NC 1504-1.18 Attorney Fees

Plain English summary

This regulation governs the award of attorney fees in actions brought under IDEA section 615, allowing courts to award reasonable fees to prevailing parents or, in limited circumstances, to SEAs or LEAs against parents or their attorneys for frivolous or improper proceedings. It prohibits use of IDEA Part B funds to pay attorney fees for parties to disputes, establishes fee calculation standards based on community rates, and outlines conditions under which fees must be reduced or cannot be awarded. Key limitations include restrictions on fees after rejected settlement offers and for IEP Team meetings not resulting from legal action.

Key requirements

• The court, in its discretion, may award reasonable attorneys' fees as part of the costs to the prevailing party who is the parent of a child with a disability.
• Fees may be awarded to a prevailing SEA or LEA against the attorney of a parent who files a petition for a due process hearing or subsequent cause of action that is frivolous, unreasonable, or without foundation.
• Fees may be awarded to a prevailing SEA or LEA against the attorney of a parent, or against the parent, if the parent's request was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.
• Funds under Part B of the IDEA may not be used to pay attorneys' fees or costs of a party related to any action or proceeding under section 615 of the IDEA.
• 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.
• No bonus or multiplier may be used in calculating the fees awarded.
• Attorneys' fees may not be awarded for services performed subsequent to the time of a written offer of settlement to a parent if the offer is made at any time more than 10 days before the proceeding begins, the offer is not accepted within 10 days, and the relief finally obtained is not more favorable to the parents than the offer of settlement.
• Attorneys' fees may not be awarded relating to any meeting of the IEP Team unless the meeting is convened as a result of an administrative proceeding or judicial action.
• A meeting conducted pursuant to NC 1504-1.11 shall not be considered a meeting convened as a result of an administrative hearing or judicial action, or an administrative hearing or judicial action for purposes of this section.
• An award of attorneys' fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.
• The court reduces the amount of attorneys' fees awarded if the parent or parent's attorney unreasonably protracted the final resolution of the controversy.
• The court reduces fees if the amount of attorneys' fees otherwise authorized unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience.
• The court reduces fees if the time spent and legal services furnished were excessive considering the nature of the action or proceeding.
• The court reduces fees if the attorney representing the parent did not provide to the LEA the appropriate information in the due process request notice in accordance with NC 1504-1.9.
• Fee reduction provisions do not apply if the court finds that the State or LEA unreasonably protracted the final resolution or there was a violation of section 615 of the IDEA.

Affected parties

• Parents of children with disabilities
• Students with disabilities
• Local Education Agencies (LEAs)
• State Education Agency (SEA)
• Attorneys representing parents
• Attorneys representing SEAs and LEAs
• Administrative hearing officers
• Courts

Official source

https://www.dpi.nc.gov/documents/publications/catalog/ec144-policies-governing-services/open#page=93