Continued calls, faxes, emails needed for the IDEA Fairness Act (HR 2740)!

[Guest guest]

Hi all! Due to last week's call-in day for the IDEA Fairness Restoration

Act (HR 2740), we picked up some new cosponsors (within a day, there were

already 5 or 6 new cosponsors - plus, many of the 42 legislators with whose

office I spoke that day said they were still in support of the bill and

planned on signing on). So, let's keep the momentum going by continuing to

contact our U.S. House Representatives (if you're unsure who to call, just to

go _http://www.house.gov_ (http://www.house.gov/) and put your zip code in

the box on the upper left corner of the page)! Just explain why you care

about children with disabilities (you're a parent, relative, friend, service

provider, etc.) and that you're asking your Congressperson to sign on to

H.R. 2740, the IDEA Fairness Restoration Act. That's all you need to do

(takes a few seconds only!) If you want more information, please feel free to

look at the letter below and share it with others who may be interested

(provided courtesy of COPAA, the Council of Parent Attorneys & Advocates,

_http://www.copaa.org_ (http://www.copaa.org/) ). Thanks in advance for

helping make this bill a reality and for supporting the educational needs of

students with disability throughout our nation!

LETTER WITH BACKGROUND ON THE IDEA FAIRNESS RESTORATION ACT (feel free to

forward):

The Honorable

Chair, Education and Labor Committee

United States House of Representatives

Washington, DC 20515

Re: H.R. 2740: Reinstate Parents’ Right to Expert Witness Fees

Dear Chairman ,

The Council of Parent Attorneys and Advocates (COPAA) is a national

nonprofit organization of parents, attorneys, and advocates who work to protect

the civil rights of children with disabilities and ensure that they receive

appropriate educational services. We thank you for your strong support for

the rights of children with disabilities. We write to urge you to support

H.R. 2740, the IDEA Fairness Restoration Act to enable prevailing parents

to recover their expert witness fees in IDEA due process hearings and

litigation. Without such protection, the playing field will remain dangerously

tilted against parents who exercise their due process rights to ensure that

their children receive a free appropriate public education.

Over 200 organizations support the bill, including the Arc, COPAA, Easter

Seals, Disability Rights Education and Defense Fund, National Disability

Rights Network (NDRN), National Center for Learning Disabilities (NCLD), LDA,

DREDF, TASH, CHADD, Center for Law and Education, United Cerebral Palsy,

Learning Disability Associations of America, National Down Syndrome Society

(NDSS), National Down Syndrome Congress (NDSC), Epilepsy Foundation, Autism

Society of America, , Our Children Left Behind, Southern Poverty Law

Center School-to-Prison Reform Project, Tourette Syndrome Society, and many

others. In addition, over 2,100 individuals have signed a petition asking

Congress to pass the bill. We are attaching both the Organizational sign-ons

and the individual petition to this letter. (The individual petition has

been open for signatures for only 3 weeks).

Congress’ original intent in enacting the Handicapped Children’s

Protection Act of 1986 was to allow parents to recover expert witness fees.

But in

2006, the Supreme Court held in Arlington Central School District v.

that parents had no such right. Few parents can afford the thousands of

dollars needed to pay qualified medical, educational, and technical experts

to testify on their children’s behalf. Almost 2/3 of children with

disabilities live in families earning under $50,000 a year. School districts

can

use therapists, psychologists, and other experts they employ, or hire

outside experts with taxpayer dollars. Parents have far fewer resources than

school districts but must bear greater expenses. When prevailing parents

cannot recover expert costs, the playing field is neither level nor fair, and

parents cannot protect their children’s rights.

Congress passed the Individuals with Disabilities Education Act 34 years

ago so children with disabilities would receive a free appropriate public

education--a right they had long been denied, and which many continue to be

denied. Hence, the IDEA gives parents the right to seek redress through an

impartial due process hearing or judicial proceeding. Of course, hearings

have always been rare; in 2003, the GAO reported that there were only 5

hearings per 10,000 special education students in 2000. But because IDEA’s

enforcement depends on parents to enforce the law, the ability to recover

expert witness fees is critical when parents prevail. Of course, parents who

do not prevail cannot recover expert fees.

COPAA has received numerous complaints about the inability of parents to

recover expert fees. They include these:

* A Pennsylvania mother was forced to go to due process to implement

the Independent Educational Evaluation recommendations for her child with

severe dyslexia and a written expression disorder. She had to borrow

$1,400 to pay the evaluator to testify, and for two days of cross-examination

by

the school district. The parent prevailed and the child received the

reading instruction he needed. Before the Supreme Court’s decision,

the

mother could recover her expert fees; after , she would not.

* An advocate from rural Northern California wrote, “We do not live

in an affluent area, rather a more rural, farming, blue-collar area of

California. And the likelihood of not obtaining [expert] reimbursement would

make a huge difference to single parents, minority parents and parents just

barely making ends meet. They would not be able to meet their burden of

proof without experts to testify against the alleged expert District

professionals.â€

* A Florida attorney: “I have been in private practice and at Legal

Aid. My private practice clients had limited funds for experts. Often

their treating professionals would volunteer to wait until after the case was

over and if parents prevailed, to get paid then. It often made all of the

difference in winning. This method of funding experts is now unavailable.

