David M. Moore
Table of Contents
I. Inadequate Access: Two
Proposals..............................2
II. An Overview of the Individuals
with Disabilities Education Act (IDEA).
A. History and Congressional
Findings.......................6
B. Statutory Framework
of the IDEA..........................7
III. Attorneys as Mediators
in IDEA Disputes.
A. What is Mediation?......................................10
B. Benefits of Attorney-Mediators..........................12
C. Professional Responsibility.............................17
IV. Attorneys Fees and ÒPrevailing
Parties.Ó
A. Introduction............................................23
B. Buckhannon v. West
Virginia Department of Health and Human Resources.......................................................25
C. Buckhannon Applied
to IDEA..............................27
1. Lay Advocates
and Parent Attorneys.................29
2. Procedural Injustice:
Reaching the Agreement.......32
3. Procedural Injustice:
ÒActions or Proceedings?Ó....36
V. Conclusion
A. Mediation...............................................40
B. Attorneys Fees..........................................42
I. Inadequate Access:
Two Proposals.
The schools need to reach
children with disabilities as early as possible because, in later life,
they experience extremely high levels of unemployment and poverty.
In an often cruel cycle, there is a link between increased poverty creating
an even greater risk of disability. The Individuals with Disabilities
Education Act (IDEA) is a very important Congressional program in
the special education context because it directly involves the provision
of services in the classroom. In this program, states that accept
federal money must set up procedures to ensure a Òfree and appropriate
public educationÓ (FAPE) in a process filled with too much
negotiations, meetings, due process hearings, and litigation.
The purpose of this paper
is to discuss two proposals to alleviate the problems in obtaining a proper
placement, which directs the educational progress of a disabled child under
the IDEA. The first proposal discusses the voluntary mediation provision
of the IDEA and how the process can be expanded and improved through the
use of attorney-mediators trained in mediation skills and knowledgeable
in special education law to lead the hearings at district cost.
The other discusses the current structure of the attorneys fees provisions
and the prevailing party status needed under the law to obtain them.
The proposal is to amend the law, either legislatively or judicially.
The struggle for the proper
provision of special education services is a fight for the entitlement
mandated by Congress with, and too often against, the limited financial
resources of states and school districts. In the school year 1999-2000,
approximately $78.3 billion were spent nationwide for special education
services at all levels to educate disabled children covered under the IDEA.
This number is misleading because states and the districts have to pick
up the lionÕs share of these expenditures. It is estimated
that educating these children costs about 2.1 times the money it costs
to educate a normal child.
Of particular concern
is the legal contentiousness of the whole process, creating a Òculture
of complianceÓ where disagreements over proper placements to guide
the education of children lead to acrimony, which leads to litigation,
and thus reappropriating energy and resources away from providing all children
a public education. Complying with the myriad federal requirements
for states and districts is more of a process in following burdensome legal
technicalities than it is one of improving student performance.
On the other hand, poorer
schools sometimes cannot meet the needs of these children because they
are already hard hit by teacher shortages and financial woes, and are thus
unable to litigate certain issues fully for resolution. Worse
yet, districts have been criticized across the nation for shirking their
responsibilities by throwing children with discipline problems who may
have disabilities into the juvenile court system, where the IDEA protections
cannot be applied.
In addition, Congress has
not fulfilled its own promise to the states. At the initial passage
of the Education for All Handicapped Children Act (EAHCA) in 1975,
Congress pledged 40% of the money needed to support these programs, but,
to this date, it is only paying for about 15% of the total cost.
The federal government spent over $33 billion on education in 2000, only
$6 billion of which was spent for special education. It is
ironic that while forcing this largely unfunded mandate upon the states,
Congress itself has no compunction in limiting the fees it will pay to
plaintiffsÕ attorneys when it has to foot the bill.
Families with lower incomes
and limited educations have a harder time dealing with legal problems.
According to one study, four-fifths of the civil legal needs of the poor,
and up two-thirds to three-fifths of middle income persons presently go
unmet. One liberal estimate claims that at least 70% need but
are unable to afford or obtain assistance. With all the lawyers
schools graduate every year, there is only one legal aid lawyer or
public defender for every 4,300 persons below the poverty line, while
there is one lawyer for every 380 Americans in the population generally.
This fact is more startling considering the fact that at least 35 million
poor persons are eligible for the legal services legal aid offices can
provide. With the extremely limited funds these offices have,
the attorneysÕ representations is incomplete because they have to
take on many cases that are small in scope, and not cases that require
more difficulty.
The serious problem of legal
access for poorer families is just as true in the special education context.
Some studies have shown that as the social and economic backgrounds of
families of children with disabilities slide down the scale, the more difficult
it is to obtain a FAPE. With over 6.2 million children
covered under the IDEA currently, a growth rate of 30.3% over the
last decade, that means a significant amount of families who have
used or are in need of legal services. The enforcement of the IDEAÕs
provisions substantially is related to how willing the education agency
is to comply and how willing the parents are to fight them if they do not,
which is due in large part to the wealth of the parents. Because
of the great expense in even getting the dispute to the due process hearing
stage, most disputes never go to hearing and the parents simply withdraw
their complaint or request.
The inadequate access to
legal services for lower to middle income families of children with disabilities
can be solved by special education attorneys trained in mediation and through
a less restrictive definition of Òprevailing partyÓ status.
This is so because these attorneys can use their knowledge of the intricacies
of special education law and mediation skills to bring both sides together
by eliciting the necessary facts and issues to ensure a proper placement.
This should result in balancing the bargaining power that was previously
tilted to the districtsÕ side. As for attorneys fees, though
addressed in the 1997 amendments to the IDEA, Congress should reexamine
the law and amend it to allow the award to all Individual Education Plan
(IEP) meetings and mediation proceedings. Lastly, the current case
law on prevailing party status should be reversed if Congress does not
make changes on its own.
II. An Overview of
the Individuals with Disabilities Education Act (IDEA).
A. History and Congressional
Findings.
Two significant court cases
provided the impetus for legislatures to pay attention to the needs of
children with disabilities. The first was Mills v. Board of Education
of D.C. In that case, a civil action brought on behalf of seven
children of school age who were denied a public education in the District
of Columbia school system. The court held that it is a violation
of the Equal Protection Clause of the Fourteenth Amendment to not provide
the same quality of public education to all other students once it takes
on the duty to educate them.
