadmap to success in school 
and in life.
  Related services, such as speech and language therapy, physical and 
occupational therapy, and psychological services are of extraordinary 
importance for disabled students and the IDEA law has always included 
them. This bill adds new services, such as interpreters and school 
nurses.
  For parents, this bill assures that they have a strong voice in their 
children's education. It makes sure that students are evaluated quickly 
for IDEA services when a parent calls for them, and it works with 
parents to improve the coordination of educational services for 
students who change schools during a school year. Parents need to be 
kept informed of their children's progress. It requires all schools to 
give parents quarterly reports about their child's progress.
  It provides new resources to parent training centers to help resolve 
disputes between parents and schools, and it gives parents more 
flexible options to participate in their child's education. And above 
all, it holds schools accountable for results, and imposes sanctions on 
States that ignore the law, so that parents don't always have to fight 
failing schools alone.
  For too long, the Department of Education has been a toothless tiger, 
with little interest in monitoring State compliance with the law and 
with too few tools to take action where there's need for improvement. 
We know that as a result, States are woefully out of compliance with 
the law. Every reliable source shows it, and it's the children who pay 
the price of this negligence.
  According to the National Council on Disability, every State in the 
country is out of compliance with this law in some way.
  A recent General Accounting Office report identified compliance 
failures in 30 of the 31 States visited. Over half of the failures were 
directly related to providing student services, the lifeblood of the 
IDEA, services such as counseling, speech therapy and assistive 
technology, which make the impossible possible.
  The monitoring and enforcement provisions in this bill will hold the 
Department of Education to a higher standard. And it will improve their 
capacity to hold States accountable for fixing problems.
  For teachers, the bill provides new training opportunities. And it 
recognizes that special education teachers face 2\1/2\ times the 
paperwork burden as other teachers by allowing 15 States to test new 
ways of giving teachers more time with students and less with needless 
paperwork.
  It streamlines State and local requirements to ensure that paperwork 
focuses only on improving educational results for children with 
disabilities and it requires the Secretary of Education to develop 
simple model forms for individual education plans and other key 
requirements.
  Teachers, principals and other school personnel are also given 
improved training options and special grants dedicated for this 
purpose. And a new grant program is created to help institutes of 
higher education to train our teachers.
  States and local schools are allowed to use funds to provide 
professional development for teachers.
  The new law also expands training options for general education 
teachers, principals and other administrators in how to make the IDEA 
work for their whole school community.
  Most importantly, the bill sets a high standard of competency for 
special education teachers to meet so disabled students get the best 
education possible from the best trained professionals.
  Special education teachers are modern-day heroes. They are teachers 
because they care and they do a remarkable job. But we are facing a 
shortage

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crisis now, and in the coming years. One of the reasons so many 
teachers leave special education is they are not adequately prepared 
for the job. Better trained teachers remain in the field for longer and 
improve the results for students.

  In No Child Left Behind we made a commitment to have a highly 
qualified teacher in every regular education classroom, and with this 
bill we do the same thing with students with disabilities. The new law 
requires that all special education teachers obtain a bachelor's 
degree, hold a license in their State to teach special education, and 
demonstrate subject knowledge. It is the right thing to do for students 
and it will help schools meet the goals under No Child Left Behind. 
These teachers need our support, and they will receive it as they work 
to meet these new, high standards.
  For communities--for students and parents and teachers and schools--
this bill encourages everyone to work together to solve problems and 
meet challenges. It says that if children must be removed from school 
for disciplinary reasons, the community must continue to see to the 
educational and other needs of those children. Far too often, issues 
between parents and schools quickly wind up in court. This bill tries 
to resolve them first through a complaint process before resorting to 
litigation. But it also preserves parents' rights when they do go to a 
formal due process hearing. It encourages parents and schools to share 
information to facilitate early and more effective resolution of 
disputes.
  The law will require all schools to measure the academic performance 
of students with disabilities on all State and district-wide 
assessments, including alternate assessments aligned to a State's 
academic content standards or extended standards. It requires all 
States to include students with disabilities who take alternate 
assessments in their No Child Left Behind accountability systems.
  Communities win with this bill when it comes to financing the 
education of disabled children, too. They contribute the majority of 
funds to educate disabled students, and we recognize that by giving 
them a greater say over how they spend Federal funds.
  I deeply regret this bill does not require the Federal Government to 
meet its full funding commitment to local schools to help them cover 
the costs of special education. The bill at least sets specific funding 
targets, and we will continue to fight next to see that Congress and 
the administration meet them.
  Meeting local needs also includes continuing support for early 
intervention programs. We know early intervention for our youngest 
children ages zero to 3 can make an enormous difference in their 
development, and that dollar for dollar these resources are one of the 
most effective investments we can make.
  This law also gives States the incentives and the authority to create 
a seamless system of early intervention from birth through kindergarten 
so our youngest children get the best care possible and enter 
kindergarten ready to learn.
  As a society, we are judged by how we treat our children, and we are 
measured especially by how we treat those children with special needs. 
That is why I believe so strongly in the right of every child to a free 
and appropriate education, and I believe this bill advances that cause.

  I thank the many people who brought us successfully to this day. 
First and foremost, I commend the thousands of parents who made their 
views known in shaping this legislation. They have been citizen leaders 
at their very best. Chairman Boehner, Senator Gregg, the chairman of 
our committee, and Congressman Miller deserve special thanks for their 
leadership in producing an agreement with such strong and overwhelming 
support.
  I might mention, Mr. President, the vote in the House of 
Representatives was 397 to 3 on this legislation. The House voted 
earlier today. It reflects the best judgment of Republicans and 
Democrats in both bodies on an issue of such fundamental, basic 
importance to families who have the special-needs children but to all 
Americans who care about the quality of our society and the value this 
Nation places in terms of understanding the special gifts special-needs 
children provide for their families and for communities and for our 
country.
  I also commend Senator Sessions for his bipartisan work in dealing 
with the discipline issue, which has needlessly plagued the debate on 
IDEA for so long.
  Senator Harkin is always at the forefront of the movement for equal 
rights for all persons with disabilities, including children. He has 
led the effort for positive support for all students with disabilities, 
and his best ideas are in this bill.
  Senator Dodd and Senator Jeffords worked effectively on this 
legislation to improve early childhood programs. They have been two 
pioneers in the development of the legislation since the very 
beginning, and they have been absolutely tireless in pursuing positive, 
constructive, responsive changes in these programs. They are both 
leaders on children's programs in the Senate.
  Senator Bingaman fought for strong enforcement of civil rights 
protections for every disabled student. Senator Mikulski strengthened 
support for students making the transition from schools to careers. 
Senator Reed improved the training and recruitment of special education 
teachers. Senator Murray improved the provisions on enforcement and the 
monitoring of the law and for caring for homeless and foster care 
children so they do not fall through the cracks. Senator Clinton 
deserves credit for her work to ensure that new funds are provided to 
improve the quality of alternative student placements, to provide more 
effective behavioral support for students, and to see that all schools 
are safe schools.
  Thanks especially to the staff, who worked endless hours over the 
past few weeks to produce this bill.
  All of us are grateful to Denzel McGuire, Annie White, Bill Lucia and 
Courtney Brown on Senator Gregg's staff for their dedication to making 
this bipartisan process work, and to Michael Yudin with Senator 
Bingaman for his expert counsel.
  Also to Sally Lovejoy, David Cleary, Melanie Looney, Krisann Pearce 
and Brad Thomas with Congressman Boehner; Alex Nock, Alice Cain and 
Ruth Freidman with Congressman Miller; John Little with Senator 
Sessions; Mary Giliberti and Eric Fatemi with Senator Harkin; Elyse 
Wasch and Seth Gerson with Senator Reed; Maryellen McGuire and Jim 
Fenton with Senator Dodd; Bethany Little, formerly with Senator 
Murray's staff; Jamie Fasteau with Senator Murray; Justin King and Jean 
Cook with Senator Jeffords; Catherine Brown, Susie Saavedra and Maryana 
Zubok with Senator Clinton; Carmel Martin, formerly with Senator 
Bingaman's staff; Sara Vecchiotti with Senator Bingaman; Rebecca Litt 
with Senator Mikulski; Erica Buehrens with Senator Edwards; Joan Huffer 
with Senator Daschle; Bethany Dickerson with the Democratic Policy 
Committee; and Kristen Bannerman with Senator Alexander.
  I especially thank Jeremy Buzzell, Michael Dannenberg, Charlotte 
Burrows, Jim Manley, Jane Oates, Roberto Rodriguez, Kent Mitchell, Cody 
Keenan, Danica Petroshius and Michael Myers on my staff for their 
skillful work and dedication, and above all Connie Garner for all she 
has done for children with disabilities and their families and for 
never letting us forget what this law is really about.
  Our thanks also go out to the hundreds of disability and education 
advocates across the country who worked so hard on this legislation.
  This bill represents our best bipartisan effort, and I look forward 
to its immediate and imminent passage and strong support from both 
sides of the aisle.
  Mr. President, before concluding--and I am going to include an 
appropriate number of these letters in the Record--we asked, just 
several weeks ago, some of those children whose lives will be impacted 
by this legislation a question. We sent them this question:

