Special Education Law Blog

IDEA Fairness Restoration Act Call Congress on May 6, 2008

It is time that we make our voices heard in C0ngress. The following pending bill is one in a series of measures to overturn ill conceived and damaging Supreme Court decisions that have harmed the rights of parents.

PLEASE CALL YOUR CONGRESSIONAL REPRESENTATIVES (202-224-3121)
ON TUESDAY, MAY 6, AND ASK THEM TO CO-SPONSOR THE IDEA FAIRNESS RESTORATION ACT, H.R. 4188.  This bill will allow parents who prevail in due process or litigation under IDEA recover their expert witness fees.  Few parents can afford the thousands of dollars needed to pay for expert testimony. 

School districts use tax dollars to employ and pay for psychologists and other paid experts at IEP meetings and hearings.  Parents have fewer resources and yet must bear a greater financial burden.  H.R. 4188 is important to help level the playing field for the nearly 7 million children with disabilities.  Introduced by Congressman Chris Van Hollen (Maryland) and Pete Sessions (Texas), it will restore Congress’ original intent and allow parents to recover their expert fees.

Over 100 disability organizations, including the Consortium of Citizens with Disabilities, Arc, Easter Seals, the Council of Parent Attorneys & Advocates, Inc., National Disability Rights Network, National Down Syndrome Society, National Down Syndrome Congress, Learning Disabilities Association, National Center for Learning Disabilities, CHADD, and others support H.R. 4188.  But we need your help to get it passed.

Call to Action - Tuesday, May 6, 2008

On Tuesday, May 6, 2008, please call your Congressional Representatives (202-224-3121) and ask them to cosponsor H.R. 4188, the IDEA Fairness Restoration Act.  Have friends and family members call.  It will only take 2-3 minutes!  Please join us for this national call-in day, May 6.

If you do not know who your Congressional Representative is, go to http://www.house.gov and put your zip code into the box in the upper left corner.   (You usually only need your five digit zip code.)  You can also use http://www.congress.org to look up Representatives and phone numbers.  PLEASE CALL YOUR REPRESENTATIVES INSTEAD OF USING EMAIL.

It helps if you ask for the Education Aide, but you can also talk to the person who answers the phone.  You can also leave a voicemail message.  Tell them you are a constituent and would like the Congressperson to co-sponsor H.R. 4188, the IDEA Fairness Restoration Act.  Congress needs to hear from as many parents, advocates, attorneys, and others as possible.

Please make a phone call on May 6, even if you've made one before.  We want Congress to hear from parents and advocates for children, and one way we can make sure they hear us is to call them.  If you can’t call on May 6, it’s okay to call afterwards.  Ask your friends and family to call, too.  Congress needs to hear from all of us!

It’s Important to Cosponsor the IDEA Fairness Restoration Act (H.R. 4188).

The IDEA Fairness Restoration Act would override the Supreme Court's decision in Arlington Central School District v. Murphy (2006) and allow parents who prevail in due process or litigation to be reimbursed for their expert witness fees. H.R. 4188 is important to level the playing field and protect the rights of the 7 million children with disabilities. 

When prevailing parents cannot recover expert costs, the playing field is neither level nor fair, and children are denied a free appropriate public education and other fundamental IDEA rights.

Hiring qualified medical, technical, and other expert witnesses can cost many thousands of dollars.  Few parents can afford this high cost, putting due process out of reach for most parents, who struggle to afford what their children with disabilities need.

School districts use tax dollars to pay for psychologists and other paid experts.  Parents have fewer resources and yet must bear a greater financial burden. Approximately 36% of children with disabilities live in families earning less than $25,000 a year; over 2/3 earn less than $50,000 a year.

Congress intended for parents to recover their expert witness fees in the Handicapped Children's Protection Act of 1986.  Allowing parents to recoup their expert fees simply restores Congress' original intent.

If due process is not affordable, the IEP process becomes even more one-sided and unfair.  School personnel control the IEP process and often vastly outnumber parents.  When the right to due process is meaningful, it helps ensure that school districts provide appropriate educations to children with disabilities.

Most parents turn to due process and litigation only as a last resort.  In 2003, the GAO reported that there were only 5 hearings per 10,000 special education students.  But when parents are forced into due process, they should be able to afford expert witnesses.

