Reinstate Parents' Right To Expert Witness Fees; Override
Arlington C.S.D. v. Murphy.

COPAA strongly supports H.R. 2740, the IDEA Fairness Restoration Act. This bill would override Arlington Central School District v. Murphy (2006) and allow parents who prevail at due process to recover their expert witness fees. This was Congress' clearly stated intent in 1986. When Congress passed the Handicapped Children's Protection Act, it recognized that school districts can use therapists, psychologists, and other expert witnesses on their own payroll, or hire outside experts with taxpayer dollars. Over 20 years later few parents can afford the thousands of dollars needed to pay qualified medical, educational, and technical experts. Almost 2/3 of children with disabilities live in families earning under $50,000 a year. 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. Parents are left unable to enforce their children's rights unless they can pay for experts out of their pockets. Congress should allow prevailing parents to recover fees just like plaintiffs in ADA, Title VII, and other civil rights cases.

COPAA also supports reintroduction of the Civil Rights Act which would also override Murphy. Over 110 organizations have joined with COPAA in supporting a Murphy override. See list.
Read COPAA's FAQ and brochure about the importance of expert witness reimbursement for parents here.
Materials about Murphy and expert witnesses also available in Spanish. Lea aqui en Espanol: Murphy y los derechos de los padres para recuperar el costo de los expertos.

Read Congressman Van Hollen's statement upon introducing the bill here, and read the IDEA Fairness Restoration Act here. COPAA is extremely grateful to Congressman Van Hollen and Congressman Sessions for their leadership on H.R. 2740 and their dedication to children with disabilities. Also, COPAA thanks Senator Kennedy and Congressman Lewis for their leadership on this issue in the Civil Rights Act and urges reintroduction of that bill, with letters to Senator Kennedy and Congressman Lewis.

Make the Burden of Proof Fair and Equitable; Override Schaffer v. Weast

Congress should override Schaffer v. Weast (2005), placing the burden on parents who are the least equipped to bear it. School districts should bear the burden of proof because IDEA requires them to affirmatively identify, evaluate, and provide a free appropriate public education to children with disabilities. They have far more resources to show that they have in fact carried out this obligation. Parents lack the resources and expertise available to school districts and are at a distinct disadvantage in hearings. Many proceed without counsel for lack of resources and many cannot afford expert witnesses. Placing the burden of proof on the school district simply helps level the playing field for parents when they are forced to seek a hearing because the school district has denied their child a free appropriate public education.

For more information about the importance of overriding Schaffer and placing the burden of proof on school districts, see COPAA's brochure here.

Congress Should Ensure the IDEA is Properly Interpreted to Require that
Children with Disabilities Receive Educations that Provide Meaningful Benefit

When Congress passed the IDEA in 1975, it was concerned not only with the 1.75 million children with disabilities receiving no education, but the 2.5 million receiving inadequate educations. Thirty-three years later, many children still receive inappropriate educations that do little to prepare them for maximum independence and success in the workplace and higher education.

The IDEA guarantees children a free appropriate public education, but some courts interpret this to mean an education that provides only some educational benefit. These cases harm children with disabilities and ultimately harm our society and economy as children do not receive the education and skills they need for maximum independence. Children with disabilities should have the right to equality of opportunity and an education that provides meaningful educational benefit.

Many parents report increasing concerns that their children are not being taught the essential skills they need to succeed, causing them to fall further behind and in need of intensive services to catch up. Many schools fail to identify many children with disabilities and once identified, poorly serve them. Nearly 1/3 of youth with disabilities drop out of school, facing far fewer employment opportunities than their non-disabled peers.

COPAA's survey of its members reported that students with disabilities often receive inadequate educations. 93.6% of survey respondents reported evaluations that missed a child's disability or inadequately measured educational needs. 92.8% reported experiencing situations in which children did not receive appropriate services unless there was an independent education evaluation or a parent-provided evaluation. 79.8% had handled at least one situation where a child's education was so inferior that the school district had to provide compensatory education or services. 89% reported that a district had offered an IEP on which goals were not measurable, to the child's detriment.

Some courts continue to find that poor educations are permissible under IDEA and to set low and inadequate standards for what children must be taught. For example, the Tenth Circuit held in 2008 that a child received some education benefit even though he was regressing and unable to generalize the basic self-help and social skills he had. Thompson R2-J School Dist. v. Luke P., No. 07-1304 (10th Cir. 2008). Congress should make clear that these cases are incorrectly decided and that IDEA requires that children achieve meaningful educational benefit, as other Courts have made clear. IDEA's stated "national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities" must be made a reality.

