Attorneys'
Fees in Special Education Cases
by
Herbert D. Hinkle, Esq. and Ira M. Fingles, Esq.
Herbert D. Hinkle
Law Office
2651 Main Street
Lawrenceville, New Jersey 08648
(609) 896-4200 or (215) 860-2100
As we have discussed
in other articles in this series, the special education laws provide
an array of rights to parents to help ensure that their children's
educational needs are met. One of the most powerful protections is
the requirement that school districts reimburse parentsâ attorneysâ
fees and costs of litigation (such as experts' reports) when they
prevail in disputes regarding a student's special education and related
services.
Parents will be
considered to have prevailed in a dispute if they achieve a favorable
result on at least some of the issues that are raised in the dispute.
It is not necessary that the parents win on every issue that is raised.
If they achieve less than 100% success, they still may be entitled
to recover some or all of their attorneys' fees.
Attorneys' fees
and costs may be able to be recovered even if a case is settled before
trial. In a recent case, Buckhannon Board and Care Home, Inc. v.
West Virginia Department of Health and Human Resources, the United
States Supreme Court ruled that attorneys' fees and costs can be recovered
only when a judicial order has been issued.
However, this
may not have a significant impact on special education cases. In most
special education cases, settlement agreements are signed by the judge
or hearing officer. This has been held by other courts to be enough
to satisfy the requirement that a judicial order be entered.
If a school district
is unwilling to settle a parents' claim for attorneysâ fees
and costs, a lawsuit can be brought to require the district to pay.
The district can be ordered to reimburse the costs of this lawsuit
in addition to whatever it must pay with respect to the underlying
case.
Copyright 2002
H.D. Hinkle. All rights reserved.
Mr. Hinkle maintains
a multi-state law practice with offices in Lawrenceville, Florham
Park, and Marlton, NJ, and Yardley, Pa. Mr. Hinkle and his colleagues
Ira Fingles, and Paul Prior lecture and write frequently on topics
of law, aging, and disability, and are available
to speak to groups in New Jersey and Pennsylvania
at no charge. Call (609) 896-4200.
