The Individuals with Disabilities Education Act (IDEA): Attorneys Fees Provisions in P.L. 108-446
CRS Report for Congress
The Individuals with Disabilities Education
Act (IDEA): Attorneys’ Fees Provisions in
P.L. 108-446
Nancy Lee Jones
Legislative Attorney
American Law Division
Summary
The Individuals with Disabilities Education Act (IDEA) authorizes federal funding
for the education of children with disabilities and requires, as a condition for the receipt
of such funds, the provision of a free appropriate public education (FAPE). The statute
also contains detailed due process provisions to ensure the provision of FAPE and
includes a provision for attorneys’ fees. Attorneys’ fees were among the most
controversial provisions in the 2004 reauthorization of IDEA. This report analyzes the
attorneys’ fees provisions in P.L. 108-446 and the final regulations. For a general
discussion of the 2004 reauthorization, see CRS Report RL32716, Individuals with
Disabilities Education Act (IDEA): Analysis of Changes Made by P.L. 108-446, by
Richard N. Apling and Nancy Lee Jones. This report will be updated as necessary.
Background
The Individuals with Disabilities Education Act (IDEA)1 authorizes federal funding
for the education of children with disabilities and requires, as a condition for the receipt
of such funds, the provision of a free appropriate public education (FAPE). The statute
also contains detailed due process provisions to ensure the provision of FAPE and
includes a provision for attorneys’ fees. Originally enacted in 1975, the act responded to
increased awareness of the need to educate children with disabilities, and to judicial
decisions requiring that states provide an education for children with disabilities if they
provided an education for children without disabilities. The attorneys’ fees provisions
were added in 1986 by the Handicapped Children’s Protection Act, P.L. 99-372.2
1 20 U.S.C. §1400 et seq.
2 Although the original act contained no specific provision for attorneys’ fees, prevailing parties
used section 505 of the Rehabilitation Act of 1973, 29 U.S.C. §794a, or section 1988 of the Civil
Rights Attorneys’ Fees Award Act, 42 U.S.C. §1988, to seek fees. However, the Supreme Court
(continued...)
Congressional Research Service ˜ The Library of Congress
These provisions were amended in 1997. The P.L. 105-17 amendments allowed the
reduction of attorneys’ fees if the attorney representing the parents did not provide the
LEA with timely and specific information about the child and the basis of the dispute, and
specifically excluded the payment of attorneys’ fees for most individualized education
plan (IEP) meetings.
The House and Senate bills leading to the 2004 law contained very different
approaches to the attorneys’ fees issue. The House bill, H.R. 1350, 108th Cong., would
have changed the determination of the amount of attorneys’ fees by requiring the
Governor, or other appropriate state official, to determine rates. The Senate bill, S. 1248,
The final 2004 IDEA reauthorization was closer to the Senate version and kept many of
the previous provisions on attorneys’ fees but also made several additions. These include
allowing attorneys’ fees for the state educational agency (SEA) or the local educational
agency (LEA) against the parent or the parent’s attorney in certain situations.
P.L. 108-446 Language Relating to Attorneys’ Fees3
Under the new law the general provisions regarding filing a complaint and appeals
have not changed except that the local educational agency may also file a complaint. A
parent or LEA may file a complaint with respect to the identification, evaluation,
educational placement, provision of a free appropriate public education or placement in
an alternative educational setting. The parents or LEA then have an opportunity for an
impartial due process hearing4 with a right to appeal.5
At the court’s discretion, reasonable attorneys’ fees may be awarded as part of the
costs to the parents of a child with a disability who is the prevailing party.6 The 2004
reauthorization also allows the award of reasonable attorneys’ fees against a parent’s
attorney to a prevailing SEA or LEA in two situations. These are when the attorney
!files a complaint or subsequent cause of action that is frivolous,
unreasonable, or without foundation, or
!continues to litigate after the litigation clearly becomes frivolous,
unreasonable, or without foundation.7
2 (...continued)
in Smith v. Robinson, 468 U.S. 992 (1984), held that the only remedies for prevailing parties
under IDEA were those contained in that statute. Congress enacted the Handicapped Children’s
Protection Act in response to the Court’s decision.