The second was Pennsylvania
Association for Retarded Children v. Commonwealth of Pennsylvania, decided
the next year. In that case, the court approved a consent decree
entitling disabled children to an education appropriate to their abilities
and designed to improve them. Both of these cases asserted
constitutional grounds for guaranteeing disabled children an education;
both drew attention to the plight of children with disabilities.
CongressÕs purpose
in the enacting of the IDEA was to ameliorate the conditions of disabled
children in public education. Before the Education for All Handicapped
Children Act of 1975, Congress found that the needs of the handicapped
were not being fully met. More than one-half of the children
with disabilities did not receive Òappropriate educational services.Ó
It also found that at least one million children were not getting any public
school services with their peers and, even if in public schools, were unable
to reach any modicum of success because their disabilities went undetected.
In addition to the poverty of parents of children with disabilities, the
families are disproportionately minorities as a share of the total covered
under the IDEA. At great expense, many families leave the public
school system altogether to seek more appropriate educational services
for their children.
Congress found that through
the IDEAÕs provisions the roles of parents would be strengthened
by assuring more Òmeaningful opportunities to participate in the
education of their children [at school] and at home.Ó
B. Statutory Framework
of the IDEA.
1. The IDEA requires that
any state or local education agency that accepts federal dollars must establish
procedures that Òensure that children with disabilities and their
parents are guaranteed É [a] free appropriate education by such
agencies.Ó A free appropriate public education (FAPE)
is self-explanatory. However, there is the additional requirement that
it must be Òprovided in conformity with the individualized education
program (IEP)É.Ó An IEP is a written statement
for each child with a disability that is Òdeveloped, reviewed, and
revisedÓ by the education agency and the parents or guardian of
the child. The two primary purposes of the IEP are to set up
a formal written plan that directs the educators in implementation and
for assessing the childÕs progress.
2. The IDEA requires education
agencies covered under this act to establish certain types of general procedures
to carry out this mandate. These rights include access to all
records, to participate in meetings with respect to the placement of their
child and the provision of FAPE, and to obtain independent evaluation of
the child.
3. The IDEA requires education
agencies to establish procedures for settling these disputes.
In the 1997 amendments to the IDEA, Congress added the requirement that
mediation be available to all parents. Mediation, at a minimum, must
be available after a hearing is requested by the parents. The
mediation must be voluntary and not used to deny or delay a parentÕs
right to the due process hearing. Mediators must be qualified
and impartial, trained in mediation techniques, and not employees of the
educational agency. The state must maintain a list of mediators
Òknowledgeable in laws and regulations relating to the provision
of special education and related services.Ó Costs of
the mediation are to be paid by the agency. Any agreement reached
by the parties shall be set forth in a written agreement.
4. If no settlement agreement
is reached at the mediation session, the parentÕs next step is the
impartial due process hearing. This hearing is much more formal
than the mediation hearing because of the introduction of more procedure.
As with mediation, the hearing officer must not be an employee of the local
education agency. However, the right to bring an attorney,
conduct trial-type procedures (presenting evidence, subpoena witnesses,
cross-examination, etc.), and have it be on the record is protected.
Also, there is the possibility of agency review by the education agency
for parties who do not get the desired result.
5. Finally, any losing party
from an official hearing has the right to bring a civil action in a state
court of competent jurisdiction or in federal district court.
To bring the suit, parents must first have exhausted available administrative
remedies.
6. The Handicapped Child
Protection Act (HCPA) of 1986 allowed courts to award attorneys fees
to the parents of children with disabilities when they are the Òprevailing
party.Ó The fees awarded are to be based on the rates prevailing
in the community for the quality of services furnished, but no bonus or
multiplier is allowed in the calculation. Another restrictive
requirement is that they are not awarded for IEP meetings or mediation
hearings (unless ordered after the impartial due process hearing or by
a court). Lastly, if there is a written offer of settlement,
the parents refuse it, and then they do no better in court, then no attorneys
fees may be awarded. The opposite is true if the parent was
substantially justified in rejecting the settlement. One final safeguard
is that attorneys fees can be modified according to whether either side
engaged in harassment or dilatory tactics.
III. Attorneys as Mediators
in IDEA Disputes.
A. What is Mediation?
This section addresses mediation
in general and what it can bring to special education. The general
policy argument supporting or criticizing mediation is not under this paperÕs
purview, but the criticisms against mediation deal mainly with the lack
of formal guidance in the statute. It allows the parties to rush
into mediation and negotiate a settlement, which in and of itself, is not
a Òsufficient measureÓ of its success in providing a FAPE.
On the other hand, the benefits
of attorney-mediators will be explained, where it will be shown that attorneys
can bring to bear their specialized knowledge of the law and their mediation
training skills to ensure a better placement. The attorney-mediator
can utilize her knowledge to help poorer families who cannot afford representation
while maintaining her neutral role. This section of the paper also
addresses a few of the important ethical concerns confronting the attorney-mediator
in this neutral role. By doing so, these ethical concerns will not
hinder the role of the attorney.
Many lawyers make it a major
part of their practice to handle mediation and other forms of alternative
dispute resolution (ARD). Common subject areas in which these attorneys
offer services are business disputes, divorce proceedings, and probate.
In fact, it is not limited to attorneys, for there are many organizational
entities and solo practitioners that perform these functions without the
need or benefit (or some may say hindrance) of a law degree.
The general role of the
mediator is to listen to the problems of both sides, offer other possible
solutions, and try to reach agreement. Of course, not all disputes
should go to mediation. The purpose of mediation is not necessarily
to reach an agreement. Some issues are too important or not factually or
legally developed enough to be settled in the less formal context of a
mediation hearing. Mediation does not have the same factual
presentations, evidence rules, or cross-examinations. The only way
at getting down to the crux of the matter is for the skilled mediator to
facilitate the discussion.
Special education disputes
are fact-intensive, and thus the abilities of formal judicial process alone
in solving them may not be enough, either. This bolsters the
advantage that mediation has over full litigation. Mediation has
been successful in as high as 60% of states that have used it (that is,
if success is defined as reaching an agreement). The costs
associated are much lower if handled through mediation rather than through
the due process hearing. Congress added the mediation option
in the 1997 amendments to the IDEA because in the states using the procedure,
litigation was reduced, thus providing a more amicable setting for parents
and administrators. The hope of Congress was that mediation
would become the ÒnormÓ for resolving disputes under the
IDEA.
This is the general format
of a mediation, including ones under the IDEA. 1. The mediator explains
his/her role and the process that will be used for the mediation.
