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IDEA Fairness Restoration Act Updates (to allow parents to recover expert fees)

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  • Alpy2@aol.com
    Please feel free to share these two updates regarding the IDEA Fairness Restoration Act. This bill would restore Congressional intent to allow parents who
    Message 1 of 1 , Mar 18, 2011
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      Please feel free to share these two updates regarding the IDEA Fairness Restoration Act. This bill would restore Congressional intent to allow parents who prevail at due process to recover their expert witness fees along with attorney's fees.  A recent Supreme Court case had ruled to the contrary, effectively rendering due process unaffordable for many families. 
       

      Permission is granted to share this important announcement with others.  

       

      Council of Parent Attorneys and Advocates, Inc.  

       

      Yesterday, on March 17, 2011, federal legislation was introduced to allow parents to recover expert witness fees in due process hearings and litigation under the Individuals with Disabilities Education Act. 

      The IDEA Fairness Restoration Act was  introduced in the Senate (S.613) by Senator Tom Harkin (D-IA), Chair of the Senate Health Education Labor and Pensions Committee; Senator Barbara Mikulski (D-MD), and Senator Bernie Sanders (I-VT); and introduced in the House of Representatives (H.R. 1208) by Congressman Chris Van Hollen (D-MD) and Congressman Pete Sessions (R-TX). 

      As COPAA members are likely aware, in its Arlington Central School District v. Murphy (2006) decision the Supreme Court decided that parents who win/prevail in their IDEA cases cannot get expert witness fees under the provision in the law that allows parents who win/prevail to get attorneys’ fees.  Although the legislative history to the IDEA fees provision clearly states that expert fees are covered the Supreme Court refused to consider that history.

      COPAA has worked hard since that damaging decision was announced to obtain a legislative fix.  Congressmen Van Hollens and Sessions have championed this issue for us in previous legislative sessions.  This is the first bill time a bill was introduced in the Senate.  COPAA is grateful to all of the members of Congress who are taking the lead on this important legislation.

       

      The bipartisan IDEA Fairness Restoration Act will restore Congress’ original intent and make due process hearings more equitable and affordable for parents of children with disabilities.

      Without the ability to recover their expert witness fees, few parents could afford to exercise their constitutional and IDEA rights to challenge denial of FAPE to their children by school districts.

      This is because parents, who increasingly have the burden of proof after the Supreme Court decision in Schaffer v. Weast, must present admissible evidence about educational methodology, complex behavioral supports, medical issues, and other technical subjects. Only qualified expert witnesses can present this technical testimony and such testimony can easily cost many thousands of dollars, money that few parents have.

      There can be no equal opportunity and access to a public education that is both free and appropriate unless all families of children with disabilities–rich, poor and those in the vast middle–can obtain an education on the same terms. Without the ability to recover expert costs, the due process playing field ceases to be level or fair.

      Robert Berlow, Co-Chair, Governmental Affairs
      Denise Marshall, Executive Director

      ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

       

       

      New Bill to Allow Parents to Recover Expert Witness Fees in IDEA cases

       

      PLEASE FEEL FREE TO FORWARD AND SHARE!

       

      On March 17, 2011, federal legislation was introduced to allow parents to recover expert witness fees in due process hearings and litigation under the Individuals with Disabilities Education Act.  The IDEA Fairness Restoration Act was  introduced in the Senate (S.613) by Senator Tom Harkin (D-IA), Chair of the Senate Health Education Labor and Pensions Committee; Senator Barbara Mikulski (D-MD), and Senator Bernie Sanders (I-VT); and introduced in the House of Representatives (H.R. 1208) by Congressman Chris Van Hollen (D-MD) and Congressman Pete Sessions (R-TX).

       

      The bipartisan IDEA Fairness Restoration Act will restore Congress’ original intent and make due process hearings more equitable and affordable for parents of children with disabilities.

       

      Expert Witnesses Necessary But Difficult to Afford.  For 35 years, the Individuals with Disabilities Education Act (IDEA) has required states to provide a free appropriate public education to children with disabilities.  But when schools provide an education so inferior that they fail their legal obligations, parents may seek an impartial hearing. 

       

      Parents must have expert witnesses for these hearings.  Expert witnesses can include psychologists; pediatricians and physicians; therapists; educational experts; inclusion experts; positive behavioral support experts, and others.  Their testimony ensures that children with disabilities get the educational programs, accommodations, and supports they need.

       

      But in 2006, the Supreme Court held in Arlington Central School District v. Murphy that parents could not recover their expert witness fees under the IDEA.  Many low and middle income parents cannot afford to shoulder this expense.  For them, the door to justice is barred.  Approximately 36% of children with disabilities live in families earning less than $25,000 a year; over 2/3 earn less than $50,000 a year.  Parents of children with disabilities are also 67% more likely to be unemployed than parents of nondisabled children.  They are also 50% more likely to have a high school education or less. The situation is made even worse because parents must bear the burden of proof in these hearings.

       

      Bill Necessary To Restore Congress’ Original Intent.  In 1986, Congress enacted the Handicapped Children’s Protection Act, to enable prevailing parents to recover their attorneys’ fees in IDEA cases, as in all civil rights cases.  Congress made clear its intent to include expert witness fees in the definition of recoverable fees. The Joint Statement of the Conferees was clear “The conferees intend that the term ‘attorneys’ fees as part of the costs’ include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found necessary to the preparation of” the parents’ case.”  The Supreme Court acted contrary to Congress’ intent in the Murphy case. This bill will simply restore Congress’ original intent and protect children with disabilities.

       

      Proposed Statutory LanguageLike all civil rights statutes, the IDEA allows prevailing parents to recover their attorneys’ fees.  The bill will amend the IDEA, 20 U.S.C. 1415(i)(3), to state that prevailing parties can also recover their expert witness fees at the same time. This will bring the IDEA into sync with the Americans with Disabilities Act and other Civil Rights statutes that allow recovery of expert witness fees.

       

      Hearings are Rare.  Few parents go to hearings, as most try to resolve things through negotiations with the school district.  In 2003, before the Murphy decision, the Government Accountability Office reported that there were only 5 hearings per 10,000 special education students. But for those parents who must go to a hearing to protect their children’s rights under the IDEA, due process must be affordable.  The IDEA Fairness Restoration Act would restore that balance.  Only prevailing parents will be able to recover expert witness fees.


      We salute the leadership and tremendous work of Senators Harkin, Mikulski, and Sanders; and Congressmen Van Hollen and Sessions in introducing the IDEA Fairness Restoration Act.  They have done much to protect the rights of children with disabilities and their parents.

       

       Please feel free to forward and share this email!

       

      Jessica Butler

      Congressional Affairs Coordinator

      Autism National Committee

      21 years of advocating for the rights of children and adults with autism and related disabilities

      email: jessica@...

      www.autcom.org

       

       
      Sandy, Illinois (alpy2@...)
      Our Children Left Behind (http://www.ourchildrenleftbehind.com)
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