       Take a few minutes to think about being an adult. What will 
     your life look like? How do you think that school can help 
     prepare you to be the best that you can be and make some of 
     your own dreams for your future come true?

  This is the answer from an eighth grader:

       I want to be a doctor. I know that if I try hard to read 
     well, I can learn better and then

[[Page S11546]]

     I have a chance to be a doctor. Teachers like Mr. McKenzie 
     and Ms. Ann help me to learn and make me feel good.

  The question was:

       Take a few minutes to think about being an adult. What will 
     your life look like? How do you think school can help prepare 
     you to be the best that you can be and make some of your own 
     dreams for your future come true?

  Again, this was a sixth grader:

       I want to be an art teacher when I grow up. I want to learn 
     all about and to be able to work with clay, paints, pencils 
     and everything. I want to teach kids like me.

  Mr. President, we have a book that I will not, obviously, put in the 
Record, but we have a number of letters like that. The hopes and dreams 
of these children are the hopes and dreams of children all across the 
country. This bill will help those hopes and dreams be achieved.
  I see my chairman on the floor at this time. Again, I thank Senator 
Gregg for his work.
  We have worked very closely on this legislation and other 
legislation, No Child Left Behind. He was tireless in terms of trying 
to increase funding for the IDEA. We had differences. Some of us felt 
we ought to move in a more rapid way, but he has certainly been strong 
and committed to the goals of this legislation over a long period of 
time. He is giving up the chairmanship of this committee to go on to 
other service in the Senate. I think all of us who have been a part of 
this pathway on IDEA are particularly in his debt for his leadership 
and the work he has done on this very important piece of legislation.
  Mr. HARKIN. Mr. President, I want to thank my colleagues, Chairman 
Gregg and Senator Kennedy, as well as Chairman Boehner and 
Representative Miller, for conducting a truly bipartisan conference. 
When the legislative process is working properly, we have a fair 
negotiation--and more often than not, that produces a better bill. Not 
a bill that gives each of us everything we wanted, but a fair result 
given the two bills that we are charged with reconciling. And that is 
what we have here.
  Last week, Washington Post's internet site ran a cartoon by Ted Rall 
that was one of the most egregious things I have ever seen. I don't 
know if many of you saw it, but it showed a student in a wheelchair 
with crossed eyes and drool coming from his mouth. He had joined a 
class of students without disabilities and here is what one of the 
panels of the cartoon read, ``The special needs kids make people 
uncomfortable and slow the pace of learning.'' The cartoon showed the 
class changing from higher level math to simple addition because of the 
special education student.
  The cartoon was supposed to be some kind of analogy to the United 
States, but it was very hard to understand the point. What was crystal 
clear, however, was the author's bigotry and stereotyping of children 
with disabilities. I understand that the Post will no longer run 
cartoons by Mr. Rall because cartoons like this are not funny. They are 
hurtful and serve as a stark reminder of why we are here and why IDEA 
is such important civil rights legislation.
  I was here in Congress in 1975, as were some of my Senate colleagues, 
when IDEA was enacted. And it is important to remember why we passed 
this legislation in the first place. We passed it because bigotry and 
discrimination were keeping a million children with disabilities 
completely out of school. Those children were locked out of an 
education and denied the bright future that comes with an education. 
IDEA opened the doors of opportunity for those children.
  I have participated in many subsequent revisions to the law over the 
past 29 years. And I am supporting this reauthorization because we 
continue our proud tradition of ensuring that children with 
disabilities have the right to a free, appropriate public education, 
FAPE. In addition, we improve the enforcement of that right.
  Over the years, I have been involved in the debate about disciplining 
students with disabilities--and this was a major issue for the 
conferees. I know that parents were very concerned about changes to 
this section of the law. I appreciate and understand those concerns 
because I have shared them.
  While this reauthorization streamlines the discipline provisions, it 
continues several key principles. We will continue to consider the 
impact of the disability on what the child is doing and we will not 
punish children for behavior that is related to their disability. It is 
also important that we continue to require that children receive 
educational services when they are being disciplined so they do not 
fall further behind. We also continue to emphasize that an assessment 
and services must be provided to children who have more serious 
behaviors so we can prevent future discipline problems.
  I believe that discipline will become less and less of an issue over 
time as schools implement positive behavior supports more widely. 
Section 614(d)(3)(B), entitled consideration of special factors, was 
added in 1997 to provide special emphasis on certain related services, 
modifications and auxiliary aides which were not being considered by 
IEP teams and therefore not provided. The Senate bill modified 
subsection 614(d)(3)(B)(i) to state that behavioral supports must be 
provided when the child's behavior impeded his/her education or that of 
others. In conference, current law was re-instated in order to make the 
subsection consistent with the other special consideration subsections.
  By instructing the IEP team to consider the specified services, it 
goes without saying that the services must be provided if the IEP team 
finds that the services will assist the child in benefiting from his/
her educational program. In the case of behavioral interventions, the 
section sets forth the circumstances when the services would be 
required.
  The regulations to IDEA specify that ``if, in considering the special 
factors ... the IEP team determines that a child needs a particular 
device or service (including an intervention, accommodation, or other 
program modification) in order for the child to receive FAPE, the IEP 
team must include a statement to that effect in the child's IEP.'' 34 
C.F.R. Sec. 346(c). And IEP services must be provided to the student. 
See Office of Special Education Programs Letter to Osterhout, 35 IDELR 
9 (2000).
  There has been widespread noncompliance with this requirement. 
However, with reauthorization's increased emphasis on monitoring and 
enforcement, we expect that this implementation will improve. Children 
whose behavior is impeding them or others from learning should get the 
positive behavioral supports they need when the IEP team considers this 
issue and finds that the services are part of FAPE for that child.
  In addition, we allow schools to use up to 15 percent of their funds 
to address behavior issues for children who have not been identified as 
special education students. Also, Senator Clinton has worked to include 
authorization for a program that would provide funding for systemic 
positive behavioral supports in schools.
  Research by Dr. George Sugai and others indicates that the 
implementation of positive behavioral supports can have a dramatic 
impact on disciplinary problems. Dr. Sugai testified in 2002 before the 
Health, Education and Labor Committee that by shifting to schoolwide 
positive behavioral supports, an urban elementary school decreased its 
office referrals from 600 to 100. It also decreased in 1 year its days 
of suspension from 80 to 35. Schools can save administrators' time and 
resources and cut down on discipline problems by implementing these 
programs.
  Another area that generated discussion in this reauthorization is 
litigation and attorneys fees. However, the facts show that there is 
very little litigation under IDEA. GAO examined the data and concluded 
that the use of ``formal dispute resolution mechanisms has been 
generally low relative to the number of children with disabilities,'' 
according to a 2003 report titled, Special Education: Numbers of Formal 
Disputes Are Low and States Are Using Mediation and Other Strategies To 
Resolve Conflicts.
  My own State of Iowa follows the general trend of very low 
hearings and court cases. A graduate student in Iowa did a thorough 
analysis of due process hearings in Iowa from 1989-2001. Since the 
amendments in 1997, there were three hearings in 1998; three also in 
1999 and four hearings in 2000. The Department of Education informs me 
that this trend continues, with only

[[Page S11547]]

three hearings in each of the past 2 years. And there are thousands of 
children in special education in the State of Iowa.

