ALJs have long taken the position (supported by their own caselaw) that they do not have the power to declare who is the ‘prevailing party’ in a special education dispute or award attorney’s fees and costs. This has presented a challenge to parents and their counsel in trying to settle their special education case because school districts refuse to negotiate or pay attorney’s fees and costs. ALJs refuse to get involved in discussing attorney’s fees and costs during settlement discussions or even encouraging such negotiation. The settlement agreement tries to remedy this problem. Although it doesn’t change the power of ALJs, it does provide them with guidance that they may discuss fees and costs in order to encourage the parties to settle.
Relief #29 – Paragraph 32
“ALJs may advise the parties that while they do not have jurisdiction over prevailing party determinations or reimbursement of attorney’s fees and costs, they may discuss these issues during settlement conferences and offer options as to how to incorporate them into the settlement or permit them to pursue a fee petition in state or federal court. ALJs should encourage parties to settle their disputes, including those involving attorney’s fees and costs.”
What does this mean?
As stated above, during any settlement negotiations involving an ALJ and the parties, the ALJ may advise the parties that although the OAL does not have the power to determine who is a prevailing party or reimbursement of attorney’s fees and costs, they should encourage settlement and offer options as to how the parties can deal with those fees and costs in the settlement.