Debate Transcripts

LB 742 (1995)

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May 23, 1995


PRESIDENT ROBAK:  Thank you, Mr. Clerk.  We turn now to LB 742.


CLERK:  Madam President, the Legislature last discussed LB 742 last evening.  There was an amendment offered by Senators Bohlke and Bromm that was divided.  The first component of that amendment was adopted.  Senator Bernard-Stevens then made a motion to reconsider the adoption of that portion of the amendment.  That motion to reconsider is now before ore us, Madam






PRESIDENT ROBAK:  Senator Bernard-Stevens:


SENATOR BERNARD-STEVENS:  I would like to move to withdraw that motion.


PRESIDENT ROBAK:  The motion is withdrawn.


CLERK:  Madam President, in that event, the ...  actually I misspoke because Senator McKenzie has the major amendment pending.  The Bromm-Bohlke amendment was an amendment to that.  Senator Bromm and Bohlke, I have in front of me FA267.  I understand you want to withdraw 267 and offer in lieu thereof AM2483.  Am I correct in that?  (AM2483 appears on pages 2485-86 of the Legislative Journal.)


SENATOR BROMM:  That's correct, Mr. Clerk.


PRESIDENT ROBAK:  Is there any, objection to withdraw the underlying amendment?  Seeing none, it is so ordered.  Senator ...  Senator Bromm, to open on the amendment.


SENATOR BROMM:  Thank you, Madam President, and, fellow senators, let me try to explain the substituted amendment.  And I want to say that this is a product of a lot of discussion today between Senator Bernard-Stevens and Senator Bohlke, Senator McKenzie, and myself.  The Department of Education has been involved in trying to help us out today, as well as a number of other people.  In any event, what this substituted amendment does differently than the amendment that was on the floor last night, and the amendment that you approved, instead of having the zero cap year for '95-96, this amendment allows for up to 2.5 percent growth for '95-96, then allows for up to 3 percent for '96-97.  What we had last night was 0 for '95-96, and what we project would have been 5 percent, 5 percent for '96-97.  So let me repeat that.  This would provide for 2.5 percent the first year instead of the 0 cap, and 3 percent the second year.  So that's...  there's roughly an additional expenditure of 7 or 800 thousand dollars involved with this compromise, but it stairsteps in the reduction and limitation of the growth of special education expenditures.  Instead of going from our double digit growth that we've had to zero and then go back to five, roughly, we propose to go to two and a half and then three.  After the 3 percent year you would then have growth




allowed at the normal growth we're experiencing in general education.  The other two parts of the amendment that we had last night that we didn't got to, one being the second section which was the waivers, which schools could try to utilize to have some of the rules and regulations that are waiverable to be waivered for them, to allow them more flexibility and some savings, that is part of this amendment as well.  That is retained as part of the amendment.  The third part was the emergency clause so that if we pass this bill and it is signed by the Governor then it goes into effect immediately, and that section is also part of the amendment.  I would yield any additional time for opening, any remaining time to Senator McKenzie, or Senator Bernard-Stevens, or Senator Bohlke, whichever ...  Senator McKenzie first, if she has time.  Would you like to ....  Senator Bernard-Stevens, if you have time?




PRESIDENT ROBAK:  Senator Bernard-Stevens, you have seven minutes.


SENATOR BERNARD-STEVENS:  I'll take the time.  Members of the body, this morning and this afternoon I was beaten, I was bludgeoned, I was hammered and beaten to submission and finally Iliad no choice but to agree with the amendment that we have, and it is a good compromise on all sides.  I appreciate the work Senator Bohlke and Senator Bromm particularly, Senator McKenzie as well, in trying to find a way to try to stem the costs of' special education, that we all want to do, to begin to change and reform the system, but still give us the flexibility that we need to make that transition.  I believe this amendment covers the bases as best we can, sends a strong, strong message, and not even a message, it begins reforming the system.  And I appreciate the efforts of all of my colleagues in working this compromise that I truly believe works.  And I yield whatever .time remains to Senator McKenzie.


PRESIDENT ROBAK:  Senator McKenzie, there are four and a half minutes, excuse me, five and a half minutes left.


SENATOR McKENZIE:  Thank you, Madam President, and thank you, Senator Bernard-Stevens, for yielding some time.  I , 'too,


support the substitute amendment and I think in fact that we are doing exactly the same thing that we wanted to do, we're just doing it at a little different approach.  Instead of 0 and 5,




we're doing 2.5 and 3 in allowing the General Fund that provides money for special education to be capped or to be limited, but not necessarily with one flat year of 0.  1 think that all the parties involved have looked at the impact and do agree that we are accomplishing our goal and yet not in such a way that we will jeopardize the services to students or that we will put school districts in financial situations that are damaging to them in terms of their own budgetary process and reliance on a property tax levy to provide these mandated services.  With that, Senator Bromm or Senator Bohlke, do you want any of the opening time?  Senator Bohlke.


PRESIDENT ROBAK:  Four and a half minutes, Senator Bohlke.


SENATOR BOHLKE:  Thank you, Senator McKenzie.  I think that this demonstrates very much what we have been trying to say and that we realize that special ed costs have been spiraling.  We realize that we want to do something that is going to protect children in school districts where they may have those very high needs children move in.  And I think this was an attempt for all of us to sit down and say, how can we come up with a compromise that meets those two purposes?  I think that this does that, in fact it still keeps, for those of us who said that we think it's very, very important for school districts to work with Us and get at the issue of the spiraling costs, they in fact end up with two years, rather than one year, of really having a great deal of pressure on looking at ways to...  look at the waivers or those things that are available to them to reduce the costs of special education.  I certainly support this and I'm sorry, Senator McKenzie, has everyone had a chance to speak for the co-introducers?  And so, with that, I would ask for your adoption of the Bromm amendment.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator.  Senator Engel.


SENATOR ENGEL:  Madam Chairman, members of the body, I, too, support this amendment.  But what I'm standing up for is not particularly for the amendment itself and I'm supportive of the bill.  What I want to do is tell you about LB 425 has been laid over and is going to remain so.  The reason is not because of the bashing I've taken on the floor, especially yesterday from Senator Bernard-Stevens, because this decision was made Monday morning prior to LB 742 coming up, as can be attested to by Senator Brashear, Senator Wickersham and Senator Withem.  That is not the reason we're withdrawing it.  We spent about 14 and




1/2 hours on this bill, we made a very good bill out of it and I'm not afraid of it being passed.  I think we still have the votes, we have to go 2 hours and 47 minutes more to cloture.  And the thing is, the reason we're laying off of it right now is so that whoever is against any appropriations coming up, they can't blame cutting those funds because of saving that money for LB 425.  There is other legislation coming up that, has been delayed, it would probably continue to be delayed and therefore in deference to those who have other priority bills, we have very important bills coming up, we are going to leave this particular bill laid over.  One more comment that I'd like to make as a second semester freshman here is I realize how the system works.  I think it's sad that one or two people can keep a bill from ever coning to a vote when the votes are out there.  I have no hard feelings, it's been a very, very good experience and I plan on doing more and more of it next year.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Engel.  Senator McKenzie.  Senator Robinson.


SENATOR ROBINSON:  Madam President, members of the body, I stand to support the Bromm amendment, I think it's a good compromise.  This morning Senator Janssen and Senator Hartnett and myself spent probably 50 minutes with, I think his name was Don Anderson from the Department of Education, and we talked about waivers.  And I think while we were sitting there visiting I think we probably come up with 8 or 10 different options ;!or schools to use the waiver process, that along with the I think it's 2.5 percent, I think it's 3 percent the next year, will help the schools to push on with the reduction in special ed Costs.  So I'd urge all of you to support the Bromm amendment.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Robinson.  Senator Schimek.


SENATOR SCHIMEK:  Yes, thank you, Madam President, members of the body.  I rise in support of the amendment and I congratulate those people who have been working on this, this afternoon and today.  And I don't know if this is the appropriate time or not, but I've been thinking about this over the last couple of days.  And the question I have, the questions I have really go to what I think is the heart of the bill that's going to make this work, and that is the waiver process.  And I'd just like to talk with Senator McKenzie a little bit on the record, because I remember all the discussion on LB 1059 when we were on that issue, and I




remember reading about all the ...  all the court decisions in different states throughout the United States before we passed 1059, and those cases and Legislatures being called into special sessions to solve the result of those court decisions was all about providing equitable education to students throughout the state.  My question to Senator McKenzie is, how do we assure that special education students get equitable treatment across the state if we're going to have every school system using the waiver process in different ways?  And I'd just like, for the record, for you to say a little bit about that, Senator McKenzie.


PRESIDENT ROBAK:  Senator McKenzie.


SENATOR McKENZIE:  Senator Schimek, I'd be happy to respond to that.  One of the ways in which we guarantee equity of service is the evaluation process that every school system and every program is required to do.  Let me give you an example, if I can take just a little bit more time.  Currently, in Rule 51, we have case load guidelines.  Now what's happening is in certain districts, especially large ones, they are actually, in some' cases, exceeding the case load guideline, and they have to submit a waiver for that.  But you also submit a waiver if you're way below the case load, which happens in smaller rural districts.  So we have attempted to establish some guidelines, but even those guidelines can't always guarantee that you're going to have the ratio of teacher to student that you want to have.  It really falls back on the parents' involvement in the IEP, the requirements that we have in the IEP and nothing will allow us to waive that, that is a federal requirement.  That is driven, in many cases, by the parents' involvement and the other professionals who are there that write the plan for the child.  We don't know exactly whether there are inequities across the state in terms of services.  We do know that some ...  some...


SENATOR SCHIMEK:  You mean right now.


SENATOR McKENZIE:  Right, some schools provide more service than others.  We've never had an equity measure in special education, that's one of the recommendations in whatever we do to move to a block grant approach, or a revised approach is to be able to look for some equity in what we are able to provide.  That really is driven by case law, the advocacy groups, the federal requirement more than the state statute, and again the IEP that guarantees that the program be designed to meet that child's






SENATOR SCHIMEK:  So what I think I hear you saying then is that the federal requirements and guidelines kind )-," provide that baseline...




SENATOR SCHIMEK:  ...  or that safety net, or whatever ...  however you want to express it, that that will ensure there will be a certain level of equity, regardless of what the individual school districts try in waivers, in the way of waivers.


SENATOR McKENZIE:  Correct, the other part is the definition that we put that is in statute that defines each of the disabling categories.  And you receive services based somewhat on the disabling condition that you end up wearing the label for, quite honestly.


SENATOR SCHIMEK:  Well, I appreciate that explanation.  And it may not have been the time to ask it, but it was a burning question, and I don't know if it was of interest to anybody else, but thank you for that.


PRESIDENT ROBAK:  Thank you, Senator Schimek.  Senator Hartnett.


SENATOR HARTNETT:  Madam President, members, Senator Bromm, question.


PRESIDENT ROBAK:  Senator Bromm.


SENATOR HARTNETT:  You said the growth rate would be 2 and 1/2 and then 3 percent, and then after that time would be the general growth rate of education, is that...  is that....  What would that figure be, I guess, or maybe...


SENATOR BROMM:  And I think Senator Withem is going to perhaps still offer an amendment to clarify that a little bit.  But what's that's been ...  what that has been assumed to be is in the neighborhood of 4 to 5 percent.


SENATOR HARTNETT:  Senator Bernard-Stevens wants to say something.


SENATOR BROMM:  And Senator Bernard-Stevens may want to add to






PRESIDENT ROBAK:  Senator Bernard-Stevens.


SENATOR BERNARD-STEVENS:  Yes.  What it would be is that in that second year Paul, it would be a flat 3 percent, but then that ...  that section will be repealed.  And then that third year would be the year that we come back with the overall funding mechanism and we would then have that, I assume it would be at the average growth, but we would have the entire package then put together.  So the first year would just be 2 and 3/2 flat, second year would be 3 ...  would be 3, flat, I mean the flat cap plus the 3 percent growth.


SENATOR HARTNETT:  And then after that it would...


SENATOR BERNARD-STEVENS:  After that it's purely open to what the policy question...  issue we'll come to.


SENATOR HARTNETT:  Okay.  Another question for the people that worked on this is that I think Senator Schimek talked about, I think, one of the features of this is to allow school systems some flexibility in using waivers.  Is there any way that we can, as a body, the Education Committee or someone check on how much ...  how many times that school districts use the waiver, and simply get know, we're going to kind of go through a two-year period here of kind of modest growth.  And what seems to be the problem?  That's what I see as kind of a shake-out cruise here as far as special ed is concerned.  You know, what areas do you see some way to measure how much waivers are used?  I guess that's my question.  Is someone going to measure that, or are we going to have a report back from...


SENATOR BERNARD-STEVENS:  No, the answer to that, Paul, will be, Senator Hartnett, will be two things.  Number one, (a) we're going to have a good discussion on the waiver portion, I think, once we get to the amendment as itself.  But, two, this entire summer four groups, including the Special Education Task Force, but more importantly the Education Committee with the Department of Education are going to be looking at all of the rules and regs, looking at all the waivers that have taken place or have not taken place, which ones have been asked for, which have been denied, and what is the policy going to be to set up the policy for, and what Senator Stuhr is going to be talking about will also be included in that is, what's the fiscal impact of




whatever waivers that we may or may not be able to do.




PRESIDENT ROBAK:  Thank you, Senator.  Senator Janssen.


