Apr 24, 2008
In 2006 the U.S. Supreme Court ruled in Arlington Central School District Board of Education v. Murphy that parents who prevail in an IDEA case cannot recover the costs of expert witnesses as part of recovering their attorneys’ fees. The IDEA provides that parents who prevail in any action or proceeding under the IDEA may be awarded their attorney’s fees as part of the costs of litigating their case. In the Arlington Central case the parents prevailed in getting the school board to pay for their son’s private school tuition. As the prevailing party, the parents asked to be reimbursed the costs of an educational consultant they used in the litigation as part of recovering their costs and attorneys’ fees. The Supreme Court, however, ruled that since the IDEA didn’t specifically include expert costs as part of recovering attorneys’ fees, parents were not entitled to recover those non-attorney expert witness costs. Fortunately, the IDEA Fairness Restoration Act (H.R. 4188) has been introduced in Congress to amend the IDEA to include expert witness fees and other expenses as attorneys fees.
If this bill becomes law, parents who prevail in IDEA cases will be able to recover their expert witness fees as attorneys’ fees. Moreover, parents will also be able to recover “the reasonable costs of any test or evaluation necessary for the preparation of the parent or guardian’s case …”.
In most cases families need to pay educational consultants and other expert witnesses in order to prevail in a due process hearing and subsequent proceedings. This is true, because the school district can rely on its staff to provide expert testimony to support the district’s view. Without their own experts to contradict the school district’s witnesses, parents are unlikely to prevail. Few families can afford the costs of an attorney to enforce the IDEA and even fewer still are able pay the costs of the witnesses and evaluations needed to prove their side of the case. Thus, this legislation will help level the playing field for families of children with disabilities. For more information on this important legislation see the brochure produced by the Council of Parent Attorneys and Advocates, Inc. (COPAA). COPAA has also produced this brochure in Spanish.
Finally, COPAA has designated May 6th as a day for concerned individuals to call their Congressional Representatives to ask them to co sponsor H. R. 4188 The IDEA Fairness Restoration Act. If you don’t know your Congressional Representative go to https://www.house.gov/.