  Given the fact that litigation is generally not a problem in IDEA, in 
this reauthorization we merely include a standard that is used in other 
civil rights contexts--it is generally referred to by the case, 
Christiansburg Garment Company vs. Equal Employment Opportunity 
Commission, 98 S.Ct. 694 (1978). Both prongs of the Christiansburg 
standard (filing or pursuing litigation that is groundless or for bad 
faith/improper purpose) adopted today are very high standards and 
prevailing defendants are rarely able to meet them. They are designed 
for only the most egregious cases.
  Also, in deciding cases under this standard, courts have considered 
the party's ability to pay. This is important because Congress does not 
intend to impose a harsh financial penalty on parents who are merely 
trying to help their child get needed services and supports. So in 
applying this standard and deciding whether to grant defendants' fees, 
the court must also consider the ability of the parents to pay.
  A school district would be foolhardy to try to use these provisions 
in any but the most egregious cases. Not only would the school be 
wasting its own resources if it did not prevail, but it would be liable 
for the parents' fees defending the action.
  Unlike parents who are entitled to attorney fees if they win the 
case, the fact that a LEA ultimately prevailed is not grounds for 
assessing fees against a parent or parent's attorney. As the Supreme 
Court concluded in Christiansburg, courts should not engage in ``post 
hoc reasoning by concluding that, because a plaintiff did not 
ultimately prevail, his action must have been unreasonable or without 
foundation. This kind of hindsight logic could discourage all but the 
most airtight claims, for seldom can a prospective plaintiff be sure of 
ultimate success.''
  As GAO found, there has been a low incidence of litigation under 
IDEA. The cases that are filed are generally pursued because parents 
have no other choice. Congress does not intend to discourage these 
parents from enforcing their child's right to a free, appropriate, 
public education. This is merely to address the most egregious type of 
behavior in very rare circumstances where it might arise.
  In this reauthorization, we also include a 2-year statute of 
limitations on claims. However, it should be noted that this limitation 
is not designed to have any impact on the ability of a child to receive 
compensatory damages for the entire period in which he or she has been 
deprived of services. The statute of limitations goes only to the 
filing of the complaint, not the crafting of remedy. This is important 
because it is only fair that if a school district repeatedly failed to 
provide services to a child, they should be required to provide 
compensatory services to rectify this problem and help the child 
achieve despite the school's failings.

  Therefore, compensatory education must cover the entire period and 
must belatedly provide all education and related services previously 
denied and needed to make the child whole. Children whose parents can't 
afford to pay for special education and related services when school 
districts fail to provide FAPE should be treated the same as children 
whose parents can. Children whose parents have the funds can be fully 
reimbursed under the Supreme Courts decisions in Burlington and 
Florence County, subject to certain equitable considerations, and 
children whose parents lack the funds should not be treated 
differently.
  I also want to discuss the monitoring and enforcement sections of 
this bill. I want to thank Senator Kennedy for his leadership on this 
issue. Again, GAO has issued a report that has informed our 
deliberations around this issue. They noted that the Department of 
Education found violations of IDEA in 30 of the 31 States monitored. In 
addition, GAO found that the majority of these violations were for 
failure to provide actual services to children. That report, issued 
this year, is titled, Special Education: Improved Timeliness and Better 
Use of Enforcement Actions Could Strengthen Education's Monitoring 
System.
  When we passed the Americans with Disabilities Act, we said that our 
four national goals for people with disabilities were equality of 
opportunity, full participation, independent living, and economic self-
sufficiency. But children with disabilities are never going to meet any 
of those goals if they don't get the tools that they need when they are 
young. So if we truly want equal opportunity for individuals with 
disabilities, it has to start with IDEA, and with our youth, who are 
our future. The law must be enforced so they receive the services and 
supports they need to get a quality education and a brighter future.
  As part of the enforcement of this law, States must ensure that local 
education agencies are meeting their targets to provide a free, 
appropriate public education. If they fail to do so, the State must 
take action, including prohibiting the flexible use of any of the local 
education agency's resources.
  In addition to monitoring and enforcement, there are other 
improvements in this bill. I will mention one area that is near and 
dear to my heart because of my brother, Frank, who many of you know, 
was deaf. In this bill, we add interpreter services to the list of 
related services, a change that is long overdue. And we continue to 
require the Department of Education to fund captioning so deaf and 
hard-of-hearing individuals will have equal access to the media.
  While I support the bill, I must point out, however, that I am deeply 
disappointed that this bill does not include mandatory full funding of 
IDEA.


                             Section 615(k)

  Mr. President, I say to my colleague, Senator Kennedy, with whom I 
have worked on these issues for many years, there are revisions in this 
bill to the provisions concerning the authority of school personnel to 
place a student with a disability in an alternative educational 
setting. That is section 615(k). As you know, this was a subject of 
much discussion when IDEA was reauthorized in 1997, and I think we 
reached a good balance at that time. Is there an attempt here in this 
new reauthorization to change the balance we created in 1997?
  Mr. KENNEDY. I can answer without hesitation that there is no attempt 
to change the basic principles of what was done in 1997. As was 
recognized at that time, the general rule is that a child with a 
disability cannot be suspended or placed in an alternative placement 
for more than 10 days. In order to meet safety concerns of school 
personnel, Congress added specific exemptions in 1997 to deal with the 
most dangerous situations. In keeping with that concern, the school may 
place a child in an alternative setting if he has inflicted serious 
bodily injury on another person at school. However, even in these 
circumstances, the child may not be removed for more than 45 days and 
must receive a free, appropriate, public education and behavioral 
supports in the alternate setting.
  Mr. HARKIN. I thank my colleague, and I agree with his explanation. I 
ask the Senator, what about the child with a disability who violates a 
code of conduct in a way which does not reach that level of 
dangerousness? In 1997, we distinguished between situations where the 
conduct was related to their disability and those where it was not. Is 
this distinction also preserved in our new bill?
  Mr. KENNEDY. Absolutely, it is a basic premise of disability civil 
rights law that someone should not be punished for disability-related 
conduct. Nowhere is this more true than in the educational setting. 
That is why we have placed an emphasis on functional behavioral 
assessments and positive behavioral supports. We want to address 
behavior educationally, hopefully before it becomes misconduct.
  Mr. HARKIN. I wonder whether my colleague believes this 
reauthorization changes the factors for deciding whether the behavior 
is a manifestation of the disability?
  Mr. KENNEDY. I say to my friend from Iowa, the answer is no. While 
there was an attempt to streamline the language, the information that 
should be reviewed and the factors that should be considered should be 
the same. In 1997, the act set forth specific instances when the 
child's behavior would be a manifestation, when the child's disability 
impaired the ability to understand or control the behavior, or when the 
individualized education program