Want more detailed information? 
Download COPAA’s complete brochure on the IDEA Fairness Restoration Act and enabling parents to recover expert fees, http://www.copaa.org/pdf/MurphyBrochure.pdf
There is also a Spanish language version, http://www.copaa.org/pdf/MSSpanish.pdf
(Lea aqui en Espanol: Murphy y los derechos de los padres para recuperar el costo de los expertos: http://www.copaa.org/pdf/MSSpanish.pdf )
You can read H.R. 4188 here: http://www.copaa.org/news/IRFAct.html
You can read letters from over 100 disability organizations supporting H.R. 4188 here:
http://www.copaa.org/news/organizations.html

For more information about H.R. 4188 and this alert, please contact Bob Berlow and Jess Butler of COPAA at protectidea@copaa.org  Together, we can make the difference and restore a balanced playing field for children with disabilities.

Communication None-0-1 by Lori Miller Fox

When I was in school, I don’t remember parents and teachers talking very much at all, maybe because it took close to five minutes to dial a seven-digit number on a rotary phone. So communication was pretty minimal: a nod at Open House, a note on the bottom of a report card, an awkward handshake at a Parent-Teacher conference. 

When my son was in grade school, the spiral notebook was the way to “stay informed.” Tucked neatly in his Nike backpack, it carried notes from home to school and  home again. Straight-forward, reliable, easy-to-use, the only complications with this method was legibility, fraying of pages and oh yeah, getting the teacher to read it.

In this day and age with the advent of cell phones, text messaging and instant emails, you’d think communication between parents and schools would be so clear that there’d be nothing left to discuss at an IEP meeting. So why is it that we still don’t understand each other? Here are some possible examples (all fiction, of course).

Service Dog In East Meadow, N.Y. Defeated in Court

This post is a followup to a series of earlier blogs regarding the dispute between the family of a child with special needs and the East Meadow School District in New York over allowing the student to have his service dog in school. The family wanted to have their son's service dog attend school with him and the school objected because of health and safety issues. The parents sought immediate relief in the form of an injunction--a court order mandating that the dog be immediately allowed into school. The District Court denied the injunction and now the Second Circuit Court of Appeals has affirmed the lower court's ruling. So for now the parents are left with due process to get an order to have the dog in school.

Accessible E-Texts

Having access to text that can be readily converted into spoken words can be a critical part of becoming a proficient reader, a student who is meaningfully included in school, and employable in the world outside of school. For my son, without digitized text he would not be able to be in an inclusive classroom. Up to now, much of his text had been inputed manually which has been very time consuming. Fortunately, with legally mandated changes required in IDEIA (e.g. NIMAS-accessible text, Universal Design) the amount and type of accessible e-text is increasing. Reading Rockets has published a very useful article on accessible e-texts along with guidance on how to take advantage of  the new provisions of  IDEIA.

Here Is An Issue the Candidates Need to Talk About

The Federal government's employment of people with disabilities is at an all time low according to a Washington Post story. Unemployment generally of people with disabilities is at very high levels of 30% or greater. IDEIA is supposed to produce outcomes that focus on economic self-sufficiency, ability to live in the community and employment. None of the candidates are talking about these issues and a review of their websites shows that this vital issue is not on the rader screen. We need to get it on the radar and insist that questions are asked at debates, town hall meetings and other forums.

A Teenager with Disabilities Statement of Love and Courgage

The following is a statement from a client of mine who has disabilities. He is a teenager. He was adopted a number of years ago. Over the last year and a half he has been the frequent victim of bullying based on race and disability from peers. Unfortunately, school personnel have not been responsive to him and have not been protective of him. Despite all that he has been through, he is an amazingly resilient person who has an enormous capacity for love for his parents and courage in the face of adversity. It is students like him that make my job so very satisfying.

Bipolar Disorder and IEP's by Amanda Windom

Bipolar disorder diagnosis in youth (under 20 years of age) drastically increased in less than ten years. A comprehensive study published by Archives of General Psychiatry found that in 1994-1995 twenty-five per 100,000 office based visits for youth resulted in bipolar diagnosis.  By 2002-2003 that number had risen to 1003 per 100,000 and experts say that by now it has almost certainly risen more.  Some experts believe that greater awareness is allowing kids access to treatment, while others feel the disorder is being over diagnosed reports The New York Times.

The Child and Adolescent Bipolar Foundation(CABF) explains how bipolar disorder in children may vary from that in adults.  For example, as opposed to having marked changes in mood and energy as adults do, children often have ongoing mood disturbance that is a mix of mania and depression.  Children with bipolar disorder are entitled to special education and an IEP if the disorder affects their ability to be educated.  The IEP should reflect supports necessary when the child is experiencing symptoms as well as when the child is relatively well.  Some necessary accommodations may include  an extra set of books at home, unlimited access to water fountain and bathroom, small class size, a one-on-one aide for assistance, or reduction in homework.  Click on the link for CABF for a more comprehensive listing of accommodations.

