511 Ind. Admin. Code 7-45-11

Current through November 6, 2024

Section 511 IAC 7-45-11 - Attorney's fees

Authority: IC 20-19-2-8; IC 20-19-2-16

Affected: IC 20-19-2; IC 20-35

Sec. 11.

(a) Independent hearing officers shall include a notice in their written decisions stating that an action for attorney's fees must be filed in a civil court with jurisdiction within thirty (30) calendar days after receipt of the independent hearing officer's final decision if no request for judicial review is filed in federal or state civil court.

(b) A court, in its discretion, may award reasonable attorney's fees and related costs to:

(1) a prevailing party who is the:

(A) parent of a child with a disability; or

(B) department of education or a public agency against the attorney of a parent who:

(i) files a due process hearing request or subsequent cause of action that is frivolous, unreasonable, or without foundation; or

(ii) continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or

(2) the prevailing department of education or the public agency 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:

(A) harass;

(B) cause unnecessary delay; or

(C) needlessly increase the cost of litigation.

(c) Attorney's fees awarded shall 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.

(d) Attorney's fees may not be awarded and related costs may not be reimbursed in any action or proceeding for services performed subsequent to the time of a written offer of settlement to a parent if:

(1) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than ten (10) calendar days before the proceeding begins;

(2) the offer is not accepted within ten (10) calendar days; and

(3) the court finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.

(e) Notwithstanding subsection (d), a court may award attorney's fees and related costs to a parent who:

(1) is the prevailing party; and

(2) was substantially justified in rejecting the settlement offer.

(f) Attorney's fees may not be awarded relating to any meeting of the CCC unless such meeting is convened as a result of an administrative proceeding or judicial action. A resolution meeting shall not be considered a meeting convened as a result of an administrative hearing or judicial action. Attorney's fees may not be awarded for a mediation described in section 2 of this rule that is conducted prior to the filing of the due process hearing.

(g) Unless a court finds that the department of education or the public agency unreasonably protracted the final resolution of the action or proceeding or any other violation of this rule, a court reduces, accordingly, the amount of attorney's fees awarded if the court finds any of the following:

(1) During the course of the action or proceeding, the parent, or the parent's attorney, unreasonably protracted the final resolution of the controversy.

(2) The amount of attorney's fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of comparable skills, reputation, and experience.

(3) The time spent and legal services furnished were excessive considering the nature of the action or proceeding.

(4) The attorney representing the parent did not provide to the public agency appropriate information in the due process hearing request under sections 3 and 4 of this rule.

(h) A public agency may not use funds under Part B of the Individuals with Disabilities Education Act to pay attorney's fees or costs of a party related to an action or procedure under the Individuals with Disabilities Education Act and this article.

511 IAC 7-45-11

Indiana State Board of Education; 511 IAC 7-45-11; filed Jul 14, 2008, 1:24 p.m.: 20080813-IR-511080112FRA; filed May 25, 2010, 8:19 a.m.: 20100623-IR-511090795FRA

Readopted filed 11/6/2014, 3:23 p.m.: 20141203-IR-511140382RFA