The prospect of paying a parent’s attorney fees in a special
education dispute is significant. Since a due process hearing and its
potential court appeal can involve many hours of preparation and days
of testimony, the ultimate bill for attorney’s fees can be daunting.
However, the risk can be limited by planning ahead. Below, we will
review several proven strategies for limiting or eliminating this risk.
I. Don’t Let the Parent Be a “Prevailing Party”
A. Definition of “Prevailing Party”
II. Don’t Wait for the Hearing Officer to Resolve a “Material Issue”
A. The Material Alteration Rule
1. Did the Hearing Officer/court order a “material change in the relationship” between the parents and the school? Actions are not a “material change” if the District had already told the parent that they planned to take the action.
2. Material change in the relationship does not occur when the Hearing
Officer merely orders:
a. Convening of an IEP meeting; or
b. Creation of an IEP or related document (e.g. behavior intervention plan) that school planned on doing in any event.
B. De Minimus Rule – the Parent Must Prevail on a Significant Claim
1. Deficiency IEP specificity.
2. Non-compliance with technical requirements of IDEA.
3. Courts look at “primary motivation” of the parents to commence the hearing.
III. Offer of Settlement Rule
A. The Rule: A parent may not be awarded any attorney fees for services rendered after the school district tenders an offer of settlement, provided that:
1. The offer of settlement is made at any time more than ten days before the due process hearing begins;
2. The offer of settlement is not accepted within ten days; and
3. The Hearing Officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.
B. Offer of settlement should address:
1. Accommodations to parents; and
2. Related need for any compensatory services to parent.
C. If parent obtains more relief than stated in the offer of settlement, parents can obtain attorney’s fees only for work relating to the “extra” relief obtained.
D. If settlement is reached, it should not be “approved” by the Hearing Officer.
1. A Hearing Officer’s “approval” may be treated as an “order”. If the settlement is not “voluntary”, parents can obtain attorneys fees.
E. Offer and settlement rule should be used in practically every hearing request.
IV. Obtaining Attorneys Fees from the Parents
A. IDEA 2004 provides that parent attorneys fees may be obtained by the school district from the parents in certain circumstances. The school district may obtain attorney fees:
1. From the parents attorney if it is determined that the hearing request is “frivolous, unreasonable, or without foundation”; and
2. From the parents or their attorney if the hearing request was presented for any “improper purpose” such as to “harass, cause unnecessary delay, or to needlessly increase the cost of litigation”.
B. Can be used to convince parents to settle.
C. Can be used to
convince parents to reduce the number of issues to be reviewed at the
Due Process Hearing.