The Individuals with Disabilities Education Act (IDEA): Attorneys' Fees Provisions in Current Law and in H.R. 1350 as Passed by the House and Senate, 108th Congress
Released: 2004-06-08T00:00:00

RS21690 -- The Individuals with Disabilities Education Act (IDEA): Attorneys' Fees Provisions in Current Law andin H.R. 1350 as Passed by the House and Senate, 108th Congress

Updated June 8, 2004

Background

The Individuals with Disabilities Education Act (IDEA) (1) authorizes federal funding for the education of children with disabilities and requires, as a conditionfor the receipt of suchfunds, the provision of a free appropriate public education (FAPE). (2) The statute also contains detailed due process provisions to ensure the provision of FAPE andincludes a provisionfor attorneys' fees. Originally enacted in 1975, the act responded to increased awareness of the need to educatechildren with disabilities, and to judicial decisions requiring that statesprovide an education for children with disabilities if they provided an education for children without disabilities. The attorneys' fees provisions were added in 1986 by the HandicappedChildren's Protection Act, P.L. 99-372 . (3)

Congress is presently considering reauthorizing IDEA. H.R. 1350 , 108th Congress, passed the House on April 30, 2003, by a vote of 251 to 171. On May 13, 2004, theSenate incorporated S. 1248 in H.R. 1350 and passed H.R. 1350 in lieu of S. 1248 by a vote of95 to 3. (4)

Current Statutory Language Relating to Attorneys' Fees (5)

Under current law, a parent may file a complaint with respect to the identification, evaluation, educational placement, provision of a free appropriate public education or placement in analternative educational setting. The parents then have an opportunity for an impartial due process hearing (6) with a right to appeal. (7)

At the court's discretion, attorneys' fees may be awarded as part of the costs to the parents of a child with a disability who is the prevailing party. (8) Attorneys'fees are based on the ratesprevailing in the community and no bonus or multiplier may be used. There are specific prohibitions on attorneys'fees and reductions in the amounts of fees. Fees may not be awardedfor services performed subsequent to a written offer of settlement to a parent in certain circumstances including ifthe court finds that the relief finally obtained by the parents is not morefavorable to the parents than the offer of settlement. Also, attorneys' fees are not to be awarded relating to anymeeting of the Individualized Education Program (IEP) team unless themeeting is convened as a result of an administrative proceeding or judicial action or, at the state's discretion, for amediation. Current law specifically provides that an award ofattorneys' fees and related costs may be made to a parent who is the prevailing party if the parent was substantiallyjustified in rejecting a settlement offer. Attorneys' fees may bereduced in certain circumstances including where the court finds that the parent unreasonably protracted the finalresolution of the controversy; the amount of attorneys' feesunreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonablycomparable skill, reputation and experience; where the time spent andlegal services furnished were excessive considering the nature of the action or proceedings; and when the court findsthat the parent did not provide the school district with theappropriate information in the due process complaint. This information includes the name of the child, the child'saddress and school, a description of the problem, including factsrelating to the issue, and a proposed resolution to the problem. (9)

Attorneys' Fees Provisions in H.R.1350, as Passed by the House

The attorneys' fees provisions in H.R. 1350 would change the determination of the amount of attorneys' fees by requiring the Governor, or other appropriate state official, todetermine rates. As discussed above, under current law, attorneys' fees are determined by the court hearing the case.

More specifically, H.R. 1350 would amend current law by changing the general statement under current law that attorneys' fees may be awarded at the court's discretion toread: "Fees awarded under this paragraph shall be based on rates determined by the Governor of the State (or otherappropriate State official) in which the action or proceeding arose forthe kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded underthis subsection." In addition, the amendment provides that theGovernor or other appropriate official shall make these rates available to the public on an annual basis. The otherprovisions of current law regarding the prohibition of attorneys' fees incertain situations, the exception to this prohibition, and the reduction of attorneys' fees in certain circumstances werenot amended.

