Special Education Article
The financial and social costs of special education disputes.
Attorney fees and costs are usually the first questions a parent has when seeking the involvement of an attorney. Of course, this is completely understandable. However, as this article will explain, the financial cost is secondary to the underlying legal issue(s) you are facing. Additionally, there are social costs to educational disputes. It takes time to resolve issues through the legal process and those issues may have an impact on other children receiving special education and services.
Let’s start with the good news. Reasonable attorney fees and costs are generally recoverable if you prevail in a formal proceeding. This is true under the Individuals with Disabilities Education Act (“IDEA”) as well as many other laws designed to protect individuals with special needs. This is referred to as “fee shifting.” The law shifts the costs of the dispute to the other side if they are responsible. Fee shifting makes pursuing your legal rights economically feasible if the underlying issues are strong. Of course, you can always pay for legal services without relying on fee shifting provisions (you can always hire an attorney). However, this tends to be a major component in justifying the legal fees and costs when pursuing claims.
The less desirable news is not all attorney fees and costs are recoverable. Attorney fees that, generally, occur outside of the legal process, like an IEP meeting, or at a mandatory resolution session, during the legal process, are unrecoverable. Additionally, expert fees are unrecoverable. This means that when you hire expert witnesses to testify in support of your position you will have to bear these costs. Another limitation is that fees and costs must be reasonable or a court will adjust the fees and costs to reflect what is reasonable. It’s also worth mentioning that non-attorneys cannot request attorney fees. For example, if you hire an advocate to represent you at due process you cannot recover those fees.
What are attorney fees and costs? Attorney fees are measured in the hours spent discussing, reviewing, researching, writing, and litigating the matter at all stages. Costs include photocopies, materials, service of process, and filing fees. At the administrative level the costs are low because there’s limited discovery and no filing fees. On appeal to a federal district court or state trial court these costs increase. Expert fees are also a “cost.” Appropriate assessments necessary to fully evaluate a child in support of your position may also be recoverable costs.
How does this all relate to an agreement between the attorney and client? In practice, most special education attorneys are hesitant to quote fees and costs until there’s a clear understanding of the issues. Why? The general hourly fees and costs are not representative of what a client will pay out of pocket to pursue a claim because of the fee shifting provisions in the law. For non-litigation services, many attorneys work on a fixed fee basis for a specific task. For litigation, many attorneys work on some kind of a sliding scale. The lowest upfront costs come with the most egregious violations of law that have the strongest likelihood of success. The highest upfront costs go to the claims that have some basis but success is unlikely. Similarly, the ultimate responsibility for the remainder of fees and costs beyond the retainer depends on the same sliding scale.
There are situations that can complicate the discussion about fees and costs. These situations include improperly filing a claim, settling without your attorney’s fees and costs, and offers of settlement. A claim filed for an improper purpose can subject the person filing the complaint to the fees and costs of the other side. Although rare, you can imagine this can be costly. Once you’ve engaged an attorney, if you chose to settle without attorney fees and costs you may be liable by agreement for some or all of the attorney’s work up to that point. Finally, if the other side makes an “offer of settlement” in writing, you prevail at hearing but to a lesser extent then that offer, the fee shifting provisions in the law may cut off reimbursement of fees and costs beyond the date of that offer, and you may be liable by agreement for fees and costs from that point on, if the attorney advised you to take the settlement you refused.
Attorney fees should never foreclose you emotionally from reaching out to an attorney. In practice, the “scary” part of an attorney’s fees and costs is stripped away by the agreement you have with your attorney because of fee shifting. Most attorneys charge something upfront because there’s a basic livelihood concern but limit your overall exposure based on fixed fees for specific services or a sliding scale for litigation. Almost all attorneys working in special education provide a free consultation and work in the field with a genuine passion to help others or have a personal connection to the field.
The social costs of any educational disputes are an important consideration. Special education law is set up to move quickly but these disputes can drag on. The best educational interest of your child is served by resolving issues quickly, before filing or at a resolution session, mediation, or settlement conference. The wrong program or services has an ongoing impact and a judicial remedy six months, a year later, or longer cannot bring back lost time. Program solutions may be vital and worth the time. Compensatory education is important for making up that lost time but requires more time in addition to the current program. Time should be considered a cost and be considered in moving quickly when issues arise.
Finally, what happens to one child probably happens to others. Sometimes problems and violations go unnoticed because people remain silent, feel like they won’t be heard, or can’t afford to get help. When you pursue your rights you’re pursuing everyone’s rights. When a dispute ends quickly and in favor of a child’s rights it sends a message to the school to correct the problem going forward. Disputes that go on because they involve serious violations or a disputed interpretation of law can have a dramatic impact on the entire special education system.
What you should take away from this is “if you feel you need to consult with an attorney, consult with an attorney.” The financial cost is secondary to the underlying legal issue(s) you are facing. You will find that the majority of special education attorneys have an open door policy and a cost structure that makes resolving education disputes affordable.