[[Page S11548]]

or IEP was not being appropriately implemented. These instances would 
still constitute grounds for finding that the conduct is a 
manifestation of the disability, as would any other relevant factor or 
special circumstance which indicated that the conduct in question was 
caused by, or in the alternative, substantially related to the child's 
disability. If the student's conduct is a manifestation of their 
disability, the student may not be moved to an alternative placement 
for more than 10 school days unless one of the specific dangerousness 
exceptions apply.
  Mr. HARKIN. I thank my colleague for his explanation.
  Mr. GREGG. Mr. President, I ask unanimous consent to speak as in 
morning business for 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GREGG. Mr. President, let me first thank the Senator from 
Massachusetts for his very generous comments, but more importantly for 
his extremely positive and constructive and aggressive role in bringing 
this bill to fruition. He and his staff have done an exceptional job of 
reaching across the aisle to make sure that this bill, so critical to 
so many children in our Nation, was completed and completed in a manner 
where everybody could feel comfortable that the product was good and 
was going to improve the lives of these special-needs children.
  This bill has some exceptional strengths. It doesn't respond to all 
of the problems we know are out there relative to IDEA, but it makes 
dramatic strides forward in improving this very significant piece of 
legislation, which many of us have worked on for a long time. I think 
it is a reflection of the good faith and the good attitude brought to 
the table that we were able to reach an agreement.
  This was not an easy piece of legislation to put together. It came 
together not only because of our side, in the Senate, with myself, 
Senator Kennedy, and other Members of the committee, but because over 
on the House side Congressmen Boehner and Miller played a very positive 
role in making sure we reached an agreement.
  This bill's uniqueness is that it changes the paradigm relative to 
how we help these children. The goal is to make sure the special-needs 
children have a reasonably decent shot at making sure they accomplish 
as much as they are capable of accomplishing. So we go from an input 
system, where we had a lot of T's to cross and I's to dot, where we ask 
are these children getting the best education they can get, and are 
there results? It is an output look, a look at accountability to make 
sure these children are trained and given skills and the academic 
preparation they need. So it changes the emphasis of IDEA to that of 
being one of input and regulation--to say how far can we go to improve 
this child's life and education capabilities? We have trained the 
teachers and given them more flexibility, hopefully, and less 
regulation and less paperwork and more time with students. We also hope 
we have given parents tools to work with and given the school board 
tools to work with. We hope we have dramatically released the 
litigiousness of this exercise that created an atmosphere where parents 
and school boards and teachers can work out a game plan for their 
children and not feel they have to resort to lawsuits.
  In addition, we have addressed critical issues, such as the question 
of discipline in the classroom and how best to deal with a child who 
has special needs, and how that child can interface with the classroom 
in a positive way. I thank Senator Sessions for that. This was the most 
difficult part of the bill. Senator Sessions gave strong leadership and 
we were able to work out a strong compromise.
  Again, the reason this bill succeeded was because everybody came to 
the table in good faith and tried to reach an agreement that would be 
positive for the children who have special needs in our Nation. And we 
have been successful, in my opinion, in moving this ball well down the 
field toward that goal. Will there need to be more tweaking and effort 
in this area? Of course. That is a fact of life. But have we made 
dramatic strides toward giving these children a better shot at a better 
life? Absolutely, under this legislation.

  Senator Kennedy listed all the different Members on his side and many 
on ours who played a major role in making this bill work. I intend to 
put those in my statement, as I recognize my time is limited. A lot of 
players came to the table from a lot of different offices--on the staff 
side but, more importantly, on the Members' side, and worked very 
constructively. Certainly, we appreciated the genuine effort put 
forward by Members who serve on the HELP Committee to reach agreement 
here.
  I especially thank Denzel McGuire of my staff, who leads our 
education activities. She has been the author and the energizer of a 
lot of good law around here. Much of it is now bearing fruit; for 
example, No Child Left Behind. This will be another legacy of hers, in 
which she can take great pride, and in which I also take great pride.
  Again, I thank my ranking member, Senator Kennedy, and his staff, 
including Connie Garner, for their very constructive role and their 
willingness to work so aggressively with us to reach a product that 
will have a very positive impact on lives.
  This bill is going to make a lot of kids who have special needs, with 
special problems, have a much better life and a much better chance at 
an education that fulfills their strengths and gives them a chance to 
use those strengths in a positive way.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. BYRD. Mr. President----
  Mr. COLEMAN. Mr. President, I understand the Senator from West 
Virginia has the floor, and I understand he is going to give a 
Thanksgiving message. However, I ask the distinguished Senator from 
West Virginia if he will yield to me for 10 minutes to address the 
pending measure.
  Mr. BYRD. Mr. President, I will be happy to yield.
  I ask unanimous consent that I may yield to the distinguished Senator 
for not to exceed 10 minutes, and that I may then be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COLEMAN. Mr. President, I rise to address the pending measure, 
the Miscellaneous Trade and Technical Corrections Act. I was proud to 
join the bipartisan efforts in the Senate to bring this important 
legislation to conference. This bill is important to me and to the 
people of Minnesota because it helps make our State and our Nation more 
competitive in a world market, which can be pretty rough and tumble.
  That said, however, I am equally opposed to the extension of 
permanent normal trade relations to Laos, a provision slipped into this 
trade bill in conference committee, notwithstanding the fact that 
neither the Senate nor the other body voted to include this provision 
in their respective versions of the bill.
  The Laos trade provision was not included in the underlying bill 
moving through the regular process because, as the saying goes, ``there 
are some things no amount of sunshine can disinfect.'' That is an apt 
way to describe the terrible human rights record of Laos. If the United 
States were to ever extend normal trade relations to Laos under that 
country's current human rights conditions, it could only be done in 
this way--without either body addressing the issue head on. It could 
only be tacked onto a popular piece of legislation that was not 
amendable, as was the case with the conference committee report, 
allowing this otherwise unacceptable provision to get a free ride 
without the scrutiny it deserves.
  This provision did not emanate from the Senate negotiators but from 
the negotiators in the other body. I commend Chairman Grassley and 
Senator Baucus, two good friends, for whom I have the greatest respect, 
for all the hard work they put into the underlying bill. It is a good 
bill. But because the bill wound up with this Laos trade provision on 
it, I was put in the position of having to oppose invoking cloture on 
the bill, a vote I took earlier today. This is the first time as a 
Senator I opposed cloture. I did not take this position lightly. I have 
seen too much good legislation in the Senate die not because it didn't 
have majority support, but because it could not get a simple up-or-down 
vote. My vote earlier today was also not easy because I strongly 
support trade. Minnesota is the seventh largest agricultural export 
State in the Nation, and twelfth in overall

[[Page S11549]]

exports. Trade is good for America and for Minnesota.
  Frankly, opposing normalized trade with a country is a tough call, 
even when trade with that country is of nominal value to the United 
States, as is the case with Laos. But frankly, there are just some 
times where the actions of an unapologetic nation are so egregious that 
is is morally wrong to move forward on trade liberalization with that 
nation because if would effectively place the imprimatur of the United 
States on those actions. The actions of Laos rise to this level. I know 
we will not be able to stop this Laos trade provision today with it 
being attached to a bill that enjoys such overwhelming support on both 
sides of the aisle. But I am pleased that a resolution I introduced 
condemning Laos for its human rights abuses will be taken up by the 
United States Senate today.

