In early spring, bi-partisan legislation was introduced in Congress that would allow parents to recover expert witness fees in due process hearings and litigation under the Individuals with Disabilities Education Act (IDEA).
The IDEA Fairness Restoration Act (S.613/H.R.1208) would reverse a 2006 U.S. Supreme Court decision (Arlington Central v. Murphy) in which the Court found that parents who prevail in their IDEA cases cannot recoup fees for expert witnesses under the provision in the law that allows them to recoup attorneys’ fees. Although the legislative history of the fees provision of IDEA indicates that experts’ fees are covered, the Supreme Court did not consider that history in its deliberations.
In court, parties must present admissible evidence about educational methodology, complex behavioral supports, medical issues, and other technical subjects that often can only be provided by qualified expert witnesses. Without the ability to recover expert witness fees, advocates claim that few parents can afford to challenge school districts, and that they would be disadvantaged as a result.
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