attorneys' fees. In any action or proceeding brought under 20 U.S.C.
§ 1415, the court, in its discretion, may award reasonable attorneys' fees
under 20 U.S.C. § 1415(i)(3) as in effect on December 3, 2004, as part of
the cost to the prevailing party who is the parent of a child with a
disability; to the prevailing party who is the state or district against the
attorney of a parent who files a complaint or subsequent cause of action that
is frivolous, unreasonable, or without foundation, or against the attorney of a
parent who continued to litigate after the litigation clearly became frivolous,
unreasonable, or without foundation; or to the prevailing party who is the
state or district against the attorney of a parent, or against the parent, if
the parent's request for a due process hearing or subsequent cause of action
was presented for any improper purpose, such as to harass, to cause unnecessary
delay, or to needlessly increase the cost of litigation.
Funds under Part B of the Individuals
with Disabilities Education Act may not be used to pay attorneys’ fees or costs
of a party related to an action or proceeding under section 615 of the IDEA and
this chapter. This does not preclude a district from using IDEA, Part B funds
for conducting an action or proceeding under section 615 of IDEA.
A court shall award reasonable
attorneys' fees under section 615(i)(3) of the IDEA consistent with the
awarded under section 615(i)(3) of the IDEA must be based on rates prevailing
in the community in which the action or proceeding arose for the kind and
quality of services furnished. No bonus or multiplier may be used in
calculating the fees awarded under this section;
fees may not be awarded and related costs may not be reimbursed in any action
or proceeding under section 615 of the IDEA for services performed subsequent
to the time of a written offer of settlement to a parent if:
(a) The offer is made
within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure
(1987) or, in the case of an administrative proceeding, at any time more than
10 days before the proceeding begins;
(b) The offer is not
accepted within 10 days; and
(c) The court or
administrative hearing officer finds that the relief finally obtained by the
parents is not more favorable to the parents than the offer of settlement;
(3) Attorneys' fees may not
be awarded relating to any meeting of the IEP team unless the meeting is
convened as a result of an administrative proceeding or judicial action, or at
the discretion of the department for a mediation described in this chapter. A
resolution meeting conducted pursuant to this chapter is not considered a
meeting convened as a result of an administrative hearing or judicial action or
an administrative hearing or judicial action for purposes of this section;
(4) An award of attorneys'
fees and related costs may be made to a parent who is the prevailing party and
who was substantially justified in rejecting the settlement offer;
(5) The court reduces,
accordingly, the amount of the attorneys' fees awarded under section 615 of the
IDEA, if the court finds that:
parent, or the parent's attorney during the course of the action or proceeding,
unreasonably protracted the final resolution of the controversy;
(b) The amount of
attorneys' fees otherwise authorized to be awarded unreasonably exceeds the
hourly rate prevailing in the community for similar services by attorneys of
reasonably comparable skill, reputation, and experience;
(c) The time spent and
legal services furnished were excessive considering the nature of the action or
(d) The attorney
representing the parent did not provide to the school district the appropriate
information in the due process complaint in accordance with this chapter.
(6) The provisions of
subdivision (5) of this section do not apply in any action or proceeding if the
court finds that the State or local agency unreasonably protracted the final
resolution of the action or proceeding or there was a violation of section 615
of the IDEA.
20 SDR 33, effective September 8, 1993; 23 SDR 31, effective September 8, 1996;
26 SDR 150, effective May 22, 2000; 33 SDR 236, effective July 5, 2007.
Authority: SDCL 13-37-1.1.
Implemented: SDCL 13-37-1.1.