  I am pleased to be joined by Senators Feingold, Kohl, and Dayton on 
this resolution, and I appreciate the assistance of Chairmen Lugar and 
Grassley, Senators Baucus and Biden as well as the majority leader in 
helping to work out this very important and very strong resolution. Our 
resolution essentially says to Laos, you have now got normal trade 
relations with the United States, now, shape up and rise to that very 
basic level of human decency expected around the civilized world by 
today's standards--and probably achieved by most of us in the Dark 
Ages.
  Laos is a Communist nation with a disturbing human rights record, 
particularly with regard to its treatment of ethnic minorities.
  Laos is home to an ethnic minority, the Hmong. The Hmong are a brave 
and freedom-loving people. During the Vietnam War, thousands of Hmong 
aided American soldiers. The CIA trained and armed approximately 60,000 
Hmong guerrillas to disrupt View Cong supply lines and rescue downed 
pilots during the Vietnam War. They served admirably and saved American 
lives.
  When Laos fell to the Communists in 1975, the government began to 
systematically persecute these people, in retaliation for their support 
of our soldiers and their rejection of communism. Tens of thousands of 
Hmong were able to flee difficult conditions in Laos, and many have 
resettled in Minnesota, Wisconsin, and California where they are hard-
working, important members of our communities. In fact, this year the 
U.S. is welcoming another 15,000 Hmong refuges who fear returning to 
Laos from their camp in Thailand.
  Thousands of Hmong remain in Laos, however, and fear for their lives 
daily.
  The Lao Government continues to employ ruthless tactics against them. 
Amnesty International has accused the government of Laos of using 
starvation as a ``weapon of war against civilians.'' More recent 
reports--and even grotesque video footage--suggest the rapes and 
killings of several young Hmong girls at the hands of Lao soldiers.
  Let me give you an example from my State. A constituent of mine, a 
Lutheran Minister from St. Paul who is Hmong, traveled to Laos last 
year to translate for two European journalists who were investigating 
human rights in Laos. During their trip, Reverend Mua and his 
associates were arrested by the Lao police on suspicion of murder. He 
was denied consular access for over a week and subjected to a 1-day 
show trial, after which he was convicted for 15 years in prison. 
Although he was eventually released after more than a month in 
captivity--thanks to the hard work of our American diplomats in 
VientianeReverend Mua's case is one more illustration of the Lao 
govenment's disregard for human rights and due process, as well as its 
apparent discrimination against this ethnic minority.
  The State Department's Human Rights Report on Laos catalogues the 
many failings of this regime with regard to human rights. Permit me to 
share some key findings of this report:

       The Government's human rights record remained poor, and it 
     continued to commit serious abuses . . . Members of the 
     security forces abused detainees, especially those suspected 
     of insurgent or anti-govenment activity . . . Police used 
     arbitrary arrest, detention, and surveillance . . . The 
     Government infringed on citizens' privacy rights and 
     restricted freedom of speech, the press, assembly, and 
     association. . . . The Government restricted some worker 
     rights. Trafficking in women and children was a problem.

  The report goes on and on.
  According to the U.S. Commission on International Religious Freedom:

       There continue to be serious religious freedom problems in 
     Laos. The government interferes with and restricts the 
     activities of all religious communities . . .

  Now the Commission does note some recent improvement by the Lao 
government.
  Nevertheless, ``Lao officials, primarily those at the provincial and 
local levels, have continued to harass, detain, and arrest individuals 
reportedly for participating in certain religious activities.'' Bear in 
mind that this state of affairs--harassment, detention and 
incarceration for one's religious convictions--is apparently an 
improvement over the Lao Government's performance of last year.
  My office has received troubling reports from Laos about shocking 
behavior on the part of the Lao military toward the Hmong minority. As 
I have mentioned, a new video documents alleged rapes and murders of a 
number of young Hmong girls. The Lao Government, not surprisingly, has 
disputed these reports. But the areas in which these atrocities appear 
to have been committed are not open to outside observation. Outside 
groups are not allowed to enter these communities to verify--or even 
dispute--these allegations. The Lao Government certainly has acted as 
though it has something to hide.
  This United States is not alone in our concern. In August 2003 the 
United Nations Committee to Eliminate Racial Discrimination ``deeply 
regretted that the Lao People's Democratic Republic had failed to honor 
its obligations . . . expressed its grave concern at the information it 
had received of serious and repeated human rights violations in that 
country; was extremely disturbed to learn that some members of the 
Hmong minority had been subjected to serve brutalities;'' and, 
``deplored the measures taken by the Lao authorities to prevent the 
reporting of any information concerning the situation of the Hmong 
people . . .''
  Finally, they say you can tell a lot about a man by the company he 
keeps. Let us then consider the government of Laos, which counts among 
its closest friends such nations as North Korea and Burma. Last year 
Laotian representatives met with representatives of North Korea where, 
according to the BBC, ``both sides . . . exchanged views on the need to 
boost cooperation . . . (in) talks (that) proceeded in a friendly 
atmosphere.''
  And according to the Vietnam News Agency and other sources, in May of 
last year, ``Top leaders of Myanmar and Laos . . . expressed their 
delight with the two countries' growing friendship and highly valued 
the mutual assistance and successful cooperation in the spheres of 
politics, security, economy, trade and socio-culture.'' I am sure I do 
not need to remind the members of this body that North Korea is a 
charter member of the ``axis of evil,'' nor need I recall that this 
very body has voted twice in the last two years to impose sanctions 
against Burma. A country that seeks to boost ``friendly'' cooperation 
with North Korea and delights in its ``growing friendship'' with Burma 
ought to give us some pause, some opportunity to examine this 
normalized trade relationship, giving us an opportunity to vote against 
it rather than putting it in a bill we all know will pass.
  I believe in trade. I believe it helps the people in my state, and 
that it can help to create a more inter-connected and ultimately more 
peaceful world.
  But I am wary about the signals we send by extending permanent normal 
trade relations to a nation with such an abysmal human rights record.
  The timing is particularly troublesome, coming as it does on the 
heels of such highly disturbing reports.
  I wish we had an opportunity to debate this issue on its face. I wish 
we had a chance to hold a hearing on trade with Laos, or to debate it 
as part of an amendable piece of legislation. My colleagues in the 
other body also wish they had been afforded the opportunities, or even 
been advised of the inclusion of the Laos measure in what is otherwise 
a very popular bill. I will be watching Laos closely and if progress is 
not made, expect to revisit this issue.
  I know my colleague, Senator Feingold, will expect to revisit the 
issue. This is a bipartisan issue.

[[Page S11550]]

  Finally, let me say, 99 percent of this bill is good for the country 
and good for Minnesota. My home State has a strong tradition in support 
of trade, and normally the underlying bill would be a slam-dunk back 
home. But Minnesota also has a strong tradition of respect for human 
rights and the culture of life, and at least with this Senator, and 
with respect to this extremely egregious case, the human rights and the 
culture of life must be the first consideration.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia is to be 
recognized.
  Mr. BYRD. I thank the Chair. Mr. President, I ask unanimous consent 
that I may speak without regard to germaneness, with the understanding 
that the time be charged against me under the cloture rule, and that I 
not speak beyond 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. I thank the Chair.
  (The remarks of Mr. Byrd are printed in today's Record under 
``Morning Business.'')
  Mr. BYRD. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. Mr. President, I would like to take a minute to explain 
or review where we are procedurally. The Senate has voted for cloture 
on the miscellaneous trade bill, including the Laos NTR issue. Under 
rule XXII, 30 hours of debate is available postcloture for further 
debate on the conference report.
  I would like to ask how much time remains available for debate on the 
miscellaneous trade bill?
  The PRESIDING OFFICER. There is 30 hours for all consideration, which 
includes the debate, quorum calls, and votes, which would end tomorrow 
at 4:44 in the afternoon.
  Mr. FEINGOLD. Mr. President, how much time have we consumed of the 30 
hours?
  The PRESIDING OFFICER. Cloture was invoked this morning at 10:44, so 
we have consumed slightly less than 5 hours.
  Mr. FEINGOLD. Mr. President, we apparently have a little over 25 
hours remaining of the 30-hour period. I have with me a number of State 
Department and international reports from which I would at some point 
like to read. They describe further some of the horrific human rights 
abuses that have been perpetrated by the Lao Government. Senators 
Coleman, Kohl, Dayton, and I have drafted a resolution condemning these 
abuses and urging the Lao Government to allow international access to 
vulnerable populations.
  I don't want to shut this place down, but this is a very important 
issue, and it is my intention to remain on the floor and to prevent us 
from transacting any business unrelated to the conference report before 
us until we reach agreement to pass this important resolution. I 
realize I do not have the votes to block NTR from passing, but I cannot 
stand by and let that pass without insisting the Senate take strong 
action noting and condemning the Lao Government's actions.
  I hope we can work things out quickly, and I think we can. I 
appreciate the support and hard work of my colleagues, particularly 
Senators Kohl and Coleman, who are working hard to get this resolution 
through.
  At this point, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Mr. President, are we in morning business?
  The PRESIDING OFFICER. The Senate is considering a conference report 
under cloture.
  Mr. DORGAN. I ask unanimous consent to speak in morning business for 
as much time as I may consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Country-of-Origin Labeling

