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Action Alert: Attorney Fees & Expert Fees for Special Education Parents

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  • Alpy2@aol.com
    Although OCLB is devoted to issues surrounding IDEA reauthorization (and, as it affects students with disabilities, also NCLB reauthorization), we do now and
    Message 1 of 1 , Jan 4, 2009

      Although OCLB is devoted to issues surrounding IDEA reauthorization (and, as it affects students with disabilities, also NCLB reauthorization), we do now and then like to post information of a more general nature affecting families and students with disabilities.  In that spirit, we are posting this off topic item.


      This action alert is courtesy of Matt Cohen, Chicago special education attorney (www.monahan-cohen.com):


      Support Recovery of Attorneys' Fees and Expert Witness Fees in Due Process Settlements and Hearings


      As a result of several Supreme Court rulings over the last decade, the ability of parents (as well as plaintiffs in other civil rights cases) to recover attorneys' fees and expert witness fees in due process settlements and hearings has been virtually eliminated.  Until these Supreme Court decisions, parents that obtained substantial relief in their dispute with the school through mediation or settlement were generally entitled to recover attorneys fees from the school district as the "prevailing party."   The Buckhannon Supreme Court decision effectively eliminated the ability to recover fees based on a settlement.   This has put parents in the impossible position of having to either accept a settlement that doesn't provide for recovery of their attorneys' fees, making any settlement substantially more costly (or less valuable) for them or forcing them to go forward with a due process hearing that could have otherwise been avoided, as that was the only way to both obtain the outcome they wanted and potentially be able to obtain fees.

      A subsequent Supreme Court decision,
      Arlington, made it even harder for parents, by eliminating the right of the prevailing plaintiff to recover the cost of their expert witness' fees.

      The Civil Rights Act of 2008 seeks to overturn these Supreme Court decisions by
      -         Restoring  the definition of "prevailing party" and the right to recover reasonable attorney fees to include parents who settle a due process hearing and obtain some significant relief as part of the settlement
      -         Restoring  the right to recover expert witness fees for both due process hearing that are completed, and due process hearing that are settled, where the parent prevails (that is obtains some significant relief as a result of the hearing or settlement agreement).
      The Civil Rights Act of 2008 is expected to be re-introduced in the House and Senate when the new 111th Congress convenes in January, 2009, though it may have a different name. Information on the status of bills can be obtained at  COPAA (www.copaa.net)  or through the federal government's legislative website: www.thomas.gov.    Parents should contact their congressional representative and both
      U.S. Senators to ask that they co-sponsor the bill and actively support its passage.  The  www.thomas.gov  website can also provide you with a link to identify your senators and congressperson and how to contact them.



      Sandy, Illinois (alpy2@...)
      Volunteer Co-Webmaster, Our Children Left Behind (http://www.ourchildrenleftbehind.com) (IDEA & NCLB reauthorization)

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