SENATOR JANSSEN:  Madam Speaker, members, thank you.  I still have some concerns about the bill itself.  I commend the people for getting together today and not 'Crying to do it last evening when tempers were flaring.  It's remarkable what a good nights' sleep will do to everyone's tempers.  And I believe we can work with this.  This is probably the best ...  the best compromise we can come up with.  We're still ...  we're not going to have that flat year right out in front, and this is what my concern was last evening is to having that flat year right away.  As I said, there are still some more concerns that I have.  And it sounds to me like we're going to get the waivers ...  get them down pat which ones we can eliminate or waive.  Maybe there will be something else come along that we haven't thought about that we can help the districts with.  It's going to be a dramatic change, I know that.  And school districts are very adaptable, they'll work something out.  They'll scream, the superintendent, administrator will all scream and holler but it will come to pass, it always does.  There are some other concerns that I have also with "legations", lawsuits that ...  who's going to cover them if we end up in court.  I believe there is an amendment coming to deal with that, we'll take that up when the time comes.  But once again I'd like to thank the people involved with this amendment and their ability to sit down and work out a compromise, which I think is going to be for the betterment of the bill as a whole.  Thank you very much.


PRESIDENT ROBAK:  Thank you, Senator Janssen.  Senator Wehrbein.


SENATOR WEHRBEIN:  Yes, Madam Speaker, members, I'm going to support this.  I am pleased to see there's a work out.  I wouldn't have minded to had no growth.  I know it was looked upon as being very severe by some, but I did put a lot of figures together today from surrounding states and I had ours analyzed for the last ten years.  For your information there's been a 25 percent increase in special education pupils in the last 10 years, with 125 percent...  124 percent increase in costs, whereas the average growth rate in the state, for pupils in general education, was 2.6 growth in pupils, with a 9.4 ...  with a 6.4 percent increase in general expenditures.  So it's quite




much ...  quite a bit higher, obviously, in the rate of growth in special ed than it was in general education.  And I'm pleased to see that we are doing something to get at it.  And I had a good conversation with the school superintendent this morning who, of course, was not thrilled with what we were proposing to do, but recognized the need and the necessity for us to look at it and said that they would be willing to work with it.  And I assume most of you have talked to school superintendents.  I firmly believe we can do some things in the area of classifications that would be a help to everyone.  And with that idea I was willing to move forward with what we had.  And with this, I think, does give some sense of responsibility to recognizing the need for increases, but at least it is at a rate that sends the message, quote, which we're famous for trying to do, and still should provide some realistic growth that people can work toward and know it's coming.  The figures I have, I don't think they've announced on the floor.  This would take it from 122 million, almost, just under 122 million this year, to $124,325,645 in '96-97, and in '97-98, which actually is beyond our next biennium, will take it to $128,055,414.  The savings over what we had been doing, if we would have kept on the present track, in '96-97 would be a savings of 9 million there, and in this...the out year, '97-98, we will be 18.9 million less than the growth rate that...with the track that we were on.  Obviously those are estimates, so you can't necessarily write those in concrete, but that is a rough idea of what this does.  So it does help slow the train down a little bit, and I think that we can move on with some responsible changes that I know we're all going to be watching.  So I do support the amendment.


PRESIDENT ROBAK:  Thank you, Senator Wehrbein.  Senator Cudaback.


SENATOR CUDABACK:  Madam President, members, as we sit here listening to this debate and like last evening and so on, those of us who don't have a lot of offer maybe on a subject, our expertise is not in that area, why we appreciate the ones that do have the expertise and can work these things out.  We may sit here and say, gee whiz, I wish both sides could get together so we can come to a meeting of the minds and don't really have to make this tough decision that many of us hate to make.  This issue is an important issue and it affects a lot of people, it affects a lot of people drastically.  Maybe we haven't had to live in that world that this necessarily affects.  But I do appreciate those people, like Senator McKenzie, Senator Bohlke,




and Senator Bromm, and of course Senator Bernard-Stevens who quietly asked the other side, you know, to maybe come together and see if we can't do something in the middle, I do appreciate that.  But we have all kinds of people in this world and I just say that the teachers probably on this issue here, I have not received many more calls on a particular subject, I don't know about the rest of you, but I have probably received 15 calls today from educators expressing their viewpoints on this issue, and I appreciate that.  So it just shows you that there is interest out there, and they're concerned, and we have teachers that are concerned.  They Pay they have real needs in this area, and they need more money, and I'm sure they do, and the superintendents say this and I appreciate that fact.  But I appreciate this body's stand and saying we can attack all this before we have a real crisis.  I guess I differ with Senator Janssen in this respect, that I think the superintendents are going to understand and say, hey, we dealt with this and we're going to deal with it before the real crisis is here, which in another six, seven years it would be, we know that.  And some of us, like Senator Hall and so on, I was talking to a while ago we would like to have the lower amount, perhaps, but I think we can agree with this in between here.  And I appreciate everybody working on this issue, it's an important issue.  And thank the body for doing it, thank you.


PRESIDENT ROBAK:  Thank you, Senator Cudaback.  Senator Hall.


SENATOR HALL:  Thank you, Madam President, and members.  Would Senator McKenzie respond to a question?


PRESIDENT ROBAK:  Senator McKenzie.




SENATOR HALL:  Senator McKenzie, unlike Senator Bernard-Stevens, I guess I don't change my mind all that easily.  The issue...  and I got a call, finally.  Actually, I talked to a fellow today who was a parent of a special ed kid and his concern was this, he said to me, he said, I can understand why you want to try to reduce the costs, and he said, but I had to fight, kick and scream, my wife and I, to get our son into special ...  we wanted him to be mainstreamed.  We didn't want him to be put into a special ed program because, frankly, he said, we didn't think that that was going to benefit him, that what this kid needed was to be mainstreamed.  So ...  but, along with that, there's




additional cost, even though he's mainstreamed, they do have to have a part-time person who works with him and that cost comes out of special ed programming, as I understand it, the Way he related it to me, and he knew quite a bit about the system and I couldn't speak intelligently on this subject either to him, but I said I'll find out, I'll ask.  I said I think we'll get to it sometime tonight and I'll ask just what the impact of...  and I know with this amendment now it's not going to be...have the same type of impact, but what happens to those types of individuals who want to be mainstreamed but still use resources that are considered special ed resources under this proposal, not necessarily under this amendment?  I'm asking you on this amendment but I'm asking in general terms in relation to the bill.


SENATOR McKENZIE:  Senator Hall, under the proposal of the bill in general, nothing specifically happens to those individuals who I would assume that the young man you're talking about would be considered severely, profoundly handicapped.  If, in fact, there was some discussion about not including him in a regular classroom, I would...  assuming here, and you can correct me if I'm


SENATOR HALL:  That's a good assumption.


SENATOR McKENZIE:  ...  wrong, the hard handicaps are those that we know cost a lot of money and to do inclusion often costs more than had we institutionalized.  That's not the group of kids that we are believing, in any way, is impacting the cost in a way that is not appropriate and shouldn't be there.  Actually, it Will ...


SENATOR HALL:  All right.


SENATOR McKENZIE:  ...  this will allow the local districts to continue to make decisions through the IEP and the parents' input.  They have civil rights and he has civil rights....




SENATOR McKENZIE:  ...  that guarantee that the parents have say in how that happens, and the money should go to that child, not necessarily for administrative costs or for verification of some children who we could spend a lot of time deciding whether they should even be put in a category called special education.




SENATOR HALL:  So there won't...  I mean, the potential is not there for the districts to decide that it's cheaper to have, as you called, a hard handicapped placed in a special ed classroom.  And I guess, for lack of a like situation, with other students as opposed to mainstreaming that individual and supplying the special needs that they have to allow for that mainstreaming to take place.  Does the ...  the district, under this proposal, would not have the ability to reject the request of the parents as it's currently drafted.




SENATOR McKENZIE:  Senator, there is nothing in the bill that changes what is the current practice regarding that.


SENATOR HALL:  Do you think that there's a likelihood that there ...  that districts might relook at those things, depending on how severe the cuts may or may not have been?


SENATOR McKENZIE:  Certainly.  I think that they will look at all of their program and all of the different alternatives that they offer to students, depending on the handicapping condition.


SENATOR HALL:  But it's ...  so the possibility is out there that something along these lines could happen down the road?


SENATOR McKENZIE:  Well, it could, however, at the national level, the recommendation is for inclusion.




SENATOR McKENZIE:  The federal regulations are looking at inclusion rather than separate programs, and it's so much better and we save so much money when we don't pay for transportation to another place.


SENATOR HALL:  Correct, he stays in his district.


SENATOR McKENZIE:  So actually, in the long run, while you may pay more for a paraprofessional or for some additional services, you save money when you don't have to do a contract in another district and then pay for transportation.


PRESIDENT ROBAK:  Time.  Thank you, Senator Hall.  Senator




Abboud.  Senator Abboud.  Senator Stuhr.


SENATOR STUHR:  Madam President and members of the Legislature, right from the beginning I've had concerns about this bill, but I am pleased tonight that we have come to some compromise.  I think that even last night we could all agree that the costs of education, of special education we need to look at and see how we could reduce those costs, and we agreed that the system needed to be changed.  My concern has always been that we were on a fast track to only change the dollar considerations without looking at the rules and the regulations.  But hopefully with this bill we will have time to make those adjustments.  I believe as a former teacher and probably the concern of all of us is in educating children, that should be cur number one concern.  Last night Senator Bromm made a statement that doctors ...  or ...  doctors, dollars are not relevant, that we need to change the system.  My question to him would have been, well if dollars are not relevant, why are we taking the approach that we're taking?  But, as I said, I am pleased that we have made this compromise.  I also did a little background information of research.  I also met with Don Anderson this morning to get a little background on special education.  I asked him the question, has the Legislature ever seriously looked at changing or making some changes in the special education area?  And actually very little, no serious work has been done in the last 15 years in regard to the special education area.  I thought that you might be interested that in 1943, that was the first time that there was any major legislation in the state regarding special education.  In 1949 the Legislature approved some method, a proved method of financing some handicapped up to a set maximum.  It was only in the 1960's then that we really started looking at educating these children.  In 1972 we decided to provide some transportation for the handicapped.  In 1974, we made the decision to provide education for all handicapped children.  In 1978, we extended that age and lowered it to under five years of age.  And we were one of the first states to provide this service, in fact we were taking pride in all of the services that we were providing for the special education needs.  And we were on a roller coaster.  And I think it's time and it's time that all of us have decided that we put the brakes on.  I did want to just make a little comment about percentages because we can do a lot with percentages and we've always talked about it.  I've looked, and in the last 15 years there's actually, and when we consider the 15-year span there's only been a 2.6 percent increase in enrollment.  We are actually dealing




with 38,000...




SENATOR STUHR:  ...  children in 1994 out of 300...  approximately 327,000.  So I'm glad, I'm pleased that a compromise has been made.  I think it is time that we really look and address some of the rules and regulations, and I'm going to have some more questions when we get to the waiver area.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator.  Is there any further discussion on the Bromm amendment?  Seeing none, Senator Bromm, to close.


SENATOR BROMM:  Thank you, Madam President.  Very briefly, I appreciate the support and the willingness to compromise on the part of everyone.  No one is getting exactly what they wanted out of this.  But I think it is...  it's a rational plan to try to get a handle on a significant problem.  For the record, I wanted to...  I wanted to clear up just a little bit of confusion perhaps.  When you read this amendment it appears that in perpetuity we will have projected growth at no more than 3 percent, if you follow through Section 8.  But it's my understanding that the underlying amendment that this goes to, if ...  put that language with this, that that is not the case and that we will, when the new system gets in place in two years, and the, growth will be determined at that time, as I think someone else said on the floor a little bit earlier.  I also, for the record, I don't know if I'll have any more chances to speak, I wanted to relate what I think is a problem that I hope is addressed by the Department of Education through the waivers and the rule changes that we're hoping that they make here.  it has come to my attention, after getting into this, that many of the schools, especially the smaller schools, contract out the administrative...  a lot of the administrative paperwork associated with special education, because it's very complex, it takes a lot of time, but more so because if the administrator doing the paperwork is not certified, endorsed in special ed rather, he doesn't get reimbursed for doing the paperwork.  But if they contract the paperwork out, someone that is endorsed, then they are eligible for reimbursement for that cost.  And that seems to me like...  that that just doesn't make any sense.  And so I hope that either a waiver can be arranged so that there can be some reduced payment made if the paperwork is done in house, or that that paperwork can be reduced, of course, that




would be preferable.  But that problem needs to be addressed because I'm finding that that is ...  that's a pretty good cost that I think we can achieve some savings in.  With that, I think I'm completed with my remarks.  Senator McKenzie or Senator BernardStevens, care to say anything else?  Okay, thank you all for your cooperation.


PRESIDENT ROBAK:  Thank you, Senator Bromm.  The question before the body is the adoption of the Bromm amendment to the McKenzie amendment to LB 742.  All those in favor vote aye; all those opposed vote nay.  Please record.


CLERK:  26 ayes, 0 nays, Madam President, on the adoption of the Bromm and Bernard-Stevens amendment.


PRESIDENT ROBAK:  The amendment is adopted.


CLERK:  For the record, Senator Bromm, you now...  I understand you want to withdraw FA268, Senator, which was the third component of the original ...


SENATOR BROMM:  That's correct.


