(1) A decision under ORS 343.165 is final unless the parent or the school district files a civil action under subsection (2) of this section.
(2) Either party aggrieved by the finding and decision of the hearing officer may commence a civil action in any court of competent jurisdiction.
(3) In any action brought under this section, the court shall receive the records from the administrative proceeding, shall hear additional evidence at the request of a party and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.
(4) Any civil action brought under this section shall be commenced within 90 days of the date of the hearing officer’s final order.
(5) In any action or proceeding brought under ORS 343.165 or in an appeal from any action or proceeding brought under ORS 343.165, the court, in its discretion, may award reasonable attorney fees as part of costs to:
(a) The parents of a child with a disability, if the parents are the prevailing party;
(b) A prevailing party who is the Department of Education or school district against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable or without foundation; or
(c) A prevailing party who is the Department of Education or a school district against the attorney of a parent, or against the parent, if the parent’s complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.
(6) Attorney fees awarded under this section shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating these fees.
(7) Attorney fees may not be awarded and related costs may not be reimbursed under this section for services performed after a written offer of settlement to a parent if:
(a) The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure, or in case of an administrative hearing, more than 10 days before the hearing begins;
(b) The offer is not accepted within 10 days; and
(c) The relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.
(8) Notwithstanding subsection (7) of this section, attorney fees and related costs may be awarded to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.
(9) Attorney fees may not be awarded relating to any meeting of the individualized education program team unless the meeting is convened as a result of an administrative proceeding under ORS 343.165, or as a result of judicial action. A resolution session is not considered a meeting convened as a result of an administrative hearing or judicial action, or an administrative hearing or judicial action.
(10) Attorney fees may not be awarded for a mediation that is conducted before a request for a hearing under ORS 343.165.
(11) The court shall reduce the amount of attorney fees awarded under this section if:
(a) The parent unreasonably protracted the final resolution of the controversy;
(b) The amount of the attorney fees unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation and experience;
(c) The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or
(d) In requesting a hearing under ORS 343.165 (1)(a), the attorney representing the parent did not provide written notice to the Superintendent of Public Instruction that included:
(A) The child’s name, address and school;
(B) A description of the problem and facts relating to the problem; and
(C) A proposed resolution of the problem.
(12) The court shall not reduce fees under subsection (11) of this section if:
(a) The school district unreasonably protracted the final resolution of the controversy; or
(b) The school district violated the procedural safeguards as set forth in ORS 343.146 to 343.183. [1979 c.423 §9 (enacted in lieu of 343.077); 1983 c.731 §9; 1989 c.252 §4; 1993 c.45 §208; 1993 c.749 §12; 1999 c.989 §19; 2001 c.104 §116; 2005 c.662 §7]
Section: Previous 343.160 343.163 343.164 343.165 343.167 343.170 343.173 343.175 343.177 343.180 343.181 343.183 343.185 343.187 343.190 NextLast modified: August 7, 2008