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IDEA re-authorization bill may cap attorney fees
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Nov. 11, 2003 -- The Senate bill re-authorizing the Individuals with Disabilities Education Act is coming to the full Senate floor for a vote any day now (to read the bill, go to http://thomas.loc.gov and type S. 1248 in the search box).
Once brought to the Senate floor, amendments will be proposed, says the Disability Rights Education and Defense Fund, which has been issuing regular reports as part of its "IDEA Rapid Response Network." One amendment, say advocates, will almost surely concern attorney fees.
The bill in the House (H. R. 1350) was amended by Rep. Ed Case (D-HI) to include a provision that allows governors to set rates for attorneys who represent the parents of disabled children in disputes with school districts in their states -- which means they can set a cap for attorney's fees. "The Senate bill, S. 1248, does not include a similar fee cap, but we expect one to be introduced when the bill reaches the Senate floor," says DREDF.
The IDEA, says DREDF, is a law that, like other civil rights laws, "provides for payment of fees by the school districts to parents who prevail at administrative hearings and in court" -- the provisions are "identical to other civil rights fee-shifting provisions designed to allow poor and low-income and minority and non- English-speaking plaintiffs access to attorneys."
There is no need for a change in the current legislation on the matter of attorney fees, says southern California special education attorney Marcy Tiffany. Under the current IDEA, "in order to recover fees a party must not only be a 'prevailing party,' but the amount of fees awarded must be 'based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.'" This provision can be found in the current law at 1415(i)(3)(C). Case's amendment "is a disaster for parents of disabled children who already face striking disadvantages when going up against educational institutions," says DREDF.
After passage by the Senate, the bills will likely end up in a House-Senate conference committee. "Usually some version of a compromise between two differing bills emerges from conference to be signed into law," says DREDF. "This process can take a long time. So even if the Senate should discuss and pass a bill next week, it will likely not be until into 2004 that an IDEA re-authorization statute is signed." Until then, the current law, the IDEA passed in 1997, remains in effect.
For more on this topic, visit http://www.dredf.org/rrn/briefing25.html
To sign up for the IDEA Rapid Response Network and receive briefings about the bills, email DREDF at preserveIDEA@dredf.org