On September 10, 2014, Senator Tom Harkin introduced two bills designed to fulfill the original promise of the IDEA (Individuals with Disabilities Education Act) -- IDEA Full Funding Act and IDEA Fairness Restoration Act. Senator Harkin said: “Passing these critical bills will provide much-needed financial relief to already-strapped school districts and ensure parents are able to advocate for the high-quality education their children deserve without being hit with burdensome legal costs.”
With the IDEA Full Funding Act, the Federal government would follow through on the promise to fully fund the IDEA mandate. Originally, Federal funding was to account for 40% of the excess cost of educating students with disabilities. The Federal government has never reached that level of funding. Current federal funding is about $17 billion short or about 16% of funding. The Full Funding Act would finally provide the needed Federal funding to pay for necessary programs and services and increased teacher and related service provider salaries.
Another promise of the IDEA is to reimburse prevailing parents for the costs of expert witness fees. Since 2006, parents who prove that the school district failed to meet its obligations and denied a student a free appropriate public education (FAPE) have not been able to recover the fees in retaining expert witnesses. This is based on the Arlington v. Murphy Supreme Court case which ignored Congress’s express intent to have those expenses included.
The IDEA Fairness Restoration Act will help restore rights for students with disabilities.
Here is how it currently works: Parents of a student with disabilities file a due process complaint to enforce their child’s right to a free public education. They have the burden to prove the district failed. The district has no burden of proof. To win, the parents have to pay for an expert to establish that the school did not fulfill its duty under the law. If the parents win at hearing, they can recover at least some of their attorney’s fees but cannot recover any of the expert witness fees.
Due process hearing cases are often a battle of experts. A parent without an expert witness will lose at hearing. School districts are never without experts. They are able to use tax dollars to hire and pay experts – including those on the district payroll – to testify while parents have to pay for experts out of pocket. This is unjust and it is certainly not free.
Other laws protecting people with disabilities, including the ADA and Section 504 of the Rehabilitation Act, already allow people with disabilities to recover expert witness fees when they win.
Please help support these bills.
For more information on the bills, please check out Senator Harkin’s summary of the bills on the Senate's website. I have also included the summary of the IDEA Full Funding Act bill and the IDEA Fairness Restoration Act bill here.
COPAA, The Council of Parent Attorneys and Advocates, Inc., has also issued its support for the IDEA Fairness Restoration Act which you can read here.