AB 2116, as introduced, Wagner. Special education.
Existing law requires that every individual with exceptional needs, as defined, who is eligible, be provided with educational instruction, services, or both, at no cost to his or her parent or guardian or, as appropriate, to him or her. A free appropriate public education is required to be made available to individuals with exceptional needs in accordance with the federal Individuals with Disabilities Education Act and regulations adopted pursuant to that act. The federal Individuals with Disabilities Education Act authorizes a United States district court, in its discretion, to award reasonable attorney’s fees as part of costs to a prevailing party who is the parent of a child with a disability in certain actions or proceedings, or to a prevailing state educational agency or local educational agency against the attorney of a parent in certain circumstances. State law references the attorney’s fees provisions of the federal Individuals with Disabilities Education Act.
This bill would make nonsubstantive changes to the state law reference to the attorney’s fees provisions of the federal Individuals with Disabilities Education Act.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 56507 of the Education Code is amended
2to read:
(a) If either party to a due process hearing intends to
4be represented by an attorney in the state hearing, notice of that
5intent shall be given to the other party at least 10 daysbegin delete prior toend delete
6begin insert beforeend insert the hearing. The failure to provide that notice shall constitute
7good cause for a continuance.
8(b) (1) An award of reasonable attorney’s fees to the prevailing
9parent, guardian, or pupil, as the case may be, may only be made
10either with the agreement of the parties following the conclusion
11of the administrative hearing
process or by a court of competent
12jurisdiction pursuant to Section 1415(i)(3) of Title 20 of the United
13States Code.
14(2) In accordance with Section 1415(i)(3) of Title 20 of the
15United States Code, the court, in its discretion, may award
16reasonable attorney’s fees as part of the costs to a prevailing party
17who is a state educational agency or local educational agency in
18begin insert any ofend insert the following circumstances:
19(A) Against the attorney of a parent who files a due process
20hearing request or subsequent cause of action that is frivolous,
21unreasonable, or without foundation, or against the attorney of a
22parent who continued to litigate after the litigation clearly became
23frivolous, unreasonable, or without foundation.
24(B) Against the attorney of a parent, or against the parent, if the
25parent’s due process hearing request or subsequent cause of action
26was presented for any improper purpose, such as to harass, to cause
27unnecessary delay, or to needlessly increase the cost of litigation.
28(c) Public agencies shall not use federal funds distributed under
29Part B of the federal Individuals with Disabilities Education Act
30(20 U.S.C. Sec. 1400 et seq.), or other federal special education
31funds, for the agency’s own legal counsel or other advocacy costs,
32that may include, but are not limited to, a private attorney or
33employee of an attorney, legal paraprofessional, or other paid
34advocate, related to a due process hearing or the appeal of a hearing
35decision to the courts. Funds shall not be used to reimburse parents
36who prevail and are awarded attorney’s fees, pursuant to
37subdivision (b), as part of the judgment.begin delete Nothing in thisend deletebegin insert
Thisend insert
38 subdivisionbegin delete shallend deletebegin insert does notend insert preclude public agencies from using
P3 1these funds for attorney services related to the establishment of
2policy and programs, or responsibilities, under Part B of the federal
3Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400
4et seq.) and the program administration of these programs. This
5subdivision does not apply to attorneys and others hired under
6contract to conduct administrative hearings pursuant to subdivision
7(a) of Section 56505.
8(d) The hearing decision shall indicate the extent to which each
9party has prevailed on each issue heard and decided, including
10issues involving other public agencies named as parties to the
11hearing.
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