Override Buckhannon and Restore Attorneys Fees in Settlements

Congress should override Buckhannon Board & Care Home, Inc. v. W. Va. Dep't of Health & Human Res. (2000). In Buckhannon, the Supreme Court held that parties are not "prevailing" parties if they settle and their case was the catalyst for change by defendants, unless their settlement was by judicial or administrative order. Yet, few hearing officers will order such consent decrees. Buckhannon has made it much harder for parents without substantial financial resources to find attorneys willing to take their cases. Making matters worse, many school districts settle only after parents have been forced into prolonged and costly litigation and hearing preparation. This leaves parents unable to pay hefty legal bills. Many parents are deterred from seeking a remedy when because they cannot recover attorneys' fees if they settle, and cannot afford to pay the fees themselves. Because IDEA relies on parents as private attorneys general for enforcement, an override is important.

COPAA recently sent letters supporting a Buckhannon override and thanking Senator Edward Kennedy, Chair of the Senate Health Education and Welfare Committee and Congressman John Lewis for their leadership. They both sponsored override legislation in the last session of Congress as part of the Civil Rights Act bill. Copies of the letters are here: Senator Kennedy and Congressman Lewis. Read COPAA's Highlights Sheet about Buckhannon and a story about how the case impacted one family here and read a more detailed Q&A here.

Congress Should Pass Legislation to Apply the Statute of Limitations
to Ongoing Violations.

IDEA 2004 imposes a 2 year statute of limitations. When a child has been denied FAPE for many years and the violation is ongoing, Congress intended that parents obtain compensatory education for the full period, not just the last two years. Senate Report No. 108-185 at 40. Some hearing officers and courts have ignored the legislative history and held that the statute of limitations cannot be extended beyond 2 years. Providing a remedy for only the last two years is not sufficient to remedy the harm created when a child has languished in an inadequate program for several years. Moreover, barring remedies for ongoing violations can create incentives for school districts to avoid providing FAPE as long as possible. The problems are even worse in states with one-year statutes of limitations.

Many under-educated parents, including those who are poor, less literate, less aware of their rights, or have poor English skills, are unlikely to know that the IDEA is being violated. COPAA members repeatedly are confronted by school officials who fail their legal obligation to "find" and identify children with disabilities for years, or who provide educations and IEPs so inadequate that they violate federal law for years. In Reid v. District of Columbia, the school district failed to identify a child in second grade, when he was about a year behind his peers in reading, even though his learning disabilities should have been apparent to trained educators. He was finally identified as having a disability in fifth grade, but the school district still failed to serve him appropriately. His learning deficits deepened with each year of neglect, so that at age 12, he was four years behind in reading. Children in similar situations deserve full compensatory education, not just 2 years worth of remedy.

Indeed, without legal liability for continuing violations of the IDEA, school districts have incentives to avoid their Child Find obligations as long as possible, and to underserve those children who are identified, since they will only be responsible for the last year or two of illegal conduct. This situation should be corrected by making clear that the two-year statute of limitations does not bar obtaining a remedy for cases involving ongoing violations, as the Senate intended.

Ensure Parents and Experts Have a Reasonable Right to Observe
in the Classroom

Parents of children with disabilities and their experts often need to observe the classroom to monitor provision of FAPE to their children or to otherwise enforce their children's rights. They may need to observe the child's educational services, a proposed placement, whether accommodations are provided health and safety needs, and other matters. For many years, they were welcome in the classroom. Many parents and advocates increasingly report that they, or their expert witnesses, have been denied access to their child's classroom to observe, or that their access is so limited as to be meaningless.

In a recent Georgia case, a parent was denied the ability to observe her child once she raised a concern about his placement. The district would only allow her to observe her child for 15 minutes on any day, through a window of his self-contained classroom, meaning that it took weeks to observe a full day in 15 minute increments. Her son is nonverbal and self-injurious, and his records indicated that his IEP was not being implemented and he had made no progress. When she was denied the ability to observe a full day, she sought a private evaluation and the district denied her psychologist the right to observe. The hearing officer upheld the district's actions. G.J. v. Muscogee County School District, No. OSAH-DOE-SE-0902167-106-Miller (Georgia OAH Nov. 5. 2008). Surely this is not what Congress intended. Yet, this not atypical; many districts artificially restrict the ability to observe.

