Although parents who prevail at a Special Education hearing in front of the Massachusetts Bureau of Special Education Appeals (BSEA) may be able to recover all or a portion of their attorneys’ fees, they are unable to recover fees for expert witnesses. This has placed families at an even greater disadvantage than schools in due process hearings, too often making many families unable to afford an expert witness. However, on March 17, 2011, federal legislation was introduced that could possibly change that. The IDEA (Individual with Disabilities Education Act) Fairness and Restoration Act was introduced in both the Senate and the House of Representatives that would allow parents to recover fees for expert witnesses in due process hearings under the IDEA.
The Council of Parent Attorneys and Advocates (COPAA) reported that “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.”
A 2006 Supreme Court Decision, Arlington Central School District v. Murphy, stated that parents cannot recover expert witness fees under the IDEA, making it difficult for many parents to afford experts for hearings.
According to COPAA, “There can be no equal opportunity and access to a public education that is both free and appropriate unless all families of children with disabilities – rich, poor and those in the vast middle – can obtain an education on the same terms. Without the ability to recover expert costs, the due process playing field ceases to be level or fair.”