PRESIDENT ROBAK:  Seeing no objection, it is withdrawn.


CLERK:  Madam President, Senator McKenzie, you have the next amendment to your original amendment, FA...  or, excuse me, AM2236, Senator.  (Amendment may be found on page 2259 of the Legislative Journal.)


PRESIDENT ROBAK:  Senator McKenzie.


SENATOR McKENZIE:  Thank you, Madam President and members of the body.  This is basically a technical amendment that was given to us to offer to the original McKenzie-Bernard-Stevens amendment based on a review by Larry Scherer with the Special Education Accountability Commission and Tammy, as Legal Counsel for Education Committee.  But basically there was a problem in the language of the bill that deals with the section that talks about the zero to three program.  And the only way to ...  we struggled to try to find a right way to state the language.  But basically what it does, you'll notice the amendment is just a lot of changing commas and change of a word from "preventative" to "preventive", except for item five which strikes lines :1 through 23 on page 13, that's the language that was suggested




that we strike because it confused the way in which we work with that program, with the zero to three program, in the way in which we were trying to look at the funding for that.  It does not change anything in terms of how the program happens or the intent language of the bill, only was the recommendation of these two individuals that we strike that because the way we had the language it was not a way that would work operationally.  With that, I would ask for adoption of this amendment.


PRESIDENT ROBAK:  Thank you, Senator McKenzie.  Senator Bernard-Stevens.


SENATOR BERNARD-STEVENS:  Just briefly, Madam President, members of the Legislature.  I do rise in support of the amendment.  Talked with the fiscal staff, it does make a lot of sense with the time remaining on the pilot projects and I do support the amendment.


PRESIDENT ROBAK:  Thank you, Senator Bernard-Stevens.  Any further discussion on the McKenzie amendment?  Seeing none, Senator McKenzie waives closing.  The question before the body is the adoption of the McKenzie amendment to the McKenzie amendment to LB 742.  All those in favor vote aye; all those opposed vote nay.


CLERK:  26 ayes, 0 nays, Madam President, on the adoption of Senator McKenzie's amendment to her amendment.


PRESIDENT ROBAK:  The McKenzie amendment is adopted.


CLERK:  Senator Avery has AM2386.


PRESIDENT ROBAK:  Chair recognizes Senator Avery.


SENATOR AVERY:  Thank you, Madam President.  What was the number?


CLERK:  2386, AM2386, Senator.


SENATOR AVERY:  I'd like to pull both of those.


CLERK:  Pull the ...  both of those, because there are two?






CLERK:  Okay, thank you.


PRESIDENT ROBAK:  They are both withdrawn.


CLERK:  Senator Stuhr, 2427.  (Stuhr amendment appears on page 2486 of the Legislative Journal.)


PRESIDENT ROBAK:  Chair recognizes Senator Stuhr.


SENATOR STUHR:  Madam President and members of the Legislature, this is really a simple amendment and it is actually going to be inserted on page 1 of the original McKenzie-Stevens amendment.  And what it does is just add language which will require the State Board of Education to include an estimated fiscal impact of the recommendations made in the report to the board, which they will also present to the Education Committee.  I believe that in order for us to really know what the impact of any of the suggested rules and changes or regulations are that we need to know how much money we are looking at saving.  I also believe that it's important for the schools also then who are obliged to follow these rules and regulations, that they have some idea of the cost involved.  This may have been done, but I wanted to make sure that it would be included in the proposed rules and regulation changes.


PRESIDENT ROBAK:  Thank you, Senator Stuhr.  Senator Bernard-Stevens.


SENATOR BERNARD-STEVENS:  Thank you, Madam President, members of the body.  I rise in support of the Stuhr amendment.  It goes along with some of the concerns Senator Hartnett had, that as we go through this process, and this is just the beginning of the process, we have a long, long way to go after...  after the next summer or so.  But this does add emphasis to the State Board of Education and to the Education Committee that we need to not only look at the rules and regulations, look at the waivers that are there, but get a fiscal cost analysis or impact as to whether or not that which we're going to be asking school districts to do they actually will have the fiscal flexibility to respond.  And I concur with Senator Stuhr, it's valuable information to know and certainly support the amendment.


PRESIDENT ROBAK:  Thank you, Senator Bernard-Stevens.  Senator McKenzie.




SENATOR McKENZIE:  Thank you, Madam President and members.  I, too, support the Stuhr amendment.  And it is my hope, Senator Stuhr, that this time, having also attempted to appropriate some of the additional funds to the Department of Education that we know they will require, that they will actually be able to do that.  And the reason I say that is there are two other sections of statute currently that asked for fiscal information, information regarding cost of certain services and programs so that the department, through special education, would have an idea about why things were changing and why they cost more.  Unfortunately, we can't find any of that information.  And my fear is that the reason for that is that we have never provided the resources for them to do what we have asked.  And I think it is very important as well.  With that, I rise in support of the Stuhr amendment and ask for your support as well.


PRESIDENT ROBAK:  Thank you, Senator McKenzie.  Senator Avery.  Is there any further discussion on the Stuhr amendment?  Seeing none, Senator Stuhr, to close.


SENATOR STUHR:  I just ask for your support on this amendment.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Stuhr.  The question before the body is the adoption of the Stuhr amendment to the McKenzie amendment to LB 742.  All those in favor vote aye; all those opposed vote nay.  Please record.


CLERK:  28 ayes, 0 nays, Madam President, on the adoption of Senator Stuhr's amendment.


PRESIDENT ROBAK:  The Stuhr amendment is adopted.


CLERK:  Senator Stuhr, AM2424.  (Amendment appears on page 2486 of the Legislative Journal.)


PRESIDENT ROBAK:  Chair recognizes Senator Stuhr, to open on her amendment.


SENATOR STUHR:  Madam President and members of the Legislature, this amendment could be found on page 10 of the original McKenzieStevens amendment.  It has to do with the changes in the Special Education Accountability Commission.  In the bill itself it adds three members to this commission.  After talking with and visiting with superintendents, of which I have at least




eight in my district, that they felt that they would like a little more representation on this commission from the administration not involved in special education.  So what my amendment does is change the origin ...  the special education administrators from one to two, and that is what is proposed in the bill.  My amendment changes the two back to one, and then adds one to just administration.  I hope I explained that.  In fact, we're just getting more of a balance of those not involved in special education, because there will be other people on the Special Education Accountability Commission that have a close relationship to special ed.  But they felt that they would like to have more representation by those not involved in the program but are responsible for the financial aspect of the special ed program.  So I'm asking for your support on this amendment.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Stuhr.  Senator Bromm.


SENATOR BROMM:  Thank you.  Senator Stuhr, could I ask a question or two.


PRESIDENT ROBAK:  Senator Stuhr.




SENATOR BROMM:  If I understand, and I think you explained it very clearly, but I was paying attention to something else, you are removing one of the special education administrators, there are now two, and...




SENATOR BROMM:  ...and making the committee have...  commission have two administrators not involved in special education....




SENATOR BROMM:  ...  leaving the total numbers the same...


SENATOR STUHR:  That's correct,...




SENATOR STUHR:  ...  leaving the total numbers the same.




SENATOR BROMM:  And as you pointed out, there are other representatives on the commission related to special education, besides those that you mentioned.


SENATOR STUHR:  Right, right.


SENATOR BROMM:  Okay, thank you.  I would support the Stuhr amendment to the amendment.  I think...  I think she's absolutely correct, you need some balance of people that are involved in the total school financial picture.  And I see nothing wrong with providing this balance.  It looks like there will be ample special education participation from other members, as well as the people that are involved in special education on a daily basis, from the state department and so forth will also be quite involved in the information that's developed with this commission.  So I would support the amendment.


PRESIDENT ROBAK:  Thank you, Senator Bromm.  Senator Withem.


SPEAKER WITHEM:  Senator Stuhr, an apology ahead of time for doing what we do way too much of this session.  I was off the floor, came back on and I heard the topic of discussion, involves the makeup of the Special Education Accountability Commission.




SPEAKER WITHEM:  And what change are you proposing to make?


SENATOR STUHR:  In the bill we are adding three new members to the Special Education Commission, one...


SPEAKER WITHEM:  Okay, refresh my memory, who are the three that we're adding?


SENATOR STUHR:  We're adding an additional special education administrator, a school district business manager and one representative from a private school.  What my amendment is doing is just changing, which would bring the number of special ed administrators to two, and I'd like to change that to...  over to just a school administrator and not the special ed administrator, so that we would still have one, but we have more balance on the panel.


SPEAKER WITHEM:  So you're changing which to which?  One more




time, I'm having difficulty.


SENATOR STUHR:  Okay.  The bill ....  Okay, at present there is one special education administrator on the Accountability...


SPEAKER WITHEM:  And that's current membership?


SENATOR STUHR:  That's current.  The -bill suggested that there be two.  What my amendment does is just lower that back down to the one, but change the other administrator to one not involved...




SENATOR STUHR:  ...  in special education, to add the balance because I've been meeting with my superintendents and they're saying that, you know, they would like more balance and more say...




SENATOR STUHR:  ...  you know, in the...


SPEAKER WITHEM:  Would there be a ...


SENATOR STUHR:  ...  and not as many involved directly in the special education area, because there's just a ...


SPEAKER WITHEM:  Yeah, yeah.


SENATOR STUHR:  ...  different...  (inaudible) responsible.


SPEAKER WITHEM:  Yeah, I understand, Senator Stuhr.  I am not supportive of the Stuhr amendment.  I understand what she wants to do.  Senator McKenzie, could I ask you a question?


PRESIDENT ROBAK:  Senator McKenzie.


SENATOR McKENZIE:  Certainly, yes.


SPEAKER WITHEM:  Yeah, I'm remembering that you and I had some discussions concerning the makeup of the Special Education Accountability Commission.  There was a concern that I had concerning the makeup of this commission that the ...  there's an area of the state around the Omaha area that individuals that




had a different perspective on special education costs, they come from the special education community, were concerned that their views were not being addressed properly within this group, is that ...  you recall that conversation?


SENATOR McKENZIE:  Yes ...  yes, I do.


SPEAKER WITHEM:  And we, the committee then added or one of your amendments added an additional person.  Is this the person that Senator Stuhr is now taking out?


SENATOR McKENZIE:  I believe so, yes.


.SPEAKER WITHEM:  Yeah, I would stand in opposition to this.  I would have no problem, Senator Stuhr, with having an additional ...  an additional administrator from general education.  As a matter of fact, I think one of the failings of this commission all along is the problems that we've had with the fact that the general administration representatives on the commission tend not to be general education administrators, they tend to be...




SPEAKER WITHEM:  ...  they tend to be people that came out of special education themselves.  1 don't want to get into one of these regional sort of things, but there was a reason that the previous amendment was added.  It was a policy change that I'd recommended to the committee and had been accepted.  I'm sorry we didn't have time to visit about this.  But at this point I'm not supportive of this.  I would be very supportive, though, if we could work out so that there may be some other additional person on.  But I would not be supportive of this.


PRESIDENT ROBAK:  Thank you, Senator Withem.  Senator Avery.


SENATOR AVERY:  Thank you, Madam President.  I guess I rise, too, with some concern in the terms of the makeup of that body.  The things that I heard from the administrators to the school superintendents and others involved were that this board was not functioning properly and there wan some concern that maybe there was not the right individuals there to make the right decisions and look at the true problems.  So I guess I do have some concern.  I'm going to, I guess, listen and see what kind of...  something can be worked out on this, but I'm going to have




to hold off on support of this.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Avery.  Senator Stuhr.


PRESIDENT ROBAK:  Is there any further discus discussion of the Stuhr amendment?  Senator Bernard-Stevens.


SENATOR BERNARD-STEVENS:  There's always one time in the year where I find myself in this position.  And Senator Stuhr and Senator Withem's staff need to do some talking and nobody needs to...  is going to speak and so they need some time.  And so who do you turn to?  Well, you turn to, Bernard-Stevens because there's five minutes no matter what.  So I'm not even sure what the amendment does.  But, Senator Stuhr offers the amendment, it's got to be a good idea.  But if Senator Withem has some questions about it, they're probably very valid questions and I'm sure they'll reach some compromise somewhere.  I will take just a minute though and talk about the bill in general.  Again, I do appreciate the effort and the sincerity and the intensiveness of the negotiations that took place today and we did find that middle ground.  We are sending a strong message that we need to curb the costs.  We are sending the message that we don't want to misidentify students and have them simply identified special education in order ...  getting them ...  to get them out of the classroom into some other special place, and I think that's important.  We're taking the steps to ensure that it's a strong message, and more than a message, we're backing it up with dollars that we're capping.  We have a minimum amount of growth rate that will help ease the transition, and I think at that point we have a bill that will begin us on our way of even a more difficult thing, and that is really the more difficult thing will be this summer when we try to put all of the four different groups together, we do the analyzing, we come back with the funding policy, that will be the toughest decision probably we'll have.  But at least we were bold enough hopefully, to take this first step tonight.  And at this point would like to yield whatever time remaining to Senator Schimek.


PRESIDENT ROBAK:  Senator Schimek, there is three minutes.


