2013 -- S 0335

=======

LC00722

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

____________

A N A C T

RELATING TO EDUCATION -- CHILDREN WITH DISABILITIES

     Introduced By: Senators Gallo, Lombardi, McCaffrey, Jabour, and Archambault

     Date Introduced: February 13, 2013

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

1-1

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

1-2

hereby amended by adding thereto the following section:

1-3

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

1-4

     (a) Costs awarded to prevailing plaintiff.

1-5

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

1-6

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

1-7

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

1-8

Education Act, 20 USC section 1400 et seq., and/or Title 16 of the Rhode Island general laws

1-9

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

1-10

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

1-11

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

1-12

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

1-13

USC section 1400 et seq., rather than before the hearing officer or in superior court.

1-14

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

1-15

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

1-16

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

1-17

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

1-18

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

1-19

unreasonable or without foundation,

2-20

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

2-21

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

2-22

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

2-23

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

2-24

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

2-25

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

2-26

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

2-27

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

2-28

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

2-29

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

2-30

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

2-31

became unreasonable or without foundation.

2-32

     (b) “Prevailing party” defined. A prevailing party is a parent that prevails on behalf of a

2-33

child in an administrative action by a decision of a hearing officer, or by an informal disposition,

2-34

which includes, but is not limited to, an agreement by the parties or termination of the proceeding

2-35

by the agency.

2-36

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

2-37

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

2-38

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

2-39

calculating the fees awarded under this subsection.

2-40

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

2-41

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

2-42

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

2-43

written offer of settlement to a parent if:

2-44

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

2-45

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

2-46

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

2-47

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

2-48

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

2-49

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

2-50

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

2-51

costs. Notwithstanding paragraph (d) of this section, an award of attorney and expert fees and

2-52

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

2-53

justified in rejecting the settlement offer.

3-54

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

3-55

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

3-56

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

3-57

hearing officer or court of proper jurisdiction finds that:

3-58

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

3-59

final resolution of the controversy; or

3-60

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

3-61

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

3-62

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

3-63

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

3-64

considering the nature of the action or proceeding; or

3-65

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

3-66

appropriate information in the notice of the due process complaint as described in 20 USC section

3-67

1415 (b)(7) of the Individuals with Disabilities Education Act as amended or in any subsequent

3-68

provisions providing for a similar due process complaint.

3-69

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

3-70

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

3-71

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

3-72

protracted the final resolution of the action or proceeding.

3-73

     (h) As used in this section, the term “parent” shall also include a legal guardian of a child

3-74

if applicable.

3-75

     SECTION 2. This act shall take effect upon passage.

=======

LC00722

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO EDUCATION -- CHILDREN WITH DISABILITIES

***

4-1

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

4-2

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

4-3

in matters governing the education of their child with disabilities.

4-4

     This act would take effect upon passage.

=======

LC00722

=======