2. There is usually more than one session to discuss or resolve all the
important issues. So, at the initial joint session, the school and
parents get together and seek general information about the issues.
3. The mediator will set up private sessions, if necessary, to discuss
these issues. 4. Finally, there will be a meeting to discuss other
possible solutions and problems that may or may not lead to an agreement.
If not, then the process shall go on.
When Congress passed the
1997 amendments to the IDEA it did not mandate that the states pick any
particular method as the best one to use. It also did not discuss
the uniform training of mediators and the information deficits of the parents
in the hearings. This is how attorney-mediators can help.
B. Benefits of Attorney
Mediators
The mediation process can
take out much of the contentious qualities of the dispute between the district
and parents because they are not in the same adversarial process; it is
definitely less formal. According to one survey, wealthier
parents tended to perceive the mediation process outcome as fair while
the poorer families did not. The need for a fair process and
outcome is essential considering that the parents and the schools must
continue to work together over the years while the child is in the public
school system.
Attorneys trained in special
education law as mediators can break down some of the barriers of access
to legal services to lower income families. The districts are not
doing the same job of that as they are in teaching the administration and
the teachers the law of special education. It has been estimated
that as many as 10% of students nationwide may qualify for some set of
special education services. More than one-third of mothers
of disabled children do not have a high school diploma. An
attorney can apprise the parents of the IDEA and close the gap in information
that may exist.
The structural inequities
in the system need to be broken down to ensure effectiveness. There
is an attempt in the IDEA for the parents to have a great deal of participation
in the process, but not enough of the substance is within its provisions
as to what is an appropriate placement. The Supreme Court did
not take its opportunity either in Rowley, where the Supreme Court merely
set a vague minimum standard on districts to provide an education Òsufficient
to confer some educational benefitÉ.Ó The
IDEA creates a system where the parents are the Òprincipal agentsÓ
of the childÕs progress in meandering through the maze of provisions,
in which they may lack the ability to be the Òeffective advocatesÓ
in articulating the proper placement and services the child may need.
Unfortunately, this may result in a situation where parents accept compromises
in the education of their child.
As a result of the parents
having a lack of information in the substantive provisions of the IDEA,
they seek overly restrictive placements out of fear that their children
may get troubled too much by the process. Even worse, the parents
in the lower scale in the balance of power and resources may be forced
into a settlement that is totally inappropriate for their disabled children.
Parents of children with disabilities may not have the educational or presentational
skills to address these very specialized needs.
A diverse background of
the attorney can bring much to the mediation, especially if it came through
many trials in special education disputes. This experience should
be the norm to be in mediation practice. The attorney should have
a great deal of trial experience such that she can understand the roles
of both sides in the mediation, i.e. the roles of advocacy and representation.
Because the mediator must help drive the determination of interests and
explore possible settlement options, this is done to find possible trial
outcomes. These outcomes are the ÒBATNA,Ó or the best
alternative to a negotiated agreement. In this role, she is
not the judge, but rather a counselor. The counselor's role
is not what could be termed a representation, but that of an experienced
attorney engaged in the resolution of disputes in this alternative and
less adversarial format.
The neutral role of the
mediator will not be compromised if she is also an attorney. According
to a Michigan Ethics opinion discussing some of the ethical problems for
attorney-mediators, the authors relied on the presumption that throughout
the whole process the constraints of the ethics rules would be on them,
and the resulting limited experience the Bar had had in disciplining them.
This presumption in turn expected the attorneys dealing with unrepresented
parties to have the necessary discretion to bring about a fair disposition
of the issues, with no overreaching in that role.
The presence of an attorney
representing both sides at the hearing does increase the perception of
fairness to the parties. Of course this perception may change
if the parent is unrepresented and the only attorney in the room is the
mediator. But, that same attorney in the role of the neutral intermediary,
who can utilize her knowledge in that field to maximize the negotiationÕs
benefit, will appear to both sides as being able to hammer these issues
out in a constructive way. One stumbling block, however, that same
survey concluded was that the presence of an attorney or lay advocate representing
the parent did not increase the satisfaction with the process, agreement,
or implementation. This may be due to the added contentiousness
of the mediation when a party is represented. This situation lends
credence to the purpose of this paper in that an unrepresented party in
the mediation will find fairness in having the attorney-mediator move along
the negotiation without the same contentiousness in having an army of attorneys
gathered on both sides.
The specialized knowledge
by the attorney-mediator in the law will help the quality of the final
written agreement between the parties. Christopher Moore stresses
three characteristics of the written agreement that are essential for its
later enforceability. The first is the Òclarity of clauses,Ó
which refers to precluding Òdiverse interpretations or misinterpretations.Ó
This entails clarifying the intentions of the parties. The second
is the degree of detail so as to make the agreement more precise.
Thirdly, there will be a clear Òbalance of concessionsÓ made
in exchange so as not to appear one-sided. Lawyers are trained
to do this on a daily basis. This makes the use of attorney-mediators
more desirable than ones who do not have legal training.
As Moore has suggested,
success depends on the proper balancing of power. The parties
need to have the power to influence the other side in the negotiations.
If not, then the end results will not be satisfactory, the agreement will
not stand up and more conflict will result. The various mediation
schools differ as to how to enable the weaker party to influence the other
party. Nevertheless, he believes that the mediator must assist in
Òrecognizing, organizing, and marshaling the existing powerÓ
of the parties, especially the weaker ones.
Bush and Folger propose
a transformative mediation that, they claim, provides a more concrete definition
of success.
ÒA mediation is successful
(1) if the parties have been made aware of the opportunities presented
during the mediation for both empowerment and recognition; (2) if the parties
have been helped to clarify goals, options, and resources, and then to
make informed, deliberate, and free choices regarding how to proceed at
every decision point; and (3) if the parties have been helped to give recognition
wherever it was their decision to do so.Ó
They proposed this different
philosophical approach to mediation while criticizing the Òproblem
solvingÓ method and its limitations. Some of the problems
they identified are that the history and background of the mediator, who
carries her interests always, necessarily influences the terms of the settlement.
Noting the Òparadox of neutrality,Ó where mediators who are
there to solve problems but refrain from providing the necessary elements,
the change to the transformative approach would help define the objectives
so as to improve the parties themselves from where they were at the start.
