TO: NDSC Members and Affiliated Parent Groups

FROM: Susan Goodman, Director
Governmental Affairs
NDSC

Ricki Sabia, Associate Director
NDSS National Policy Center

DATE: November 19, 2007

Thanks to the efforts of parent advocates and our 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 (bill attached).

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.

 
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We look forward to your comments and suggestions. Please send them to Susang1961@aol.com.