Special Education Law 101 - Part XII Expenses and Attorney's Fees

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This is another in our ongoing series on the basics of special education law.  These posts are meant to be an imtroduction for those new to the field and a refresher for the seasoned veterans.

Attorney's Fees

A prevailing parent can generally get their attorney's fees from a court. IDEA §615(i)(1)(3).  They are not awarded by hearing officers but are awarded by the court.  Since 2004, a prevailing school district may get attorney's fees from a parent or parent's attorney if the case was frivolous or filed for improper purposes. IDEA §615(i)(1)(3)(b)(ii)and(iii).

Expenses-Expert witness fees

                             In Arlington Cent. Sch. Dist Bd. of Educ v. Murphy   540 U.S. 291, 126 S.Ct. 2455, 45 IDELR 267 (6/16/06) the Supreme Court ruled that a parent who prevails in an IDEA case is not entitled to recover expert witness fees under the Act’s provision allowing recovery of reasonable attorney’s fees and costs. The parents cited the legislative history of the Act- including the joint statement of the House/Senate Conference Committee which stated that “The conferees intend the term ‘attorney’s fees as part of the costs’ to include reasonable expenses and fees of expert witnesses...”  The 6-3 majority of the Court, however, rejected the parents’ argument, holding that “costs” is a legal term of art which does not generally encompass expert witness fees.  Because Congress used the legal term of art “costs,” rather than “expenses,” the Court found that there is no need to review the legislative history.  Thus the Court held that a prevailing parent in an IDEA case is not entitled to be reimbursed for expert witness fess.

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The Recession & Special Ed Revisited - Part II

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Ok so now you know that I am still worried about the economy. those who know, raise your hands!

My review of the IDEA cases for 2009 raised a few red flags about the economy, but not so many as I had feared. In a previous post, I discussed the issue of furloughs in some states. This seems like a bad public policy on so many levels! Also, one state is threatening to stop contracting with related service providers. Once again, this is bad news for students, parents, not to mention OTs, PTs, speech therapists, and psychologists.

The 2009 cases had one other potentially disturbing trend- courts are talking openly in some cases about the cost or expense of services. Once again, at this point, these are red flags not even really alarms just yet. But we should pay attention.

I believe that the current state of the law is that expense or cost of a service is not an excuse for not providing the service if a child with a disability needs it in order to receive meaningful ( or some) educational benefit. I can even cite a Supreme Court decision for that proposition: Cedar Rapids Community Sch. Dist. v. Garret F. 526 U.S. 66, 119 S.Ct. 992, 29 IDELR 966 (1999).

But two recent and fairly high profile cases talk about expense. The decisions are: Ashland Sch Dist v. Parents of Student EA 587 F.3d 1175, 53 IDELR 177 (9th Cir. 12/7/9); and Forest Grove v. TA 53 IDELR 213 (D.Oregon 12/8/9) .
Now it should be noted that these were both cases involving reimbursement for a residential placement and the decision in each case turned on other factors. The portions of the opinion I am concerned with are "dicta" (lawyer talk for language in a decision that is not critical to the reasoning of the outcome).

Nonetheless, in EA, the Ninth Circuit found that the District Court had not abused its discretion by considering the alleged excessive cost of a residential placement where the court concluded that the placement was for medical and not educational needs. And in TA, the Oregon District court weighed several equitable factors including the fact that the parents chose arguably the most expensive placement available.
So what do you think? Are these red flags that the economy is affecting special ed law? How many think I'm overreacting, raise your hands!

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Expense as a Defense Poll Update; Tech News

Our current running poll concerns whether in these hard economic times, the expense of services should be considered a defense in an action alleging a violation of IDEA. We are starting to see some activity on the poll. So far those who have answered No cost is not a defense have a commanding lead with 14 votes. Yes has 5 votes and Maybe has 2. One respondent pleads that he or she is too poor to vote. Be sure to vote now; let you voice be heard. (We make no claims to any scientific value to our polls; they are for the fun of our readers only.)

We have also created some other venues to inform and stimulate discussion in the blogosphere. Fully embracing the spirit of the internetS, we have created a number of related special education law groups. Each of the following has a growing number of participants. On the following pages you will find interesting discussion boards; passionate arguments and comments that will make you think. Please take some time to explore them. Our first venture was the special education law group on the Facebook social networking site. We have since added groups on the Ning site; the Twitter site; the LinkedIn network; and on the Plaxo site. There are permanent links to each special education law group, as well as a number of other useful websites, on the lefthand side of this blog

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. In addition we have fixed it so that you can follow our Twitter mini-posts on the lefthand side of the blog.

The number of subscribers to this blog continues to grow. This really helps our credibility; thanks. If you would like to have a free subscription, you have three options all high on the lefthand side of the blog. You can receive the posts by email by clicking on that link. If you have an RSS reader or feed aggregator, some smartphones are equipped for such readers, you can subscribe by clicking on the feed link. Finally if you have your own blog or website, you can obtain a blidget- or blog widget- for this blog and insert it right into your blog or website. Again, thank you for subscribing, numbers help.

The "new" technology is somewhat frightening to many people, but it really is amazing in terms of its capacity to make information available to people. How did folks find out about special education law before the internet? How did people post to their blogs from conferences before there were cellphones and voice recognition software?

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