Thus, to Bush and Folger, the mediation is only successful if the parties
are strengthened in Òempowerment and recognition,Ó
with no use for the mediator to influence the outcome of the mediation
because it was put into the partiesÕ hands. No matter
the mediation technique or approach, the attorney-mediator can use her
expert knowledge in bringing these issues to the fore.
C. Professional Responsibility.
Lawyers have been able to
control the business of law with statutes proscribing the extent to which
other persons provide certain services. The mediation practice has
been regulated in the unauthorized practice of law (UPL) region through
Òturf battles,Ó but the business of mediation is becoming
a significant aspect of the justice system. It is the contention
of this paper that if the use of attorney-mediators can withstand the ethical
concerns of not establishing an improper attorney/client relationship,
this provides the strongest support that they can be useful in the special
education field.
The major problem with UPL
and improper attorney/client relationships in the mediation context is
that the definitions vary widely across the nation. Added to
this problem is the fact that nearly all mediations involve legal issues
where one or more of the parties ask questions about their legal rights
and the evaluation of their respective positions. The even
bigger question is whether it is a violation of professional ethics to
provide a discussion of the facts to the legal principles, and not evaluating
them in the same sense as that in an attorney/client relationship.
To clarify, UPL and the
establishment of an improper attorney/client relationship are separate
issues. An attorney already admitted to a jurisdiction who engages
in mediation is not subject to UPL statutes, but is subject to discipline
by the proper bar authority and to civil liability if during the mediation
she violates the neutral role of the mediator.
The five tests commonly
used by courts across the nation to find an improper attorney/client relationship
in mediation are: 1. Is it Òcommonly understoodÓ that mediation
is the practice in a particular community? 2. Does the client believe
he/she is getting legal advice? or, Òclient relianceÓ test.
3. Is the mediator Òrelating law to specific facts?Ó
4. Is the mediation affecting legal rights? 5. Is the mediation tantamount
to an attorney/client relationship? If any of these tests are
answered in the affirmative, the attorney is subject to discipline under
the rules of ethics for violation and may be civilly liable for malpractice.
The ABA Section of Dispute
Resolution has worked on this issue, as have many state bar associations.
The ABA has attempted to clarify some of the questions of mediation practice
for attorney-mediators. In the ABAÕs Model Standards of Conduct
for Mediators, the Comments say that the mediatorÕs role is
different than that of a professional and must refrain from providing legal
advice, and where appropriate tell the parties to seek it from an independent
source. It stated that mediation is not the practice of law.
In its Resolution the ABA has tried to avoid much of the problems and consequences
for the attorney-mediator with respect to the phrasing of sentences that
touch on legal issues.
However, the ABA is not
the only entity attempting to provide uniformity to the practice of mediation.
The Department of Dispute Resolution Services of the Supreme Court of Virginia
has also proposed a resolution that attempts to draw the line between a
proper and improper attorney/client relationship for the attorney-mediator.
This proposal provides valuable instruction to the mediator and, if adopted
by many of the states, would strengthen the argument for the use of attorney-mediators
because there would be less worry of disciplinary action or civil liability.
Law schools teach future
lawyers that they apply the law to the facts, but mediation practice has
the differing role in that it attempts to elicit the information without
finding one set to be dispositive. The Virginia Committee recognized
this role of the attorney in the mediation process, so it makes it permissible
in the mediation context to evaluate broad legal principles, assess the
strengths and weaknesses of the positions, or discover the barriers to
settlement.
The Virginia Committee did
draw the line at certain points where the neutral role of the attorney-mediator
would be crossed. It resolved that the mediator could not, when asked
these questions in the mediation, predict specific resolution of legal
issues, because this is the function of a partyÕs attorney.
Doing so might give rise to an attorney/client relationship and break the
neutrality of the proceedings.
According to one survey,
the problem of UPL by mediators is not so widespread as to question the
practice altogether. 42 state bar associations reported that the
mediators licensed in their states do not have to be attorneys or even
in the legal field. It also reported that only four states
responded that they had known of instances in which a mediator was accused
of UPL. Though this is not the most scientific survey, it speaks
to the fact that attorneys who practice mediation can distinguish the differences
between an attorney/client relationship and violating the neutral aspect
of the mediation.
Attorney-mediators can utilize
their knowledge of special education law in a way that does not violate
their professional ethics. The Virginia Committee has come to the
conclusion that the attorney can be a legal resource to the parties and
give procedural information. They can also provide declarative
statements of established law. Also, the mediator can recall
past experiences in a particular type of case as an illustration, as long
as not it is not stated to be a prediction of future results.
The limits are that the attorney must avoid being too specific and crossing
the line into providing advice in these statements.
As an example, one of the
techniques of mediators is to ask reality-testing questions to the parties.
In this ÒindirectÓ procedure for discovering interest, hypothetical
possibilities presented to the party can help the mediator gain an indication
as to whether the proposal is more satisfactory than other proposals and
outcomes. If the mediator does so in a way that only raises
these legal issues and not predicting the legal resolution of said issues,
the open-endedness will also not violate ethics rules. It gets
the metaphorical ball rolling in the discussion because the important legal
aspects will be drawn out for the parties to know, giving them the opportunity
to evaluate for themselves their respective positions.
The importance of the written
settlement agreement is that it is enforceable as between the parties.
When the mediator memorializes the agreement in a writing, she must write
down the terms that the parties have used to make up the agreement; the
mediator cannot add terms that are not consistent with the partiesÕ
agreement or add substance that could break the neutral role of the mediator.
As discussed earlier, the attorney-mediatorÕs knowledge of
both special education law and the general law of contract will structure,
as opposed to composing, the contract in such a way to make it more enforceable.
However, the ethical question,
then, is how the mediator speaks about the contract. The mediator
will not be subject to any discipline if she does not guarantee or predict
its enforceability in a court of law. The mediator can say that the
particular stateÕs contract law will apply. In dealing
with unrepresented parties, it is ÒcommonplaceÓ for the attorney-mediator
to make sure that both sides know what is in the agreement and what they
are gaining and relinquishing. If the parents challenge the
agreement or how the district is complying (or not complying) with the
agreement, they do Òface high hurdles,Ó which they need to
understand from the outset; the parties need to understand the stakes.
This is consistent with the ability of the mediator to be a legal resource.
The ABA is in agreement with the Virginia Committee on this point.
