H. R. 4188 The IDEA Fairness Restoration Act: Allowing Parents to Recover Expert Witness Fees under the IDEA

       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 http://www.house.gov/.

Using the State Education Agency Complaint Process to Enforce the IDEA

      In a recent series of articles I covered resolving disputes under the IDEA through mediation, the resolution process, and due process hearings. Still, another way to resolve disputes under the IDEA is by filing a complaint with the State Education Agency (SEA). The IDEA regulations require that State Education Agency’s have a process to resolve complaints regarding implementing the IDEA. Under this process individuals or organizations may file a complaint for violations of the IDEA with their State Education Agency. Upon receiving a complaint asserting a violation of the IDEA, the State Education Agency may carry out an independent investigation and, if necessary, conduct that investigation at the school or program where the violation may have occurred.

 

             A complaint under the State Education Agency Complaint Process is not the same as the Due Process Complaint Notice that parents are required to file to request a due process hearing. The complaint procedure being discussed here involves an investigation by the State Education Agency rather than a hearing with an independent hearing officer. In the course of an investigation the State Education Agency may review documents and interview individuals, but there is usually not a formal hearing.

 

            If, after its investigation, the State Education Agency determines the IDEA was violated and a child was denied appropriate services, it can require the school district to remedy or correct the violation. In order to correct the violation, the State Education Agency can require the school district to provide compensatory services, monetary reimbursement, and/or provide appropriate services in the future.

 

Compensatory Services

 

            Compensatory services are services that are provided to make up for, or compensate the child for, services that legally should have been provided but were not. For example, consider a situation in which a student’s IEP clearly stated that the student was to receive physical therapy three times a week. The physical therapy, however, was never actually provided. To resolve a complaint about the school district’s failure to provide the required physical therapy, the State Education Agency could require the school district to provide additional therapy services beyond those required by the IEP. These additional services would be “compensatory” because they are intended to compensate or make up for the services that were not provided.

 

Monetary Reimbursement

 

            Or, perhaps the child’s parents had privately purchased physical therapy services for their child during the time the school district was not providing the physical therapy services as required by the IEP. In that circumstance the State Education Agency might require the school district to reimburse the parents the money they paid for the private physical therapy. Thus, the parents are provided with monetary reimbursement for the costs of the therapy the parents purchased.

 

Future Compliance and Services

 

            Finally, consider a scenario in which a student’s IEP included access to a piece of assistive technology such as a  tape recorder to record lectures, but the tape recorder has not been provided. The State Education Agency might order the school district to provide the tape recorder in the future.

 

When to Use the State Education Agency Complaint Process

 

            The State Education Agency Complaint Process is  best used for cases in which the school district has very clearly not complied with the IDEA. For example:

 

            (1) Services have not been provided as required by an IEP.

 

            (2) The parent has requested that their child be assessed to determine eligibility for special education, and school personnel have not followed through on the assessments.

 

            (3) The school district hasn’t responded to a request for an independent evaluation regarding assistive technology issues and hasn’t scheduled a hearing to resolve the dispute.

 

            (4) The school district hasn’t notified parents of due process procedures.

 

            (5) School personnel have assessed a student without getting the parent’s consent.

 

            If the issue involves very clear violations of the IDEA, then the Complaint Process can be useful in getting the school district to comply with the law. On the other hand, if the issue concerns a disagreement over whether a student needs a particular service and the school district refuses to include that service on the IEP, it is difficult for the State Education Agency to resolve that dispute through the complaint process. Determining a student’s educational needs requires evidence and the testimony of witnesses. That determination is more appropriate for an impartial hearing officer, who will be able to hear that kind of testimony. The State Education Agency’s investigation is mainly limited to reviewing documents and interviewing individuals such as the parents and school staff to determine the facts.

 

Filing a Complaint with the State Education Agency

 

            A complaint may be filed by an individual or an organization. The complaint must be written and signed and contain the following information:

 

(1)  A statement that the public agency has violated the IDEA. Public agencies include school districts, charter schools, the State Education Agency, and other agencies responsible fro providing education to children with disabilities;

(2)  The facts that support the above statement that the public agency violated the IDEA;

(3)  The signature and contact information of the person making the complaint; If the complaint is regarding a specific child then the complaint must include:

1.      The child’s name and address;

2.      The name of the school the child attends;

3.      If the child is homeless the available contact information for the child and the name of the school the child attends;

4.      A description of the problem including facts describing the problem; and

5.      A proposed resolution of the problem to the extent the person filing the complaint knows of a possible resolution of the problem.

