If you are a parent in need of help for a child with a disability, please email us at specialedlaw@mac.com, call us at 716-634-2753 or contact us though our website.

Saturday, February 18, 2012

Important development regarding attorney fees in special education cases

In 2007, the 2nd Circuit decided Arbor Hill Concerned Citizens Neighborhood v. County of Albany. In Arbor Hill, the Court abandoned the use of the lodestar method for determination of attorney fee awards in favor of the “presumptively reasonable rate,” which was based upon a variety of factors including “the rate a paying client would be willing to pay.” Although not a special education case, its impact has been felt in the special education arena. The 2nd Circuit in Millea v. Metro-North Railroad Co. essentially abandoned Arbor Hill and reverted back to the lodestar approach. For an excellent discussion of the relevant cases and the policy issues underlying the decisions, see Attorney Fees: The Death of Arbor Hill.

Tuesday, February 14, 2012

District failure to satisfy burden of proof results in SRO decision in favor of the parent

SRO 12-006: In this case where the Parent was represented by the Law Offices of H. Jeffrey Marcus, the Parent alleged, inter alia, that the student required the services of a 1:1 aide during adapted physical education (APE). The IHO did not rule on the issue. The District offered no evidence on the issue. The Parent claimed on appeal to the SRO that the District failed to satisfy its burden of establishing that the student did not require the services of a 1:1 aide during APE. The SRO agreed holding that the “District did not establish that the student did not require aide services during APE, and in the absence of any evidence in the hearing record that the student did not require them,” he ordered the District to provide aide services during APE.