Federal legislation introduced to restore right to recover expert fees

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). In Arlington v. Murphy, the Supreme Court decided that parents who prevail in an IDEA case cannot recover expert witness fees. This legislation would undo the Arlington v. Murphy decision. The following is the full text of the bill:


A BILL
To amend the Individuals with Disabilities Education Act to permit a prevailing party in an action or proceeding brought to enforce the Act to be awarded expert witness fees and certain other expenses.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.

This Act may be cited as the `IDEA Fairness Restoration Act'.
SEC. 2. INCLUSION OF EXPERT WITNESS FEES AND OTHER EXPENSES AS ATTORNEYS' FEES.

(a) In General- Section 615(i)(3) of the Individuals with Disabilities Education Act (20 U.S.C. 1415(i)(3)) is amended by adding at the end the following:
`(H) INCLUSION OF EXPERT WITNESS FEES AND OTHER EXPENSES AS ATTORNEYS' FEES- In this paragraph, the term `attorneys' fees' shall include the fees of expert witnesses, including the reasonable costs of any test or evaluation necessary for the preparation of the parent or guardian's case in the action or proceeding.'.
(b) Effective Date- The amendment made by subsection (a) shall apply to any action or proceeding brought under section 615 of the Individuals with Disabilities Education Act (20 U.S.C. 1415) that has not been finally adjudicated as of the date of enactment of this Act.

SDNY once again reverses SRO

R.E. v. NYC: Once again the SDNY has reversed an adverse SRO decision (SRO 09-114) in a reimbursement case. R.E. v. NYC was decided yesterday. Initially, the Court noted that none of the public school personnel on the CSE knew the child. The only members of the CSE who were knowledgeable about the child were from the private school that the child had attended for many years.

The Court rejected the SRO's ex post facto rationalization and support of a CSE's recommendations through use of testimony at a hearing (“The SRO's reliance upon the teacher's testimony to remedy the deficits found by the IHO in the IEP was unwarranted....The SRO was not present at the hearing, and as such, should not have substituted his own credibility determinations for those of the IHO, who experienced the testimony of witnesses present at the hearing.

The Court found that the SRO was not due the usual deference because “nothing in the SRO's decision suggests that it is based on "educational policy," particularly given that it relies so heavily on the testimony individuals who lacked personal knowledge of J.E.”