A new report details ongoing problems with how the District of Columbia school system reimburses lawyers who successfully represent the families of students with special needs. In light of recent policy changes by school officials, however, it wasn't clear how much of the report would apply to the city's new process for handling attorney fees in those cases.
Families that bring claims against the city over special education services can collect attorney fees if they win, and can negotiate fees if they choose to settle. In an April 23 report, Clarence Sundram, a court-appointed special master in a long-standing class action against the city over special education services, found inconsistencies, delays, and other problems with how the city processed those fees.
In a response filed with the report, city officials said they had gotten rid of the administrative process for attorney fee reimbursements in March. Instead, school official said they now attempted to settle fees in cases in which a parent prevailed and were prepared to go to court if they couldn't reach a deal. If the city reached a settlement with parents on the underlying claims, officials were willing to include fees in that agreement.
A spokeswoman for the school system declined to comment on the report, pointing to the city's filed response.
Lawyers have sparred with the city for years over attorney fees in special education cases. In 2009, parents' lawyers filed a report with the court complaining of arbitrary fee cuts and delays, and accused the city of purposefully making reimbursement difficult to discourage them from bringing claims. The city countered with accusations of overbilling and maintained that the number of complaints filed by families was going down because the city was improving services.
Sundram found that although school officials took steps to revise the process for reimbursing lawyers who represent families, it still "falls short in several ways." He wrote that in cases where a family prevailed and submitted a request for attorney fees, the city sometimes took too long to process invoices, lacked transparency in how it applied fee guidelines and inconsistently reduced fee requests.
The report didn’t address the city's recent change in policy, however, which did away with the administrative process for handling fee requests. Several sections of the report did cover how the city negotiated fee settlements, though, which would apply to the city's new process.
Sundram said attorneys reported the negotiating process was "uneven." Some lawyers said they had success getting fee proposals modified by going directly to a supervisor, assuming they had a good relationship. He called on the city to develop clear guidelines for handling the attorney fee issue during settlement talks.
In cases where the city reached a settlement on the underlying claims – another scenario that would continue under the city's new policy – he warned that negotiating attorney fees at the same time raised the risk of an "ethical conundrum" in which a student's interests were pitted against a lawyer's financial interest.
"The current system of negotiations appears to exploit an ethical dilemma faced by parents' attorneys," Sundram wrote. "When settlement agreements are proffered that provide all or most of the relief sought in a due process complaint, but are accompanied by an unreasonably low offer of attorney's fees, attorneys report that they often have no choice but to accept the offer."
In their response, city officials said they understood many parents involved in these cases were "of modest means," but that a way to avoid any ethical dilemma would be to have parents pay lawyers and then receive any fees reimbursed by the city.
Maria Blaeuer, a local solo practitioner who handles special education cases, said the report accurately reflected problems she faced when it came to getting reimbursed. "If I'm going to get $50,000 of relief for my client and get $750, that makes it very hard to continue to represent low-income families," she said.
If lawyers can't negotiate appropriate fees, she said, "I think its long-term impact is potentially really devastating."