and was not a matter for dispute at any of the administrative hearings. (Ex. A to Defendant's Rule 12(m) Statement, at 4.)
On October 6, 1988, prior to the initial hearing, Defendant tendered a written settlement offer to Plaintiffs. The October 6, 1988 letter from Defendant's attorney pointed out that Plaintiffs' independent evaluator had submitted invoices in the amount of $ 52,407.00 for her services between August 15 and September 21, 1988. Counsel's letter proposed a payment by Defendant to Plaintiffs of "Three Thousand Dollars and no/100 ($ 3,000.00) in full and complete satisfaction of the costs of [the] independent evaluation . . . ." (Letter from Attorney Sraga to Dells, Ex. 1 to Defendant's Rule 12(m) Statement.) Plaintiffs did not accept the offer. (Defendant's Rule 12(m) Statement P 8.)
A Level I administrative hearing proceeded on October 24, 1988. (Id. P 9.) On November 1, 1988, Hearing Officer Bonita Simon issued her decision in which she concluded that the evaluation procedures that had been utilized by Defendant School District were not sufficient in nature or degree"; that the School District "seriously violated the student's rights by failing to complete [a CSE]" as required by Illinois law; that the School District had violated the student's "right to evaluations and a multidisciplinary conference" and that the record reflected "serious procedural errors and bad faith" by the School District in failing to consider the recommendations of independent evaluators or to provide appropriate services and in substituting an inappropriate placement for a more appropriate one. (Ex. A to Defendant's Rule 12(m) Statement, at 3-4.) Hearing Officer Simon concluded, in addition, however, that the independent evaluator engaged by Plaintiffs had submitted a request for payment of costs that were "a gross exaggeration of usual and customary costs," casting "serious question" on the evaluator's credibility. (Id. at 4.) In her order, Hearing Officer Simon directed Defendant to "bear the costs of an independent evaluation for the student," but directed that the costs be "no more than usual and customary costs" for such an assessment, without a statement of the specific amount to be awarded. (Id. at 7.)
Both parties appealed from the Level I Hearing Officer's decision. In its Request for Level II Review, Defendant challenges a number of findings made by Hearing Officer Simon. Most of the School District's specific objections were directed at the Hearing Officer's substantive findings. The School District also specifically challenged (a) the Hearing Officer's refusal to issue a subpoena for the records of the independent evaluator; (b) the finding that the School District's conduct justified the parents' request for an ICSE at public expense; and (c) the order directing the School District to reimburse the parents for that expense. (Request for Level II Review, Ex. I to Plaintiffs' Response to Motion for Summary Judgment, at PP 2(a), (i), (n).) Plaintiffs retained counsel and appealed Officer Simon's findings that the evaluator's bill exceeded usual and customary charges. (Decision of Hearing Officer Malin, Ex. B to Defendant's Rule 12(m) Statement, at 1.)
Hearing Officer Martin H. Malin rendered his decision on November 13, 1989. Officer Malin affirmed the Level I hearing officer's determination that Plaintiffs were justified in contracting for an independent evaluation of their son, and that Defendant's "cumulative bad faith delays" in performing an appropriate evaluation supported the conclusion that the expense for the independent evaluation was properly borne by Defendant. (Id. at 10, 14.) The parties disagreed concerning which of them should bear the burden of proof on the issue of the reasonableness of the evaluator's claimed expenses; Officer Malin concluded that, if Defendant bore that burden, Defendant amply met it by demonstrating that the expenses requested by the evaluator were grossly exaggerated and that the evaluator's credibility was a matter of "grave doubt." (Id. at 14, 16.) Even assuming that the case was of sufficient complexity to require expensive evaluation services, Officer Malin concluded that "a reasonable, usual and customary fee" for the evaluation was only $ 2,000.00. (Id. at 17.)
On March 14, 1990, Plaintiffs filed a complaint seeking judicial review of Officer Malin's decision and an award of fees pursuant to 20 U.S.C. § 1415(e)(4)(B). (Defendant's Rule 12(m) Statement P 13.) Defendant removed the action to this court, but Judge Alesia dismissed the complaint as untimely. (Id. P 14; Memorandum Opinion and Order, Ex. D to Defendant's Rule 12(m) Statement, available in WESTLAW, 1991 WL 49617.) The Seventh Circuit affirmed that decision, to the extent Plaintiffs' complaint sought review of the School District's performance of its obligations to provide Plaintiffs' son with an appropriate education. The Court of Appeals concluded that Plaintiffs' request for an award of attorneys' fees for the administrative proceedings was timely, however, and remanded for a ruling on Plaintiffs' request for fees. Dell v. Board of Educ., Township High Sch. Dist. 113, 32 F.3d 1053, 1064 (7th Cir. 1994). Following remand, Plaintiffs filed an amended complaint, seeking an award of fees for counsel's efforts at the Level II hearing and in proceedings before this court after the Seventh Circuit's remand order.
The Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (the "Act") confers legal rights on the parents of disabled school-age children. Among those rights is the right to seek an administrative hearing before an impartial hearing officer for review of a local school district's proposal for educating the disabled child, to appeal from such a hearing to a state agency, and to seek judicial review of the state agency's decision. § 1415(b)(2); (c); (e). The statute provides, as well, for an award of reasonable attorneys' fees to a parent or guardian who is the prevailing party in an action brought under the Act. § 1415(e)(4)(B). The statutory test for claiming "prevailing party" status is, as in claims for fees pursuant to 42 U.S.C. § 1988, whether plaintiffs have succeeded on "any significant issue in litigation which achieved some of the benefit the parties sought in bringing suit." Chagnon v. Town of Shrewsbury, 901 F. Supp. 32 (D. Mass. 1995). An award is available, as the Seventh Circuit has held, even where the efforts of counsel result in a concession from the school district before a requested due process hearing is conducted. Cf. Brown v. Griggsville Comm. Unit Sch. Dist. No. 4, 12 F.3d 681 (7th Cir. 1993) (denying fee award where student's improved school performance, rather than efforts of counsel, were the cause of the district's acquiescence in the parents' request); Fischer v. Rochester Community Sch. 780 F. Supp. 1142, 1149-50 (E.D. Mich. 1991) (recognizing that fees may be awarded to parents who prevail prior to the administrative hearing, but declining to award fees where counsel's efforts did not improve the position of the student or his parents).
The fee-shifting provision of IDEA differs from 42 U.S.C. § 1988 in one important respect, however: Even where the parents have prevailed, the statute provides that they will nevertheless be barred from recovery of fees for any services rendered
subsequent to the time of a written offer of settlement to a parent or guardian, if--