In any action or proceeding brought under
20 U.S.C. §
1415, the court, in its discretion, may award
reasonable attorneys' fees under
20 U.S.C. §
1415 (i)(3) as in effect on
December 3, 2004, as part of the cost to the prevailing party who is the parent
of a child with a disability; to the prevailing party who is the state or
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; or to the
prevailing party who is the state or 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.
Funds under Part B of the Individuals with Disabilities
Education Act may not be used to pay attorneys fees or costs of a party related
to an action or proceeding under section 615 of the IDEA and this chapter. This
does not preclude a district from using IDEA, Part B funds for conducting an
action or proceeding under section 615 of IDEA.
A court shall award reasonable attorneys' fees under section
615(i)(3) of the IDEA consistent with the following:
(1) 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 under this
section;
(2) 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 (1987) or, in the
case of an administrative proceeding, at any time more than 10 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;
(3) 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 department for a mediation described in this chapter. A resolution
meeting conducted pursuant to this chapter is not considered a meeting convened
as a result of an administrative hearing or judicial action or an
administrative hearing or judicial action for purposes of this
section;
(4) 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;
(5) 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 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 complaint in accordance with this
chapter.
(6) The
provisions of subdivision (5) of this section do not apply in any action or
proceeding if the court finds that the State or local agency unreasonably
protracted the final resolution of the action or proceeding or there was a
violation of section 615 of the IDEA.
