1994-95 Vol. 8, No. 9

An "Ounce of Prevention..."News

Information and Ideas from IPPSE for Practical Problem Solving in Special Education

ATTORNEY FEES ALLOWED PRIOR TO

HEARING REQUEST/HOURS REDUCED

A Federal District Court in the Northern District of Illinois has allowed recovery of attorney fees incurred prior to a formal due process hearing request. However, since the court believed that many of the hours were duplicative and excessive, the Court reduced the amount of fees awarded. Patrick G. v The City of Chicago Sch Dist, Number 299, 22 IDELR 223 (ND, Ill, 1994).

In this case, a dispute arose between the parents and the school district following an IEPC meeting in January, 1993. The dispute involved the appropriate placement of Sarah G., an eighth grade student with cerebral palsy. In March of 1993, the parents of Sarah sought the assistance of an attorney. On November 18, 1993, the parents' counsel drafted a request for a due process hearing. On March 17, 1994, the hearing officer issued a final decision ordering the district to revise Sarah's IEP. The district did not appeal the hearing officer's decision. Following the issuance of the decision, the parent of Sarah filed a request in Federal District Court as a "prevailing party" seeking recovery of attorney fees. In the initial petition, counsel for the parents requested $19,265 in fees and $2,346.82 in expenses. By the time this matter came to hearing in District Court, however, the parent's counsel was requesting $37,039.76 in fees and expenses.

The district argued that fees or expenses incurred prior to the formal request for a due process hearing were not recoverable. The Federal District Court, however, disagreed. Citing to Ken and Marsha R. v Stevenson High School, District 125, 18 IDELR 20 (ND, Ill, 1991), the Court found that the parents were entitled to recover fees as prevailing parties. However, the parents were only allowed to recover fees or costs which were incurred in relation to the due process hearing request under the IDEA. Further, fees and costs incurred prior to a formal due process hearing request could be recovered if they were related to the action or proceeding brought under the IDEA.

The Court found that time spent prior to the actual due process hearing request could be related to that hearing. The Court noted that prior to the formal request, the parent's attorney spent time obtaining and reviewing Sarah's school records, consulting with Sarah's father, conferring with the suburban public schools principal on availability of programs, and securing and consulting with an independent educational evaluator. Accordingly, the District Court found that these activities were related to the due process hearing and were able to be recovered.

Although the fees were related, the Court went on to find that many of the hours requested were duplicative and excessive. The IDEA allows the Court to award a "reasonable" attorney fee. Finding that much of the time was unreasonable, the Court reduced the amount of attorney fees ultimately awarded to the parents as prevailing parties.

When filing their Petition for attorney fees, the parents originally requested approximately $19,265 in fees and $2,346 in expenses. However, by the time the matter came to hearing in Federal District Court, this had increased to $37,039. The Court found this to be outrageous, especially in light of the fact that the school district had twice offered to settle the attorney fees issue for $15,000 prior to the matter coming to hearing. Although finding that the parents were entitled to recover additional fees for the time spent recovering the initial fees, the entire claim is to be gauged by standards of reasonableness. The Court found that it was patently unreasonable to nearly double the amount of fees requested. The award was then reduced to $19,739.76.

A recent case out of Tennessee, also in the Sixth Circuit, seems to imply (although not specifically hold) that the "time clock" begins upon the conclusion of a disputed IEPC meeting. In Doe v Metropolitan Nashville Bd of Ed, 22 IDELR 30 (MD, Tenn, 1995), the parents requested attorney fees after prevailing at the due process hearing, for time spent in preparation for the hearing and attendance at an "M-Team" meeting. The Court excluded hours spent attending the "M-Team" meeting, finding that the attorney fee provision was not intended to cover such meetings, as they were "meetings whose purpose it was to determine an appropriate program." The Court found, however, that fees were recoverable after the dispute arose, and implied that the dispute can arise at the time of an IEPC meeting, thereby making all fees incurred thereafter recoverable. The Court awarded attorney fees, including fees incurred prior to a formal hearing request and following the meeting where the dispute arose, but did not allow fees for attendance at the "M Team" meeting.

Another recent attorney fee case, Harris v Nenana City Public Schools, 22 IDELR 352 (9th Cir, 1995), also awarded fees for a parent prevailing at an administrative proceeding. The award was, however, reduced based on the amount of success obtained by the parent. Since the parents did not prevail on all issues, the court awarded fees according to the percentage of success obtained.

All three of these cases have awarded fees to a "prevailing party" parent for time spent prior to the formal due process hearing or hearing request. All, however, have reduced the fees which were recovered based on the percentage of success or the unreasonableness/excessiveness of the hours expended. See also Chenault v Aizawa, 22 IDELR 34 (DC Hai, 1995), for a similar result.