3 For a discussion of attorneys’ fees in general see CRS Report 94-970, Awards of Attorneys’
Fees by Federal Courts and Federal Agencies, by Henry Cohen. See also, GAO, Special
Education: The Attorney Fees Provision of Public Law 99-372, HRD-90-22BR.
4 20 U.S.C. §1415(f), P.L. 108-446, §615(f).
5 20 U.S.C. §1415(g), P.L. 108-446 §615(g).
6 20 U.S.C. §1415(i)(3), P.L. 108-446 §615(i)(3).
7 20 U.S.C. §1415(i)(3)(B), P.L. 108-446 §615(i)(3)(B).
P.L. 108-446 also allows for the award of attorneys’ fees against the attorney of a parent
of a child with a disability or a parent to a prevailing SEA or LEA if the parent’s
complaint or subsequent cause of action was for an improper purpose such as to harass,
to cause unnecessary delay, or to needlessly increase the cost of litigation.8
In the Senate debate on the attorneys’ fees amendment, Senator Grassley stated that
the amendment regarding attorneys’ fees would “in no way limit or discourage parents
from pursuing legitimate complaints against a school district if they feel their child’s
school has not provided a free appropriate public education. It would simply give school
districts a little relief from abuses of the due process rights found in IDEA and ensure that
our taxpayer dollars go toward educating children, not lining the pockets of unscrupulous
trial lawyers.”9 Senator Gregg also emphasized the need for the attorneys’ fee
amendment. He noted that the concept that a defendant should be able to obtain
attorneys’ fees when a plaintiff’s actions were “frivolous, unreasonable, or without
foundation” has been applied to title VII of the Civil Rights Act of 1964. The Supreme
Court in Christiansburg Garment Co. v. Equal Employment Opportunity Commission10
held that prevailing defendants should recover attorneys’ fees when a plaintiff’s actions
were frivolous, unreasonable, or without foundation in order to “protect defendants from
burdensome litigation having no legal or factual basis.”11 Senator Gregg observed that
the standard is “very high...and prevailing defendants are rarely able to meet it and obtain
a reimbursement of their attorneys fees” and that case law “directs courts to consider the
financial resources of the plaintiff in awarding attorney’s fees to a prevailing defendant.”12
The attorneys’ fee provision also would allow defendants to recover fees if lawsuits
were brought for an improper purpose. In the Senate debate, Senator Gregg noted that
this concept was drawn from Rule11of the Federal Rules of Civil Procedure13 and that “in
interpreting this language from Rule 11, courts must apply an objective standard of
reasonableness to the facts of the case.”14
Attorneys’ fees are based on the rates prevailing in the community and no bonus or
multiplier may be used.15 There are specific prohibitions on attorneys’ fees and reductions
8 Id. These provisions are not to be construed to affect section 327 of the District of Columbia
Appropriations Act of 2005 which provides for limitations on attorneys’ fees in the District of
Columbia.
9 150 Cong. Rec. S5349 (daily ed. May 12, 2004).
10 434 U.S. 412 (1978).
11 Id. at 420.
12 150 Cong. Rec. S5349 (daily ed. May 12, 2004).
13 Id. Rule 11 states in relevant part that an attorney by signing pleadings, motions and other
documents certifies to the court that “to the best of the person’s knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances, — (1) it is not being
presented for any improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation...”
14 150 Cong. Rec. S5349 (daily ed. May 12, 2004).
15 20 U.S.C. §1415(i)(3)(C), P.L. 108-446 §615(i)(3)(C).
in the amounts of fees.16 Fees may not be awarded for services performed subsequent to
a written offer of settlement to a parent in certain circumstances:
!if the offer is made with the time prescribed by Rule 68 of the Federal
Rules of Civil Procedure or ten days before an administrative proceeding
begins;
!if the offer is not accepted within ten days; and
!if the court finds that the relief finally obtained by the parents is not more
favorable to the parents than the offer of settlement.
Also, attorneys’ fees are not to be awarded relating to any meeting of the individualized
education program (IEP) team unless the meeting is convened as a result of an
administrative proceeding or judicial action or, at the state’s discretion, for a mediation.