Meaningful parental participation in the education of one's children should include the right to observe. When parents exercise their rights to due process, observation is a crucial part of the case, especially in light of lower court decisions deferring to school district witnesses over parent's experts precisely because those witnesses have the ability to observe children. Without this right, parents are on an unlevel playing field with obstacles they cannot overcome. Congress should make clear through legislation that reasonable observation periods must be allowed that are sufficiently long to effectively observe the child's program and proposed program.

Make IDEA's Procedural Protections Effective.

Increasingly, parents of children with disabilities confront an unlevel playing field that does little to assure a fair hearing process. Resolution sessions fail to achieve their objective and are misused as fishing expeditions. School districts refuse to respond to due process complaints. Motions for insufficiency are used as obstacles to a hearing. Because the IDEA is primarily enforced by parents bringing private actions, it is important to protect and strengthen due process hearing rights.

IDEA has always favored neutral mediation, a tool that is proven to work to reduce litigation. Neutrality is crucial to building trust among mediation participants, so that a resolution may be reached. Mediators are both neutral and professionally trained. IDEA 2004 introduced mandatory school-run resolution sessions before a case may proceed to a hearing. These are often ineffective for protecting children's rights. The facilitators, as school district employees, are not neutral. Districts use the 30 day resolution period as a waiting period, halting the ability of parents to have a hearing and achieve appropriate educational services for their child. Some districts create hostile and intimidating environments for parents, particularly those not represented by counsel.

In addition, Congress should act to prevent districts from abusing motions for insufficiency. IDEA '97 and 2004 list the same very basic requirements for due process complaints. IDEA 2004 gave school districts the right to move to dismiss as "insufficient" due process complaints that do not contain these basic elements. 20 U.S.C. § 1415(b)(7)(A); 34 C.F.R. § 300.508(a). Some districts misuse this power to demand that parents file highly-specific due process complaints and to obtain dismissals by hearing officers if parents do not. This is the opposite of what Congress intended. As the Senate explained, Congress "does not intend for a notice of a due process complaint to reach the level of specificity and detail of a pleading or complaint filed in a court of law." Senate Report No. 108-185 at 34-35.

Furthermore, action is needed to prevent school districts from ignoring the statutory requirement to respond to due process complaints. Under IDEA 2004, school districts that receive due process complaints, must give parents "a response that specifically addresses the issues raised" in the complaint, a requirement incorporated in the regulations at 34 C.F.R. § 300.508(e)-(f). School districts often fail to respond arguing that IDEA provides no penalty for failing to do so. Many hearing officers hold that they lack the ability to order any sanction or do anything to districts that fail to respond. Congress should make clear that districts must respond.

End the Use of Restraints, Seclusion, and Other Aversive Interventions
Upon Children with Disabilities in Our Nation's Schools.

Legislation should be enacted to stop the use of restraints, seclusion, and aversive interventions on children with disabilities in our schools. No child with a disability should be subjected to neglect, abuse, or injury under the guise of providing educational or therapeutic services, regardless of the setting. Abuse violates children's rights and is neither educational nor effective. Every day, children are brought to the ground and straddled, strapped or tied in chairs and beds. They are forced into locked isolation rooms. They are subjected to other aversive interventions. Such horrific actions continue to occur despite clear dangerous and deadly consequences; and despite increasing concerns regarding legality, morality, and efficacy. Every time child is held in restraint, forced into an isolated room, or subject to aversive treatments, the risk of injury, death or trauma is exceedingly high, much higher in fact than the alleged danger of their actions.

Too often school personnel resort to abusive methods because they have not been thoroughly trained in and supported to use research-validated methods for promoting positive behavior change and crisis de-escalation. We have the tools to change this. Legislation should require all schools to implement programs of effective positive behavior supports, individually developed to meet the needs of each child. All staff must be trained in positive behavioral interventions. No child should be subject to restraint or seclusion except in emergencies in which the student poses a clear and present danger to themselves or others. School districts and their employees must be held accountable when such interventions are used. There must be mandatory reporting of each instance at local, state, and federal levels. Parents must be able to observe their children in class and ensure that they are not being subject to abusive interventions. If children are subjected to these wrongful interventions, their parents must have access to all available legal remedies, including the ability to seek redress in a court of law.

Read COPAA's Declaration of Principles Opposing the Use of Restraints, Seclusion, and Other Aversive Interventions Upon Children with Disabilities here. Read COPAA's January 2009 Statement Endorsing Legislation to End Abuse.