Attorney’s Fees and Costs in Special Education Cases
No discussion about special education litigation is complete without discussing whether it is possible to get reimbursement for attorney’s fees and costs.
Many parents with special needs children do not know that it is possible to get reimbursement for attorney’s fees and costs in connection with special education matters. When a special education issue is litigated, and the parents obtain some of the relief that they had sought, a court may declare the parents “prevailing party” and order that the school district pay attorney’s fees and costs to the parents.
For example, suppose that a parent requested an Independent Educational Evaluation (“IEE”) at district expense, but the school district refused to pay for the independent evaluation. If the parent retains a special education attorney, litigates the issue, and subsequently gets the independent evaluation at district expense, a federal or state court may declare the parent the “prevailing party” and award attorney’s fees and costs in connection for having litigated the matter.
This above example is exactly what happened in one of my cases, which was recently decided in a New Jersey federal court. In DI v. Phillipsburg Board of Education, the parent requested certain evaluations and independent evaluations. In response, the school district filed a petition for a due process hearing to challenge the request for the independent evaluations. Ultimately, the parent and school district reached a settlement whereby the school district would conduct or pay for three evaluations. Next, the parent sued the school district in federal court for attorney’s fees and costs in connection with the due process proceedings. A federal court in New Jersey determined that the parent was the prevailing party and ordered that the school district pay attorney’s fees and costs for both the due process proceeding and the fee application.
“Attorney’s fees” are simply the attorney’s total amount of hours expended on the case multiplied by the attorney’s hourly rate. For example, if an attorney charges $200 an hour and spends 50 hours on your case, that is a total of $10,000.00.
“Costs” are expenses that arise in connection with the litigation, such as the cost of xeroxing papers, the cost of faxing papers, the costs of mailing documents via certified mail, etc.
When considering whether to retain a special education attorney to help your special needs child, ask your attorney whether your case is one that may need to be litigated. Also ask whether it might be possible to get reimbursement of attorney’s fees and costs. These are very important questions. Keep in mind, however, that in some instances, it may not be possible to determine whether the case has to be litigated or even if all attorney’s fees and costs can be recouped. Also keep in mind that no attorney can guarantee reimbursement of attorney’s fees and costs. There are many variables at play — talk to your attorney to discuss some of these variables.