```

-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-02-559R						        

TITLE:     DCPS: Attorneys' Fees for Access to Special Education 
Opportunities

DATE:   05/22/2002 
				                                                                         
----------------------------------------------------------------- 

******************************************************************
** This file contains an ASCII representation of the text of a  **
** GAO Product.                                                 **
**                                                              **
** No attempt has been made to display graphic images, although **
** figure captions are reproduced.  Tables are included, but    **
** may not resemble those in the printed version.               **
**                                                              **
** Please see the PDF (Portable Document Format) file, when     **
** available, for a complete electronic file of the printed     **
** document's contents.                                         **
**                                                              **
******************************************************************
GAO-02-559R
     
GAO- 02- 559R Attorneys? Fees United States General Accounting Office

Washington, DC 20548

May 22, 2002 Congressional Subcommittees Subject: DCPS: Attorneys? Fees for
Access to Special Education Opportunities The District of Columbia Public
Schools (DCPS) has had difficulty meeting the obligation to its special
education students under the Individuals with Disabilities Education Act (20
U. S. C. sect. 1400 et seq.) (IDEA). By 1998, DCPS was experiencing serious
problems in conducting timely hearings requested by parents under IDEA and
in issuing final decisions within the required timelines. This, in turn,
resulted in an increasingly large number of parental complaints and legal
suits filed against DCPS to obtain access to the educational opportunities
called for under the act. As a result, the amount of attorneys? fees awarded
to parties who prevailed in the IDEA cases became costly to the District of
Columbia.

The District of Columbia Appropriations Acts for fiscal years 1999, 2000,
and 2001 limited the amount of appropriated funds that could be paid to an
attorney representing a prevailing party in an action brought against DCPS
under IDEA. Section 140( b) of the District of Columbia Appropriations Act
for fiscal year 2002 (Public Law No. 107- 96, 115 Stat. 923, 958 (2001))
directed the Superintendent of DCPS to report to the House and Senate
Appropriations Committees a complete itemized list of attorneys? fees
awarded by a court to plaintiffs who had prevailed in these types of cases
against the District of Columbia or DCPS under section 615( i)( 3) of IDEA
(20 U. S. C. sect. 1415( i)( 3)). The report was to include the amount of each
award, the amount paid on each award, unpaid balances on each award, as well
as other information. DCPS provided its final report to the House and Senate
Appropriations Committees on February 28, 2002.

Section 141 of the District of Columbia Appropriations Act for fiscal year
2002 also directed that we report on this topic. We were directed to
identify attorneys? fees awarded by the courts to prevailing plaintiffs that
were in excess of the appropriations acts? limitations. Section 141 also
directed us to provide a comparison, to the extent practicable, of the
causes of actions and judgments rendered against public school districts
with demographics and population comparable to those of the District.

This letter confirms the agreement reached between the staff of the
subcommittees and GAO as a result of our briefing on March 15, 2002, and
includes the information we presented at the briefing. As a result of the
briefing, it was agreed that the information provided satisfied our
reporting requirement under section 141 and that no additional work is
required.

GAO- 02- 559R Attorneys? Fees Page 2

Results in Brief

Based on our limited review of DCPS?s February 28, 2002, report on IDEA
awards and payments for fiscal years 1999, 2000, and 2001, we determined
that the appropriations acts? limitations had little if any impact on the
total amount awarded by the courts for the attorneys? fees of prevailing
parties for action brought against DCPS under IDEA. Our review included the
decisions cited by the DCPS report with respect to the courts? authority to
award attorneys? fees in excess of the appropriations acts? limitations. The
court decisions make it clear that the appropriations acts? limitations
applied only to the amount that the District could pay to a prevailing party
under IDEA and not the amount that the court could award. The decisions also
make it clear that where there is an independent legal basis to award
attorneys? fees, such as the Civil Rights Act, the court could do so without
regard to the appropriations acts? limitations. Therefore, for the awards
included in the DCPS report of February 28, 2002, the appropriations acts?
limits on the payment of fees awarded by the courts to an attorney of a
prevailing party under IDEA had little or no impact on the amount of fees
awarded to an attorney representing a prevailing party under IDEA.

