2015 -- H 5862

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

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A N   A C T

RELATING TO EDUCATION -- CHILDREN WITH DISABILITIES

     

     Introduced By: Representatives Blazejewski, Johnston, Keable, Lally, and Azzinaro

     Date Introduced: March 12, 2015

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 16-24 of the General Laws entitled "Children with Disabilities" is

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hereby amended by adding thereto the following section:

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     16-24-19. Costs to prevailing plaintiff -- Special education matter in controversy. –

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     (a) Costs awarded to prevailing plaintiff.

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     (1) In any adjudicatory proceeding or superior court action in any matter governing the

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education of children with disabilities, the hearing officer or superior court, if requested by a

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parent who is a prevailing party in a hearing brought pursuant to the Individuals with Disabilities

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Education Act, 20 U.S.C. 1400 et seq., and/or Title 16 of the Rhode Island general laws

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("Education"), shall require that the prevailing parent be awarded reasonable attorney and expert

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witness fees, as part of the costs associated with bringing the action. Provided, however, that any

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such parent who is a prevailing party may elect to seek an award of reasonable attorneys’ fees in

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the United States District Court pursuant to the Individuals with Disabilities Education Act, 20

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U.S.C. 1400 et seq., rather than before the hearing officer or in superior court.

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     (2) In any action or proceeding brought in a court of proper jurisdiction, the court, in its

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discretion, may award reasonable attorneys' fees as part of the costs to a prevailing party who is a

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state or local education agency against the attorney of a parent who files a complaint or

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subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the

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attorney of a parent who continued to litigate after the litigation clearly became frivolous,

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unreasonable or without foundation,

 

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     (3) In any action or proceeding brought in the court of proper jurisdiction, the court, in its

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discretion, may award reasonable attorneys' fees as part of the costs to a prevailing party who is a

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state or local education agency against the attorney of a parent, or against the parent, if the

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parent’s complaint or subsequent cause of action was presented for any improper purpose, such as

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to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

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     (4) In any adjudicatory proceeding or superior court action in any matter governing the

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education of children with disabilities, the hearing officer or superior court may, in his, her, or its

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discretion, award reasonable attorneys' fees as part of the costs to a prevailing party who is a

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parent against the attorney of a state or local education agency who files a complaint or

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subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the

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attorney of a state or local education agency who continued to litigate after the litigation clearly

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became unreasonable or without foundation.

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     (b) Determination of amount of attorney and expert fees. Awarded attorney and expert

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fees shall be based on rates prevailing in the community in which the action or proceeding arose

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for the kind and quality of services furnished. No bonus or multiplier may be used in

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calculating the fees awarded under this subsection.

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     (c) Prohibition of attorney and/or expert fees and related costs for certain services.

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     (1) Attorney and expert fees may not be awarded and related costs may not be reimbursed

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in any action or proceeding under this statute for services performed subsequent to the time of a

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written offer of settlement to a parent if:

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     (i) The offer is made within the time prescribed by Rule 68 of the Rhode Island Superior

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Court Rules of Civil Procedure or Rule 68 of the Federal Rules of Civil Procedure, or, in the case

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of an administrative hearing, at any time more than ten (10) days before the proceeding begins;

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     (ii) The offer is not accepted within ten (10) days; and

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     (iii) The court of proper jurisdiction or administrative hearing officer finds that the relief

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finally obtained by the parent is not more favorable to the parent than the offer of settlement.

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     (d) Exception to prohibition on attorney and/or expert fees and related

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costs. Notwithstanding subsection (c) of this section, an award of attorney and expert fees and

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related costs may be made to a parent who is the prevailing party and who was substantially

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justified in rejecting the settlement offer.

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     (e) Reduction of amount of attorney and/or expert fees. Except as provided in subsection

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(f) of this section, the administrative hearing officer or court of proper jurisdiction may reduce,

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accordingly, the amount of the attorney and/or expert witness fees awarded, if the administrative

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hearing officer or court of proper jurisdiction finds that:

 

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     (1) The parent, during the course of the action or proceeding, unreasonably protracted the

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final resolution of the controversy; or

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     (2) The amount of the attorney and/or expert fees otherwise authorized to be awarded

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unreasonably exceeds the hourly rate prevailing in the community for similar services by

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attorneys and/or expert witnesses of reasonably comparable skill, reputation, and experience; or

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     (3) The time spent and legal and expert witness services furnished were excessive

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considering the nature of the action or proceeding; or

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     (4) The attorney representing the parent did not provide to the school district the

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appropriate information in the notice of the due process complaint as described in 20 U.S.C. 1415

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(b)(7) of the Individuals with Disabilities Education Act as amended or in any subsequent

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provisions providing for a similar due process complaint.

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     (f) Exception to reduction in amount of attorney and expert fees. The provisions of

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subsection (e) of this section do not apply in any action or proceeding if the administrative

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hearing officer or court of proper jurisdiction finds that the state or local agency unreasonably

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protracted the final resolution of the action or proceeding.

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     (g) As used in this section, the term "parent" shall also include a legal guardian of a child

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if applicable.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO EDUCATION -- CHILDREN WITH DISABILITIES

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     This act would allow parents of children with educational disabilities to recover their

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attorney and expert fees when they prevail in an adjudicatory proceeding or superior court action

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in matters governing the education of their child with disabilities.

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     This act would take effect upon passage.

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