           

Complaint Timelines

 

            Complaints must assert or allege a violation of the IDEA that has occurred within a year of when the complaint is received by the State Education Agency. Moreover, a copy of the complaint must be sent to the school district or other public agency serving the child at the time the complaint is filed with the State Education Agency. Generally, the IDEA requires that complaints to the State Education Agency be investigated and resolved with 60 days. But that time limit can be extended in exceptional circumstances.

 

            Finally, the IDEA provides that the State Education Agency may allow complaints to be the filed first with the local school district and the school district’s decision reviewed by the State Education Agency.  In that event, the local school district, rather than the State Education Agency, would conduct the initial investigation. The State Education Agency would then review the school district’s decision regarding the complaint. So, parents and other professionals should check with their State Education Agency to determine how the complaint process works in their state. 

 

Special Education Services in the Summer: The IDEA and Extended School Year

     Summer is rapidly approaching. For most children summer means time off from school. But for some students with disabilities, interrupting their school program during the summer break, jeopardizes the benefit they receive from that program during the regular school year. These students need services during the summer to receive a free appropriate public education. Services provided in the summer are called extended school year services or ESY services. Extended school year services are special education and related services that are provided to a child with a disability beyond the normal school year of the school district.  

     The first court cases requiring ESY services involved students with disabilities who, during the summer, lost skills they had learned during the previous school year. As a result of this loss of skills during the summer, the students were unable to benefit from their school program. These cases established a regression/recoupment standard for establishing the need for ESY. The student lost skills during the summer, or regressed, so significantly that the student could not reasonably make up, or recoup, that loss the following school year.           

   The courts noted that all students regress some during extended absences from school. Most students can make up that loss, in a reasonable amount of time, when they return to school. If it takes a student with a disability significantly longer to make up the loss, that student may be entitled to extended school year services. Thus, students who regressed that significantly were entitled to services during the summer as part of receiving a free appropriate education.    

       Later court decisions  allowed students to receive ESY services without first being out of school during the summer months. If the IEP team could predict that the student was likely to regress, ESY services could be included on the IEP. Planning teams could look at how the student performed after being out of school during holidays or illnesses. Based on how the student performed upon returning to school, the IEP team could predict whether the student would be eligible for ESY.  

     More recent court cases include factors, other than just regression/recoupment, in determining ESY eligibility. The Tenth Circuit Court of Appeals, in Johnson v. Independent School District No. 4, included factors such as:

·        the degree of the student’s impairment and the ability of the student’s parents to provide educational structure at home,

·        the student’s rate of progress, the student’s behavioral and physical problems,

·        the availability of alternative resources,

 ·        the ability of the student to interact with students without disabilities,

·        the areas of the student’s curriculum which need continuous attention,

·        the student’s vocational needs.            

  The Court in Johnson also looked at whether the service being requested for extended school year was extraordinary to this particular student or was an integral part of a program for students with this disability. If the service was an integral part of the program for students with this disability, it could be required to be provided during the summer.  

      Under the IDEA 2004 extended school year services must be provided only if a student’s IEP team determines, on an individual basis, that extended school year services are needed for the student to receive an appropriate education. The school district may not: (1) limit extended school year services to students with particular categories of disability; or (2) unilaterally limit the type, amount, or duration of the extended school year services. Additionally, since extended school year services are part of providing a free appropriate public education, the services must be provided according to an IEP and at no cost to the student’s parents.   

    Extended school year services are not intended to continue the progress the student made during the normal school year through the summer. Rather, extended school year services are required to prevent jeopardizing progress the student has already made during the normal school year. Parents who believe their child may need ESY services should make sure this topic is discussed at the IEP meeting. If the student has not already been out of school for a summer, parents should make sure the student’s teachers are tracking the student’s performance after school holidays and absences. This information will be needed to predict future regression.

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