The House report discussed the proposed attorneys' fee provision noting that "the Committee remains concerned about excessive litigation under the act and the burden that localeducational agencies face in paying fees to attorneys." (10) The report noted that the Governor may take the geographic differences in a state into account andencouraged the Governor tomake the established rates public prior to the beginning of the school year. This provision was described in thereport as helping to "restore balance to the proceedings under this Act andcontinue to provide early opportunities for schools and parents to foster more cooperative partnerships and resolveproblems." (11)

However, the attorneys' fees provision in H.R. 1350 has been criticized. The minority views in the committee report argued for removal of the language stating: "There is noquestion that this will limit access to knowledgeable and experienced legal representation by the people who needit the most-low income, inexperienced parents seeking to obtain thebest education for their children with disabilities." (12)

Attorneys' Fees Provisions in H.R.1350, as Passed by the Senate

The Senate bill would keep the same general framework as is in current law; a federal district court may, in its discretion, award reasonable attorneys' fees as part of the costs to theparents of a child with a disability who is the prevailing party. However, <108>the Senate bill would make somechanges. The Senate bill would add a requirement for apreliminary meeting prior to a due process hearing to provide an opportunity to resolve the complaint and the billspecifically provides that attorneys' fees are not available for thispreliminary meeting. In addition, the bill would add language to the provision on the reduction of attorneys' feesclarifying that if the parents' attorney does not provide the requiredinformation to the local educational agency, the court shall reduce the attorneys' fees.

The Senate bill would add a new subsection specifically allowing parents to represent their children in court. Generally, an individual has a right to proceed as his or her own counsel infederal court. (13) Rule 17 of the Federal Rules ofCivil Procedure precludes minors from proceeding pro se although a representative or guardian maysue on the minor's behalf. However, several circuits have held that the right to proceed pro se in federal court does not give parentswho are not attorneys the right to represent their children. (14) The IDEA casesthat have specifically addressed this issue have generally found that parents cannot proceed pro se onbehalf of their child. (15) The leading case is Collinsgru v. Palmyra Board ofEducation where the third circuit held that "parents seeking to enforce their child's substantive right to anappropriate education under the IDEA may not represent their child in federalcourt." (16) However, in a detailed examination ofthe issue, the first circuit declined to follow Collinsgru. In Maroni v. Pemi-Baker RegionalSchool District, the court held that parentsdo have procedural and substantive rights under IDEA since they are "parties aggrieved" because they are able torequest due process hearings "and thus are logically within the groupsof 'parties aggrieved' given the right to sue." (17) The Senate bill does not state whether or not parents who represent their children in court have a right to attorneys'fees. Generally,under current law, even if the parent is a licensed attorney, attorneys' fees have not been allowed in pro se cases. (18)

An amendment on attorneys' fees was agreed to on the Senate floor which would allow the court to award fees to a SEA or LEA against the attorney of a parent or a parent in certaincircumstances. The attorney of a parent may be required to pay the SEA's or LEA's fees if he or she

files a complaint that is frivolous, unreasonable, or without foundation,

continues to litigate when the litigation clearly became frivolous, unreasonable or without foundationor

if the complaint or subsequent cause of action was presented for any improper purpose, such as toharass or to cause unnecessary delay or needless increase in thecost of litigation.

Like the provision relating to attorneys, the parent of a child with a disability who files a complaint may be required to pay the SEA's or LEA's attorneys' fees if the complaint orsubsequent cause of action was presented for any improper purpose, such as to harass or to cause unnecessary delayor needless increase in the cost of litigation. The Senate bill alsoincluded a provision that nothing in the subparagraph shall be construed to affect the attorneys' fees provisionsapplicable to the District of Columbia.

In the Senate debate on the attorneys' fees amendment, Senator Grassley stated that the amendment would "in no way limit or discourage parents from pursuing legitimate complaintsagainst a school district if they feel their child's school has not provided a free appropriate public education. It wouldsimply give school districts a little relief from abuses of the dueprocess rights found in IDEA and ensure that our taxpayer dollars go toward educating children, not lining thepockets of unscrupulous trial lawyers." (19) SenatorGregg also emphasizedthe need for the attorneys' fee amendment. He noted that the concept that a defendant should be able to obtainattorneys' fees when a plaintiff's actions were "frivolous, unreasonable, orwithout foundation" has been applied to title VII of the Civil Rights Act of 1964. The Supreme Court in Christiansburg Garment Co. v. Equal Employment Opportunity Commission (20) held that prevailing defendants should recover attorneys' fees when a plaintiff's actions were frivolous, unreasonable,or without foundation in order to "protect defendants fromburdensome litigation having no legal or factual basis." (21) Senator Gregg observed that the standard is "very high...and prevailing defendants are rarely ableto meet it and obtain areimbursement of their attorneys fees" and that case law "directs courts to consider the financial resources of theplaintiff in awarding attorney's fees to a prevailing defendant." (22)

The attorneys' fee amendment also would allow defendants to recover fees if lawsuits were brought for an improper purpose. Senator Gregg noted that this concept was drawn fromRule 11 of the Federal Rules of Civil Procedure (23) and that "in interpreting this language from Rule 11, courts must apply an objective standard of reasonableness tothe facts of thecase." (24)