Representing children with special needs throughout california and nevada

Mom Entitled to Legal Fees for Defending Her Child’s Right to an IEE

The San Jose Unified School District (“the District”) asked District Judge Susan Illston of the U/S. District Court for the Northern District of California to dismiss the case involving a student at Bret Harte Middle School. The Student’s mom (“Mom”) wanted to make sure he would receive a free appropriate public education (“FAPE”), which is guaranteed by federal law.

The Student had been diagnosed with disabilities years earlier and was covered under the Individuals with Disabilities Education Act (“IDEA”) and received special education services.  In May 2011, the District re-tested the Student to determine if he was still eligible for special education under the IDEA.  An Individualized Education Program (“IEP”) determined that special education services should stop based on those assessments.

The Student asked for another IEP in September 2011, but the District, relying on the May assessments, continued to deny special education services to him.  In November 2011, Mom requested an independent educational evaluation (“IEE”) at the public’s expense, but the District also rejected this.  Mom paid for an IEE, and after reviewing its results, the District acknowledged that the Student had severe ADHD and depression. The District found that he was eligible for special education; however, the District filed a due process complaint against Mom over having to pay for the IEE.

Four days before the hearing, the District agreed to reimburse Mom for the IEE and withdrew its complaint.  The Student brought this action for the attorneys’ fees that were spent in the defense of the District’s action.  The District argued that there was no case decided so the Student wasn’t entitled to the fees.

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Ms. Adams’ and her experienced staff represent the interests of children from the ages of 3 through 22 who qualify or should qualify for special education and related services provided by their local school districts. Contact ADAMS ESQ today to get answers to your questions. They can be reached at 1-800-785-6713 or
The Student argued that under the IDEA, a school district must file a due process complaint affirming its denial of the IEE “without unnecessary delay.”  Initially, the District filed its due process complaint within two weeks of receiving the Student’s IEE request.  However, over seven months passed until the District withdrew the complaint.  Seven months was longer than courts have allowed for a school district to file a due process complaint after receiving an IEE request, the Student claimed.

Judge Illston said that under the IDEA, “the court, in its discretion, may award reasonable attorney’s fees as part of the costs … to a prevailing party who is the parent of a child with a disability.”  Here the Student was in need of an attorney to defend himself against the District’s complaint.  The judge said he was “forced to hire legal counsel.”

The judge found that the Student alleged sufficient facts to argue that the District couldn’t re-file its complaint after waiting seven months because it would be “unnecessary delay.”  She also said that the case didn’t fit squarely with other IDEA decisions, and that there were special concerns for students who were forced to defend themselves against these actions by school districts, but who do not have any power to resolve the situation.  As a result, Judge Illston denied the District’s motion to dismiss.  J.B. ex rel. H.S. v. San Jose Unified School Dist., Slip Copy, 2013 WL 1891398 (N.D.Cal. May 6, 2013)


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