The ABA is rightfully concerned
with the phrasing elements that are inherent in the mediator role when
discussing legal issues, however. Its resolution states in the comments
that it was written so as to avoid all these problems of phrasing because
they add a significant burden to the mediator in that one phrase in a certain
context is correct, but not in another. The ABA believes that
this would be harmful the parties. However, a trained attorney-mediator
will know the limits to the discussion of these issues and adjust accordingly.
Also, the fact that there are so few cases on the subject lends support
to the fact that it may not be such a problem, even for mediators who are
not attorneys.
One such qualification that
already exists to prevent this possibility is the mediatorÕs discussion
of her role in the process. The mediator is responsible to inform
the parties her role in the process and the limits. Namely, this
is that she is not there to provide legal representation, the agreement
may affect the partiesÕ legal rights, and the right to seek legal
counsel is always present. As long as the ÒadviceÓ
is in the context of the intermediary role, assisting the negotiations,
and providing feedback, it should not be UPL.
IV. Attorneys Fees and ÒPrevailing Parties.Ó
A. Introduction.
ÒIt was never Congressional
intent that taxpayer dollars be spent on hiring attorneys to fight parents
in long and expensive court battles that will keep children from getting
services.Ó There are number of possible ways to solve
this problem. It has been suggested that states should adopt legislative
exceptions authorizing non-attorneys to represent parents at due process
hearings under the IDEA. Or, the Supreme Court should redefine
what section 1415(h)(1) really means with respect to the role of the lay
advocate at the hearings. However, Congress did in fact authorize
the award of attorneys fees and must, therefore, seek to discover ways
to strike the proper balance.
There needs to be a balance
in their award because sometimes seeking a proper placement requires representation
by attorneys. If attorneys cannot make it a profitable part of their
practice, there is not the incentive to take on special education cases.
The need for some sort of fee shifting is apparent in the fact that monetary
damages can only be awarded in very special circumstances at the moment,
such as extreme danger to the child or bad faith dealings.
They are, as yet, not available directly under the IDEA.
In Smith v. Robinson,
the Court held that attorneys fees were not recoverable under the IDEA.
It also held that it was the exclusive source of remedy for parents in
the special education context, unless the provisions did not fit the situation
and another statute provided relief, such as the Rehabilitation Act of
1973. Thus, litigants cannot use ¤ 1983 actions for
damages. Congress responded to the attorneys fees provision
with the enactment of the Handicapped Children Protection Act of 1986.
The purpose of this section
is to illustrate the procedural problems under the current structure of
the IDEA. This concerns how the Supreme Court has altered the process
in ways that makes it more difficult for attorneys to get paid, but more
importantly harms substantive rights through too much process and procedure.
The cases illustrate the problems, giving the conclusion that either the
Congress should amend the IDEA or the courts should redefine the common
law with respect to prevailing party status.
B. Buckhannon v. West Virginia
Department of Health and Human Resources.
This recently decided case
has already significantly altered the field of civil rights law.
Buckhannon Board and Care Home, Inc. operated assisted living residences
for senior citizens and the disabled. It failed an inspection by
the West Virginia fire marshalÕs office. The rule at issue
required that all residents be capable of Òself-preservation,Ó
which is the ability to move themselves from dangers such as fire.
The facility was ordered to close down within 30 days. Buckhannon
brought suit in federal court against the State, two of its agencies, and
18 individuals seeking declaratory and injunctive relief under the Fair
Housing Amendments Act of 1988 (FHAA), and the Americans with Disabilities
Act of 1990 (ADA). The State and its agencies had agreed to
stay enforcement of the cease and desist orders pending resolution of the
case, at which time discovery began.
However, in 1998 the West
Virginia Legislature enacted two bills eliminating the Òself-preservationÓ
requirement and the defendants moved to dismiss the case for mootness.
The motion was granted because it found that the 1998 legislation had eliminated
the provision at issue, leaving no sign that the legislature would repeal
the laws. Buckhannon requested its attorneys fees as the prevailing
party under the FHAA because it had achieved the desired result in that
the lawsuit brought about a voluntary change in the defendantÕs
conduct. The Court took the issue because of the splits in
the Circuits as to the proper definition of Òprevailing parties.Ó
Noting the ÒAmerican
Rule,Ó where parties are required to bear their own costs of the
litigation, unless a statute authorizes the shifting of attorneys fees,
the Court viewed Congressional intent of ¤ 1988 only to permit
the award when a party has prevailed on the merits of at least some of
their claims. The former method of conferring prevailing party
status was known as the Òcatalyst theory,Ó where the plaintiff
could get attorneys fees if she instituted an action which eventually led
to the desired result. The Court also cited its case law as
requiring settlement agreements enforced through consent decrees as the
basis for an award of attorneys fees. Therefore, the Court
held Òthat enforceable judgments on the merits and court-ordered
consent decrees create the Ômaterial alteration of the legal relationship
of the partiesÕ necessary to permit an award of attorneys fees.Ó
Future cases, though accomplishing what the plaintiff may have wanted,
need to have the Òjudicial imprimaturÓ on the settlement,
verdict, or ruling.
C. Buckhannon Applied to
IDEA.
There is still some disagreement
whether the decision in Buckhannon even applies to the IDEA. The
La Grange court held that it does not because of Òcritical distinctions
in the text and structure of the IDEA.Ó Noting that
the Seventh Circuit has yet to say whether Buckhannon applies to the IDEA,
the court found that because, unlike the ADA or the FHAA, the IDEA specifies
many different ways to get attorneys fees. This garners the conclusion
that prevailing party status should be determined a different way.
The Second Circuit ruled the opposite way, reasoning that since the decision
in Buckhannon was construing ¤ 1988, and the IDEA was written
to conform with the decision in Hensley v. Eckerhart, Congress intended
Òprevailing partyÓ to have the same meaning.
The E.M. v. Millville Board
of Education decision contains reasoning that the courts should consider.
In that case, L.M., an autistic student, attended kindergarten and first
grade classes in the Millville School District. At the IEP meeting,
the District proposed transferring L.M. to another school to attend it
in a regular classroom setting with some resource center support.
E.M. wanted the child to remain at the school in the regular classroom
setting, which was denied by the district. E.M. requested mediation.
The parties agreed to continue L.M. in the same school and the district
was to provide L.M. with a personal aide and additional support from the
districtÕs in-house program to develop L.M.Õs communication
skills. E.M. thus received nearly all of the demands requested.
