Attorneys’ Fees and the Individuals with Disabilities Education Act
Myths and Realities
October 3, 2003
 
In 1986, Congress added provisions to the Individuals with Disabilities
Education Act that allow parents of students with disabilities to receive
reimbursement for their attorneys’ fees when a court or hearing officer
determines that
their child has been denied a free, appropriate public education.  In a 2000
publication, Back to School on Civil Rights, the National Council on
Disability affirmed the reality that parents are the primary enforcers of
IDEA.  The
attorneys’ fees provision in the law is among the most important tools parents
have to secure an appropriate education for their child. This document seeks to
respond to concerns that have been raised about the attorneys’ fees
provisions in IDEA.  CCD believes strongly that the current attorneys’ fees
provisions
in IDEA are appropriate and must not be altered.
 
Myth # 1: The attorneys’ fees provisions have resulted in an explosion of
litigation.
 
Reality: IDEA litigation is decreasing. A recent GAO study  found that
requests for hearings, generally the first step in any IDEA litigation,
decreased
between 1996 and 2000, the last year for which we have data. Overall, dispute
resolution activity was relatively low, with only 5 due process hearings held
per 10,000 students in special education.  A small percentage of due process
hearings proceed further to court (2%) .  Often A case must proceed all the way
to court in order for parents of a student to obtain attorneys’ fees unless
the
state education agency (SEA) or local education agency (LEA) agrees to pay
them as part of a settlement. 
 
Myth # 2:  Financially-strapped schools are reducing classroom services
because they have to pay attorneys’ fees.
 
Reality:  Schools spend less than one-half of one percent of their special
education resources on dispute resolution, including attorneys’ fees.
 
For the 1999-2000 school year, total spending on the entire dispute
resolution process for special education, including mediation costs, was less
than one
half of one percent of the total spending on special education (.03%).   There
are no data on the amount spent specifically on attorneys’ fees for students
who are prevailing parties. However, as students only obtain fees when they
win and little money is spent on due process overall, it simply cannot be the
case that paying attorneys’ fees to students who are prevailing parties is an
unreasonable expense that is taking funds out of the classroom. 
 
Myth # 3: Parents can drag out court cases because attorneys’ fees will be
reimbursed.
 
Reality: IDEA includes sanctions to deter such action.  Attorneys’ fees are
only awarded to parents who prevail.  Moreover, attorneys’ fees will be
reduced
if parents unreasonably protract the final resolution of a case, if the
attorneys’ fees unreasonably exceed the prevailing rate in the community or if
excessive time is spent by the attorney. The only exception is when the
education
agency itself unreasonably protracts the proceedings.
 
Myth # 4: Attorneys’ fees give parents an unfair advantage over schools.
 
Reality:  The exact opposite is true.  Parents assume the full financial risk
when they set out to challenge the school system.  Schools frequently have
staff attorneys who specialize in disability education law, and whose salaries
are covered by taxpayer’s money.  Schools have access to taxpayer’s money
to
finance their court cases, including the cost of legal research and expert
testimony. Some school districts also cover the costs of their own legal fees,
as
well of those of the parents if parents win, with insurance coverage.  It is
only the possibility of receiving attorneys’ fees if they prevail that gives
parents some chance of finding an attorney who will help them enforce IDEA on
behalf of their child.
 
Myth # 5: Parents file hearing requests to push for services beyond that
which schools are legally obligated. School districts settle for more than they
are legally obligated to in order to avoid paying attorneys’ fees.
 
Reality:  There are no data to confirm whether parents are pushing for
services beyond those required to ensure their child receives a free,
appropriate
public education.  Similarly, there are no data to confirm the number of
parents
who believe their child is not receiving a free, appropriate public education
but who fear retribution from the school if they file a hearing request. 
 
Attorneys’ fees are only awarded when a court of hearing officer determines
that the school denied the child a free, appropriate public education.  In
addition, the hearing and mediation process were created to resolve disputes
that
arise when schools and parents disagree on what services, supports and
placements are necessary for a child to receive a free, appropriate public
education.
In many instances, filing a hearing request results in a settlement with the
school district. 
 
Once the hearing process begins, there are limitations on the amounts and
circumstances under which attorneys’ fees can be awarded. For example, under
current law, the school does not have to comply with the parent’s request for
services, but can actually limit its attorneys’ fee risk by formally offering
what
the school believes is appropriate for the child.  If the parent rejects that
offer, goes to hearing and wins only what the school originally offered or
something less that than what the school offered, parents cannot recoup all of
their attorneys’ fees.  Schools are liable at most for fees accrued up to the
date of the offer.  
 
Moreover, there are a number of options that a school district may use other
than settling if the parent’s claim has insufficient legal merit. If the
parent
’s request was frivolous, the school district can obtain ITS fees and costs
from the parent. 
 
Myth # 6: The legal standard for IDEA cases is so low that if a teacher or a
principal makes one little mistake, like failing to invite someone to the IEP
meeting, the district is found liable in court.
 
Reality: Schools are not liable for procedural violations unless the mistake
caused substantial harm to the student or his or her parents.  Thus, if the
person who was not invited to the meeting was the parent, it is likely the
district would be found liable for violating the parent’s right to participate
in
the creation of the IEP – a fundamental principle of the IDEA.  But if the
overlooked party was not pivotal to the decision making process, probably the
most
severe penalty would be an order sending the case back for a "do over,"
requiring that the IEP to be held with the proper participants.  Often no
correction would be required at all.




Sandy, Illinois (alpy2@...)
Volunteer Co-Webmaster, <A
HREF="www.ourchildrenleftbehind.com">www.ourchildrenleftbehind.com</A> (IDEA
reauthorization)


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