  Mr. DORGAN. Mr. President, as we near the end of the legislative 
session and its final day or 2 day, it is interesting what kicks around 
these Chambers: some people have ideas about adding things to the 
Omnibus appropriations bill. Other people want to take something out 
that they think is in that bill.
  I came across a story in the newspaper this morning that describes 
something I discussed on the floor of the Senate yesterday. It says, 
``GOP looks to repeal food label law.'' Then it quotes the House 
majority whip saying he expects the Senate to agree to repeal the 
country-of-origin labeling law now that its proponent, Senator Tom 
Daschle, is no longer in office.
  First of all, Senator Tom Daschle remains in office until the end of 
his term.
  Second, it is true that Senator Daschle is the strongest proponent 
and actually the architect and the author of the legislation that has 
created country-of-origin labeling. But I say to those in the GOP who 
look now to repeal the country-of-origin labeling law that they are in 
for a fight. Repeal is not going to happen just because somebody has a 
hiccup in the morning and decides they don't like this law. It is the 
law. We passed it.
  The Secretary of Agriculture dragged her feet and didn't want to 
implement it. The omnibus conference legislation last fall actually 
delayed the implementation time for the law, and now they just want to 
kill it outright, apparently. Let me describe again what it is we are 
talking about. We are talking about labeling for meats and vegetables.
  In the morning, when you put your T-shirt on, there is a label that 
tells you where that T-shirt was produced. Slip on a pair of shoes or 
slippers and you will find out where they were produced because they 
have a label. Go to the grocery store and pick up a can of peas off the 
shelf and take a look at its label and what is in this can, and you can 
see where it was produced. Most items that consumers are able to buy 
these days has a label that tells you where those things were produced. 
But that is not the case with meats and vegetables.
  Country-of-origin labeling is something that is important for our 
farmers and ranchers because they produce the finest quality of food in 
the world for the lowest percent of consumers' disposable income. And 
it is also very important for consumers.
  I held up a piece of beef on the floor of the Senate the other day. I 
said: I defy anyone to tell me where that piece of beef was produced. 
Where does it come from? Does it come from the processing plant in 
Mexico that was processing beef and shipping it to the dinner tables of 
American consumers?
  By the way, that processing plant was only inspected once. And when 
it was inspected, the inspector found that carcasses were hanging in 
rooms that were not cooled, with feces on the carcasses. The meat was 
being walked on by the folks who were working in that plant, with 
bacteria all around. The most unclean conditions you can imagine were 
in that plant, and eventually it was shut down. But that meat was going 
to the American kitchen table. Meat was produced in that Mexican 
processing plant under the most unsanitary of conditions.
  That plant was closed down, but it has reopened under a new name, a 
new ownership.
  Does anybody know whether the slab of beef that I held up the other 
day came from that plant? You don't. It is because there is no 
labeling. No one has any idea where any of it comes from. That is why 
farmers and ranchers in this country support labeling. Fruits and 
vegetables ought to be labeled. Consumers deserve it.
  Farmers and ranchers in this country produce the best quality food in 
the world, and we ought to have country-of-origin labeling for meats 
and vegetables. Who doesn't want it? The big economic interests don't 
want it.
  When they start whistling, we have people around here who start 
dancing. The faster they whistle, the faster these folks dance.

  Now, apparently, they say let us just dump this proposal that is now 
law, or let us rather repeal the country-of-origin labeling law.

[[Page S11551]]

  I say, again, there are those of us who will wage an aggressive fight 
with those who want to decide to repeal that law.
  Not only do we have people who want to stick legislation like this to 
repeal the country-of-origin labeling in the omnibus bill at the end of 
this session, which would be a huge step backwards and a real slap in 
the face not only of consumers but also of farmers and ranchers, but we 
also still have people blocking legislation that should be completed by 
this Congress. Let me describe specifically what that is.
  We have been working in the Senate for a long while to allow the 
reimportation of prescription drugs. U.S. consumers pay the highest 
prices in the world for prescription drugs. Brand-name prescription 
drugs cost a great deal of money in our country. Miracle drugs offer no 
miracles to those who can't afford to buy them. I commend the drug 
companies for producing miracle medicines. But there is no excuse for 
charging the American consumer the highest prices in the world.
  I will give you some examples.
  If you are a woman and have breast cancer, God forbid and have to 
take the drug tamoxifen, I have had people tell me that they went to 
Canada and paid one-tenth of the price they were charged in the United 
States for that anti-cancer drug.
  I spoke just recently, in fact, to a couple in North Dakota who have 
gone to Canada for 3 straight years to buy tamoxifen. They said they 
paid one-sixth of the price that was charged locally in this country.
  As I indicated, I have heard people say they paid 10 times more in 
the United States for that drug than you would pay in Canada for that.
  What about Lipitor for cholesterol? Lipitor is one of the top selling 
cholesterol-lowering drugs in the United States. I have two bottles in 
my office that I have used previously on the floor of the Senate. They 
look identical because they are made by the same company; the same pill 
put in the same bottle, sold by the same pharmaceutical company. One 
was sold in Winnepeg, Canada, and the other one in Grand Forks, ND--the 
same pill, the same tablet called Lipitor.
  The only difference is the price. Buy it in the United States and you 
pay $1.86 per tablet. Buy it in Canada and you pay $1.01 per tablet.
  Why is the price for that cholesterol-lowering drug almost double in 
the United States? It is because U.S. consumers are charged the highest 
prices in the world for most brand-name prescription drugs.
  We have been trying very hard in the Congress to pass a bill that 
would allow the consumers to make the choice where to purchase those 
drugs. In fact, the legislation Senator Snowe and I and others have 
introduced would allow American pharmacists to go to Canada and buy 
that lower priced prescription drug and bring it back to our country 
and pass the savings along to the consumers. But we have been blocked 
in this effort.
  Many of us in the Senate put together a bipartisan bill, and that 
bipartisan legislation was authored by myself, Senator Snowe, Senator 
Kennedy, Senator McCain, Senator Daschle, and many others. That bill 
did not get through the Senate because it was blocked.
  I thought I had an agreement with the majority leader. He believed 
that he had reached a different agreement at about midnight one evening 
in exchange for releasing a hold on a key nominee. I believe I was told 
that we were going to be able to see action on that legislation. The 
majority leader feels differently. I regret that we have that 
disagreement.
  But we come to the end of this session, and the fact is that the 
effort to help American consumers by putting downward pressure on 
prescription drug prices in this country has been scuttled. It has been 
blocked. The White House has blocked it. The FDA has blocked it. The 
majority in the Senate has blocked it.

  In the Presidential debates, in fact, this issue came up. The 
President was asked, why are you blocking the reimporting of 
prescription drugs to put downward pressure on prescription drug 
prices? And the President said, ``I haven't yet''--meaning he hasn't 
blocked it yet. Of course he has, he has continually blocked it. The 
President went on to say during the debate:

       Just want to make sure they're safe. When a drug comes in 
     from Canada, I want to make sure it cures you and doesn't 
     kill you. Now it may well be here in December you'll hear me 
     say, I think there's a safe way to do it. If they're safe, 
     they're coming.

