Recently, a Pennsylvania federal court substantially reduced a parents’ attorney’s fee demand to the hourly rate charged by the school district attorney in A.P. and P.T. v. Shamokin Area School District. It has become an inconvenient truth that special education due process cases are often controlled more by the fear of run-away prevailing party attorney’s fees than by the special needs of the child.
Parents’ counsel have been demanding, and for the most part receiving, fees at twice the hourly rate of experienced defense counsel. Courts have historically refused to consider comparisons between parents’ counsel claimed rates and rates actually paid to school district counsel. This most recent Middle District opinion attempts to restore some reality to what lawyers actually get paid for this kind of work.
The parents in this case had prevailed in their due process hearing under the IDEA, but in their fee petition submitted to the court, parents claimed $28,468.87 in fees, which the court reduced to $3,338.00.
The parents’ attorney submitted an hourly rate of $325.00 per hour. The court compared parents’ attorney’s experience of 16 years to the district attorney’s experience of 28 years and determined that the $170.00 hourly rate charged by the district’s attorney was appropriate.
In addition, the court determined that parents’ counsel had prevailed on only one out of five issues identified by the hearing officer and so reduced the fee demand by 80%.
At issue in the underlying hearing was an autistic second grader who had engaged in a tantrum that resulted in a concusssion for her teacher, that broke her teacher’s nose and that broke her aide’s ankle.
At hearing, the parents requested independent educational evaluations for speech, for sensory processing, for assistive technology, and for a functional behavior assessment, and to develop an appropriate IEP following issuance of the IEEs.
The hearing officer’s decision ordered the school district to conduct an FBA, a non-verbal IQ test and a full evaluation, and to convene an IEP team, all within expedited timelines specified by the hearing officer.
The judge caustically noted that he felt it reasonable to reduce a fee demand that amounted to the annual average salary for taxpayers in the area in order to obtain an award already required by law, just slightly sooner than the statute required as disproportionate to the result obtained.
Bottom Line for Schools
The case gives a basis for negotiating more reasonable attorney’s fees claimed by parents’ attorneys. The case suggests that evidence to be submitted in attorney’s fee disputes includes the annual average salary in the area as part of an analysis of what constitutes the “community standard” which is used by courts in assessing a reasonable hourly rate for legal services.
Further evidence to be submitted are the experience of a school district’s counsel and the hourly rate charged by a school attorney. Interesting, too, is the court’s comparison of the result achieved with what the IDEA requires: on that basis, the court found that the one issue out of five on which the parents prevailed was further limited because all the parents got that they weren’t already entitled to was a faster timeline.
Finally, unless the fee demand is nominal, insist on an itemized fee statement with each service clearly delineated, then negotiate from there based on the benefit obtained by the parent.
It is probable that the decision will be appealed to the Third Circuit court of appeals and that we have not heard the last of this decision.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.