SENATOR SCHIMEK:  Thank you, Madam President, members of the body.  I really appreciate this, Senator Bernard-Stevens.  One of the things that Senator Janssen and I were just discussing is who actually is on this Accountability Commission.  And if you look at your copy of 2114 it mentions these folks, there are 16




members, there's a representative from the Governor's Office, I public school classroom teacher not in special education or administrative staff member not involved in special education, 2 special education administrators or administrative staff members, 2 parents, 1 representative of postsecondary special education, 1 school district business manager and 1 school board member, 1 representative of private schools, and 4 representatives not directly related to the administration, delivery or receipt of special education services; all appointed by the Governor with the consent of the majority of the Legislature, upon the recommendations of associations and organizations representing parents, teachers, school administrators and school board members.  So, if you did not have a chance to look at that laundry list of who's actually on this particular commission, maybe that will give you a little bit of update.  And now I'm looking for a candidate to turn the mike over to at this point.  Senator Withem, did you want some time?


SPEAKER WITHEM:  Yes, I really would.  I guess I would point out, and what I said to Senator Stuhr if she feels that a better balance would be had by having another general school administrator on the commission, I have no problem with that.  I would point out to the membership that, you know, I have had very little involvement in LB 742.




SPEAKER WITHEM:  I did have a group of individuals from around the Omaha area who came to me with an awful lot of policy concerns about the recommendations as they came out of the Education Committee on LB 742.  1 said to them, I don't think you have a lot to base your concerns on at this point because this is a continuing process.  Their response was, it's a process in which they were not involved.  I went to Senator Bohlke and I believe to Senator McKenzie and indicated that having a representative among that group from the special education community and a business manager expanded onto the commission would alleviate a lot of concerns and would save an awful lot of time debating...




SPEAKER WITHEM:  ...  the policy recommendations that are continued in this proposal....




PRESIDENT ROBAK:  Senator Withem, your light is next, you may continue.


SPEAKER WITHEM:  ...and that was ...  and that was agreed to.  Consequently, you have not seen a lot of debate on the floor about the recommendations for the future, the block grant type of program, all of those other sorts of things that you may have had because people feel that they are now going to have a seat at the table.  Senator Stuhr absolutely inadvertently, I'm sure, had absolutely no knowledge of this discussion that took place, but by drafting this amendment it somewhat upsets this rather delicate balance that took place.  My hope is, and I see that...  that we have something up there at this point that we'll be able to-make an accommodation so that Senator Stuhr can have her representation on the commission that she believes is important and without upsetting this balance that we arrived at earlier.  So, with that, I would relinquish the rest of my time.


PRESIDENT ROBAK:  Thank you, Senator Withem.  Mr. Clerk.


CLERK:  Senator Stuhr, do I understand, Senator, you want to withdraw AM2424 and offer this handwritten amendment that's been provided to us?




PRESIDENT ROBAK:  Is there any objection?  Seeing none, it is so ordered.  Senator Stuhr, would you like to open on the new amendment?  (Stuhr amendment, FA287, appears on page 2486 of the Legislative Journal.)


SENATOR STUHR:  All right.  What this amendment will do is actually raise the number then to four additional members, keeping two administrators not involved in special education and then retaining the two special education administrators.  That's a compromise, but I feel there will be some balance, it will make the number uneven with 17, and it will be a work...  it will still be a workable group.  But my concern is that we also have a balance of people not involved in special education, those that are responsible for the special financing of special education costs.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Stuhr.  Senator Avery.




SENATOR AVERY:  Thank you, Madam President.  I think that we've got the situation ...  Senator Stuhr and Senator Withem have worked this out to do.  One additional thing that it does add, it provides a mechanism, instead of 16 members on the board, which you know you could always get an even split in the voters, this will provide at least an odd number so decisions can be made.  I'm sure that probably won't ever happen, but there's always that possibility.  So I, at this time I would support the amendment as presented.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Avery.  Senator Stuhr, your light is on.  Do you wish to speak again?  No.  Senator Withem.


SPEAKER WITHEM:  Just to say thank you for Senator ...  to Senator Stuhr.  And the policy concern that she brings is a valid one also, I ought to point out.  Again, I mentioned before that the perspective she's talking about is one that needs to be represented on the commission.  As a matter of fact, it was one of my concerns that even the individual who was appointed by the Governor to serve on this commission as the general education representative happened to be an individual who was one of the previous to becoming a superintendent, was one of the leaders of special education policy discussions in the state prior to that.  So I think when we originally set up that commission the idea was it would be an individual responsible for maybe defending the turf of the rest of the school policy.  So adding this additional person I think is a good policy decision and I support it.  And I appreciate the fact that we're not X-ing some of my people to bring that about.  So I appreciate Senator Stuhr's concern, very supportive of this amendment and thank her for her cooperation.


PRESIDENT ROBAK:  Thank you, Senator Withem.  Senator Schimek.


SENATOR SCHIMEK:  Yes, thank you, Madam President, members of the body.  Senator Stuhr, just to make sure that I have the amendment down right now.  On page 10 it would read, on line 6, after "one public school special education teacher" then it would say "two administrators or administrative staff members not involved in special education", then it would say "two special education administrators or administrative staff members, two parents", et cetera, et cetera.








PRESIDENT ROBAK:  Thank you, Senator Schimek.  Is there any further discussion of the Stuhr amendment?  Seeing none, Senator Stuhr, to close.


SENATOR STUHR:  I think it might be just a good idea to list who those members are on this commission, since we really haven't previously done that.  There will be one representative from the Governor's Office, there will be one public school classroom teacher not in special education, there will be one public school special education teacher, if the amendment passes there would be two administrators not involved in special education, .two special education administrators, two parents, one representative of postsecondary special education, one school district business manager, one school board member, one representatives from a private school, and four representatives not directly related to administration, delivery or receipt of special education services.  I ask for your support of this amendment which will be to add an additional administrator not involved in special education.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Stuhr.  The question before the body is the adoption of the Stuhr amendment to the McKenzie amendment to LB 742.  All those in favor vote aye; all those opposed vote nay.  Please record.


CLERK:  26 ayes, 0 nays, Madam President, on the adoption of Senator Stuhr's amendment to the amendment.


PRESIDENT ROBAK:  The Stuhr amendment is adopted.


CLERK:  Senator Bernard-Stevens has the next amendment, Madam President.  (Bernard-Stevens amendment, FA288, appears on page 2487 of the Legislative Journal.)


PRESIDENT ROBAK:  Chair recognizes Senator Bernard-Stevens.


SENATOR BERNARD-STEVENS:  Thank you.  And, Mr. Clerk, I want to just verify.  This is the one that we're talking ...  we have the $127 million figure in?


CLERK:  Yes, sir.


SENATOR BERNARD-STEVENS:  Okay, thank you.  What this amendment




is, is the one that I had mentioned before, in fact I had it on General File and Senator.  Warner explained to me very diplomatically that it was too soon, and he was right.  This may too soon as well, but it is Select File and I'm not sure if it's...  I assu...  I think this might be the right time.  But what I talked about earlier was on the green sheet we were estimating a savings of the special ed bill to be at $6 million, 6 million plus, some odd thousand dollars and that was at a 5 percent growth.  Obviously now we're at a 2.5 percent growth.  So the savings is going to be more than that, and in fact the savings that we will see would be about 9.2 million.  What this amendment does is it trans...  it's the intent language that simply says, it is the intent of the Legislature that any General Funds saved as a result of appropriating less than the 127,357 ...  a million, 357 of General Funds for special education reimbursement shall be transferred to the Cash Reserve Fund.  In other words, if you agree with this amendment, we'll still have the $6 million savings showing on the green sheet, but anything that we create above that, which would be about $3,032,333 more than that, would be transferred into the Cash Reserve Fund.  That transfer would coincide with LB 392 and we would change the A bill to show that transfer date to be June 16th of 1997.  That's the nature of the amendment.  We talked about it last night and prior to that and I would urge the adoption of the body.


PRESIDENT ROBAK:  Thank you, Senator Bernard-Stevens.  Senator Wesely.


SENATOR WESELY:  Thank you, Madam ?resident, members.  I don't have any particular stand on the amendment.  I know it was $127 million figure, something, but I find it interesting that we spent the last hour, little over an hour on this issue, at $127 million.  The welfare bill, which we spent 8 hours plus and additional time, is about a $22 million bill.  This is a $100 million difference.  It's kind of interesting how we spend our time on certain things.  And this issue is going to get a lot of attention, it's had a lot of attention.  But in terms of the public grabbing hold and showing an interest it's been interesting how they will focus so much on welfare and what a high profile that has.  And yet in terms of relative impact on the budget it is not a big part of the budget as opposed to this.  And I just raise that point and find it interesting as we work through issues which capture the public imagination and which don't, and which capture the time on the floor and which




don't.  And I think definitely spending the time on this, I know Senator McKenzie and others have spent a great deal of time trying to work through this, it's very valuable indeed because this is a very big part of the budget.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Withem (sic).  Senator Wehrbein.


SENATOR WEHRBEIN:  Madam Speaker, members, I don't really know what I'm going to say here.  Maybe I'll talk myself into it.  Senator Bernard-Stevens, how much money did you ...  what does the amendment read as it is right this minute?


SENATOR BERNARD-STEVENS:  The amendment reads as follows, it's that any General Funds saved as a result of appropriating less than the $127 million of General Funds in fiscal year 196-97 for special education reimbursement, shall be transferred to the Cash Reserve Fund.  In other words, we show on the sheet $6 million, that was at the 5 percent level of savings.  We compromised and we're at the 2.5 percent level, which then put us up to $9.2 million.  So in essence we would transfer ...  we would be $3,032,333 above the 6 percent we show on the sheet, that's the amount that I'd want to transfer into the Cash Reserve.


SENATOR WEHRBEIN:  Into the Cash Reserve.


SENATOR BERNARD-STEVENS:  Yes.  And there are...




SENATOR BERNARD-STEVENS:  ...  a lot of reasons for that, if I can just take another 15 seconds.  There's no doubt in the future, in the next couple of years community-based programs are going to be coming up, we're going to be talking about prisons obviously at some point, and I'd just rather we put this money away rather than spending it on other occasions.


SENATOR WEHRBEIN:  Okay.  I don't have any problem with doing this.  I don't know whether it's necessary though, it's up to the body.  If you want to put it away I'm 100 percent for it.  I don't sense that the mood of the body is necessarily to spend it.  In these waning days I think there's some things out there that you're looking at that are already in line.  But I don't necessarily see major issues of new spending.  But on the other




hand, putting this away in the Cash Reserve is simply a different place than having it carry forward on the regular reserve and the cash balance in the General Fund.  But I probably will support this because I usually think it's a good idea to do that and it's a form of discipline.  If the body is in the mood to do that I think it's appropriate.  By doing this it makes the decision at this point rather than two or three days from now.  So I'll support it, but it isn't that I feel that it's an absolute.  Part of it is with 425 being withdrawn it does leave some more money there that I'm perfectly content not to spend.  I have no grand designs to spend anymore money myself, and so I guess we just as well put it away.


PRESIDENT ROBAK:  Chair....  Thank you, Senator.  Senator Warner.


SENATOR WARNER:  Senator Bernard-Stevens, I need to clarify a question, too.


PRESIDENT ROBAK:  Senator Bernard-Stevens.




SENATOR WARNER:  You've talked about this amendment which is intent language, and that doesn't make any difference.  But where are you going to make the transfer at (inaudible)?


SENATOR BERNARD-STEVENS:  Well the transfer will actually be...  in order to follow what we do on the bill -.--hen we'd have...  I'd have to have the amendment in the A bill, and the transfer would take place in the A bill, and the transfer would be the same date that we transferred in LB 392 dollars into the Cash Reserve, and that transfer would take place June 16th of '97.


SENATOR WARNER:  And the dollar amount is what?


SENATOR BERNARD-STEVENS:  The dollar amount would be $3,032,333 for fiscal year '96-97.


SENATOR WARNER:  Ninety-six, ninety-seven ...  well, it's fine to put it on here because that will let me think about It between now and the A bill.  Doesn't make any difference here because it's just intent language.  But...






SENATOR WARNER:  Actually, you don't need it here, I suspect.


SENATOR BERNARD-STEVENS:  That is correct, but in my estimation, and it's a poor judgment possibly at that, but I think when we get to the A bill it's always nice to say we need to do this amendment because we're following through the policy we agreed to do on the bill.


PRESIDENT ROBAK:  Thank you, Senator Warner.  Senator Jones.


SENATOR JONES:  Madam President, members of the body, could I ask Senator Bernard-Stevens a question, please.


PRESIDENT ROBAK:  Senator Bernard-Stevens.




SENATOR JONES:  This Cash Reserve, you talking about putting that in, the 3 million, is that going to go ...  we got a 3 percent cash reserve now, it will be above and beyond that.


SENATOR BERNARD-STEVENS:  Yes, that would ...  that would be above and beyond the 3 percent, that would not affect that 3 percent figure.


SENATOR JONES:  And so that way you can spend down to it and it don't matter, just so you never use that unless we call for it again.


SENATOR BERNARD-STEVENS:  Right, and I want to clarify.  I don't want to say it doesn't matter, because if we left it in the General Fund it would actually show that we might be a little bit higher do...we'd have money left over, then we didn't go all the way down to our 3 percent figure, so it would be a little bit higher.  We might be at 3.07 or 09, or whatever it be, so it would have that effect.  But we would still meet our 3 percent requirement constitutionally.