  But the President meanwhile goes on blocking the reimportation of 
prescription drugs.
  The bill we have written is a bipartisan bill. This is not Democrat 
versus Republican. It is a bipartisan piece of legislation.
  Let me point out with respect to the safety issue, in testimony from 
an executive of a drug company, a vice president for marketing at 
Pfizer, Dr. Peter Rost:

       The biggest argument against reimportation is safety. What 
     everyone has conveniently forgotten to tell you is that in 
     Europe reimportation of drugs has been in place for 20 years. 
     It is called parallel trading.

  In Germany, if you want to buy a prescription drug from Spain because 
it is cheaper, you can. If you are in France and you want to buy it 
from Italy, you can do it. It is called parallel trading. The Europeans 
have done it for 20 years routinely and there is no safety issue.
  Our legislation would give American consumers and pharmacists the 
ability to access FDA-approved drugs that are produced in FDA-approved 
plants. This approach allows the marketplace to put downward pressure 
on prescription drug prices here by being able to buy the identical 
prescription drug, FDA-approved, from Canada, or another country. As 
long as there is a chain of custody that is safe--and no one argues 
that the Canadian chain of custody for prescription drugs is not safe--
there is no reason why we should not allow the marketplace to work for 
the benefit of consumers.
  We end this legislative session with this proposal having been 
blocked.
  It is estimated that if Americans could pay the same price as the 
Canadians for prescription drugs, the consumers of this country would 
save $38 billion. This is not a small issue. This is a big issue. The 
fastest rising portion of health care costs is prescription drugs, and 
we are trying desperately to do something about it.
  I don't denigrate the pharmaceutical industry. They are a big 
industry, strong and tough. They fight hard to protect what they have. 
I don't denigrate that. But there needs to be some competition in order 
to put downward pressure on prices. It is unsound public policy for our 
country to decide to allow the pharmaceutical industry to charge the 
American consumer the highest prices in the world. It is especially 
tough for senior citizens. Senior citizens are about 12 percent of the 
population of this country and they consume one-third of the 
prescription drugs in America. They have reached that point in their 
life where they are receiving a lower income and having to shell out 
substantially more for prescription drugs. Many of them simply say, we 
cannot afford it.
  That is why Republicans and Democrats, together in a bipartisan 
effort, have tried very hard this year to get this reimportation 
legislation through the Senate. I regret we come to the final day or 
days and it remains blocked.
  My hope is that those who I felt had reached an agreement with us to 
give us an opportunity to have a vote on this legislation will 
understand we will be back the minute the Congress returns, in a new 
Congress, ready to fight this battle again. This battle is not over. We 
are not quitting. On behalf of the consumers of this country, they 
deserve fair treatment with respect to the prices of prescription 
drugs.
  It appears to me we are one or two days from completing this 
legislative session. I will have great regrets--I believe I speak for 
my colleagues Senator McCain, Senator Snowe on the Republican side, 
Senator Daschle, Senator Kennedy, Senator Stabenow and Senator Feingold 
on the Democratic side--that we have gotten to this point and have been 
blocked each and every step of the way.
  Then we have the President say, I haven't blocked it. Of course, he 
has blocked it. The FDA, the White House, and the majority in the 
Senate have blocked our bipartisan bill, an opportunity to try to do 
something to put downward pressure on prescription drug prices. That, 
in my judgment, is a

[[Page S11552]]

failure of this Congress, and it is a failure I hope we will soon 
remedy when we turn the calendar over to January and begin a new 
Congress.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. I ask unanimous consent that following my remarks, the 
senior Senator from Minnesota, Senator Dayton, be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Medical Research

  Mr. SPECTER. Mr. President, I have sought recognition to speak 
briefly about medical research in the United States. The Senate is now 
working through, as we all know, an Omnibus appropriation bill, which 
includes the appropriations bill for the subcommittee which I chair on 
the Department of Labor, Health and Human Services, and Education. One 
of the component parts of this bill involves the funding for the 
National Institutes of Health. Our allocation is grossly insufficient. 
It impacts on many areas. It impacts on education. It impacts on worker 
training. It impacts on many aspects of the delivery of health 
services.
  One line which I think is particularly troublesome is the absence of 
adequate funding for the National Institutes of Health. I say that 
because of the very remarkable advances which NIH has made in the past, 
and the enormous potential for the future.
  I was elected to the Senate in 1980. In the first year I served on 
the subcommittee, which I have for the full 24 years of service, the 
NIH funding was something less than $3.6 billion. By this current 
fiscal year, funding had increased to some $28 billion, significantly 
as a result of the leadership of Senator Tom Harkin, who is the senior 
Democrat on the subcommittee, and my pressure to increase the funding, 
backed up by the full committee and by the full subcommittee, Senator 
Stevens, Senator Byrd, and then approved most of the time by the full 
body. This year, our funding is very insufficient.
  If we look at where medical research has brought us, it is 
remarkable. Life expectancy has increased from 47 years in the year 
1900 to 77 years in the year 2001. Polio, smallpox, and other 
infectious diseases no longer kill or cause suffering to large numbers 
of people. The rate of death due to heart disease has been cut by more 
than half since 1950. Death rates from cancer for 11 of the top 15 
cancers in men have decreased; 8 of the top 15 cancers in women have 
been decreased. Diagnoses with multiple myelomas have been reduced from 
a death sentence to living with a chronic condition as a result of new 
drugs developed through biomedical research.
  But there is still an enormous challenge. Heart disease continues to 
be the number one killer; cancer, the number 2 killer, not far behind. 
The tragic aspect of these deadly diseases is that they could all be 
cured, I do believe, if we had sufficient funding.
  Two of my closest friends have died recently as a result of breast 
cancer. Being the chairman of this subcommittee for many years has 
brought me into contact with many people who have maladies, whose 
children have maladies, who suffer from Parkinson's, whose family 
suffers from Alzheimer's, and varying categories of cancer.
  My Chief of Staff, a young woman named Carey Lackman Slease--well 
known in the Senate community--died on July 14 of this year at the 
tender age of 48. She was known by practically everybody in the Senate. 
She came to the Senate to work for Senator Heinz 24 years ago when she 
was 24. She left the Senate for a time for a variety of private 
enterprises, but her heart and soul belonged to the Senate, and she 
came back as my Chief of Staff and did a spectacular job.
  The breast cancer disease lingered in her body, and notwithstanding 
the pain, suffering, and torture she went through; she stayed at the 
job. And she stayed at her desk, insisting on staying, although many of 
us tried, including me personally, to have her ease off. She was in 
love with the Senate and found the Senate work the best therapy, so 
that when she passed, it was a shock to people who had been working 
with her in very recent periods of time before. All of us took her 
death very hard, especially in the context of our thinking that her 
death could have been avoided had medical research had sufficient funds 
and sufficient resources to do the job.
  A few days ago, on November 11, a very close personal friend, Paula 
Kline, who was the wife of my son's law partner, who I was very close 
to, who was practically a daughter, died at the age of 54 of breast 
cancer. In a very valiant and very courageous way, Paula Kline 
struggled with all of the advanced protocols and possibilities which 
might have spared her or elongated her life. And going through the 
various forms of treatment, they turned out to be worse than the 
cancers themselves. But again, the tragedy is that Paula Kline's death 
could have been avoided had sufficient resources been devoted by this 
very wealthy country to medical research. We have a gross national 
product in excess of $11 trillion. We have a Federal budget of $2.4 
trillion this year, and it will be more next year. And when we take a 
look at the budget for the National Institutes of Health at $28 
billion, it is, candidly, scandalous that with our resources, our 
resource capability, research capability in biomedical science, that 
people are still dying of breast cancer or colon cancer or heart 
disease.
  There is a long list of maladies that people suffer from where there 
could be cures: autism, Parkinson's, scleroderma, muscular dystrophy, 
osteoporosis, cervical cancer, lymphoma, prostate cancer, colon cancer, 
brain cancer, pediatric renal disorders, glaucoma, sickle cell anemia, 
spinal cord injury, arthritis, a variety of mental health disorders, 
hepatitis, deafness, stroke, Alzheimer's, spinal muscular atrophy, 
amyotrophic lateral sclerosis--commonly known as Lou Gehrig's Disease--
diabetes, breast cancer, ovarian cancer, multiple myeloma, pancreatic 
cancer, head and neck cancer, lung cancer, multiple sclerosis, macular 
degeneration, heart disease, infant sudden death syndrome, 
schizophrenia, polycystic kidney disease, Cooley's anemia, stroke, 
primary immune deficiency disorders.
  That list was compiled by Bettilou Taylor, who is the most--I was 
about to say the most extraordinary staffer; we have a lot of 
extraordinary staffers in the Senate family--but a most devoted worker. 
I will take just a moment to commend her and the staff on the 
Appropriations Subcommittee of Labor, Health and Human Services, and 
Education. They have been working around the clock, home for an early 
morning shower, and back at work, turning out an omnibus bill for some 
eight of the subcommittees which had not been able to turn out bills 
before.
  It continues to be mystifying to me, after being here for 24 years, 
that we cannot complete our work in a more orderly way. It is a 
regrettable fact of life, but it is a fact of life that everything is 
done in the Congress at 11:59 if there is a 12 o'clock curfew. Some of 
it does not get done until after midnight, until after the curfew. We 
have worked the bill every which way. A couple years ago, we had the 
bill concluded on June 29, floor action by the Senate. But by the time 
we get through the complex conferencing--and I do not ascribe any fault 
anywhere, to the other body or to this body--it seems to be endemic of 
the way we do our business.

