Parents' Corner
I.D.E.A. Fairness Restoration Act
This month, we have decided to re-print this information received from the National Down’s Syndrome Society concerning an important piece of legislation facing the United States Congress that directly affects the quality of education for our children with special needs. To find contact information for your congressperson, go to www.congress.org and enter your zip code. From there, you can e-mail your input on this important bill.
Robin
Thanks to the efforts of parent advocates and the National Down’s Syndrome Society’s work in the House of Representatives, the IDEA Fairness Restoration Act (H.R. 4188) was introduced on Tuesday, November 13, 2007. Congressman Pete Sessions (R.TX) and Congressman Chris Van Hollen (D.MD) are the co-sponsors of this bill which would allow prevailing (winning party) parents to recoup expert fees and related costs in litigation under the Individuals with Disabilities Education Act.
Background
In 1986, when Congress amended IDEA, it explained in the Conference Report (an explanation that accompanies a new law that is not explicitly included in the legislation) that when parents win their case against a school district, a judge could award attorney's fees, including, ‘‘reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the parent or guardian's case.'' For years, based on this explanation, parents were awarded expert fees and costs when they were the prevailing party in a lawsuit.
However, in 2006 an award of expert fees and costs to parents was challenged in a case that went to the Supreme Court called Arlington Central School District v. Murphy (2006). At that time, the Supreme Court ruled that parents cannot recover expert witness fees and related costs since it was not explicitly stated in the law. As a result, parents, who are prevailing parties, can no longer recover their expert witness and related costs.
A Bi-Partisan Effort by Congressman Van Hollen and Congressman Sessions
Congressman Van Hollen stated, upon introduction of the bill:
... Occasionally, the school system cannot or does not provide an appropriate education. In those rare cases, the Congress recognized that parents should have the ability to challenge the school's decision and advocate for a new Individual Education Plan. As both school systems and parents build their cases, they bring expert witnesses to assess the student and testify about the quality of the education plan...
For years, prevailing parents were awarded expert witness fees, as Congress intended. ... In 2006, the provision was challenged and the Supreme Court ruled that because Congress did not make its intention explicit in statute (that parents could be awarded expert fees and costs) courts could not longer award these fees. As a result of this decision, parents can be faced with many thousands of dollars of expert witness fees in order to ensure their child gets an appropriate public education. A single expert witness can charge anywhere from $100 to $300 per hour.
Madam Speaker, every student with a disability is entitled to a free and appropriate education under the law. This bill will level the playing field and help parents be effective advocates for their children's best interests.
On behalf of individuals with Down Syndrome and other disabilities receiving services under I.D.E.A., we thank Congressman Van Hollen and Congressman Sessions for their continued commitment. A great deal of work by advocates still needs to be accomplished for this bill to become a law. We will be issuing Calls for Action at the appropriate time.
A copy of the bill follows:
110TH CONGRESS
1ST SESSIONH. R. _____
To amend the Individuals with Disabilities Education Act to permit a pre-
vailing party in an action or proceeding brought to enforce the Act
to be awarded expert witness fees and certain other expenses.IN THE HOUSE OF REPRESENTATIVES
Mr. VAN HOLLEN (for himself and Mr. SESSIONS) introduced the following bill; which was referred to the Committee on
________________A BILL
To amend the Individuals with Disabilities Education Act
to permit a prevailing party in an action or proceeding
brought to enforce the Act to be awarded expert witness
fees and certain other expenses.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the ‘‘IDEA Fairness Res-
5 toration Act''.
2
1 SEC. 2. INCLUSION OF EXPERT WITNESS FEES AND OTHER
2 EXPENSES AS ATTORNEYS' FEES.
3 (a) IN GENERAL.-Section 615(i)(3) of the Individ-
4 uals with Disabilities Education Act (20 U.S.C.
5 1415(i)(3)) is amended by adding at the end the following
6 new subparagraph:
7 ‘‘(H) INCLUSION OF EXPERT WITNESS
8 FEES AND OTHER EXPENSES AS ATTORNEYS'
9 FEES.-For the purposes of this paragraph, the
10 term ‘attorneys' fees' shall include the fees of
11 expert witnesses, including the reasonable costs
12 of any test or evaluation necessary for the prep-
13 aration of the parent or guardian's case in the
14 action or proceeding.''.
15 (b) EFFECTIVE DATE.-The amendment made by
16 subsection (a) shall apply to any action or proceeding
17 brought under section 615 of the Individuals with Disabil-
18 ities Education Act (20 U.S.C. 1415) that has not been
19 finally adjudicated as of the date of the enactment of this
20 Act.
I always value your feedback. parents@aacinstitute.org.
