Current through Register Vol. 40, No. 16, March 25, 2024
A. In any
action or proceeding brought under § 1415 of the Act, the court in its
discretion may award reasonable attorneys' fees as part of the costs: (
34 CFR
300.517(a) )
1. To the prevailing party who is the
parent(s) of a child with a disability;
2. To a prevailing party who is a local
educational agency or the Virginia Department of Education against the attorney
of a parent who files a request for due process 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; or
3. To a prevailing party who is a local
educational agency or the Virginia Department of Education 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.
B.
Funds under Part B may not be used to pay attorneys' fees or costs of a party
related to any action or proceeding under § 1415 and Subpart E of the Act.
This section does not preclude a local educational agency from using funds
under the Act for conducting an action or proceeding under § 1415 of the
Act. ( 34 CFR
300.517(b) )
C. A court awards reasonable attorneys' fees
under § 1415 of the Act consistent with the following: (
34 CFR
300.517(c) )
1. Determination of amount of attorneys'
fees. Fees awarded under § 1415(i)(3) of the Act shall 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 under this subsection.
2. Prohibition of attorneys' fees and related
costs for certain services.
a. Attorneys' fees
may not be awarded and related costs may not be reimbursed in any action or
proceeding under § 1415 of the Act for services performed subsequent to
the time of a written offer of settlement to a parent(s) if:
(1) 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 10 calendar days before
the proceeding begins;
(2) The
offer is not accepted within 10 calendar days; and
(3) The court or administrative special
education hearing officer finds that the relief finally obtained by the
parent(s) is not more favorable to the parent(s) than the offer of
settlement.
b.
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 for a mediation session.
c. A resolution session convened in
accordance with
8VAC20-81-210 will not be
considered:
(1) A meeting convened as a
result of an administrative hearing or judicial action; or
(2) An administrative hearing or judicial
action for purposes of this subsection.
3. Exception to prohibition on attorneys'
fees and related costs. Notwithstanding subdivision 2 of this subsection, an
award of attorneys' fees and related costs may be made to a parent(s) who is
the prevailing party and who was substantially justified in rejecting the
settlement offer.
4. Reduction of
amount of attorneys' fees. Except as provided in subdivision 5 of this
subsection, the court reduces, accordingly, the amount of the attorneys' fees
awarded under this chapter if the court finds that:
a. The parent(s), 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(s) did not provide to the local educational agency the appropriate
information in the request for a due process hearing in accordance with this
chapter.
5. Exception to
reduction in amount of attorneys' fees. The provisions of subdivision 4 of this
subsection do not apply in any action or proceeding if the court finds that the
Virginia Department of Education or the local educational agency unreasonably
protracted the final resolution of the action or proceeding or there was a
violation of § 1415 of the Act.
§§ 22.1-16 and 22.1-214 of the Code of
Virginia; 20 USC § 1400 et seq.; 34 CFR Part
300.