Monthly Archives:' December 2016

LATE SETTLEMENT OFFERS CANNOT FORESTALL RECOVERY OF ATTORNEY’S FEES UNDER 20 U.S.C. § 1415(i)(3)(D)

On November 8, 2016, the U.S. District Court, Eastern District of California ruled in Y.L. v. Manteca Unified School District, et al. that a late settlement offer, made less than 10 days before the administrative proceeding began, does not bar a prevailing plaintiff “from recovering fees incurred after the offer was made.

Background:

In this case, Plaintiffs alleged that the defendant school district and county office of education failed to provide a FAPE, alleging 17 separate issues.  The complaint went to an administrative law hearing, on which the ALJ held that plaintiff prevailed fully on one issue (failure to permit parental participation in the IEP process), and partially on another (Petitioner’s claim that the defendants failed to provide an hour per week of pull-out services).  As remedies, defendants were ordered to provide two hours of training to appropriate staff regarding parent participation, and Plaintiff was awarded 21.5 hours of compensatory education on the pull-out services issue.  Plaintiff lost on the remaining 15 issues.

Plaintiff later moved for attorney’s fees in federal court.  Defendants made a settlement offer of $15,000—likely well above the value of the training and comp-ed time—about six months after the administrative hearing but nearly two years before the District Court’s ruling regarding an award of attorney’s fees.

Under the IDEA, plaintiffs may not recover fees incurred after a settlement offer made “at any time more than 10 days before the proceeding begins” if the relief obtained “is not more favorable to the parents than the offer of settlement.”  20 U.S.C. § 1415(i)(3)(D).  The District Court ruled the 10 day rule applied to the administrative hearing.  As such, because defendants’ settlement offer was made after the administrative hearing, it “[did] not bar plaintiff from recovering fees incurred after the offer was made.”  Y.L. v. Manteca.

Takeaway:

  • Under this ruling, in order to forestall recovery of subsequent legal fees under 20 U.S.C. § 1415(i)(3)(D), settlement offers must be made more than 10 days prior to the administrative hearing.
  • Once the 20 U.S.C. § 1415(i)(3)(D) 10-day deadline passes, any further settlement offers will not limit recovery, even if made more than 10 days prior to a subsequent proceeding.

Reminders for Special Education Administrators Over Winter Break

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Author: Heather Edwards, Attorney at Law

A special education administrator’s job is endless. School holidays are no exception. With winter break fast approaching, local education agencies must be aware of how the school vacation impacts timelines and other issues with regard to serving students with disabilities. Along with some well-deserved rest and relaxation, follow these reminders during the winter break to make a positive impact on the rest of the school year.

  1. Some Timelines Are Suspended Over Winter Break.

Statutory timelines are suspended for school breaks in excess of five school days in the following circumstances:

  • To propose an assessment plan for an initial assessment or reevaluation (Ed. Code §§ 56043(a), 56321(a)).
  • To convene an IEP meeting to review a reevaluation (Ed. Code §§ 56043(f), 56344(a)).
  • To convene an IEP meeting upon Parent request (Ed. Code §§ 56043(l), 56343.5).
  1. Some Timelines Are NOT Suspended Over Winter Break.

LEAs must be prepared to arrange resolution meetings, should they receive last-minute notice of a due process complaint during the break. IDEA requires LEAs to hold a resolution meeting within 15 calendar days of receipt of the complaint, not 15 school days, unless the parents and LEA waive the meeting. The fact that notice arrives just before or during school vacation does not affect the timeline. Letter to Anderson, 110 LRP 70096 (OSEP 11/10/10).

Also, when a school receives a request for an independent educational evaluation (IEE), the school must respond without unreasonable delay.  There is no bright-line rule for determining whether an LEA’s response to a request for an IEE is timely. However, hearing officers will consider whether school was in session at the time of the request. In one case, a parent requested an IEE just one week before the start of winter break. Because most district employees were not permitted to work over the 24-day break, the hearing officer determined the district did not act unreasonably in taking another three weeks to review its assessments and decide whether to grant the parent’s request. Los Angeles Unified School District (OAH No. 2011010957).

  1. Take Data Following Winter Break to Prepare for Extended School Year Discussions.

A great way to make informed and defensible decisions regarding whether a student with disabilities requires extended school year services during the summer is to collect data throughout the school year, particularly over holiday breaks.  Data collection should focus on determining: whether the child regresses when there is a break from school; in what area(s) there is evidence of regression; length of time for child to recoup skills; whether the child received private services over the break, and if so, what type of services and for what frequency/duration.

  1. Implement Strategies When Students with Behavioral Challenges Return From Winter Break.

Getting back into the swing of things after a break can be difficult for everyone. For students with behavior challenges, school vacations can often disrupt the structure and routines that schools put in place to support behavior.  Providing school staff with strategies to get students back on track upon return from winter break may help minimize this type of regression. Review behavior plans with staff before winter break so they are aware of the need to review expectations and reteach skills to students upon return. If you continue to see escalating behaviors, consider convening an IEP team meeting to make appropriate adjustments to any behavior plans.