SENATOR JONES:  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Jones.  Is there any further discussion on the Bernard-Stevens amendment?  Seeing none, Senator Bernard-Stevens, to close.  He waives off.  The




question before the body is the adoption of the Bernard-Stevens amendment to the McKenzie amendment to LB 742.  All those in favor vote aye; all those opposed vote nay.  Have you all voted?  Senator Bernard-Stevens.


SENATOR BERNARD-STEVENS:  Could we have a call of the house please and I'll...  so many, we might just as well have a roll call and just do it that way.


PRESIDENT ROBAK:  There's been a request for a call of the house.  All those in favor vote aye; all those opposed vote nay.  Please record.


CLERK:  16 ayes, 0 nays to go under call.


PRESIDENT ROBAK:  The house is under call.  Will all senators please return to their seats.  Will all unauthorized personnel please leave the floor, the house is under call.  Senators, please check in.  Senator Abboud, Senator Schellpeper, Senator Coordsen, Senator Avery, Senator Withem, Senator Cudaback, Senator Pirsch, Senator Maurstad, Senator Robak, Senator Schrock, Senator Brown, Senator Chambers, Senator Lynch, Senator Kristensen.  Senator Withem.  The question before the body is the adoption of the Bernard-Stevens amendment to the.  McKenzie amendment to LB 742.  There's been a request for a roll call vote.  Mr. Clerk, please proceed.


CLERK:  (Roll call vote taken.  See page 2487 of the Legislative Journal.) 23 ayes, 9 nays.


PRESIDENT ROBAK:  I raise the call.  The Bernard-Stevens amendment fails.  Mr. Clerk, next item on the bill.


CLERK:  Madam President, the next amendment I have is by Senators Pedersen and Avery.  (AM2456 appears on page 2488 of the Legislative Journal.)


PRESIDENT ROBAK:  Chair recognizes Senator Pedersen to open on his amendment.


SENATOR PEDERSEN:  Madam President, members of the Legislature, when this bill was on General File I had the school boards in my district come and ask me if I would carry an amendment that basically dupli ...  that this amendment is a duplicate of, with some of the language taken out.  Talking to anybody about this




bill they will tell you, the school hoards, I was visiting even with the Nebraska Advocacy Services which does not support this amendment, that this bill is going to create more litigation for the school boards and school districts.  The amendment I bring to you, and I'm going to give part of my time to Senator Withem because he has a formula to visit with you about on what this would do number wise.  But it basically says that when a school board is sued, arising from a provision of the State Education Act, the State of Nebraska shall be named a party ...  defendant upon a motion filed by any party and they would pick up half of the cost.  In talking to Senator Wehrbein.  this would probably be a deficit appropriation, so the question of where's the money coming, it would probably have to come out of the Department of Education as a deficit appropriation.  I don't think it is fair to our school boards and our school districts to say that we're going to pass this and then have the litigation come to them and they have to pick it all up.  Somebody is going to have to pay for it somewhere.  And if we want the school boards to pay for it, since it's 'Litigation there's many different prices and costs that come from that, everything from expert witness fees, long distance calls, travel, meals, lodging, civil rights violations, fines, hearing costs, that the school board itself would probably end up as a personal property expense, personal property tax expense instead of out of the State Legislature...  state expense.  With that, I'm going to yield the rest of my time to Senator Withem, and I will try my best to answer any questions.


PRESIDENT ROBAK:  Senator Withem.


SPEAKER WITHEM:  Yeah, the first question might be why you yield the time to me.  But that ...  we'll save that unanswered.  This ...  when I saw Senator Pedersen bring this amendment I was intrigued by it.  I'm supportive of it.  And, come to think of it, this may be one of the very few specific things the Legislature can do to help control special education costs.  LB 742 is a bill of which I am supportive, will be supportive, but it doesn't do much in terms of specifics as far as cutting costs of special education.  It kind of adopts the philosophy that we know that there are excess costs out there, we don't know what they are.  We've spent 10 or 12 years trying to figure them out, we haven't figured them out, but local government, local school boards cut costs anyway.  One place where they can control their costs is not being overly generous with the types of special programs that they offer students.  And one of the




ways in which parents and parental groups convince school boards to grant expensive special programs, that may or may not be needed, is to threaten lawsuits.  And the way the law is now set the local government, the local school board has to bear all of the cost of litigation.  But who picks up the cost of special education is the state.  In many cases it's not cost-effective for the local boards to bear the cost of that additional litigation.  I've worked out an ...  Senator Pedersen overglorified this by calling it a formula.  It's not really a formula, it's just an example, hypothetical case, very hypothetical, but I think it could be typical.  Let's assume that a parent goes to a school district and says, I want this $100,000 special education program for my child.  And the local school district says, we don't think so; we think we can provide for your child within the normal classroom and we don't think the circumstances warrant that., And the parent goes to court, the parent sues the local school district.  Local school district, in this hypothetical, goes out, they're trying to save $100,000 in special education cost, they incur $30,000 of legal fees, all of these things that Senator Pedersen in his cheat sheet, and I have the same cheat sheet here as Senator Pedersen that we're going from, all of those things total $30,000 in this hypothetical case.  And they're successful and they save $100,000.  How is the cost then divided?  Well a state doesn't pay anything under current law.  Under the Pedersen amendment, the Pedersen-Avery amendment, the state would pay $15,000, but now they pay nothing.  The local government pays $30,000.  Who benefits then from this $100,000 savings?  Well under the current law, and admittedly, 742 will adjust these numbers somewhat but not to a great extent, but under current law $90,000 is saved by the State of Nebraska.  Didn't have to pay anything to do that because it's the burden of the local school district.  Ten thousand dollars is saved by the local school district because of our 90-10 reimbursement formula.  So the local government incurs $30,000 worth of court costs in order to save itself $10,000.  What do most local school boards do if they're bright, capable managers?  They probably settle out of court, they probably don't go to court, they may go ahead and provide this $100,000 expense as it is because there is not the incentive for local school districts to save, to challenge these, to litigate these.  It's an interesting policy argument.  It's one back when I was chairing the Education Committee the bill would come through periodically and I'll have to admit as Chair of the Education Committee at that time it wasn't one that I pushed forward, tried to push forward to the floor, but I




think in this area where we're talking about saving cost to special education it is, in fact, something specific that can be done.  You know I applaud Senator Pedersen for bringing the amendment.  I plan on voting for it.  I think, you know, even the...  I don't know where the advocates of LB 742 stand on this.  I think in many ways it's a stand alone policy decision that won't necessarily add to or detract from the mainline part of LB 742, but I think it's an interesting part of the bill and I'm planning on supporting it and would encourage you, if you have any questions on this, certainly direct those to Senator Pedersen.


PRESIDENT ROBAK:  Thank you, Senator Withem.  Senator McKenzie.


SENATOR McKENZIE:  Thank you, Madam President and members, I rise in opposition to the amendment but not because I disagree with the concern that Senator Pedersen and Senator Withem bring to us, but because we are well aware that this is one of the problems that often drive the cost of special education.  And I believe, in fact, so strongly that this is an area that we have to consider that we included it specifically in the study resolution for the interim work of the committee.  But the reason, and I have expressed this to Senator Pedersen when he talked to me about it, the reason I'm rather reluctant to put this language in statute at this time is that we really haven't taken the time to look at whether or not this is the way in which we want to address the problem.  Is a fifty-fifty cost-share the way we want to do this?  Is that what will discourage lawsuits or will that in fact encourage lawsuits and that we lose some of the savings that Senator Withem talks about?  Maybe not, but it's not an area specific to special education that we've taken the time to examine.  The amendment offered before us puts an operative date of January 1, 1997.  Nineteen ninety-seven will be the year that we introduce, we hope, the legislation that looks to reform the system in the intent language in LB 742.  Because this is important and because we know we have to look at a way to address litigation and those court costs, I want to include it.  As I said, I'm just reluctant to include it in a specific form at this tine.  But believe me it will be examined and we will come forth with some recommendation about how to deal with costs incurred by districts because of the state's rules and regulations in statutes.  The other thing I would share with you just for your basic information is that since 1992, and that's the most recent list I have, there have been 25 lawsuits filed in Nebraska




dealing with special education complaints Of those there were five which have been decided, all of those were decided in favor of the school district.  There were nine which were dismissed or withdrawn and there are ten which are currently pending.  What often drives a lawsuit is what's happened in a ruling in another state, but our record, at least for the last three or four years in Nebraska, has been cases taken completely through the process have found in favor of the school district.  Now it is a problem that the school district can't claim those court costs when they challenge often what they see as an unreasonable request or something that will be too much money for them to be able to handle, but apparently that has not happened in Nebraska much.  And in fact I would say that this is not an unreasonable number of lawsuits to expect because in some cases it's not about funding, it's more about free appropriate education and what parents believe should be the appropriate program for their child with a handicap.  But as I said, for your information that's a bit of the history about where we've been in the last few years with litigation.  Once more I say that I certainly support the concept behind looking at litigation and court costs.  I'm very committed to making sure that we look at that.  In fact, that charge has been given to the legislative task force that works on it this summer and would ask not to support this amendment at this time.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator.  Senator Withem.


SPEAKER WITHEM:  I'd actually turned my light on prior to this to give the explanation I gave earlier and would probably have remained silent if Senator McKenzie a hadn't given the...  it's not necessarily a bad idea but not right now sort of defense to the ...  or the opposition sort of statement.  When better?  We have a bill up where we're trying to control special education cost.  This measure has been around, the issue has been around for at least five or six years.  It's brought to the Education Committee periodically.  It may well have predated my chairmanship in that committee.  There's really no better time than the present to make this policy choice, the rationale being that we are ...  and maybe I ...  I was visiting with a senator here, maybe I didn't make it clear.  Where I really see the cost savings in this and it really is kind of a nebulous sort of area, hard to get a fiscal note and I know, you know, the other side will be able to say there have been X number of cases and they cost X number of dollars, it will cost the state Y number of dollars because of that.  The real cost savings I think is in




the situation where Ron and Diane Withem have a child who we think is pretty special and we think the local Papillion-LaVista School district may not be providing the programs for our precious young child and we go to the local school district and say, you're not providing the special needs that my child needs.  And the school district looks at Ron and Diane Withem and they said, and these two people are fairly politically savvy, if we don't give them what they want or work with them, whether the kid needs it or not, they're apt to take us to court.  And currently they're going to have ...  the Papillion-LaVista school district is going to have to stand the cost of all of that litigation on its own.  They're going to have to provide their own expertise, their own expert witnesses.  Keep in mind the other provision of this, I think makes the state a party to the suit so we can get the Don Anderson's of the world and the people over at the Department of Education involved in this defense.  So what's the school district likely to do is they're likely to say, hey, it's a $30,000 program, it's a $40,000 program, the state picks up 90 percent of it anyway, let's go ahead and offer this program.  Maybe the Withem's will leave Us alone, maybe we won't have to go to court.  And that's what happens our in the real world.  Now the other side to this and I think that maybe out of fairness I ought to give the other side because I used to not support this.  The other side of it is fear that real recalcitrant school administrators might adopt the position that well heck with it, I can just say no to everybody that comes forward, I'll just say no to everybody and the state will pick up the legal costs so what do I care?  That's the legitimate other side of this position I think, but in this era where we're trying to save money in special education I think this is a provision where we can actually do something that you may see a shrinking of that pot out there, because so far we haven't done anything if we pass 742 in its current form to decrease cost to special education.  We've just shifted who is going to pay for it.  This is an areas where you might see some actual cost decrease.


PRESIDENT ROBAK:  Thank you, Senator Withem.  Senator Witek.


SENATOR WITEK:  Madam Chair, members of the body, I rise in opposition to the Pedersen-Avery amendments and I don't see anything wrong with the defense of saying we're getting a little ahead of ourselves here, because that's exactly what we're doing with this amendment.  We're getting way ahead of ourselves here.  First of all, by adopting this amendment we're saying that maybe




there is something in 742 that would incur more lawsuits and I disagree -with that.  Right now in 742 we're talking about funding, but the funding we can always come back and change.  It's not like we go away from here for any length of time.  We'll be back next January.  You can always come back and if there's any problems, we can change that.  But what we're really getting at is the task force formation and just asking those individuals to look at this area that has seen tremendous growth in the last few years and see if there are any areas where we can cut back on some of the costs that we are incurring in these areas right now.  That's all we've done right now.  We haven't imposed any spending limits that really can't be changed.  We haven't affected any policy changes that would incur, in my opinion, any liabilities to the state.  Most of the liability has been incurred by federal law, actually, that was passed long time ago and made the school districts responsible for providing these programs, and that's what usually gets people in court.  And it's school districts defending themselves, usually, successfully defending themselves in those areas.  And all this says to me is that the cost that those school districts, and I asked Senator Pedersen to check how many lawsuits he had had in his district and I don't believe it was very many, it's not too many in mine, but it is an expense to the school districts, that this amendment would give them an opportunity to push up to the state level.  I know that there has been some property tax relief ideas with having the state incur some of the expenses, but those are all ideas that went through hearings that people talked about that came forward and were really straightforward about that being the case here.  Now we come in at the ninth hour hers and go on 742, this idea that we're going to incur these costs at the state level for these litigations and inferring somehow that some of it may be tied to what we're doing in 742.  That is absolutely not true.  I know it says 1997 on this, so that's another reason to say why would it be necessary to do that now?  Why couldn't you come back next year, maybe after we have some really valid, solid policy changes if we have any at all.  If we find that we cannot save money in these areas, that what we're doing is absolutely necessary that has to be funded to its fullest level, then that's what we'll do.  That's what we'll do at the state level, but if we find that there are areas where we can at least control some of the cost in these areas then that's what we'll do.  If at that time we see that there might be some problems with some of the opportunities for lawsuits then we can talk about this type of an amendment, but there is absolutely no reason tonight to adopt




an amendment that first of all doesn't take effect until 1997, and second of all, we probably, in my opinion, we definitely do not need it all with 742.  So I will oppose the Pedersen-Avery amendment.  There's absolutely no reason for it.  All it's doing is trying to push off at this time some of the costs I think the school districts are now incurring and say we'll take those over at the state level.  And I don't think that is something the state should do on the spur of the moment idea like this.  I think that's something that should be looked at, looked at across the board, across the state ...