Considering that settlement
conferences and mediation hearings are similar, it reasoned that to allow
attorneys fees for one but not the other is inconsistent with the overall
purpose of the IDEA. Say, for instance, the parents engage
in mediation hearings with the district, do not reach a settlement, and
win at the impartial due process hearing. The attorney can collect
fees, including the representation at the mediation hearing. If there
is a settlement, the attorney gets nothing, unless by prior agreement.
The district judge disliked the idea that it would become a mechanical
exercise to request a due process hearing during the pendency of the mediation.
This is also true because
in many states parents can engage in mediation hearings with the districts
without first requesting a due process hearing. If they request a
due process hearing, the attorneys can usually get their fees for the work
performed in mediation. The parents would only request the mediation
without the due process hearing because they could not afford it.
Thus, the parents would have to request the due process hearing and prepare
to incur those costs first. Lastly, the judge in E.M. worried
about the prolonging of litigation in order to get the fees from the representation.
If they were recoverable from the earlier stages as well, both sides would
have an incentive to settle at this time. However, Congress
spoke directly to this issue in the 1997 Amendments to the IDEA and decided
not to allow the award.
1. Lay Advocates and Parent
Attorneys.
Neither Congress nor the
Supreme Court have spoken to the issue of the extent to which advocates
for parents who are not attorneys are allowed to play in the mediation
or due process hearing. Section 1415(h)(1) of the IDEA grants
the party to a due process hearing Òthe right to be accompanied
and advised by counsel and by individuals with special knowledge or training
with respect to the problems of children with disabilitiesÓ (emphasis
added). The question is important because it can significantly alter
the representation for lower income families of children with disabilities.
One significant case dealt
with a non-attorney who possessed special knowledge and training in special
education law who was brought before the Board on the Unauthorized Practice
of Law for her representation of families of children with disabilities
in due process hearings convened by the Delaware Department of Public Instruction.
Marilyn Arons and Ruth Watson are the founder and Executive Director of
Parent Information Center of New Jersey, Inc., a non-profit organization
that provides advice and counsel to families in the special education arena.
The Court held that section 1415(h)(1) could not be interpreted as granting
a right to lay representation. The lay advocates argued, unsuccessfully,
that the IDEA permits their representations because it preempts any state
law proscription. The Court reasoned that the legislative history
suggested that the lay advocates role was to be more advisory than representational.
This means that the lay advocates do not get to, say, cross-examine witnesses,
present evidence, etc.
Arons had fought for her
fees as that an attorney would get for a previous ÒrepresentationÓ
of families. The result was successful for the parents in New
Jersey, where the law allowed non-attorneys to represent parents in the
due process hearings. That court held, however, that the payment
of legal fees to attorneys and not those of the lay advocate were intended
by Congress.
Seven and Zirkel point out
that limited data exists to show how often attorneys represent parents
at the due process hearings; there is even less for the use of lay advocates.
In addition, the law of special education is more difficult for the general
practitioner due to its Ònuances,Ó and surely nearly impossible
for parents to conduct these processes pro se. They rightly
believe that the attorneys fees provision of the IDEA weakens the financial
incentive for attorneys to take the cases, especially the ÒborderlineÓ
cases, where the facts and law are such that the lawyer is not willing
to risk it.
Yet another blow to the
advocacy of disabled children is when the parents take on more responsibility
for their childÕs education. As a matter of first impression,
the Third Circuit held that parents, one of whom was an attorney, could
not collect attorneys fees for the representation of their own child at
impartial due process hearings. In Doe, the parents had to
appeal an adverse decision from the hearing office, win at the Maryland
Office of Administrative Hearings, and collect the expenses they incurred
providing services elsewhere. The Board of Education did not comply
with that order, so the parents filed suit in court, whereupon the Board
agreed that it would reimburse for the alternate program and pay expert
fees. This amounted to over $12,000. The parents were not awarded
the attorneys fees for the services Mr. Doe incurred.
In upholding the denial
of attorneys fees, the court of appeals reasoned that fee-shifting statutes
are meant to Òencourage the effective prosecution of meritorious
claims, and that they seek to achieve this purpose by encouraging parties
to obtain independent representation. It felt that there was
an absence of independent judgment with respect to his own child out of
fear that the case would be litigated by Òan irrationally emotional
attorney-parentÓ who would ÒbungleÓ the proceedings.
The court was correct in
suggesting that an independent voice should be heard by parents so that
they are not driven by their own emotions, but a problem may exist in future
cases where no other attorney is willing to fight it out in the more borderline
case. The Court borrowed much of the reasoning of Kay v. Ehrler,
where the plaintiff-attorney acting pro se was denied fees under the Civil
Rights AttorneyÕs Fees Award Act. Doe has been followed as
well. Though Doe was not acting pro se, the analogy to parents
was extended to the IDEA in the narrow Òspecial circumstancesÓ
doctrine. This judicially-created doctrine is used by courts
to vary the statutory language where the result may not be in accord with
legislative intent. Perhaps what is troubling is that Congress
did not speak to the possibility of attorney-parents. The court then
wrote new law where the existing language did not suggest one way or the
other that the omission was intentional.
2. Procedural Injustice:
Reaching the Agreement.
As stated earlier, the IDEA
is heavily loaded with the procedural aspects, but as to substance is severely
lacking. But, even in these codifications, there will
exist highly technical irregularities that will provide certain injustices
to families of children with disabilities as it relates to being granted
attorneys fees. The irregularities come as the result of the competing
goals, unfortunately, in providing a FAPE and getting attorneys fees.
In J.S. & M.S. v. Ramapo
Central School District, Jeffrey, an eighteen year old covered under
the IDEA, had been revealed to have had a fifth grade reading level and
severe language deficits in his ninth grade IEP. He did not qualify
for remedial reading because he did not read poorly enough (ironically,
he would be able to graduate at the current track he was in).
After another couple of years with limited improvement, Mrs. S. requested
a due process hearing for reimbursement of the costs of sending Jeffrey
to a private school. Later that year, Mrs. S. and the district
had settled during the pendency of the due process hearing but also after
the districtÕs Committee on Special Education (CSE), an entity of
the district that ensures compliance with special education statutes, finally
gave in to the parentÕs demands. All of this took well
over a year to reach this point in the process.
The courtÕs holding
illustrates that the true problem with the enforcement of these rights
is that the process is overly technical. It held that private settlement
agreements do not confer prevailing party status. The dispositive
technical foible rested upon where the parties read the agreement.
