Action Alert – Tell your Senator to cosponsor The IDEA Fairness Restoration Act (S. 2790) to support the right of prevailing parents to recoup witness fees!

 ISSUE:  In cases involving IDEA rights, parents often bear the burden of proof and need to pay for qualified expert witnesses to present admissible evidence—that is often complex and technical—to win their case. Without the ability to recover expert witness fees, few parents are able to afford due process for their child’s education rights under IDEA which creates an unjust system for children with disabilities.

BACKGROUND

• Under IDEA, every child with a disability is required to have available to them a free appropriate public education (FAPE); achieved through developing, implementing and revising an individualized education program (IEP) in accordance with IDEA regulations.
• It is well established that a FAPE prepares a child for meaningful employment, higher education and lifelong learning, and full participation in his or her community.  One of the most powerful protections that Congress provided in the IDEA is the right to an impartial due process hearing to protect each child’s right to a free appropriate public education (FAPE). 
• In 1986, Congress amended IDEA and explained in the conference report that when parents go to due process and win their case, a judge could award attorney’s fees that are “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.”
• However, in 2006 the provision was challenged and the U.S. Supreme Court, in Arlington Cent. Sch. Dist. v. Murphy ruled that courts could no longer award expert witness fees or other expenses that were not explicit in federal statute.

COPAA has led an effort to ensure the IDEA Fairness Restoration Act is introduced in the U.S. Senate and wants every Senator to understand that few parents can afford the thousands of dollars needed to pay qualified medical, educational, and technical experts needed in IDEA due process.  The law must be fixed because:  

• Most school and family disputes are over a child’s placement and IEP, which are rights granted to each child with a disability under IDEA (GAO-03-897)
•  Expert witnesses are essential and costly and most families cannot afford them:  Almost 2/3 of children with disabilities live in families earning under $50,000 a year. By contrast, school districts can pay their experts with taxpayer dollars or use staff already on their payroll. When COPAA polled members they expressed that “experts are critical 100% of the time in due process cases,” and that experts are needed "early and often" in every case.

Due process hearings are not common.  In 2000, only 5 due process hearings were held per 10,000 students with disabilities (GAO-03-897) and just .27% of the 6 million eligible families exercise this right. (IDEA data http://tadnet.public.tadnet.org/pages/712).  Parents should not have to be wealthy to exercise due process rights.

The IDEA Fairness Restoration Act will override the Supreme Court's decision and restore IDEA’s original intent that allowed prevailing parents to recover expert fees just like prevailing plaintiffs in the Americans with Disabilities Act, Title VII, and other civil rights laws.

ACT NOW:  It is essential that COPAA members write a letter to both of your U.S. Senators to ask them to support The IDEA Fairness Restoration Act (S. 2790). 

  

To send your Senator an email, visit this official page
 
To contact by phone you can call the Capital switchboard at (202) 224-3121

Suggested comments could include:

"I’m writing to ask for your immediate support of The IDEA Fairness Restoration Act (S. 2790) introduced by Chairman Tom Harkin to support a prevailing parent’s right to recover expert fees under the Individuals with Disabilities Education Act (IDEA).  The bill is important to protect parents, most of whom cannot afford to pay thousands of dollars for expert witnesses. For the 6 million students with disabilities, the right under IDEA to a hearing before an impartial, independent hearing officer must be affordable to be meaningful even when just a small percentage of families (.27%) exercise this right.

In 1986, Congress adopted legislation that was intended to allow prevailing parents to recover their expert witness fees. But in 2006, the Supreme Court ignored Congress' intent and held that parents cannot recover these costs in Arlington Central School District v. Murphy. The IDEA Fairness Restoration Act (S. 2790) will override the Supreme Court's decision and restore IDEA’s original intent that allowed prevailing parents to recover expert fees just like prevailing plaintiffs in the Americans with Disabilities Act, Title VII, and other civil rights laws.

As your constituent, I ask that you support S. 2790 and work to move the bill through the Senate as quickly as possible.”