Many of those clients could not have fronted the expert witness fees. At

Legal Aid we operate on a shoestring. Often my ability to be able to use

funds to hire an expert hinges on the likelihood of being able to be

reimbursed. I will be hiring far fewer experts, if any.†This attorney also

described how prior to , the school district had reimbursed experts for

Legal Aid’s low-income clients.

* A family in Texas: “I work as a nurse in a military Pediatric

Clinic. I see children with disabilities daily who need help from the school

system to maximize their potential. I cannot imagine having an active duty

member willing to die for our country who cannot afford to fight for

his/her own child because they cannot afford the cost of an expert witness. As

the grandmother of a special needs child I know that my daughter and

son-in-law would do whatever was necessary and that their family would help

them

but should they have to mortgage their future and risk their ability to care

for our grand-daughter and her sisters to do so.â€

* A land attorney: “I represent low income individuals in

Baltimore City, which has been under a consent decree for almost 20 years, on a

pro bono basis and I cannot take their cases to hearing because of the lack

of expert availability. In the past, I could advance the costs with

expectation of some reimbursement. As a solo, I can no longer afford to do

that.

Those who need assistance most are denied it.â€

* A Michigan special education advocate, “Since [], I have had

no fewer than three clients who had to withdraw their request for a

hearing, and no fewer than five clients who wanted to request a hearing but did

not, due to the fact that they could not afford witness fees and costs. One

of the clients who withdrew their request for a hearing because they could

not find a free/low cost attorney and cannot afford expert witness fees

has essentially been constantly harassed by their district, which knows the

parents cannot afford litigation. I currently have a client, a single

father, who has two Deaf children who are receiving an wholly inferior

education, who simply cannot afford witness fees, even if he were able to get a

free

or low cost attorney, who now suffers from depression because he is

powerless to improve his children's education.â€

* A new attorney in Nevada (where there is a severe shortage of

attorneys): “I was willing to take a case pro bono if the parent could pay

expenses. She couldn’t afford the expert, and neither could I. We stopped

at

the resolution session.â€

* Georgian parents sought an Independent Education Evaluation (IEE)

for their daughter with brain injury-like learning disabilities. She had

not been evaluated in over 3 years. The district sought due process,

requiring the parents to put on expert testimony. The district had expert

witnesses. The parents could not afford the expert neuropsychologist who would

have cost more than the evaluation. They had to dismiss/default, as the

money spent for the expert was better spent on an evaluation, which the child

desperately needed to identify and address her learning problems. This

destroyed entirely the family’s right to an IEE. The district has suggested

this approach to other districts. Prior to , parents prevailing on

the IEE request would have recovered the expert’s fees.

* Without the ability to recover expert fees, many parents cannot

obtain useable Independent Education Evaluation ( IEEs). They cannot fund

experts to challenge district denials of IEEs. Although school districts are

supposed to file for due process if they decline to pay for the IEE, they

often do not, forcing parents to do so and bear the burden of proof.

When parents do obtain an IEE, they may lack the funds to pay the evaluator to

testify at due process, which is often critical because the testing is

complex. One California attorney reported that a family received an IEE, but

could not afford the $1,000 to pay the expert to testify about it.

* IEEs are important when a school district fails to appropriately

evaluate a child. Without an appropriate evaluation, children are denied

the services they need. Independent evaluations are a critical component of

the IDEA, that Congress has protected for over 30 years. But parents are

unable to pay experts to challenge district denials of IEEs, and thus unable

to obtain the evaluation that they need. Although school districts are

supposed to file for due process if they decline to pay for the IEE, they

often do not, forcing parents to do so and bear the burden of proof. When

parents do obtain an IEE, they may lack the funds to pay the evaluator to

testify at due process, which is often critical because the testing is

complex. One California attorney reported that a family received an IEE, but

could not afford the $1,000 to pay the expert to testify about it.

* A New Jersey public interest attorney who recently faced a school

district that refused to evaluate and provide services to a child with a

seizure disorder, wrote, “Since IDEA 2004, I have seen an increase in

districts planting their feet and refusing to work with parents, resulting in

an

increase in the number of due process petitions I have had to file… Our

clients cannot afford experts or quality independent evaluators on their own.

We used to rely on obtaining reimbursement if we prevailed but the

decision foreclosed that option.â€

For these reasons, we urge you to support H.R. 2740 to enable prevailing

parents to recover expert witness fees. COPAA thanks you for your tireless

advocacy for the needs of children with disabilities.

Sincerely,

Berlow, Chair, Government Relations

, Co-Chair, Government Relations (for Congressional Affairs)

Council of Parent Attorneys & Advocates, Inc. (COPAA)

A National Voice for Special Education Rights and Advocacy

email: protectidea@...

www.copaa.org

Sandy, Illinois (alpy2@...)

Volunteer Co-Webmaster, Our Children Left Behind

(http://www.ourchildrenleftbehind.com) (IDEA & NCLB reauthorization)

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