[Congressional Record Volume 160, Number 129 (Wednesday, September 10, 2014)]
[Senate]
[Pages S5510-S5511]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HARKIN (for himself and Ms. Mikulski):
  S. 2790. 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, have access to 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 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 
reintroduce the IDEA Fairness Restoration Act. This critical 
legislation will remove the financial barrier that families, especially 
low- and middle-income families, face when 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. Usually, this partnership serves students well. There 
are, however, times when parents believe schools have not fulfilled 
their responsibilities to provide an appropriate education to their 
children. In these cases, IDEA provides parents the right to challenge 
the schools through mediation and due process. The educational needs of 
children with disabilities can be quite complex and when there is a 
disagreement between the family and the school it may be necessary for 
experts to lend their help in determining what interventions and 
supports are best for the child. For families asking for mediation or a 
due process hearing, the use of expert services can be costly, ranging 
on average from $100 to $300 per hour. In one case, a single mother 
whose son struggled with dyslexia and written expression disorders had 
to borrow $1,400 to pay an independent evaluator to testify at a 
hearing. She also had to pay for the expert's time spent being cross-
examined by the school district for two days. Without access to expert 
witnesses, families may be unable to make an argument for the 
educational needs of their children.
  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 put at a 
disadvantage by this ruling.
  The 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 bill is supported by 18 advocacy organizations including: 
ACCSES, the Autism National Committee, the Autism Society of America, 
the Council of Parent Attorneys and Advocates, the Conference of 
Educational Administrators of Schools and Programs for the Deaf, 
Collaboration to Promote Self-Determination, the Disability Rights 
Education and Defense Fund, the Epilepsy Foundation, Easter Seals, the 
Kentucky Protection and Advocacy Division, the Jonathan Foundation for 
Children with Learning Disabilities, Our Children Left Behind, the 
National Center for Learning Disabilities, the National Center for 
Special Education in Charter Schools, the National Down Syndrome 
Congress, the National Down Syndrome Society, the National Disability 
Rights Network, and TASH.
  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, consistent with Congressional 
intent and I urge my colleagues to support this legislation.

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