[Congressional Record Volume 157, Number 41 (Thursday, March 17, 2011)]
[Senate]
[Pages S1833-S1834]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HARKIN (for himself, Ms. Mikulski, and Mr. Sanders):
  S. 613. 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; to the Committee on Health, Education, Labor, and Pensions.
  Mr. HARKIN. Mr. President, ensuring that all students, regardless of 
background or ability, receive an education that gives them the 
opportunity to live a successful and fulfilling life has always been a 
major focus of my career in public service. To achieve this goal, I 
have fought especially hard for students with disabilities to have 
access to the general education curriculum and the services and 
supports they need to succeed, and to safeguard their rights under the 
Individuals with Disabilities Education Act, IDEA. That is why I am 
pleased to introduce the IDEA Fairness Restoration Act, which my 
colleague Rep. Van Hollen will also be introducing in the House today. 
This critical legislation will remove the financial barrier that 
families, especially low- and middle-income families, face as they 
pursue their children's rights to the free, appropriate public 
education they deserve and are entitled to under the Fourteenth 
Amendment.
  When Congress originally passed IDEA, we recognized the vital 
importance of parent and school collaboration in special education and 
required they jointly develop an Individualized Education Plan, IEP, to 
identify goals to promote the academic achievement of students with 
disabilities. In general, this partnership has served students well. 
There are, however, times when schools have not fulfilled their 
responsibilities to provide an appropriate education. In these cases, 
IDEA provides parents the right to challenge the schools through 
mediation and due process. To make their argument, families often need 
access to expert witnesses who can assess the student's needs and 
testify about whether the current IEP meets those needs. These expert 
witnesses are a resource that many families cannot afford, but without 
access to them, families may be unable to make their case.
  When Congress amended IDEA in 1986, it recognized the financial 
barriers that parents face in pursuing due process to resolve 
disagreements with their school and specified in the Conference 
Committee Report that when the court finds in favor of the parents a 
judge could award attorney's fees, including ``reasonable expenses and 
fees of expert witnesses and the reasonable costs of any test or 
evaluation which is found to be necessary for the preparation of the 
parent or guardian's case.'' For years, parents who prevailed in 
judicial proceedings were awarded these fees, as Congress intended. But 
in 2006, the U.S. Supreme Court ruled in Arlington Central School 
District v. Murphy that courts could no longer award these fees because 
Congress made its intention explicit in the Conference Report rather 
than in statute. As a result, many parents are discouraged and even 
prevented from pursuing meritorious cases to secure the rights of their 
children. Low- and middle-income families are particularly hard hit.

[[Page S1834]]

  This IDEA Fairness Restoration Act clarifies Congress' express intent 
that parents should recover expert witness fees, as they currently can 
do with attorneys' fees, if they prove that the school system has 
wrongfully denied their child an appropriate education as defined by 
IDEA. By including ``reasonable expenses and fees of expert witnesses 
and the reasonable costs of any test or evaluation which is found to be 
necessary for the preparation of the parent or guardian's case'' and 
reestablishing the right of judges to award such fees to parents who 
prevail in IDEA cases, as Congress intended, this legislation will 
level the playing field and restore the ability of low- and middle-
income parents to be effective advocates for their children's 
educational needs.
  This legislation is an essential step for protecting the rights of 
students with disabilities and ensuring that all families, regardless 
of their financial resources, can advocate for and protect their 
children's rights through due process.
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