In Jose R. v. Joliet Township H.S. District 204, a child with learning
disabilities and emotional disturbances and his parents engaged in mediation,
where an agreement was reached. The agreement was read into the record
before a hearing officer a week later. The court ruled that the plaintiffs
had achieved prevailing status as a result of the mediation, but only because
of this single reading. But in J.S., the hearing officer was
not asked to give his opinion or affirm the settlement.
Upon rehearing, however,
the same judge in Jose R. changed his mind as to whether the mere reading
of the mediation settlement could confer prevailing party status.
Arguably, the differing result came because the prior procedural posture
was that for a judgment on the pleadings for the District, whereas this
rehearing was for a summary judgment, a higher standard. The memorandum
order and opinion reversed course on the extent to which the hearing officer
approved the mediation settlement.
The judge held that that
did not make it a consent decree which conferred prevailing party status.
The judgeÕs language tends to show that if the hearing officer did
in fact approve the settlement, it may confer status. In P.O.
ex rel. L.T. v. Greenwich Board of Education, the court stated in
dicta that this result should never be reached because of the seemingly
small nature of going about it. The author tends to agree in the
sense that mere de minimus procedural changes should not be the deciding
factor for the award of attorneys fees.
A district court in the
Ninth Circuit used an interesting approach to allow the parents to get
their attorneyÕs fees in the private settlement with the district
in Ostby v. Oxnard Union High. The child had a form of autism
and serious emotional disturbances, which caused her to be hospitalized
numerous times due to violent outbursts at school. The parents and
her attorney filed for a due process hearing pursuant to the IDEA.
At the mediation hearing, the parents and the district reached an agreement
under which the parents got much of what they requested. The agreement
was silent as to attorneys fees. OstbyÕs attorney requested
$39,000 in fees, the district offered $15,00 at a later date. The
parents filed suit.
In the order denying the
defendantÕs motion to dismiss, the judge considered the OstbyÕs
prevailing party status. Following Ninth Circuit precedent in Barrios
v. California Interscholastic Federation, this court held that since
a private settlement agreement could be enforced in a court, they were
prevailing parties under the IDEA. It is unclear whether this
holding will stand in the long run, however. The Ostby judge cited
the Barrios case as claiming that BuckhannonÕs language defining
prevailing parties as only occurring when he or she receives a favorable
judgment on the merits or by a consent decree as Òdictum.Ó
If the Supreme Court did not intend that to be dictum, then the Ninth Circuit
is ignoring clear precedent.
An equally troubling example
of the overly technical posture of the courts and the high costs associated
with the IDEA is present in John T. v. Delaware County Intermediate Unit,
No. CIV. A. 98-5781. In that case, a first-grade student with
Down Syndrome left a parochial school to attend public school, but had
rough times with the placement. The parents withdrew him back to
the parochial school.
The tortured procedural
posture is twofold: the plaintiffs persuaded the court to issue a preliminary
injunction against the DCIU, ordering it to provide John T. with special
education services; the plaintiffs also pursued administrative review of
JohnÕs proposed IEP, which they initially won, but which was
reversed as a lawful IEP. The preliminary injunction was never
converted to a permanent injunction because of the administrative reversal
and the aborted appeal of the DCIU from the preliminary injunction.
By September, 2001, John had returned to public school. A couple
days later, the court issued two orders, one which found the DCIU in contempt
for failure to comply with the preliminary injunction, the other vacating
the preliminary injunction for changed circumstances.
The strategic disaster for
the plaintiffs was when they filed for a voluntary dismissal in addition
to their attorneys fees. The court held that all they had won was
the preliminary injunction and nothing else on the merits.
The parents obtained much of what they had requested, but had to go through
many different stages to get there. The ultimate problem with
the decision is that there had to be an extensive fight in both court and
administrative hearings to reach the stalemate, where the parents got much
of the relief but no decision on the merits, or even the likelihood of
getting one for the change in circumstances. Since the court
dismissed the case with prejudice, the plaintiffs could not be prevailing
parties. In the end, the plaintiffs had to fight extremely
hard for their child, but got deep in debt to do it. The attorneys
racked up fees in excess of $136,000.
3. Procedural Injustice:
ÒActions or Proceedings?Ó
Another aspect is the split
concerning what the meaning of an Òaction or proceedingÓ
is under the IDEA. If the procedure used by the parents as
mandated by the state law is not considered one, the prevailing parents
may not be able to be awarded attorneys fees.
In Megan C. v. Independent
School District No. 625, the parents and attorneys brought an action
in the district court for the award of over $19,000 in fees. The
plaintiffÕs lawyer at the time filed a complaint with the Minnesota
Department of Children, Families and Learning (MDCFL). The complaint
was filed pursuant to 34 C.F.R. ¤ 300.662 alleging violations
of the law in the childÕs placement. But, while the MDCFL
was considering the matter, an IEP meeting was convened. Megan C.
agreed to the placement a couple of months later.
The MDCFL issued its final
determination two days before Megan C. approved the new IEP. It found
for the plaintiffs on many of the violations alleged. It ordered
the district to reconvene another IEP team and an independent evaluative
assessment for the new placement. The independent assessment
took over a year to be completed. Once completed, the new IEP meeting
took place, which was then refused by the plaintiffs. The MDCFL met
again and ordered the district to revise the IEP one more time.
The award of attorneys fees
hinged on the definition of Òany action or proceedingÓ in
section 1415(i)(3)(B). Noting that there exists two separate enforcement
mechanisms under the IDEA, the complaint resolution procedure (CRP) and
the impartial due process hearing, the court held that Òany action
or proceeding brought under this sectionÓ only applies to impartial
due process hearings in subsection (f), the opportunity to appeal to the
SEA from a decision of the local agency under subsection (g), and for civil
actions. The clear intent of Congress, it surmised, was due
to the deletion of the phrase Òbut shall not be limited toÓ
from section 1415(b) with respect to the actions or proceedings covered
under the IDEA. This is so because the implementing regulations
for section 1415(f,g,i(2)) are set forth in 34 C.F.R. ¤¤
300.506-300.515 as an Òexclusive list;Ó the CRP implementing
regulations in 34 C.F.R. ¤¤ 300.660-300.662 are separate.
The former section guarantees the right to an attorney, to cross-examine
witnesses, and to present evidence, while the latter is silent as to these
rights. The court also found that the CRP procedures, which
previously derived its authority from the predecessor of the IDEA, was
transferred to the Elementary and Secondary Education Act of 1965 in 1993,
thus guaranteeing a different set of rights.