To address the requirement to provide a comparison, to the extent
practicable, of causes of actions and judgments rendered against school
districts of comparable demographics and population to the District, we
reviewed data for the District and five other school districts and found
that the number of civil action decisions where parents prevailed and the
awards for attorneys? fees varied vastly. We believe factors such as the
history and scope of special education programs, as well the likelihood of a
district?s success in prevailing in IDEA complaints, can significantly
affect the number and types of cases a school district faces. Therefore, we
believe these factors need to be considered when comparing data for
attorneys? fees awarded under IDEA across school districts.

Background

Attorneys? fees provisions under IDEA provide the courts with the discretion
to award reasonable attorneys? fees to prevailing parties in actions brought
under IDEA. However, the District?s appropriations acts for fiscal years
1999, 2000, and 2001 imposed limits on the amounts payable for attorneys?
fees on a per hour and per case basis. 1 Table 1 shows the limits that the
1999, 2000, and 2001 appropriations acts for the District placed on amounts
payable to attorneys as fees for representing prevailing parties in actions
brought under IDEA.

1 See Public Law No. 105- 277, sect. 130, 112 Stat. 2681, 2681- 138 (1998) (D.
C. fiscal year 1999 appropriation); Public Law 106- 113, sect. 129, 113 Stat.
1501, 1517 (1999) (D. C. fiscal year 2000 appropriation); and Public Law No.
106- 522, sect. 122, 114 Stat. 2440, 2464 (2000) (D. C. fiscal year 2001
appropriation).

GAO- 02- 559R Attorneys? Fees Page 3 Table 1: Limitations on Attorneys? Fees
for Prevailing Parties for IDEA Cases

Fiscal year Hourly rate Limit per case

1999 $50 $1,300 2000 60 1,560 2001 125 2,500

In preparing its February 28, 2002, report to the Congress, DCPS sought to
identify all awards of attorneys? fees in IDEA suits as defined by section
140( b) of the 2002 appropriations act. The DCPS report to the Congress
itemized the amounts for attorneys? fees awarded to prevailing parties under
IDEA for fiscal years 1999, 2000, and 2001. DCPS?s report shows that for the
3- year period, $3.2 million was awarded for attorneys? fees, interest
payments, and litigation costs. 2 Detailed schedules included with the
February 28, 2002, DCPS report indicated that, as of the date of its report,
no further balances were due on the awards shown in the report.

Scope and Methodology

Because the information necessary to prepare the DCPS report under section
140( b) was the same information that we would need to prepare our report,
we reviewed the DCPS February 28, 2002, report and DCPS?s methodology for
compiling the underlying data, and concluded that DCPS?s approach for
gathering the information used to support the report was reasonable. We also
reviewed the DCPS report?s discussion of judicial decisions affecting the
award and payment of attorneys? fees during the period covered by the review
and found it to be an accurate representation of the law. This was further
supported by our review of nine court orders provided by DCPS. We concluded
that the detail contained in the nine court orders was consistent with the
information included in the DCPS report.

We also held meetings with DCPS and District officials and representatives
to understand the procedures they used to identify, compile, and report the
DCPS information to the Congress. In addition, we gained an understanding of
the procedures DCPS and the District took to ensure the completeness of the
population of cases identified as being brought under IDEA and the validity
of the data in the DCPS February 28, 2002, report. We relied on the
information provided by DCPS and did not determine the completeness,
accuracy, or validity of the attorneys? fees information DCPS reported to
the Congress in its February 28, 2002, report.

