Chapter 5.19: Attorney's Fees

    State Performance Plan (SPP):

    (See Overview in the Introduction for information on the SPP.)

    Intent:

    To provide guidance on the awarding of reasonable attorneys’ fees to the prevailing party in a due process proceeding or subsequent cause of action. The prevailing party may be the parents of a child with a disability, the Ohio Department of Education (ODE) or a school district d(LEA). A school district or ODE may become the prevailing party if an action against them is found to be frivolous, unreasonable, without foundation or for an improper purpose. Attorneys’ fees may be awarded by a court but they may not be awarded by an impartial due process hearing officer or by a state-level review officer.

    Timelines:

    Not Applicable

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (18) Attorneys’ fees
    (a) In general
    In any action or proceeding brought under Section 615 of the IDEA, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to:

    (i) The prevailing party who is the parent of a child with a disability;
    (ii) To a prevailing party who is the Ohio Department of Education or a school district against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation.
    (iii) To a prevailing Ohio Department of Education or school district against the attorney of a parent, or against the parent, if the parent’s request for a due process hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

     

    GUIDANCE

    General

    The court, in its discretion, may award attorneys’ fees to the prevailing party as stated in the above requirements.

    Although the IDEA and Operating Standards for Ohio Educational Agencies Serving Children with Disabilities provide parents with the right to be accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities at a due process hearing, they do not provide for awarding attorneys’ fees to these individuals. Lay advocates are, by definition, not attorneys and are not entitled to compensation as if they were attorneys (Federal Register, August 14, 2006, pg. 46708).
     

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (18) Attorneys’ fees
    (c) Award of fees
    A court awards reasonable attorneys’ fees under Section 615(i)(3) of the IDEA consistent with the following:

    (i) Fees awarded under Section 615(i)(3) of the IDEA must be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded.
    (ii) Attorneys’ fees may not be awarded and related costs may not be reimbursed in any action or proceeding under Section 615 of the IDEA for services performed subsequent to the time of a written offer of settlement to a parent if:
    (a) The offer is made within the time prescribed by rule 68 of the "Federal Rules of Civil Procedure" or, in the case of an administrative proceeding, at any time more than ten days before the proceeding begins;
    (b) The offer is not accepted within 10 days; and
    (c) The court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.
    (iii) Attorneys’ fees may not be awarded relating to any meeting of the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action, or at the discretion of the state, for a mediation described in paragraph (K)(3) of this rule.
    (iv) A meeting conducted pursuant to paragraph (K)(9) of this rule shall not be considered:
    (a) A meeting convened as a result of an administrative hearing or judicial action; or
    (b) An administrative hearing or judicial action for purposes of this rule.
    (v) Notwithstanding paragraph (K)(18)(c)(ii) of this rule, an award of attorneys’ fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.
    (vi) Except as provided in paragraph (K)(18)(c)(vii) of this rule, the court reduces, accordingly, the amount of the attorneys’ fees awarded under Section 615 of the IDEA if the court finds that:
    (a) The parent, or the parent’s attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy;
    (b) The amount of the attorneys’ fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience;
    (c) The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or
    (d) The attorney representing the parent did not provide to the school district the appropriate information in the due process request notice in accordance with paragraph (K)(8) of this rule.
    (vii) The provisions of paragraph (K)(18)(c)(vi) of this rule do not apply in any action or proceeding if the court finds that the state or school district unreasonably protracted the final resolution of the action or proceeding or there was a violation of Section 615 of the IDEA.

    GUIDANCE

    Awarding of fees

    The court awards reasonable attorneys’ fees consistent with the above requirements.

    The court may reduce attorneys’ fees in accordance with the above requirements.

    Attorneys’ fees may not be awarded for resolution meetings. However, the IDEA is silent on whether attorneys’ fees are available for activities that occur outside the resolution meeting. Such determinations will be fact-specific and are left to the discretion of the court (Federal Register, August 14, 2006, pg. 46708).

    The IDEA regulations do not include a standard for determining whether parents are substantially justified in rejecting a settlement offer, because such a matter will depend on the specific facts and circumstances in each case. The court or administrative hearing officer, as the designated trier of fact under the IDEA, is in the best position to determine whether parents were substantially justified in rejecting a settlement offer (Federal Register, August 14, 2006, pg. 46709).

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (18) Attorneys’ fees
    (b) Prohibition on use of funds

    (i) Funds under Part B of the IDEA may not be used to pay attorneys’ fees or costs of a party related to any action or proceeding under Section 615 of the IDEA and Subpart E of Part B of the IDEA.
    (ii) Paragraph (K)(18)(b)(i) of this rule does not preclude the Ohio Department of Education or a school district from using funds under Part B of IDEA for conducting an action or proceeding under Section 615 of IDEA.

    GUIDANCE

    Prohibition on use of funds

    As stated in the above requirement, the school district may not use Part B funds to pay attorneys’ fees or costs of either the district or the parents of a child with a disability related to a hearing. However, it may use these funds for conducting an impartial due process hearing.

     

Last Modified: 7/11/2013 4:12:43 PM