Recently the Third Circuit Court of Appeals reminded school entities of the value of the Ten Day Offer in special education disputes, but found for the first time that such offers must include an offer of attorney’s fees.
Under the IDEA, the Ten Day Offer rule provides that if a school entity makes a settlement offer in writing more than ten days prior to a due process hearing, but the parents reject that offer, proceed to a hearing, and get less at hearing than what was offered in the Ten Day Offer, the court can limit the parents’ fees to what they had been incurred as of the Ten Day Offer.
In the case of Rena C. v. Colonial School District, parents of a student with special needs unilaterally enrolled their child in a private school and sought tuition reimbursement from the district of residence through a due process hearing.
More than ten days prior to hearing, the district offered to pay the tuition for the school in order to resolve the matter, but this offer was rejected because it did not address the issue of pendency of the private placement or attorney’s fees.
Following an order at the due process hearing for the tuition, parents filed a claim in district court for about $70,000 in fees. The district court granted the request for fees in part, but only for $7,438, the amount incurred as of the Ten Day Offer.
The Parents appealed that decision to the Third Circuit Court of Appeals. The Court of Appeals agreed with the lower court that the parents did not beat what was offered to them more than ten days prior to the due process hearing. However, the Appeals Court rejected the idea that this was a valid Ten Day Offer, because it did not address the issue of attorney’s fees.
The Appeals Court notes that the only way that parents can get fees is through an order at a due process hearing and that a Ten Day Offer should not be permitted “to force parents to choose between securing an appropriate placement for their child and obtaining the attorney’s fees to which they would otherwise be statutorily entitled.”
As a result, the Appeals Court sent it back to the district court to reevaluate the fees without the benefit of the Ten Day offer.
Bottom Line for Schools
When school entities are looking at a due process matter in which there may be some liability, but are unable to find a path to resolution with the parents, the district should consider whether a Ten Day Offer is an effective way to limit the accumulation of additional attorney’s fees, but must ensure that offer includes an offer of fees incurred prior to the Ten Day Offer. Another approach is to include in the Ten Day offer, “reasonable attorneys’ fees” earned to the time of the offer.
If you have any questions, please contact your legal counsel or one of the education attorneys at KingSpry.
This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.