IMPLICATIONS:

Attorneys representing "prevailing party" parents will use the Patrick G case for the proposition that fees incurred prior to the actual request for a due process hearing are recoverable. Michigan is part of the Sixth Circuit Court of Appeals. It has long been established that attorneys fees are recoverable for services at the due process hearing level. See Eggers v Bullet County Sch Dist, EHLR 558:127 (6th Cir, 1988). At the administrative level, a plaintiff may recover fees "for services performed in connection with an administrative proceeding" as well as services rendered in preparation for a hearing. See Shelly C v Venus Ind Sch Dist, EHLR 441:553 (5th Cir, 1989) and Medford v District of Columbia, EHLR 559:468 (DDC, 1988). Typically it has been believed that the attorney fee "time clock" began on the date that a due process hearing was requested. The Patrick G case seems to extend that time clock to any time spent in preparation for the due process hearing request and subsequent hearing.

Generally, it is clear that attorney fees are not recoverable for attendance at IEPC meetings or other educational meetings whose purpose it is to determine appropriate services. See Rappaport v Vance 21 IDELR 709 (D Md, 1993). It appears that an exception may exist, however, if attendance at the meeting is found to be work done in preparation for a due process hearing. This may occur when the parties return to an IEPC meeting to attempt settlement of the hearing issues, and consider issues that are subject to the hearing. Generally this would not include "new" issues brought up subsequent to the contested IEP, and not previously considered by the IEPC. The impact of these cases, when considered together, imply that the attorney fee "time clock" begins when the dispute arises at an IEPC meeting, and attorney time thereafter is potentially recoverable.

Many times you will know when an IEPC meeting will be difficult. Plan ahead to avoid disputes. If a dispute arises during the IEPC meeting, or if a parent presents an new option to be considered, adjourn the IEPC to another date so that the requested program or service can be fully considered. During the adjourned time, review the materials presented by the parent and the requested program or service. Complete your own evaluation to determine if you might agree that the request is appropriate. Since the adjournment of the IEPC is to consider the parents' proposition, attorney fees would not be recoverable as there was no "dispute" at that time.

If ultimately a dispute and hearing request arise, always remember to offer settlement of contested IEPC issues prior to the hearing. A party who rejects a written offer to settle made at least 10 days prior to the hearing cannot recover attorney fees incurred in proceeding to hearing if they do not win more than the settlement offer.

Additionally, always offer to settle attorney fees prior to federal district court action. Since the trend is away from an "all or nothing" approach in granting attorney fees, consider the amount of time spent on the issues on which the parents prevailed and offer to pay the fees for that percentage of time. A rejection of the offer to settle may appear unreasonable at any subsequent trial and result in a reduction of the fees awarded by the court.

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EXHAUSTION OF IDEA

REQUIREMENTS NOT

NECESSARY PRIOR TO

FILING TRUANCY PETITION

A New Hampshire hearing officer has ruled that a school district need not convene an IEPC meeting to consider whether a student's absences are related to his disability prior to filing a truancy petition in probate court. In In Re: Josh B, 22 IDELR 86 (SAE NH, 1995), the mother of a student with disabilities requested a due process hearing following the filing of a truancy petition with the state juvenile court. The parent alleged that the district failed to give her adequate notice of several IEP meetings held during the 1993-94 school year, and that the district failed to convene an IEPC meeting to consider whether or not the student's absences were related to his disability.

The parent sought an order from the hearing officer directing the school district to withdraw its truancy petition, or, in the alternative, to request the juvenile court to refrain from exercising any further jurisdiction.

As to the first issue, the hearing officer ruled the issue moot as the parent had subsequently attended and agreed to an IEP. This issue was dismissed without prejudice for the parent to bring it in a timely fashion, if done so in conjunction with a request for compensatory education.

As to the second issue, the parent claimed that the school district should have convened an IEPC meeting prior to filing its truancy petition. The parent cited to Morgan v Chris L, 21 IDELR 783 (USDC Tenn, 1994), and In Re: Tony McCann, 17 EHLR 551 (CA Tenn, 1990), for support of her claim that the district must first exhaust IDEA procedures prior to proceeding to juvenile court.

The hearing officer distinguished these cases from the issue before him. In Morgan v Chris L, the school district had filed a juvenile court petition during the pendency of a referral for evaluation and services under IDEA. The court found that in effect the district was attempting to have the juvenile court determine the student's initial post-identification educational placement. The U.S. District Court upheld the hearing officer's order which directed the district to dismiss the juvenile court petition pending completion of the IDEA procedures. Since juvenile court action could result in a "change of placement" relating to the student, the parent was entitled to have the matter first determined through the IDEA procedures.

In the case of In Re: Tony McCann, the school district petitioned the juvenile court for placement of an unruly student. The student, however, was already identified as a behavioral disordered student, and the school district requested such placement without convening an evaluation team to consider whether the student's behavior was related to the disability. Since again the juvenile court action could result in a change in placement, the court found that the district must first proceed with the IDEA procedures prior to petitioning the juvenile court. Interestingly, the court in In Re: Tony McCann specifically noted that school districts should only seek juvenile court involvement with special need students when such students fail to attend an appropriate educational placement, citing with approval to In the Matter of Shelly M, 453 NYS2d 352 (1982).

The hearing officer found that the district had not petitioned the juvenile court in an effort to avoid its responsibilities under IDEA, and that the juvenile court involvement was not sought to change the placement of the student. Instead, the district was attempting to enforce attendance in an agreed upon educational program. For these reasons, the hearing officer dismissed the parent's request for a due process hearing.