SENATOR WITEK:  ...  and see how much these costs are, which school districts are incurring these costs and for what reasons and then come back and look at this type of an amendment, but certainly not tonight when we're trying to get through a task force to begin looking at the costs in special education and talk about whether the state should absorb the cost of litigation in these areas.  So I hope you will not adopt the Pedersen-Avery amendment and decide that it's definitely not necessary at this time to do so.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Witek.  Senator Bromm.


SENATOR BROMM:  Thank you, Madam President.  If I could ask, I don't know, Senator Pedersen or Senator Avery, whichever one is the primary author of this amendment, a question.


PRESIDENT ROBAK:  Senator Pedersen.




SENATOR BROMM:  Senator Pedersen, was there any particular rationale in the wording that this would apply to lawsuits filed on or after January I of '97?  Do you know how that date was picked?


SENATOR PEDERSEN:  No, I'm not sure, Senator Bromm.


SENATOR BROMM:  Does this mean that if the claim rose before that date but they waited to file it till after that date, the state coverage would apply but if they filed it before January 1 of '97 it would not apply?




SENATOR PEDERSEN:  By normal statute, that's right, yes.


SENATOR BROMM:  Thank you, Senator Pedersen.  I rise to oppose the amendment and I would encourage Senator Pedersen and Senator Avery to bring a bill next year and I think it's worth spending some time with, especially in view of the changes that we're making in the law and that we're going-to look at making over the course of the next year and a half.  I think there is some drafting problems here.  If I had a claim right now, you can bet I wouldn't file it until after January 1 of '97.  There is generally a four-year statute of limitations on those things.  There's going ...  at least if I was a school, I wouldn't want it filed until then.  Perhaps the plaintiff would file it if they wanted to nail the school district with all the cost before that date versus waiting till after that date, but if there was some way to postpone the filing till after that date, it's a little bit different ball game.  There's some things here that need to be, I think, more properly drafted and thought out.  For example, it applies to a claim arising from a provision of the Special Education Act.  The question I would have, okay, if we've got an administrator that does a slipshod job of administering the rules, if he himself fails to do something, doesn't arise out of any law that we've passed, but he commits an act which is not in compliance with the rules and with the law, does that arise out of the Special Education Act?  I don't know and I don't think that it says.  There are a number of vague provisions that need further explanation and study.  The defense of the case under this provision would involve the state which perhaps might be something I could favor because the state is going to wind up paying 90 percent of a Judgement if one is rendered, so perhaps we should be involved in the litigation in terms of the way the case is handled and monitored and so forth so somebody doesn't cave in and we wind up paying 90 percent of a judgment.  However, there are just too many questions and unanswered complications with this change in a law that I'm not at all comfortable with doing it at this point in time.  I think I would be more than willing to help look at the issue in more detail in the next year and a half and as we develop the law more completely and the change in...




SENATOR BROMM:  ...  funding mechanism, I think we'd have a whole lot better grasp of how to approach this.  I'm not opposed to doing something in this area.  This is a little bit too quick




and a little bit too half-baked for me to feel comfortable at all, and so I would urge the body to defeat the amendment at this point.


PRESIDENT ROBAK:  Thank you, Senator Bromm.  Senator Lindsay.


SENATOR LINDSAY:  Thank you, Madam President, members, if I could ask...  I don't need it I need to ask Senator Pedersen or Senator Withem or whoever might know.


PRESIDENT ROBAK:  Senator Pedersen.


SENATOR LINDSAY:  Senator Pedersen.


SENATOR PEDERSEN:  Senator Lindsay.


SENATOR LINDSAY:  What is the, in the first section, Section 8, of your amendment, what is the purpose in having the party named as a party defendant?




SENATOR LINDSAY:  Why is the, in the amendment, Section 8, on lines 2 through 6 of your amendment, why is the state being named a party defendant?  The second part of your amendment says that reimbursing for cost.


SENATOR PEDERSEN:  Well because the state would take up, take part of the liability with this.


SENATOR LINDSAY:  Okay.  So you're...  it's your intent, I guess, you're...  to have.  the state respond, if there is damages awarded, the state would cover at least some portion of those damages?


SENATOR PEDERSEN:  Fifty percent, yes.


SENATOR LINDSAY:  Thank you.  I have a concern with that first part of that amendment and "Chat is that the state be named a party defendant.  I think there's two concepts that can be looked at in this amendment.  One is the state paying half the cost of the defense of the case and I can see that.  I think there may be some wise choice there.  But I question whether we ought to be having the state being named as the party defendant, mandatorily being named as the party defendant in each case that's filed.  It might make more sense to give, if the purpose




is also partially to allow the expertise of the Department of Education to be brought to bear, it might be better to allow the state the right to intervene in any of these cases rather than having to be a party defendant who is, I'm not sure if they're jointly liable or if they're liable for half of it or if they're liable for all of it Jointly with the school districts or how that works out.  I think that poses some concern.  I don't know how many lawsuits are filed in any given year but it is something that without having more of that background I don't know if this is a ...  at least the first part is, and I don't have any problem with the second half of that, but at least with being named a party defendant that concerns me a little bit as far as whether we're doing that without knowing what kind of exposure we're looking at.  So I, like I say, I do have a concern with adding that new Section 8.


PRESIDENT ROBAK:  Thank you, Senator Lindsay.  Senator Stuhr.


SENATOR STUHR:  Madam President and members of the Legislature I'm supportive of this amendment because I have concerns about the proposed changes in the rules and the regulations and I also have some concerns about the waiver.  I'm wondering if, talking about being vague, I wonder if Senator Bromm would respond to some questions.


PRESIDENT ROBAK:  Senator Bromm.


SENATOR STUHR:  Particularly in the area of the waivers that was in your original amendment, you're talking about the state department, the Board of Education shall provide a process for the waiver of rules and regulations.  Could you explain what you mean by that?


SENATOR BROMM:  Do you want me to give that to you in generalities?


SENATOR STUHR:  All right.  I mean there's nothing really in the amendment that goes into any detail about these waivers.


SENATOR BROMM:  I, as well as some others met with the Department of Education special ed representatives for quite some period of time discussing wording for that and trying to figure out how much specificity to try to put in the statutes and learned that the Department of Education has had a process for waivers in place in the past.  I think what they intend to




do, from what they have told us, is to inform the districts of the procedures of applying for a waiver in the event this legislation passes.  It has the emergency clause so we would expect them to do that right away.  The district then would have an opportunity of using the guidelines that they will give on how to ...  they know how the waiver works now because they already use it in some instances.


SENATOR STUHR:  All right.


SENATOR BROMM:  It will just be an expansion of that, Senator Stuhr.


SENATOR STUHR:  But isn't it all together a different type of waiver?  As I understand the waiver that they now have refers to innovative programs.  It does nothing in relationship to civil rights, due process that parents, you know, have concern about.  They, you know, they...  so that's, you know, the waivers there are altogether different.


SENATOR BROMM:  Well not entirely because one of the waivers that is being granted is, for example, if someone has six students and they want to have one full-time teacher, they apply for a waiver to have one teacher for six students instead of the recommended caseload of fourteen to twenty-one, and that's a waiver that is applied for and they assess whether or not that is practical or whether or not they'd be better off contracting with another entity for the service and so that process is being used.  That's a similar...  I mean that's an example of the kind of waiver we would expect to have done under the legislation.


SENATOR STUHR:  So how are we going to be assured of uniformity?  Because I think on the second page it says they shall grant or deny a waiver request.  I mean, but that's, you know, it doesn't say anything else in relationship to I might come, someone else might come, you know, how are they going to make those decisions?


.SENATOR BROMM:  Well from the discussions I guess that I had with them, if the services are going to be provided in accordance with the law and it can be done in the manner being requested by the school, they will try to accommodate that waiver.  Now if that waiver is going to compromise or not assure them that the services are being provided, that the federal rules or law requires or the state law requires, they told us




they would deny the waiver.  If the waiver works...




SENATOR BROMM:  ...  I think they'll approve it for each district that applies for that particular waiver if it's workable for them.  I don't see ...  you know, they'd have a hard time justifying treating different districts differently.


SENATOR STUHR:  So you don't see any liability involved in this waiver process?


SENATOR BROMM:  I don't see that it increases the risks of the liabilities at this point in time, I don't, as long as the services are delivered.  The waivers are intended to allow services to be delivered more efficiently and more economically.  It isn't a matter of not delivering the service, it's allowing it for more flexibility in delivering the services.  if it eliminates services..  I think you're exposing yourself to liability.


SENATOR STUHR:  Well ...  and I guess that's the concern in eliminating costs.




SENATOR STUHR:  That, you know, that might be the problem.


PRESIDENT ROBAK:  Thank you, Senator Stuhr.  Senator Wehrbein.


SENATOR WEHRBEIN:  Madam Speaker, members, I'm going to be brief.  I have been uncertain as to what to do, but 1 like what Senator Bromm and Senator McKenzie had to say.  I respect what Senator Withem had to say, but I, at this point, am not as familiar with the issue and I sense that the body isn't as familiar with as the Education Committee.  I'm a little concerned about the responsibility of the state.  I'm not certain as what lawsuits are going to do.  I have a sense that it may deepen the pocket because the state is involved.  There is just enough uncertainty in my mind that I'm going to oppose this amendment.  I, as I said, Senator Withem said he's had it for four or five years.  I'm not that familiar with it and I would like to be at this point.  I'm uncertain as to the responsibility will ultimately beat the state and ultimately the cost and that to me is the bottom line so I'm going to oppose




the amendment.  In fact, I think it ought to be seriously opposed at this point till we all have a better grasp of what it does.  And sorry, Senator Withem, I'm getting more serious as I talk, but that's what I really feel uncomfortable at this point moving ahead.  It does extend it to 197.  It looks like to me we have time between now and January of 197 to look into this and we really don't need to do it right now and tip our hand till we understand it better.


PRESIDENT ROBAK:  Thank you, Senator Wehrbein.  Senator Pedersen.


SENATOR PEDERSEN:  Madam President, members of the Legislature the expense is just unbelievable of what can come from all of this litigation.  I'm going to give you an example here of some of the things that are going to...  could happen.  With LB 742 going through and people coming up and saying you offered it last year, you're going to offer it this year and by God, if you don't, I'm going to sue you.  Many different cases, and there's a case that I just heard about a little bit ago about a young person whose mother and father were not getting along, fighting and arguing and having lots of problems at home and this young person turned to crime and acting out, stealing cars threatening people and it ended up at an in-patient facility for behavior disorders.  When the insurance ran out the parents came to the school and wants the school to cover the bill for the in-patient treatment or residential treatment and if the school says no, they can't do that, they're going to be sued and if the school loses, not only are they going to pick up their own legal fees, they're going to pick up the legal fees of the defendant and then they still have to go back and do all this exuberant education and placement for the young person in the beginning.  And Senator Witek mentioned, you know, about the ...  who is going to pay for it, I mean the state shouldn't have to pay for it.  If the state doesn't, people, then the property taxes will.  it will go back on the school and you know the schools get their money from property taxes.  So who do we want to pay for it?  And with the numbers the way Senator Withem has said them, this would be an area where we can cut.  There would be some benefit to the special education area.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator.  Senator Kristensen, followed by Senators Beutler, Matzke, Schimek and Fisher.


SENATOR KRISTENSEN:  Thank you, Madam President and members of




the Legislature, either Senator Pedersen or Senator Avery, I don't care which, I just had one technical question and then I'll go on.


PRESIDENT ROBAK:  Senator Pedersen.


SENATOR PEDERSEN:  Senator Kristensen.


SENATOR KRISTENSEN:  I'm having trouble following on paragraph number two when it says page 1, line 23, strike "shall" and insert "should as a goal".  Do we...  is this drafted to the right version of the amendment?


SENATOR PEDERSEN:  It's AM7121 is what I have.


