By Jessica Butler, Autism National Committee, March 18, 2011
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 Language. Like 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.