January 20, 2017 - Volume 37 Issue 1


By Rick Boothby, Esq. 



Finances are tighter than ever for many West Virginia school boards.  Among other things, school boards need to be vigilant in anticipating and avoiding large and sudden expenses where possible.  One such expense, potentially an enormous one, is paying for independent educational evaluations for special education students and parents’ attorney fees in related special education litigation.

Under the Individuals with Disabilities Education Act (“IDEA”), parents and adult students have the right to file due process complaints against school boards for allegedly failing to comply with the IDEA.  In essence, the parent or adult student sues the school board through an administrative procedure instead of a court of law and asks that the school system’s alleged failings be remedied.  Often the remedy will consist of additional hours of education or the provision of special equipment or services.  While expenses related to these remedies can be considerable, they are fixed and usually manageable.  Paying for the parents’ attorney fees is a different matter altogether.

Among the IDEA’s provisions is the parents’/students’ right to have the school board pay their attorney fees if they prevail against the school board in special education litigation.  This practice is common with civil rights laws and many courts view the IDEA as just that.  Troublingly though, obtaining “prevailing party” status is not that difficult.  Parents do not even need to succeed on their central claims to be a prevailing party.  Just about any significant change in the relationship between the parents and the school system as a result of special education litigation will cause a court to conclude that the parents were a prevailing party entitled to an award of attorney fees.  School systems outside of West Virginia routinely, if not daily, find themselves defending against special education due process claims and paying parents’ attorney fees.  These fees can and do reach into the hundreds of thousands of dollars for a single case—amounts that are not easily managed and must be paid from the school board’s general fund account.  Federal special education dollars cannot be used to pay for parents’ attorney fees when the school board loses or settles a due process complaint.

Why is this problem just now emerging?  In the past, it was quite unusual for a West Virginia parent or adult student to be represented by a lawyer in a due process complaint.  Even those who did have an attorney rarely had one with any experience in special education litigation.  Times have changed.  There are now at least five highly-competent attorneys in West Virginia who represent parents and students in special education due process complaints.  Attorneys in nearby states also file due process complaints here on behalf of West Virginia parents and students.  And all of these attorneys demand that the school board pay their reasonable fees when they get results for their clients.  School systems that refuse to pay reasonable fees can expect further litigation in federal and state courts which will only add to the parents’ legal bill—a bill that the school system will eventually have to pay.  Unreasonable requests for attorney fees, on the other hand, should and must be challenged to avoid encouraging more litigation.

As these special education attorneys have started achieving some financial success in West Virginia, they can naturally be expected to pursue more and more of these claims.  Other West Virginia attorneys are sure to join their ranks once they too realize that representing parents and students in special education complaints can be a source of substantial income.

So what can you do as board member?

Special education litigation is complex.  There are as many kinds of claims against school boards as there are special education students.  But there are some claims that school boards can do something about before they happen.  One such claim is the parents’ claim for an independent educational evaluation (IEE).  In a nutshell, if the parents disagree with the school system’s educational evaluation of their child, they can allege that the evaluation was inappropriate and demand that their child be evaluated by a professional they choose at school board expense.  When a school system, usually the special education director, receives a parent’s demand for an IEE, by law there are only two possible responses:  1) agree to pay for the IEE, or 2) file a due process complaint on behalf of the school system and defend the evaluation it already performed.  Many school systems will pay for an IEE just to avoid the cost of litigation—whether the parents were legally entitled to one or not.  Oftentimes, though not always, this approach makes economic sense.  But avoiding the cost of litigation does nothing to avoid the cost of the IEE itself.

What if the parents want an expert in St. Louis to perform the IEE at a cost of $25,000?  Must the school board pay for this?  The answer will almost always be yes, unless the school board has published its own IEE criteria document that places reasonable limits on the types of evaluations, the geographic locations of the evaluators, and the maximum reimbursement it will pay for various kinds of evaluations.  These published IEE criteria can limit the parents to evaluations that are no different or more expensive than those the school system itself uses to evaluate children.  There are exceptions to these limitations under rare circumstances.  But the courts have been clear about one thing:  if the school board does not have its own published IEE criteria, the parents are free to get whatever evaluation they deem appropriate, wherever they like, and without regard to cost.

Many West Virginia special education departments are not aware of this lurking problem because, in the past, no parent ever challenged them about this issue—let alone a parent’s special education attorney who will only get paid if he or she wins.  It is a safe bet that those days are nearly over.  Expect more challenges from parents about the kinds of IEEs to which their children are entitled.  Prepare now by working with your special education departments to create your school board’s own published IEE criteria. 

Editor's Note: Boothby is a partner in the law firm Bowles Rice LLP. A member of Bowles Rice’s Education Practice Group, his office is located in Parkersburg.