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Prevailing plaintiffs may recover the costs of expert fees in actions brought under the Individuals With Disabilities Education Act, the 2nd U.S. Circuit Court of Appeals ruled Wednesday. Addressing a case of first impression for the circuit, the panel said that expert fees fall under the category of “costs” that can be awarded to successful plaintiffs under the act, 20 U.S.C. �1415(i)(3)(B). But in Murphy v. Arlington Central School District Board of Education, 03-7850-cv, the circuit, in an opinion written by Judge Robert Katzmann, also said that, going forward, any applications for fees for experts and consultants used in Individuals With Disabilities Education Act actions will “normally not be approved unless the application is accompanied by time records contemporaneously maintained by the person performing the services.” The issue arose on appeal from a ruling by Southern District Judge Charles Haight Jr., who had found that such fees are compensable as costs under the IDEA. Pearl and Theodore Murphy had filed a pro se complaint seeking to force the Arlington Central School District to pay the private school tuition of their son, Joseph. After prevailing in the action, the couple asked Haight to order the district to pay $29,350 in fees for the services of educational consultant Marilyn Arons. The school district argued that the IDEA does not allow “lay advocates” to recover attorney fees and, while expert fees are recoverable, Arons’ fees did not qualify because she did not testify as an expert; was not a litigation consultant; and had no specialized training in courtroom practice or procedure. The district also argued that Arons’ time records were insufficient and her fees “pertaining to her representation” of the Murphys “during non-judicial ‘special education due process hearings’ were specifically exempted from the IDEA.” Haight ruled that while Arons could not collect attorney fees, she could collect fees for expert consulting services, and awarded the Murphys $8,650. Section 1415(i)(3)(B) provides that “the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is a prevailing party.” On appeal, the school district contended that the Murphys could not collect fees for Arons’ services because she was not an attorney. The couple countered that the use of the term “costs” in the statute embraces expert fees. Writing for the circuit, Katzmann said that both the 8th and 7th circuits have concluded that the IDEA does not allow expert witness fee reimbursement. And he said that the U.S. Supreme Court rejected expert fees in the context of civil rights action under 42 U.S.C. �1988 in West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991), although Congress later amended the law to allow the fees. LEGISLATIVE INTENT But the Casey court, he said, expressly contrasted expert fees in that context with fees in IDEA cases, noting that a congressional conference committee report stated that the conferees “intend that the term ‘attorneys fees as part of the costs’ include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary to the preparation of the … case.” Katzmann said, “We believe this dicta, as well as the legislative history it relies upon, require us to construe the IDEA as providing for the reimbursement of costs such as those incurred here by Arons in conducting the expert evaluation.” He added, “For as the Supreme Court, itself, strongly intimated, the IDEA is different from ordinary fee-shifting statutes, because the legislative history of the IDEA unambiguously demonstrates that Congress expressly intended to allow, rather than prevent, prevailing parties to recover the costs of experts.” The circuit’s holding, he said, “is also consistent with the purposes of the IDEA,” which, in the words of the statute, are to “ensure that children with disabilities have available to them a free appropriate public education that emphasizes special education and related services” and to “ensure that the rights of children with disabilities and their parents are protected.” CRITICAL ELEMENT He wrote, “Expert testimony is often critical in IDEA cases” and an expert like Arons falls within the statute’s definition of “individuals with special knowledge,” whom parents have the right to bring to IDEA proceedings, along with an attorney, to make their case. In closing, Katzmann said that while attorneys are required to document fee applications with contemporaneous time records, no such requirement exists for experts or consultants. But having recognized the right of winning plaintiffs to recover for such fees — and not wanting to penalize the Murphys in this case — Katzmann said, “We see no reason why such experts or consultants, rendering professional services, should not be required to provide similar documentation in support of their claims for fees” in the future. Judges Jon O. Newman and Rosemary Pooler joined in the opinion. Jeffrey J. Schiro of Kuntz, Spagnuolo, Scapoli & Schiro represented the school district.

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