In order to identify school districts with some comparable demographics and
population characteristics as the District, we used U. S. Department of
Education data from the Local Education Agency Universe Survey: School Year
1999- 2000 3 to

2 Included in the total are amounts awarded to a Special Master appointed by
the U. S. District Court, District of Columbia, to assist the court in
resolving individual requests for immediate injunctive relief. Awards to the
Special Master do not represent payments to prevailing plaintiffs but are
made for reasonable fees and expenses incurred by the Special Master in
carrying out court- ordered duties and responsibilities. 3 The August 2001
survey is part of the Common Core of Data Nonfiscal surveys, which consist
of data

submitted annually to the National Center for Education Statistics by state
education agencies, the District of Columbia, American Samoa, Guam, the
Commonwealth of the Mariana Islands, Puerto Rico,

GAO- 02- 559R Attorneys? Fees Page 4 collect district and special education
enrollment information. In addition, we

collected student ethnicity information from several school districts. After
reviewing total student enrollment, minority enrollment, and the percentage
of special education students from several school districts, we identified
three districts with some similar demographics as DCPS- Oakland Unified
School District, Oakland, California; St. Louis City Public Schools, St.
Louis, Missouri; and San Antonio Independent School District, San Antonio,
Texas. In addition, we collected similar information from two school
districts adjacent to the District- Montgomery County Public Schools,
Rockville, Maryland, and Fairfax County Public Schools, Fairfax, Virginia.

In order to determine the number of court decisions and the amount of
attorneys? fees paid by these school districts, we collected data from each
school district?s office of special education and information from DCPS?s
February 28, 2002, report. We also interviewed school district officials to
gain an understanding of each districts? procedures for processing civil
actions brought under IDEA.

As a result of our limited review, we consulted with subcommittee staffs and
explained our findings. It was agreed that this satisfied section 141?s
requirements. We conducted our work from January through March 2002 in
accordance with generally accepted government auditing standards.

We provided our draft letter to DCPS officials and the District?s Office of
the Chief Financial Officer for their review and comment. We received
correspondence from the District?s Office of the Chief Financial Officer
indicating that it had no comments on our letter. DCPS provided suggested
technical and clarifying comments on this letter, which we incorporated as
appropriate.

Judgment Awards by the Court for Attorneys? Fees Were Not Limited

The DCPS report shows amounts awarded by the courts in excess of the
limitations established by the appropriations acts. DCPS?s February 28,
2002, report identified 99 payments related to court- ordered awards of
attorneys? fees and payments to a courtappointed Special Master in the
amount of $3.2 million. We noted that, for the nine court orders we
reviewed, either the District?s Office of Corporation Counsel (OCC) or
DCPS?s Office of General Counsel attorneys conducted reviews of the orders
issued by the courts and documented their review in memorandums, which
summarized the amounts that the presiding judges required the District pay
prevailing parties and the timing of the such payments.

In some cases where the court awarded attorneys? fees in excess of
appropriations acts? limits, the District obtained court orders delaying
required payment of the excess attorneys? fees until subsequent litigation
could address the court?s authority to award and the District?s authority to
pay the fees. The resulting court decisions make it clear that the
limitations in the 1999, 2000, and 2001 appropriations acts

the Virgin Islands, the Department of Defense, and the Bureau of Indian
Affairs regarding the most recent relevant information available about
student, staff, and graduate counts for public elementary and secondary
education agencies.

GAO- 02- 559R Attorneys? Fees Page 5 applied only to the District?s
authority to make payments for attorneys? fees awarded

under IDEA and not to the court?s authority to make awards in excess of the
cited limitations. The decisions also make it clear that when another law,
for example, the Civil Rights Act, 4 provided an independent legal basis for
awarding attorneys? fees, the appropriations acts? limitations did not
apply. Finally, in some instances the court ordered payments to be made by a
date certain with interest to run against the District if they were not paid
by that date. Therefore, the limit on the payment of fees awarded to an
attorney of a prevailing party under IDEA had little, if any, impact on the
amount of fees awarded by the courts.

Tables 2 through 5, which are reproduced from DCPS?s February 28, 2002,
report, provide information regarding the court- ordered attorneys? fees to
prevailing IDEA plaintiffs in fiscal years 1999, 2000, and 2001 and a
summary of the court- ordered attorneys? fees for the 3- year period. In
total, the DCPS report identified 99 payments related to court- ordered
awards of attorneys? fees and payments to a court- appointed Special Master
in the amount of $3.2 million for the 3- year period of which $2.9 million
was for immediate payment. Detailed schedules included with the February 28,
2002, report indicated that as of the date of its report, no further
balances were due on the judgments shown in the report. This information is
taken from the DCPS February 28, 2002, report and is presented for
informational purposes only. Accordingly, we have not determined the
completeness, accuracy, or validity of the attorneys? fees information that
DCPS reported.