In a Land Called (Im)Perfect by Lori Miller Fox

Now that the holiday season is over, we can all breathe a sigh of relief. Gone (until next year anyway) are the reams of circulars picturing perfect families bonding over perfect games. Off-air are the educational,ly-based, imagination-stimulating, motor-challenging, award-winning toys for award-winning children.   Absent at last are the “Joyful Joneses,” the “Smiley Smiths,” and the “Functional Friedmans.”

I know my child is not the “advertisers’ ideal” and my family is not the “manufacturers’ market,” but  I still ask myself “why should that be the case?” Maybe if we all close our eyes tightly, click our heels three times, and really,  really,  really believe, we can create a world, if only for a minute, where everything is imperfect. In my imperfect toyworld:

Burden of Proof Proposed to be Put Back on Schools in New Jersey

The New Jersey legislature is considering a bill that would effectively reverse the effect of Shaffer. This law if passed could serve as a ready model for other states to follow to once again put the burden of proof on school districts in due process cases. Apparently, in New Jersey some districts are not even willing to negotiate with parents since Shaffer. While I have not seen districts to be that brazen as a result of Shaffer, I have seen in many instances an increased level of arrogance and "entitlement" that they have an exclusive claim to wisdom at IEP meetings.

Rolling back precedents like Shaffer and Arlington (expert's fees to prevailing parents), as proposed in the IDEA Fairness Restoration Act (see discussion below) would have both a legal and psychological effect at IEP meetings and at hearings. I will continue to monitor the progress of this state law.

Action Needed on December 3, 2007 For IDEA Fairness Restoration Act

The following is a bulletin from the National Down Syndrome Congress calling for concerted public action on December 3, 2007 to push this bill into becoming law.

IDEA Fairness Restoration Act
Take Action!

Contact Your U.S. Representatives on Monday December 3, 2007!

From the National Down Syndrome Society and National Down Syndrome Congress
November 30, 2007
Action Needed
As we recently reported to you in an information bulletin, the IDEA Fairness Restoration Act (H.R. 4188) was introduced in the House of Representatives on Tuesday, November 13, 2007 by Congressman Chris Van Hollen and Congressman Pete Sessions that would allow prevailing (winning party) parents to recoup expert fees and related costs in proceedings under the Individuals with Disabilities Education Act. Additional background information is provided below.

In order to get this bill moving through Congress the first step is to get as many co-sponsors from both parties as possible. On Monday December 3, 2007, NDSS and NDSC urge you to contact your Representative with the following message about the IDEA Fairness Restoration Act (H.R. 4188):

Please co-sponsor the IDEA Fairness Restoration Act (HR 4188). It will level the playing field for parents who must advocate for a free, appropriate education for their child.

If you wish to call your Representative, you can find out the name and phone number at http://www.ndss.org/index.php?option=com_wrapper&Itemid=174.

If you wish to send an email, go to: http://capwiz.com/ndss/issues/alert/?alertid=10597931. You will have a sample email available (that you can edit to meet your needs). The email will be sent to the correct Representative based on your home address.

Additional Background Information

In 1986 Congress included language in the IDEA Conference Report (an explanation that accompanies a new law that is not explicitly included in the legislation) that allowed attorney's fees to be awarded to parents or guardians, 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.''
The Supreme Court in Arlington Central School District v. Murphy (2006) held that courts could no longer award expert fees and other related costs since this intent wasn't explicit in the statute.
The IDEA Fairness Restoration Act mirrors the text of the Conference Report almost exactly to fulfill Congress's intent.
This bill will not cause a rush of litigation. Parents only initiate due process proceedings and litigation as a last resort. However, in order to even the playing field, this option must be one that parents are financially able to exercise.
Expert testimony and expensive evaluations are generally necessary in IDEA proceedings in order for parents to prove their case. Unless they can be reimbursed for expert fees and related costs, most parents will not financially be in a position to advocate for their children's educational rights should these proceedings become necessary.
This bill provides that parents can be reimbursed for expert fees and related costs only if they are prevailing parties.
If you have questions or comments about this action alert, contact Ricki Sabia at rsabia@ndss.org or Susan Goodman at SusanG1961@aol.com.

If you or others you know would like to be added to the NDSS mailing list, send name(s) and email address to advocacy@ndss.org

National Down Syndrome Society
666 Broadway, New York, NY 10012
Phone: (800) 221-4602; Fax: (212) 979-2873
Web site: http://www.ndss.org

NDSS National Policy Center
8650 Georgia Avenue
Silver Spring, MD 20910
Phone: (800) 743-5657 Fax (301) 563-6896
e-mail: advocacy@ndss.org