  But we are about to have a bill filed. There have been various 
predictions. The most recent one is for 5 o'clock. We will see if that 
happens. There are so many items that our constituents come to us for, 
and they want included in the bill. It is such a complex and difficult 
matter. We struggle with it. And the House will take it up some time 
tonight. I do not know how anybody can intelligently or intelligibly 
read that bill, let alone to comprehend it, through the limited period 
of time which is available.
  In struggling through the bill this year, for my subcommittee, there 
are many disappointments, but the biggest one is on the National 
Institutes of Health. I focus particularly on the tragic death of my 
Chief of Staff, Carey Lackman Slease, who died July 14 at the age of 
48, and a very close personal friend, Mrs. Paula Kline, who died on 
November 11, just a few days ago, at the age of 54. The deaths are 
marked by the tragedy of the fact they could have been eliminated had 
we devoted sufficient resources to medical research.
  I call this to the attention of my colleagues in the Congress and the 
people who may be watching on C-SPAN or

[[Page S11553]]

who may read the Congressional Record of the importance of renewing our 
efforts, in a wealthy country with a gross national product of $11 
trillion and a Federal budget of $2.4 trillion, that we could do better 
than $28 billion for this very important subject.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I ask unanimous consent that the pending 
matters be set aside and I be allowed to speak 10 minutes on another 
matter, and that the 10 minutes count against my hour under the cloture 
rules.
  The PRESIDING OFFICER. Without objection, it is so ordered.


              Individuals With Disabilities Education Act

  Mr. DAYTON. Mr. President, on another matter, I am rising to support 
the conference report that is being proposed for the Individuals with 
Disabilities Education Act. I support this legislation. I commend the 
conferees for their efforts to streamline, make less bureaucratic and 
less time-consuming, the current IDEA legislation and its 
administration.
  In Minnesota, my home State, special education teachers--in fact, 
some of our most experienced special education teachers--are leaving 
that field, leaving special education classrooms, because of the 
bureaucratic burdens, the time-consuming paperwork.
  They lament the time they cannot spend in those classrooms, the time 
lost to working directly with schoolchildren, in order to have to 
comply with all of the State, Federal, and local school district 
reporting requirements.
  Those reporting requirements are mostly well intended, and one layer 
of them is mostly necessary and appropriate. However, the second and 
the third layers of bureaucracy have become duplicative, redundant, 
excessive, and oppressive.
  Sadly, previous attempts to ``reform'' this bureaucratic overload 
have resulted, according to many of the teachers in Minnesota, in more, 
not less, reporting requirements, more forms, more time required away 
from their classrooms and from their students. No one benefits from 
that bureaucratic overload--not the special education students, their 
families, the teachers, or the taxpayers.
  Like too many other well-intended programs, we try to micromanage the 
process, rather than analyze the results. We tell educators, or other 
experts in their fields, how they ought to do their jobs, rather than 
telling them to do their jobs as efficiently and effectively as 
possible, and then report to us and to our constituents their 
progress--in this case, improving the educational attainments and 
ability of their students, and what they need from us to do their jobs 
even more effectively.
  When IDEA was enacted back in 1975, there was opposition to it from 
some States and school districts and from some schools. But now, in my 
State, schools and teachers are committed to doing special education as 
well as possible. We need to get out of the way and let them do it. So 
I hope this legislation will be a step in that direction--better yet, 
two or three steps in that direction.
  Something else we should do, though--and we should have done it long 
ago, and certainly have done it during the last 4 years I have been 
here--is fully fund the Federal commitment to IDEA, to fulfill a 
promise Congress made 29 years ago--29 years ago, when it passed the 
special education mandate. Congress back then promised the States, 
promised local school districts and, most important, promised the 
children and parents of America that they would pay for 40 percent of 
the cost of special education. When I arrived here 4 years ago, that 
percentage was only 13 percent, less than one-third of the amount 
promised 25 years before. To his credit, President Bush has proposed in 
each fiscal year an increase in the amount of Federal funding for 
special education. To our credit, we have passed those increases, and 
even somewhat more, so that this year the Federal funding for special 
education totals 19 percent of total spending nationwide, which is an 
improvement, but is still less than half of what was promised 29 years 
ago.
  That broken promise by the Federal Government cost my State of 
Minnesota nearly $200 million this year. It has cost every other State 
special education funding. I am, frankly, mystified at why my five 
pieces of legislation--five times I have attempted to increase the 
Federal share of special education to that promised 40-percent level--
have been defeated every time in the Senate. I am mystified--because I 
cannot believe that most other States and most school districts in 
America could not use that additional special education funding. In 
schools in Minnesota, the underfunding of the Federal share of special 
education results in local school districts having to make up those 
shortfalls either out of funding for other school programs for 
students, or by increasing local property taxes, because states and 
schools are being mandated by us to provide special education services. 
They are subject to lawsuits if they don't. But we are not providing 
them with the money to carry out that mandate.
  This bill before us would not fully fund the Federal share for 
special education until the year 2011. Even then, that funding level is 
not assured. It may not be enough. It is not guaranteed. It is not made 
a requirement. The appropriations still have to come each year.

  So we have, once again, evidence that we lack the proper priorities. 
We propose and pass tax cuts for the wealthiest Americans, and the 
President proposes to make them permanent. Some colleagues propose 
eliminating the estate tax, which affects 2 percent of the people in 
America, by 2010, and to make that permanent starting in 2011. While 
some call that the death tax, special education is a life commitment, a 
lifesaving commitment. Yet, we will not make that lifesaving commitment 
to the schoolchildren of America.
  I will try again next year, and I will keep on trying with my 
legislation to fully fund the Federal share of special education, which 
should be well within our reach financially. It is the right thing to 
do, and it is the necessary and moral thing to do, and it would serve 
well the interests of this Nation in the years ahead. I regret that it 
is not part of this conference report coming before us.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. What is the parliamentary situation?
  The PRESIDING OFFICER. The Senate is under cloture on the conference 
report to H.R. 1047.
  Mr. LEAHY. I thank the Chair.

                          ____________________