SENATOR KRISTENSEN:  Senator McKenzie was ...  well, I'll go on but I got a little...  I just want to make sure we've got it drafted to the right amendment.  Okay?  Thank you.  Senator Withem makes a lot of sense when he spoke earlier about some of the benefits that an amendment like this could do particularly in the area of adding some way of having the Department of Education participate and have an interest in these local lawsuits.  That draws my attention and generally gives me some encouragement that the state should have an interest in these lawsuits simply because if people are giving in to suits by giving the service in an effort to avoid lawsuits, controversy and payment of attorney's fees, that's not good public policy.  I like the second part of the amendment that talks about the attorney's fees and assisting the school districts in defending themselves and 'Crying to relieve them of some.  I suppose Senator Lindsay's speech also draws my attention that in effect what I am doing is adding my name as the state to all the lawsuits that get filed in this area and becoming a party defendant and thus subjecting the state to exposure on lawsuits.  My preference would be, and if Senator McKenzie, I know that she's probably deep in some discussion, my preference would be probably because I like the second half of this amendment and think that that's good policy that ought to be adopted and probably think the first part I can live with, with some study.  Actually the delayed operative date gives us a session to try to implement that.  There's part of me that doesn't like the exposure that the state may have because I don't want some of the smaller schools or schools that say oh, well, I don't care, let's go ahead and deny these even if it may be a valid point and because somebody else is going to pick up half the judgment, somebody else is going to pay the attorney's




fees, I don't care, let them sue me and they'll take a more cavalier effect and actually what you do is you get more lawsuits and that's probably not good public policy at that end either.  Well, Senator McKenzie what ...  Senator McKenzie, could I ask you a question?


PRESIDENT ROBAK:  Senator McKenzie.


SENATOR KRISTENSEN:  Would you be amenable at this point in time if we adopt the second half of that amendment and not adopt Section 8 or is that something that you're unwilling to do at this point?


SENATOR McKENZIE:  Senator Kristensen, I'm sorry I've lost my copy of the amendment that I was looking at.


SENATOR KRISTENSEN:  The first half of a division may well be that you add the Department of Education or the State of Nebraska I guess it is as a named party defendant.  Leave that for later, study and look at that the rest of it in terms of the attorney's fees and those expenses related to the suit and litigation.  Is that something that you would be willing to put in?  I think that's really what Senator Withem's speech went to and I thought it was the good policy of what he was doing.


SENATOR McKENZIE:  I would agree that I think, in fact, even from the Department of Education we've heard that it makes sense for them to be a party because...




SENATOR McKENZIE:  ...  because of their experience and knowledge.


SENATOR KRISTENSEN:  Well I'm a little goosey about putting them as a party defendant because I don't want to subject the State of Nebraska on half of all those judgments.  I'm not so sure that I have a problem of assisting then -in the defense of those cases and picking up half the cost, particularly if we use some of these waivers and things that may place those schools out at risk.  And I guess maybe it was a way to see if we could adopt .part of this policy because I think in general terms what Senator Withem was speaking about makes some sense to me, but that probably would require a little more work on this amendment and making sure it was correctly divided and doing some of those things.  The hour is late, the end of the session is near and I




guess I was asking what your response would be to doing something like that?


SENATOR McKENZIE:  Senator Kristensen, I'd be happy to visit with Senator Withem about whether he believes we can do that at this point, if he would be supportive of that.


SENATOR KRISTENSEN:  Okay.  Well my time is probably getting near up...


PRESIDENT ROBAK:  Your time is up.  Thank you, Senator Kristensen.  Senator Beutler.


SENATOR BEUTLER:  Madam President, members of the Legislature, I was just going to stand up and say that, affirm basically what Senator Lindsay has indicated and Senator Kristensen has indicated that the amendment taken as a whole is certainly seriously flawed in a number of respects that they've identified including things like who controls the litigation and I can see that you would be involved in probably in lawsuits as between the state and the school districts as to who is supposed to do what under this particular amendment.  Senator Kristensen's idea on first impression of taking out Section 9 and doing that alone is a possibility but the problem there is that the language also seems to be unclear even within that section with regard, for example, as Senator Bromm identified to me, as to what is a claim arising from a provision of the Special Education Act.  Now if a school district administrator just does something intentionally and knowingly not in accordance with the act and a lawsuit is filed, should the state claim, should the state be paying for an administrator who intentionally and knowingly violated the act?  Well, I don't think so.  There are a number of questions there that indicate that the amendment as it is now is simply not sophisticated enough to deal with the variety of circumstances that may come up in this particular situation.  And I think that ...  well I think we need to think about those things and I for myself would rather see somebody work on that next year and add it to the law next year if we decided it was a good thing to do rather than at this late hour late in the session add something that we know needs significant amendment and maybe harder to do that way than to do as a whole piece from the beginning.  Thank you.


PRESIDENT ROBAK:  Thank you, Senator Beutler.  Senator Matzke.




SENATOR MATZKE:  Madam President and members of the Legislature, when I first read this amendment I went back and talked to Senator Avery and his colleague back there, Mickey Mouse, and I said I liked the idea very much that is included in this amendment.  And then I went over and talked to Senator Bromm and heard Senator Lindsay.  I think the idea has a lot of merit to it, but there are some real serious legal problems with it.  First of all, in an ordinary case if they know the state is going to pay half of the money, you're going to have a lot of potential plaintiffs who are going to say well, I really don't want to sue my school district but I know the state is going to pay half of it so I'll go ahead and sue them anyhow and what you're going to do, you're going to encourage quite a bit of litigation.  The second point was very well made by Senator Lindsay in which he said it should be changed or at least we should consider changing it.  Don't make the state automatically a party defendant, give the state the right to intervene and come into the lawsuit if the state finds that it is necessary to intervene for some legal purpose.  I do like the concept that if our actions in putting a cap on special ed prompts litigation, we ought to bear some responsibility for it.  The final problem that I have with this amendment is it is not effective until January 1 of 1997.  That's nineteen months into the future.  There's absolutely no reason for us to adopt this amendment tonight.  We could wait, we could have an interim study on this, we can enact a bill in the next session of the Legislature and it would still be in effect before January 1 of 1997.  1 think this is a complex matter that we ought not to rush into at this point.  I reiterate what I told the sponsors of this amendment.  I think fundamentally it's a good idea.  I asked them if they would consider pulling this amendment.  If they are not interested in doing that, I would certainly urge this legislative body to disapprove and vote this amendment down at this time.  It's certainly, as Senator McKenzie has indicated, could be the subject of an interim study and if we find that the amendment has merit, as I think it does, then it could come back later in proper form with a proper procedure.


PRESIDENT ROBAK:  Thank you, Senator Matzke.  Senator Schimek.  The question has been called.  Do I see five hands?  I see five hands.  The question before you is, shall debate cease?  All those in favor vote aye; all those opposed vote nay.  Senator Schimek.  Senator Schimek.


SENATOR SCHIMEK:  I'd like a call of the house or not ...  just




call-in votes.


PRESIDENT ROBAK:  There has been a request for a call of the house and a roll call vote.  All those in favor of a call of the house please vote aye; all those opposed vote nay.  Please record.


CLERK:  12 ayes, 0 nays to go under call.


PRESIDENT ROBAK:  The house is under call.  Will senators please return to their seats and check in.  Will all unauthorized personnel please leave the floor.  The house is under call.  Senator Abboud, Senator Warner, check in.  Senator Bernard-Stevens, Senator Kristensen, Senator Jensen, Senator Pirsch, Senator Janssen, Senator Scnimek, will you check in please.  Senator Withem, please check in.  Senator Avery, Senator Hartnett, Senator Robak, Senator Schrock, Senator Chambers, Senator Hall, Senator Elmer, Senator Lynch.  Senator Bernard-Stevens, will you check in, please.  Senator Withem, will you check in, please.  Waiting for Senator Pirsch, Senator Hartnett, Senator Elmer, Senator Chambers and Senator Lynch.  We're waiting for Senators Chambers an Pirsch.  We're waiting for Senator Chambers.  Senator Schimek, we're unable to find Senator Chambers, would you like to proceed?  We'll proceed.  We've had a request for a roll call vote.  The question before you is, shall debate cease on the Pedersen amendment to the McKenzie amendment to LB 742?  Mr. Clerk, please proceed.


CLERK; (Roll call vote taken.  See pages 2488-89 of the Legislative Journal.) 29 ayes, 10 nays to cease debate.


PRESIDENT ROBAK:  Debate ceases, I raise the call.  The Chair recognizes Senator Pedersen to close on his amendment.


SENATOR PEDERSEN:  I yield my time to Senator Avery.


PRESIDENT ROBAK:  Senator Avery.


SENATOR AVERY:  Thank you, Madam President.  This ...  this idea is really quite intriguing and why I thought it was so important, like Senator Pedersen, my school districts are very, very concerned with this.  We have situations where the potential for litigation is there and it has been growing years and years and years at a time, more and more all the time.  So we need to provide the protection.  This is going to ...  this is going to




provide a mechanism and a policy that the state can stand behind the school districts.  They've been out there on their own.  I think it's very important that we stand behind them and provide that support.  It's like the cartoon you see with the little guy there and the big burly individual behind, and somebody wants to come and pick on him.  You're ...  you're...  I think the situation is that it's going to provide those schools some protection.  With that, we have looked at the amendment and we saw some of the mistakes.  One thing that I think has been filed up there is a change in the amendment, and that amendment, I think, is something that we seriously should consider and support.  So at that time I would like to withdraw the original amendment or pull it.


PRESIDENT ROBAK:  The amendment is withdrawn.  Mr. Clerk, any thing further on the bill?


CLERK:  Senator Withem would move to amend.  (Withem amendment, FA289, appears on page 2489 of the Legislative Journal.)


PRESIDENT ROBAK:  Chair recognizes Senator Withem to open.


SPEAKER WITHEM:  Yeah, I noticed some confusion when Senator Avery pulled that last amendment.  It was necessitated by the calling of the question, successful calling of the question.  As the question was called I was on the way up to the desk to ask for a division of the previous amendment.  What we're doing, the Same thing we would have done had we divided the amendment, we're doing with this.  If you have a copy of the ...  and I don't because I gave my copy away, thank you, Doug.  What we were going to try to do was divide out Section 9.  A lot of what I heard evolving as a potential consensus on the floor was a lot of concern about the language here in Section 8, 1 know Senator Lindsay raised ;hose points, Senator Kristensen raised those points, I believe it was part of Senator Matzke's concerns about the school district, board of education of any class arising, State of Nebraska being named a party defendant.  There was some objection to that and the provisions at the bottom.  Points two, paragraphs 2, 3 and 4 are no longer needed.  What the amendment that is up there right now is Section 9 of the original Pedersen-Avery amendment, on lawsuits filed on or after January 1, 1997, alleging any claim arising from a provision of the Special Education Act, (1) after the amount of all attorneys fees, fines, expenses paid by or on behalf of a school district or board of education shall be treated as allowable excess




special education costs and shall be reimbursed by the state under the provisions of the act.  That's what this amendment does.  There seemed to be a lot of support for that provision standing on its own.  This is to see if there is support for that, it's not an attempt to prolong things.  I'd suggest we've had a lot of debate and discussion on it, that we have a quick, up or down, vote on it.  There's policy rationale for doing it, which has been expressed before.  Some policy rationale in opposition to doing it.  Again, I think that this is the...  this is the heart of the Avery-Pederson amendment.  We were trying to get it divided out, didn't get it divided out, this is another way of doing that to give you an opportunity to vote your preference on Section 9.


PRESIDENT ROBAK:  Thank you, Senator Withem.  Senator Abboud.


SENATOR ABBOUD:  Thank you, Madam President, members.  Senator Withem, if you'd yield to a question.


PRESIDENT ROBAK:  Senator Withem.


SENATOR ABBOUD:  You're left with the ...  the only amendment then, I'm looking at Senator Pedersen's handout, and the only thing that's left in this amendment is Section 9 then?


SPEAKER WITHEM:  Yeah, it would be Senator Pedersen's amendment, lines 7 through 13 is another way of referencing it.


SENATOR ABBOUD:  Okay, thank you.  Well, I listened to the arguments presented by Senator Bromm and others that what the result of this particular amendment will be.  I think it will result in more litigation, which I guess it's good or bad, depending on whether or not you earn an income doing it, And Senator Schellpeper offered a suggestion that maybe the best approach to dealing with this problem would be just to state in the statute that no attorneys get paid for this type of litigation, it might discourage...might discourage the litigation as well.  But we all know 'Chat's not practical.  But I think that this particular proposal, by guaranteeing to the school districts that their bill will be paid, win or lose, will certainly encourage their desire to fight every battle, whether or not it's in the best interests of the state, the school district or its...the constituency that represents that school district.  I think the fact that they do have a stake in it, even though it may be less than what the state's interest or the




state's interest in is still a factor in their consideration.  And I was also persuaded by arguments offered by Senator McKenzie that nearly everyone of these cases that has been filed in recent years have been won by the school boards.  And they probably only take on the cases and take them into litigation if they feel strong...  strong...  strongly enough that they have an excellent chance of winning the cases, otherwise these cases never have ...  or these disputes never end up in litigation, they would just be settled out since the state is picking up the lions share of the bill for special education.  And they would probably go into court on cases that they felt very strongly about, and then they're zealously fought by the attorneys that represent the school districts.  I think I agree with the other suggestions that maybe this is better left until next year when a separate bill can be brought in, when we can more fully address the issue.  of what is the best way for us to deal with the legal expenses that are a result of special education.  But I feel that guaranteeing that their legal fees will be paid, or at least one-half of their legal fees will be paid, as well as their expenses only encourages litigation and would encourage problems with the school boards.  So I'm going to be opposing this particular amendment.




SENATOR HALL:  Thank you, Senator Abboud.  Senator Schimek, your light is next.


SENATOR SCHIMEK:  I yield my time to Senator McKenzie.


SENATOR HALL:  McKenzie, you're recognized.


