A major concern for school districts in special education cases is the potential for parents to recover attorney’s fees if they are considered prevailing parties under the Individuals with Disabilities Education Act (“IDEA”). School districts may limit exposure by extending a “ten-day offer” in which it makes an offer of settlement to the parents at least ten days before an administrative due process hearing. If the parent rejects the ten-day offer, the parent may only recover attorney’s fees for work done after the time of the offer if (1) the hearing leads to more favorable relief than the offer included, or (2) the parent was substantially justified in rejecting the offer. On May 14, 2018, the Third Circuit Court of Appeals in Rena C. v. Colonial School District, held that a school district’s ten-day offer which did not include attorney’s fees substantially justified a parent in rejecting the offer.
This case involved parents who sued a Pennsylvania school district under the IDEA regarding their child’s special education placement. The parents initiated a due process petition seeking “reimbursement for private tuition and associated costs (tuition reimbursement)” for two school years. During the course of litigation and more than ten-days before the due process hearing, the school district offered “to pay private school tuition and transportation” for the private placement sought by the parents. The parents never responded to the offer. The administrative hearing officer found in favor of the parents and ordered the school district provide tuition, one-on-one instructional support, transportation reimbursement, and stay-put at this placement.
Even though the hearing officer’s decision did not grant the parents more relief than what the school district offered in its ten-day offer, the parents argued that they were substantially justified in rejecting the offer because the offer did not include attorney’s fees. The IDEA does not address whether a ten-day offer must include attorney’s fees. However, the Third Circuit agreed with the parents and held that “a ten-day offer that affords no attorney’s fees provides a parent with substantial justification to reject the offer when the school district could not rationally believe that attorney’s fees had not accrued.” The Third Circuit reasoned that without the ability to reject such an offer, parents would be forced to choose between resolving a placement dispute and paying for an attorney.
Unfortunately, the Third Circuit did not explain what would constitute a rational belief that attorney’s fees had been accrued. The only guidance provided is that school districts attempting to settle an IDEA case in which the parents are represented by an attorney “should acknowledge that the parent has accrued attorney’s fees and should clearly state if its offer includes the payment of any fees.”