The 2004 reauthorization added a requirement for a “resolution session” prior to a
due process hearing. Essentially, this is a preliminary meeting involving the parents,
relevant members of the IEP team, and a representative of the LEA who has decision-
making authority.17 Attorneys’ fees are not allowable for the resolution session.18
Like previous law, P.L. 108-446 specifically provides that an award of attorneys’
fees and related costs may be made to a parent who is the prevailing party if the parent
was substantially justified in rejecting a settlement offer.19 Attorneys’ fees may be
reduced in certain circumstances including where the court finds
!that the parent or the parent’s attorney unreasonably protracted the final
resolution of the controversy;
!the amount of attorneys’ fees unreasonably exceeds the hourly rate
prevailing in the community for similar services by attorneys of
reasonably comparable skill, reputation and experience;
!where the time spent and legal services furnished were excessive
considering the nature of the action or proceedings; or
!the attorney representing the parent did not provide the school district
with the appropriate information in the due process complaint.20 This
information includes the name of the child, the child’s address and
school, or available contact information in the case of a homeless child,
a description of the problem, including facts relating to the issue, and a
proposed resolution to the problem.21
As in previous law, P.L. 108-446 contains a specific exception to these
circumstances where attorneys’ fees may be reduced. There shall be no reduction if the
16 20 U.S.C. §1415(i)(3)(D), P.L. 108-446 §615(i)(3)(D).
17 20 U.S.C. §1415(f)(1)(B), P.L. 108-446 §615(f)(1)(B).
18 20 U.S.C. §1415(i)(3)(D)(iii), P.L. 108-446 §615(i)(3)(D)(iii).
19 20 U.S.C. §1415(i)(3)(E), P.L. 108-446 §615(i)(3)(E).
20 20 U.S.C. §1415(i)(3)(F), P.L. 108-446 §615(i)(3)(F).
21 20 U.S.C. §1415(b)(7), P.L. 108-446 §615(b)(7).
court finds that the SEA or LEA unreasonably protracted the final resolution of the action
or proceeding or there was a violation of the section.22
Final Regulations
The final regulations for P.L. 108-446 were issued on August 14, 2006.23 Generally,
the Department of Education (ED) declined to elaborate on the statutory language,
observing that “further guidance on the interpretation of this statutory language is not
appropriate since judicial interpretations of statutory provisions will necessarily vary
based upon case-by-case factual determinations, consistent with the requirement that the
award of reasonable attorneys fees is left to a court’s discretion.”24
One of the issues ED declined to address in the regulations involved whether a court
could award fees to non-attorney advocates who accompanied and advised the parents at
a due process hearing. ED stated that “[l]ay advocates are, by definition, not attorneys
and are not entitled to compensation as if they were attorneys.”25 ED also noted that the
Supreme Court’s recent decision in Arlington Central School District Board of Education
v. Murphy26 held that if Congress wishes to allow recovery of experts’ fees by prevailing
parents, it must include explicit language authorizing such a recovery. Such explicit
language was not added in the 2004 reauthorization of IDEA. The Supreme Court’s
rationale was found by ED to be controlling concerning the fees of non-attorney experts,
and the Department of Education declined to add a regulatory provision on the subject.27
22 20 U.S.C. §1415(i)(3)(G), P.L. 108-446 §615(i)(3)(G).
23 For detailed discussion of major provisions in the final regulations see CRS Report RL33649,
The Individuals with Disabilities Education Act (IDEA): Final Regulations for P.L. 108-446, by
Richard N. Apling and Nancy Lee Jones.
24 71 Fed. Reg. 46708 (Aug. 14, 2006).
25 71 Federal Register 45708, Aug. 14, 2006.
26 126 S.Ct. 2455, 165 L.Ed. 526, 2006 U.S. LEXIS 5162 (June 26, 2006). For a more detailed
discussion of this case see CRS Report RS22465, The Individuals with Disabilities Education
Act (IDEA): The Supreme Court Denies Expert Fees in Arlington Central School District v.
Murphy, by Nancy Lee Jones.
27 71 Federal Register 45708, Aug. 14, 2006.