SENATOR McKENZIE:  Thank you, Mr. President and members.  I had some questions for Senator Withem, I wanted to get on the record his intent and some, I guess, responses to what we might do following our investigation of this issue, if in fact this is adopted.


SENATOR HALL:  Senator Withem, would you respond?


SENATOR McKENZIE:  Thank you.  Senator Withem, if you would yield to a question.


SPEAKER WITHEM:  I would be delighted to, yes.




SENATOR McKENZIE:  Thank you.  If in fact we adopt this section now with a date of January 1st, 1997, and we do go ahead with the study this summer to look at all of the issues and all of the concerns that have been discussed here in terms of how we might approach this problem in rectifying it, I want to know that if indeed we find that this approach is not the most reasonable and will hot in fact result in cost-savings, that we will introduce legislation next session to address those concerns and revise so that we are doing what we believe we heed to do in helping address excess costs because of litigation, but also not encouraging additional spending.


SPEAKER WITHEM:  Yeah, I would agree that I think any...  any bill that the Legislature passes is a tentative solution.  As more facts and information come present that means it needs to be modified, I think it should, I'd certainly agree with that.


SENATOR McKENZIE:  Okay, thank you.


SENATOR HALL:  Thank you, Senator McKenzie.  That was Senator Schimek's time, you now are recognized.  Thank you.  Senator Bromm, your light is next.


SENATOR BROMM:  Thank you, Mr. Chairman and colleagues.  I just want to rise and make sure that my position is on the record that I oppose this section of the amendment being enacted at this point in time.  I would have to also, if Senator Withem would yield to a question, I would ask a question of him.


SENATOR HALL:  Senator Withem.




SENATOR BROMM:  Senator Withem, what if we find in our studies, between now and January 1st or whatever of this coming year, that there are some ...  there are some things about this language that aren't appropriate that we should change, and we go ahead and make those changes.  Okay, what if there's someone who has an event that happens between now and January 1 and they think they have a cause of action and a claim arising out of the Special Education Act, what will be the effect of that after we go ahead and change the law in January, if necessary, of '96?  Would that person be able to file a claim based on the law that will be in effect for maybe six or seven...  let's say five or six ,months this year?




SPEAKER WITHEM:  Well, I think...  I think...  what the language.  I see before me says the lawsuit would need to be filed on or after January I of 1997.  So I guess I don't understand how...


SENATOR BROMM:  Okay, let me...


SPEAKER WITHEM:  ...  anything would happen prior to January 1 of 1997...


SENATOR BROMM:  Okay, well...


SPEAKER WITHEM:  ...would impact.


SENATOR BROMM:  ...  what if the claim arises between no w and January 1 of '96, and this law is in effect, you know what the statute of limitations would be for such a claim?  I think it's four years, would you agree?


SPEAKER WITHEM:  I'm not aware of what the statute of limitations would be for the claim.


SENATOR BROMM:  Okay, well that illustrates one of the legal problems that we have here.  If we have this law in effect for five or six months, and remember we added the emergency clause here, and then we decided this wasn't perhaps worded quite the way it should be, we do a study, we come back and change it in 196, if a claim arises during this five or six months, in my opinion, there's a significant legal question about whether or not -this law governs for that lawsuit, that they can wait for four years to file, as a matter of fact I believe, for a claim that arises out of an action that would occur, that's one of the questions.  The other question no one has answered, I raised before, a-rid that is, what is a claim arising out the Special Education Act?  Let's say we've got an administrator that decides that he's not going to follow some rule or regulation or he fails to follow up on some requirement in terms of providing some service that the law in fact would require, so they file a lawsuit.  Is that...  is that a claim arising under the provisions of the Special Education Act or is that an act of negligence on the part of the administrator that the school should be responsible for rather than the state being brought in as a party in paying half of the claim and half of the attorney fees for something that we didn't have one thing to do with?  Again, if you're going to do this, for heavens sake, take the time to




study some of those Provisions.  Perhaps if we are at fault we should bear all of the cost.  Perhaps if we're half at fault or it involves a law that we passed, we should bear a significant amount of the expense.  On the other hand, if it arises out of a unilateral act that someone who either acts negligently or...


SENATOR HALL:  One minute.


SENATOR BROMM:  -incompetently and that's the sole basis for the cause of action, I don't feel comfortable having us exposed for half of the judgment and the costs and the attorney fees for that situation.  Those things need to be thought through, studied and carefully done.  And I will be...  I would be happy to be involved or participate in that.  It's not that I'm against the idea, I want to emphasize that.  I don't think that it's been given enough attention or consideration, I appreciate the thought but it's a little too quick.  It's ten o'clock at night, we've had other major issues we've tried to deal with on this bill and I would rather reserve this for a bill next year, I just wanted to make sure that was clear.  Thanks.


SENATOR HALL:  Thank you, Senator Bromm.  Senator Kristensen, your light is next.


SENATOR KRISTENSEN:  Thank you, Mr. President, members of the Legislature.  Senator Bromm, I want to try to follow through at least, I think, put on the record where that would go in terms of a claim arising from a provision.  Obviously, if we come back legislatively and strike this provision, there won't be a law effective at the time they file the lawsuit that would allow them, at least in my opinion, to be able to claim reimbursement for those fees.  And the reason for that is that I think construction is that at the time of the filing you have to look at what the law is at the time of the filing of the suit, not when the claim arose, because the law could obviously change in several different variety of ways in that period of time.  What the courts look for is on the date of the filing of the suit was the law in place and effective so they could attach that.  It would probably be a fair question to say that would be a point of litigation, obviously it would.  I'm not saying that it won't, but I'm fairly confident that we don't expose ourselves in that manner.  As opposed to Senator Abboud, I guess what I do is I look from the school district's point of view.  The practicalities of an amendment like this is that special education laws are not going to come around that often.  This is




an idea that is probably worth and probably a good state policy.  I'm not saying that an intervening session of the Legislature, to look at the policy, is not bad, but I think now is an appropriate time when you begin to discuss who's going to be responsible in special education, and we're going to begin to put limits on it, lawsuits may be inevitable, but that the state...  it is so important for the Department of Education to be brought into these and have some interest in what occurs and what the policy decisions are, that an amendment like this is not that intrusive, it will buy the state in to having some interest of what's going on at the local school district and I think that's just good policy at this point in time.  Now, can there be fine-tuning in terms of defining when the claim arises?  Most certainly, that's appropriate for study.  But I think what Senator Withem has got here is a policy statement that says, look, who is going to fundamentally be responsible, or who's going to share in the decisions that you're going to make in special education, because some of these waivers are going to have a great impact and they're going to go directly to the school district.  State of Nebraska needs to pick up some of those costs and be involved in that participation.  This is probably the easiest way to do it and this is probably the least intrusive way to do it.  Senator Beutler raises some good procedural questions, I think those are things we can study, those are things that can be used in the future and that as we carry this out can be done.  Obviously, Section 8 was something I just couldn't...I couldn't expose the state to half those lawsuit judgments, just wasn't...  it's just not something that I think you ever want to do is expose the state to a, perhaps to borrow a word that I learned from Senator Withem the other day, we may have recalcitrant school districts, and I'm not sure I want to expose ourselves to half of those judgments at all, I just don't think that's good policy, that's been taken out.  And I think that Section 9, at least from my point of view, is worth the good policy choice to take it.  I look from the school districts point of view that they may well need that assistance and that expertise, but it also is good policy for the state to be bought in how those lawsuits are determined and what their outcomes are.


SENATOR HALL:  Thank you, Senator Kristensen.  Senator Abboud, your light is next.  Waives off.  Senator Beutler, your light is next.


SENATOR BEUTLER:  I'll waive, too.




SENATOR HALL:  Mr. Speaker, you are recognized to close on your amendment to the McKenzie amendment.


SPEAKER WITHEM:  Yes, I would.  I would again point out that what the attempt was is to remove the more ...  the most ...  the most contentious part of the original Avery-Pedersen amendment and give the body an opportunity to address lines 7 through 13 together at one time, and that's what the amendment does.  Senator Kristensen, I think, did a good job of explaining what we would be doing here.  We would be making the policy statement.  As we were addressing the special education provisions of our statutes, we would be making the policy statement that the state will, in fact, participate in a portion of the litigation costs arising under an act that we are passing, that we are responsible for.  I found it interesting, I don't know who originally brought up the argument about that this would somehow encourage litigation.  I know Senator Abboud referenced that, but I know he's to ...  he didn't bring that up on his own, he brought ...  he said he was quoting somebody else, and I forget who he was quoting.  You know if it encourages litigation, the only litigation it's going to encourage is local school districts taking a stronger stand against spending more money, that's what 742 is all about.  It's not going to encourage parents to go out and file more lawsuits, they aren't benefitting, they could care less where their legal fees come from, whether it comes from the local property taxpayers, as it does now, or whether it comes from the State of Nebraska.  The only thing that this will encourage is a more vigorous defense by local school districts, instead of caving in and granting to the parents that are demanding more and more expensive special education services, it will tell those school districts, if you want to stand, you don't think they're requesting an appropriate placement for their child, that the placement they're requesting is too expensive, we in the state will come in and help you stand for that.  My original explanation that I passed out, where it's $100,000 expense that's being saved, and a $30,000 expenditure of legal fees, right now the local school district spends that entire $30,000 and they only save $10,000 by that activity.  I find it really ironic, I guess, but I shouldn't, I guess.  We find in this Legislature all the time that we're great at passing generalized policy statements of, it's important that we save money, it's important that we got money occasionally across-the-board cuts, but when it comes to doing anything specific, that's when we get cold feet and we don't




move forward.  The reason for doing this now, I guess, is because this is a bill that has been introduced any number of times, goes to the Education Committee, it gets lost in the multitude of other measures that that committee has before it, happened when I chaired the committee, it happens now, and we never quite get to it.  Right now we have the policy statement on special education before us.  We're telling local school districts, you have to cut back, we're not going to fund you.  By adding this provision we're saying, in addition to cutting back, local school districts, if you're going to stand and make the tough decisions, we're going to be there to help you make those tough decisions.  That's all this does.  If there are better ways of making this specifics later on, yes, Senator McKenzie, and yes, Senator Bronim, we should certainly make those changes.  The amendment as drafted, has a '97 implementation date,...


SENATOR HALL:  One minute.


SPEAKER WITHEM:  ...  plenty of time to do that.  But now is the time, as you have the special education bill in front of you, to make this policy statement.  I would urge you to adopt the amendment.


SENATOR HALL:  Thank you, Senator Withem.  You've heard, the close on the Withem amendment to the McKenzie amendment.  All in favor vote aye, opposed nay.  Have you all voted?  Senator Withem.


SPEAKER WITHEM:  I would request a call of the house and a roll call vote.


SENATOR HALL:  Thank you, Senator Withem.  Request is that the house go under call.  Those in favor vote aye, opposed nay.  Record, Mr. Clerk.


CLERK:  32 ayes, 0 nays to go under call.


SENATOR HALL:  The house is under call.  All members, please record their presence.  Members outside the Chamber, please return to the Chamber and record their presence.  The house is under....  Senator Hartnett, Senator Chambers, Senator Elmer, Senator Lynch.  Senator Beutler, if you'd check in, please.  Thank you.  Senator Schrock, thank you very much.  Senator Lynch, Senator Elmer and Senator Hartnett, the house is under




call.  Senators Chambers, Lynch and Elmer, the house is under call.  Senator Chambers, the house is under call.  Senator Withem, can we proceed?  Mr. Clerk, call the roll on the Withem amendment.


CLERK:  (Roll call vote taken.  See pages 2489-90 of the Legislative Journal.) 22 ayes, 16 nays, Mr. President.


SENATOR HALL:  The amendment fails.  Anything further on the McKenzie amendment?


CLERK:  Nothing further on the McKenzie amendment.


SENATOR HALL:  We're back to Senator McKenzie's amendment.  Is there any discussion?  Call is raised.  Seeing none, Senator McKenzie, you're recognized to close.


SENATOR McKENZIE:  Thank you, Senator Hall and members of the body.  I will just take this opportunity to close both on the amendment and then not speak again on advancement of the bill.  I appreciate all the hard work and efforts of compromise that people have given to this very controversial piece of legislation.  It's been a long time since we've addressed the problem and very little has been accomplished, but I think we all realize that if we don't do something now, it very soon could eat up everything we want to do in general education as well as other programs at the state level.  Again, this is not the hard work, the hard work will take place this summer and next year into 197, when we actually look at what we're going to do to reform the entire process as well as the funding system.  Again, I appreciate everyone's hard work and their patience and would ask for the adoption of the amendment and advancement of the bill.  Thank you.


SENATOR HALL:  Thank you, Senator McKenzie.  You've heard the closing.  Question is the adoption of the McKenzie amendment.  All in favor vote aye, opposed nay.  Have you all voted?  Record, Mr. Clerk.


CLERK:  40 ayes, 2 nays, Mr. President, on the adoption of Senator McKenzie's amendment.


SENATOR HALL:  Senator McKenzie's amendment is adopted.  Anything further on the bill?




CLERK:  Nothing further on the bill at this time, Mr. President.


SENATOR HALL:  Senator Maurstad.


SENATOR MAURSTAD:  Mr. President, I would move to advance LB 742 to E & R for engrossment.


SENATOR HALL:  You've heard the motion.  All those in favor vote aye.  Opposed.  The bill is advanced.  LB 742A, Mr. Clerk.