Table 2: Attorneys? Fees to Prevailing IDEA Plaintiffs in Fiscal Year 1999
Total Judgments

Judgments for immediate payment

Awards paid by OCC $286,925 $222,726 Awards paid by DCPS 342,055 179,514
Subtotal 628,980 402,240 Awards to Special Master 116,492 116,492

Total $745,472 $518,732

Source: Unaudited table from the DCPS February 28, 2002, report. 4 In the
District of Columbia, attorneys? fee awards under the Civil Rights Act and
payments may cover not solely attorneys? ?fees? in a sense of compensation
for the hours spent by attorneys in litigating matters, but also hourly
compensation for paralegals and other attorney assistants, as well as
standard expenses of litigation such as copying, messenger, and filing
costs. Fee requests also may include expert witness fees.

GAO- 02- 559R Attorneys? Fees Page 6 Table 3: Attorneys? Fees to Prevailing
IDEA Plaintiffs in Fiscal Year 2000

Total judgments Judgments for

immediate payment Awards paid by OCC $440,972 $241,462 Awards paid by DCPS
98,194 24,926 Subtotal 539,166 266,388 Awards to Special Master 218,401
218,401

Total $757,567 $484,789

Source: Unaudited table from the DCPS February 28, 2002, report. Table 4:
Attorneys? Fees to Prevailing IDEA Plaintiffs in Fiscal Year 2001

Total judgments

Judgments for immediate payment

Awards paid by OCC $1,268,362 $1,384,522 Awards paid by DCPS 1,743 18,085
Subtotal 1,270,105 1,402,607 Awards to Special Master 471,619 471,619

Total $1,741,724 $1,874,226

Source: Unaudited table from the DCPS February 28, 2002, report. Table 5:
Attorneys? Fees to Prevailing IDEA Plaintiffs in Fiscal Years 1999 through
2001

Total judgments Judgments for

immediate payment Awards paid by OCC $1,996,258 $1,848,708 Awards paid by
DCPS 441,993 222,526 Subtotal 2,438,251 2,071,234 Awards to Special Master
806,513 806,513

Total $3,244,764 $2,877,747

Source: Unaudited table from the DCPS February 28, 2002, report.

GAO- 02- 559R Attorneys? Fees Page 7

Comparability with Other School Districts

Section 141 also directed us to provide a comparison, to the extent
practicable, of causes of actions and judgments rendered against public
school districts of comparable demographics and population to the District.
We identified three school districts- Oakland Unified School District, St.
Louis City Public Schools, and San Antonio School District- for this purpose
based on total student enrollment, minority enrollment, and percentage of
special education students. In addition, we collected similar information
from two school districts adjacent to the District- Montgomery County Public
Schools, Rockville, Maryland, and Fairfax County Public Schools, Fairfax,
Virginia. (See table 6.)

Table 6: Characteristics of Selected School Districts, 2001 through 2002
School Year Enrollment by ethnicity (%)

District of Columbia

Oakland Unified c St. Louis

City San Antonio

Dependent Montgomery

County Fairfax

County Hispanic 6,160 (9%) 15, 875 (30%) 513 (1%) 49, 453 (86%) 21, 731
(16%) 22, 556 (14%) African American 57, 498 (84%) 23,813 (45%) 33,226 (81%)
5, 544 (10%) 28,426 (21%) 16,909 (10%) Asian American 1,369 (2%) 8,467 (16%)
596 (1%) 147 (0%) 17, 895 (14%) 25, 771 (16%) White 3, 422 (5%) 3,175 (6%)
6,786 (17%) 2, 282 (4%) 65, 849 (49%) 89, 530 (56%) Other a 0 1, 588 (3%) 37
(0%) 36 (0%) 407 (0%) 5,818 (4%)

Total enrollment 68,449 52,918 41,158 57,462 134, 308 160,584

Enrollment by students in Special education (%) b 11, 659 (17%) 5, 767 (11%)
7, 257 (18%) 7, 656 (13%) 16,359 (12%) 22,162 (14%) (a) ?Other? includes
racial categories such as multiracial, Alaskan, or American Indian.

