Federal

Reinstate Prevailing Parents’ Right To Expert Witness Fees (Shared by Copaa.org)

Why This Issue Is Critical

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.

School districts, by way of contrast, employ and therefore are able to rely on psychologists, therapists, and other education experts on their staffs to serve as expert witnesses. 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.

Parents who bring IDEA cases act as private Attorneys General, on whom IDEA’s enforcement depends. When these parents successfully prosecute their cases and hearing officers or courts find that school districts have violated the law, then parents should recover their expert witness costs. (Of course, if the school district acted in accord with the law, and the parents lose, they recover no fees.)

COPAA initiated leglislation entiled the IDEA Fairness Restoration Act that would reverseArlington Central School District v. Murphy (2006) in whichthe 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.

The IDEA Fairness Restoration Act was Congress’ clearly stated intent in 1986. When Congress passed the Handicapped Children’s Protection Act, it recognized that school districts can use therapists, psychologists, and other expert witnesses on their own payroll, or hire outside experts with taxpayer dollars. Over 20 years later few parents can afford the thousands of dollars needed to pay qualified medical, educational, and technical experts. Almost 2/3 of children with disabilities live in families earning under $50,000 a year. When prevailing parents cannot recover expert costs, the playing field is neither level nor fair, and children are denied a free appropriate public education and other fundamental IDEA rights. Parents are left unable to enforce their children’s rights unless they can pay for experts out of their pockets. Congress should allow prevailing parents to recover fees just like plaintiffs in ADA, Title VII, and other civil rights cases.

What can I DO?  Please contact Congress (Please see instructions on the Right) and share your concerns about this issue.

California

October 9, 2013
SB468 – Bill on Self Determination – Update
(Shared by our friends at ASA)

SB 468 was signed into law by Governor Brown today. It is because of all of the hard work of parents and individuals with developmental disabilities that we have made it to this point. We heard from a high level administration official that they have never received so many letters and calls on a human services bill before.

Thank you to everyone for all of your help!! There is still a lot of work to be done and we will be turning to you to join the Advisory Committees of each regional center to ensure that the bill is implemented as the legislature intended.

We are indebted to Senator Bill Emmerson, Senator Emmerson and his staff, as well as the other authors – Senator Jim Beall, Assemblymember (now Senator) Holly Mitchell, and Assemblymember Wes Chesbro who all worked so hard on behalf of Californians with developmental disabilities.

Great job ASA!