IMPLICATIONS:

Confusion exists relative to the appropriate circumstances in which a school district should seek probate/juvenile court involvement. This decision gives some guidance in finding that the filing of a petition in juvenile court for truancy does not require exhaustion of the IEPC process, nor does it invoke the IDEA procedural safeguards. Although a hearing officer decision, and not binding on any court as precedent, the case has persuasive value and direction relative to probate/juvenile courts.

In Michigan, Flint Board of Education v Williams, 88 Mich App 8 (1979), requires that a probate court refrain from exercise of jurisdiction in situations where the more specialized provisions of the IDEA would apply. In Flint Board, the district had petitioned for juvenile court involvement due to a handicapped student's repeated violations of school rules. As in Morgan

and In Re: McCann, the court directed the district back to the IDEA procedures.

Where a truancy petition is filed to enforce attendance at an agreed upon program, however, such cases would not apply.

As a practical matter, one should review the program components of a student prior to filing a truancy petition to ensure that the program remains appropriate. It may also be wise to consider whether modification of the program, such as the provision of additional aids and services, school social work services, etc., may alleviate the attendance problem without resorting to judicial intervention. If these types of interventions have been tried and failed, a truancy petition may not only be appropriate, but a required precaution to assure continued provision

of FAPE under IDEA and Section 504. (See, e.g., Allegheny (PA) IU #3, 17 EHLR 133 (OCR, 1990), where OCR held that a district violated FAPE when it failed to ensure the attendance of two mentally impaired/emotionally impaired students by ignoring established truancy procedures. See also Murphy v Timberlane, 20 IDELR 1391, where a district was subsequently found liable for compensatory education when it failed to file a truancy petition. In Murphy, the parents had disagreed with the district's program and kept their son out of school for a year.) Prior to filing the petition, however, attempt contacting the parent or guardian. If this fails, follow the same procedures regarding truancy as with non-handicapped students.

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HEARING OFFICER RULES NO IEP NEEDED FOR MINOR

CHANGES IN BEHAVIOR PLAN

A hearing officer from Alabama has ruled that minor changes in the behavioral modification plan of a student is not a change which would require the convening of an IEPC meeting. Pickens County Bd of Ed, 20 IDELR 180 (Ala, 1995). Here, the parents of a student with Attention Deficit Disorder and mental retardation requested a due process hearing. The parents alleged 1) that the school district's personnel was abusive to the student, and therefore the student's program should be relocated to a different school building within the same district, 2) that the district failed to provide educational records in a timely fashion, and 3) that the district made substantive changes to the student's behavioral modification program without the convening of an IEPC. The parent had filed charges with the county social services department and sheriff alleging that the school district personnel were abusive to the student. After investigation, no evidence was found which would substantiate abuse. The hearing officer found that no substantial evidence was produced relative to the abuse, and credible evidence was presented showing that the student had a good relationship with the school district personnel. For these reasons, the hearing officer denied the parent's request to have the student placed in a different school within the same district.

As to the educational records, the hearing officer found that the district had delayed in providing educational records, and had not provided complete records. Although in violation, the hearing officer found that there was no remedy available, as all records had been provided, albeit late. The hearing officer directed the school district to review its policies and procedures regarding access of school records by parents, and to assure compliance in the future.

Lastly, the parents alleged that the district had modified the student's IEP by changing components of the behavioral modification plan without the convening of an IEPC meeting. Specifically, the behavioral modification program provided for the use of "time-outs." Although originally these time-outs were provided in the classroom setting, this became disruptive and the setting was moved to the hallway. After attempting to utilize the hallway for time-outs, this also became disruptive and the location was again moved to the auditorium. The parents alleged that the change in location for the timeouts was a modification of the IEP which required an IEPC meeting be convened. Additionally, although the behavior modification plan provided for the use of "edibles" as positive reinforcement, the parents alleged that the modification of the plan to utilize "fruit loops" also required the convening of an IEPC meeting.

The hearing officer disagreed, citing to the administrative regulations which set forth the required content of IEPs. Finding that the location of the timeout and type of edible reinforcer were not items required to be included in an IEP, the hearing officer found that these were "day to day details" which are merely the implementation of the broader program spelled out in the IEP. Since there was no change in the programs or services provided pursuant to the IEP, no additional notice or meeting was required.

IMPLICATIONS:

Methodology is solely within the responsibility and authority of the school district. See Ludington Area Schools, 20 IDELR 211. This case draws a distinction between the "day to day" methods and details in the implementation of a program component and the general component itself. Minor changes in the manner in which an IEP component is implemented will be left to the school district's discretion, and need not be dealt with at an IEPC.

In drafting IEP's, be careful that the details of a behavior plan are not specified in a manner which would lead them to be determined a component of the IEP. General terms stating that a behavior modification program will be implemented is usually all that is needed. Avoid overly restrictive specificity in the behavior plan and allow for more than one method of implementation. Do not restrict yourself to the use of one specific location or specific personnel.

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