(b) Count reflect students with Individualized Education Programs, which are
written statements for each child with a disability indicating information
such as child?s education performance level and goals.

(c) Used percentage given by the school district to derive number of
students. Source: School districts? offices of special education.

Among these school districts, the number of court decisions where parents
prevailed, as well as instances in which attorneys? fees were awarded,
varied. (See table 7.) For example, the Oakland Unified School District, St.
Louis City Public Schools, and San Antonio Independent School District had
no court decisions issued during fiscal years 1999 through 2001. In
contrast, in its February 28, 2002, report, DCPS showed 27 individualized
civil action cases brought under IDEA where parents prevailed and attorneys?
fees were awarded. This resulted in 99 payments related to court- ordered
awards of attorneys? fees and payments to a court- appointed Special Master
in the amount of $3.2 million in the District.

GAO- 02- 559R Attorneys? Fees Page 8 Table 7: Court Decisions Where Parents
Prevailed and Attorneys? Fees Awarded for

Selected School Districts, Fiscal Years 1999 through 2001 Action

District of Columbia a Oakland

Unified St. Louis

City San Antonio

Dependent Montgomery

County Fairfax

County Number of decisions where parents prevailed 27 0 0 0 4 1

Number of attorneys? fees awarded 99 0 0 0 4 0

Amount of attorneys? fees (dollars in thousands) $3,200 $0 $0 $0 $146 $0

(a) Includes information related to the Special Master. Source: Unaudited
February 28, 2002, DCPS report and the other school districts? offices of
special education data.

When comparing attorneys? fees awarded by the courts across school
districts, we believe additional factors such as the history and scope of
special education programs, as well the likelihood of a district?s success
in prevailing in IDEA complaints at the administrative or civil level, can
significantly affect the number and types of court cases a school district
faces. For example, a jurisdiction with a history of difficulties in
delivering special education services to its students may have a
comparatively higher number of parental administrative complaints and legal
suits filed. On the other hand, the history and likelihood of parental
success in filing administrative complaints or legal suits may also
influence the number of legal complaints filed and, ultimately, the
attorneys? fees awarded by the courts to prevailing parties. Therefore, we
believe these factors need to be considered when comparing data for
attorneys? fees awarded under IDEA across school districts.

- - - - As a result of our March 15, 2002, briefing to your staffs, it was
agreed that the information provided at that time would satisfy our
reporting requirement under section 141; accordingly, we are providing this
letter to that effect. If you have any questions about this letter, please
contact me at (202) 512- 9406 or by e- mail at

franzelj@ gao. gov. We are also sending copies of this letter to the
District of Columbia?s Chief Financial Officer, the Superintendent of the
District of Columbia Public Schools, and other interested parties. This
letter is also available at no charge on GAO?s home page at http:// www.
gao. gov. Key contributors to this letter were David Bellis, Richard
Cambosos, Charles Norfleet, Keith Thompson, and Michelle Zapata.

Jeanette M. Franzel Acting Director Financial Management and Assurance

GAO- 02- 559R Attorneys? Fees Page 9

List of Subcommittees

The Honorable Mary Landrieu Chairwoman The Honorable Mike DeWine Ranking
Minority Member Subcommittee on the District

of Columbia Committee on Appropriations United States Senate

The Honorable Richard Durbin Chairman The Honorable George Voinovich Ranking
Minority Member Subcommittee on Oversight of Government Management,

Restructuring and the District of Columbia Committee on Governmental Affairs
United States Senate

The Honorable Joe Knollenberg Chairman The Honorable Chaka Fattah Ranking
Minority Member Subcommittee on the District

of Columbia Committee on Appropriations House of Representatives

The Honorable Constance Morella Chairwoman The Honorable Eleanor Holmes
Norton Ranking Minority Member Subcommittee on the District

of Columbia Committee on Government Reform House of Representatives

(194106)
*** End of document. ***
```