Another court in the Eastern
District of New York recently followed much of the reasoning of the Megan
C. Court, but also provided more policy reasons for not including CRPs
as an Òaction or proceedingÓ under the IDEA.
It held that if the CRP was an action or proceeding for attorneys fees,
the implementing regulations would have a similar provision to that of
section 1415(i). ÒBecause the procedures required in
the context of a due process hearing are not necessary in a CRP, the CRP
is a less formal and less adversarial process.Ó This
is so because the CRP allows for poorer families to have their complaints
heard without having to incur the same legal fees, if any, through the
administrative review process.
The opposite conclusion
was reached in Lucht v. Molalla River School District. In that
case, the parents of an autistic child followed OregonÕs CRP procedures,
which resulted in an order for more IEP meetings to address the errors
it had found in the childÕs placement. When the parents sought
attorneys fees incident to those IEP meetings, the Court held the CRP was
an action or proceeding under the IDEA.
The court of appeals read
the language (or lack thereof) differently than the Minnesota and New York
District Courts. It noted that if Congress did not intend for attorneys
fees to be available only for cases involving an IEP meeting ordered by
an impartial due process hearing under section 1415(f), Òit could
have and would have written the statute more narrowly to say so.Ó
The key word was ÒanyÓ under section 1415(i)(3)(B), which
is broader language to show that Congress intended more than one proceeding
that allows attorneys fees. Where the Minnesota and New York
courts did not find the CRP under section 1415, this court found that the
CRP is governed under subsection (b)(6), which provides the right
to an impartial due process hearing under subsection (f)(1) for such complaints.
Parents would have to go through the more litigious avenues of the due
process hearing procedure to collect their attorneys fees.
In other words, it would be circuitous to force parents to use the CRP,
not find satisfaction, and start again through the due process hearing.
This crucial distinction
in what is covered under subsection (b)(6) shows the importance of CongressÕs
drafting of the statute. The Lucht decision found that nothing in
the statute or regulations pointed to the allowance of attorneys fees,
while the Megan C. and Vultaggio courts read the text much more narrowly.
A bare reading of the statute shows that both results are possible.
Both opinions are persuasive. In fact, if both readings are possible,
then Congress did a poor job in drafting the statute. The Supreme
Court or Congress must decide this issue.
V. Conclusion.
A. It is not the intention
of this paper to sound the horns for more and more government intervention
in the field of special education so as to wrestle control from the local
and state education providers. Rather, the purpose is quite narrow:
to fill in a few holes that Congress and the Supreme Court left in drafting
and interpreting these statutes. If the government is going to involve
itself in these matters and make it an entitlement, it should make sure
that the program is carried forward in a responsible way in both cost-effectiveness
and the most important issue of all, a free and appropriate public education.
The role of mediation may
play an even bigger role in special education disputes. However,
if Congress is so impressed with the results of mediation as a cost-saver,
it should be more concerned with ensuring that it is used properly in all
states for a proper placement. Maybe Congress does need to bring
more uniformity to the process. This paperÕs main focus
as to mediation was to get attorneys involved in the process, and is thus
a part of that movement.
One worry is that the increased
role of mediation will not bring better services and make the process a
whole lot slower in resolving disputes. Perhaps the process
will always be fraught with problems because both sides are naturally at
odds. This does not mean, though, that making calculated changes
in certain substantive and procedural areas could not increase the effectiveness
of the mediation.
The law of contract should
not be the decider; the IDEA should be. The author agrees with MarcheseÕs
proposal. He says that the courts should have more scrutiny over
the settlement agreements in mediation, because judicial deference makes
no sense Òwhere statutory goals of appropriateness and restrictiveness
are at stake.Ó Even though the agreements reached in
mediation hearings are enforceable contracts, they come as the result of
a federal entitlement. Some new substantive law needs to address
this concern. For the time being, attorney-mediators can solve this
problem.
Attorney-mediators knowledgeable
in special education law and trained in mediation skills can play an extremely
important role in fulfilling this purpose. As stated earlier,
mediation is not for every case. The rush to mediation may not be
effective or even possible in the hardest disputes. The role
of the attorney-mediator is not the stop gap solution for IDEA disputes.
It can, however, be instrumental in settling the problems discussed in
this paper. While not going so far as to suggest that attorneys be
provided to all parents at the mediation and due process hearing stage
at district cost, the responsible method would be to improve the process
Congress set out in the IDEA.
Trained attorneys bring
to the mediation table their skills in assessing legal points, both factually
and legally. They can craft better settlements, which is essential
considering that state contract law applies to the written agreements.
Finally, their knowledge in the law can inform all parties what is necessary
to craft a good agreement for a better FAPE.
Trained mediators bring
to the IDEA dispute the chance to address issues and concerns that the
parties have. There will not be the same adversarial nature
that plagues many proceedings. Finally, there will be better agreements
because the parties, especially the parents who lack other legal services,
will be involved in a process that encourages strengthening positions and
bringing the best out of all sides.
B. There remains many
unsettled issues as to attorneys fees. BuckhannonÕs true significance
has yet to be seen. Will it have a devastating effect on the enforcement
of civil rights? For IDEA disputes, what effects, if any, will it
bring to prevailing party status? The likely result will be that
it will apply to the IDEA. What occurs with respect to lay advocates
is unclear. How the courts deal with the issue of CRPs and mediated
settlement agreements is also unclear.
Certain procedural postures
should not have to be taken in order to get the award of attorneys fees.
The result, whatever Jose R. tells us, should not be according to a mere
reading of an agreement into the record. This result will cause there
to be the initiation and the convening of impartial due process hearings
at a heavy cost, but only to read a prior mediated settlement. One
commentator has worried that this process will also cause an even bigger
backlog in the courts, where attorneys will go to them seeking judicial
approval of every negotiated settlement agreement.
The Supreme Court or Congress
needs to decide what the function of the CRP is as it relates to attorneys
fees. Congress can do this by tightening its language to either include
or exclude the CRP as an action or proceeding. Alternatively, the
Supreme Court can divine Congressional intent from the current form of
the statute. Then, Congress can leave the decision as is, or amend
the statute to overrule the Supreme Court. If it does not, the split
in the Circuits will continue to yield different results. If the
attorneys can collect their fees incident to the CRP, it could resolve
the dispute in a less costly fashion. By clarifying these statutes
and common law, there will be improved services to children with disabilities
and their parents.