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The role of the school counselor is my professional perspective. The audience of this padlet will be school counselors serving in intermediate schools. The topic I chose is a legal guide to Response to Intervention (RTI). The reason I chose this topic is to educate the intermediate counselors on legal processes of RTI. Elementary campus typically have very structured RTI procedures in place. However, intermediate campuses are typically a little behind the curve in terms of monitoring student success and intervening when needed. Now that we are feeling the impacts of COVID and school closures, the RTI process has become even more critical than ever before as educators implement intervention procedures and processes.

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Response to Intervention has become particularly important because Special Education laws have been put in to place to ensure students receive timely and effective evaluations and parent feedback regarding student identification processes.  In order to meet state and federal guidelines, schools should adopt three best practices.  Mrs. Mendez recommends,
1. Adopt a timeline and flowchart for how a referral in handled when a parent makes a request for special education testing.
2. Ensure that each person involved in the process is educated and trained in the process.
3. Establish a system of checks and balances to ensure accountability in the identification process, so that students do not "fall between the cracks."
An emerging issue in the RTI process is the lack of diagnosticians.  With rising numbers of identified students due to school closures, school diagnosticians are stretched thin.  Mrs. Mendez expects there to be incentives for schools to be able to hire additional staff or contract with other organizations to complete diagnostic testing for students.
The person I interviewed is Laura Mendez (Pecan Trail Intermediate School, Counselor).

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Slide 3 - Professional Association Resource

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Slide 3 - Professional Association Resource

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Clements, K. & Sabella, R. (2010). Make it work. ASCA school counselor magazine. https://www.schoolcounselor.org/Magazines/May-June-2010/Make-It-Work?sso=ae8fcf5c-969d-409a-8a73-968aeea0d1e4

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Questions are being raised regarding effective implementation of the RTI process.  With early intervention mandates, educators are asking when the right time to intervene is, how long should interventions be implemented, and how should parent requests be handled?

Martin, J. L. (2022). Legal implications of response to intervention and special education identification. RTI Action Network. http://www.rtinetwork.org/learn/ld/legal-implications-of-response-to-intervention-and-special-education-identification#:~:text=The%20Response%2Dto%2DIntervention%20(,based%20interventions%20in%20regular%20programs

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The Response-to-Intervention (RtI) movement is enabling public education in the United States to evolve from a reactive model in which students had to seriously deteriorate before being moved on to special education programs, to one that emphasizes early and high-quality research-based interventions in regular programs that generate useful data with which to make key decisions for each struggling student. This evolution, however, has taken place against a backdrop of legal requirements for special education referrals and evaluations that remain almost unchanged from those of more than 30 years ago. The meeting of RtI innovations and the traditional child-find requirement of the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004) has many scratching their heads over exactly how the rules fit into the modern intervention era. Both the misconceptions that have become commonplace, as well as the legal disputes created by this juncture, make one wonder whether we truly grasp the fundamental child-find obligation of the IDEA in its present context.

Child-Find Under IDEA 2004

Child-find is the term used to describe the legal duty imposed by IDEA 2004 on public school districts to "find" children who may have a disability and be in need of special education services. Under the law, schools have an affirmative duty to identify, locate, and evaluate students who they suspect may have a disability, in order to evaluate them for potential eligibility for special education services (see IDEA 2004, 20 U.S.C. § 1412(a)(3) and 34 C.F.R. § 300.111). It is not enough for schools to wait until parents ask about or request a special education evaluation based on suspicion that their child may have a disability and struggling in school as a result. Schools must maintain a system of notices, outreach efforts, staff training, and referral processes designed to ascertain when there are reasonable grounds to suspect disability and the potential need for special education services.
Court cases, moreover, have established that the school's obligation to evaluate a student is triggered when a school district has reason to suspect both that (1) the student has a disability, and (2) a resulting need for special education services (see El Paso v. R.R., 2008). Once that "trigger" is pulled, schools must evaluate the child within a reasonable time to meet IDEA 2004's requirements and avoid exposure to child-find legal challenges and compensatory services claims (see El Paso v. R.R., 2008).
The legal framework described above has remained virtually unchanged since the inception of IDEA, enacted in 1975 as the Education for All Handicapped Children Act. But, in recent times, public education arrived at a consensus that this framework permitted a model to emerge that implemented intensive services only when children demonstrated serious educational deficits, and only by means of the special education process. Instead, the educational community began to focus on the potential benefits of intervening at an earlier stage, and within regular education, to help struggling students before they reached the point of significant educational deficits.

The Push for Early Interventions and RtI

In 2004, the Congress acted on concerns about the increasing number of students in special education, and the related suspicion that many students currently classified as having a specific learning disability (SLD) might have avoided the need for special education if instructional support and interventions had been provided to them at an early stage in their education. Thus, the backdrop was set in place for a move to reform to the manner in which schools should identify students with SLD-the largest population served by special education. This reform, moreover, was to take advantage of existing and emerging research on SLD, as well as modern ideas on how to meaningfully address the needs of struggling students within regular education.
By the time IDEA was reauthorized in 2004, a variety of experts from different disciplines noted that the special education system in the United States represented a "wait-to-fail" model, rather than a system that focused first on quality interventions within the regular education environment, followed by case-by-case educational decision making based on struggling students' response to high-quality research-based interventions. This sea change in educational thinking and modernization in SLD evaluations, combined with the work of a fairly tight knit group of people across the country over the past 30 years who have been quietly working on ways to bring evidence-based practice into schools, has come to be encapsulated in the phrase Response to Intervention, or RtI.

Sidebar: Changes in LD Identification Rate
The confluence of early intervention programs and RtI-oriented regular education intervention programs may have already made some positive changes to the system. According to the Data Accountability Center, the number of students aged 6-21 who receive IDEA Part B services has dropped 3.9% since 2004. In addition, the number of students identified as having a specific learning disability (SLD) has declined by 12.4% since 2004. See www.ideadata.org. Although the decreased numbers alone cannot confirm that RtI programs are having the intended beneficial effect on rates of special education identification, the data are a positive and hopeful sign that this is the case.

This evolution, however, is not taking place without incident. The RtI movement, has generated a new tension between the desire to apply early high-quality interventions to struggling students and the legal duty to comply with IDEA's traditional child-find requirements. And, while schools are establishing RtI programs as educational initiatives, the child-find mandate of IDEA represents a legal requirement, violation of which can mean real liability for schools.

New Questions Mean New Disputes

There is no lack of consensus on the outline of IDEA's child-find requirements, or about the positive benefits of expanded opportunities for interventions for struggling students within regular education programs. The child-find obligation imposed under IDEA, however, is currently applied in a context where public schools are simultaneously focusing on providing quality regular education interventions for struggling students prior to referring them for an IDEA evaluation. In many situations, campuses, referral teams, and classroom teachers are being asked to provide documentation that they have implemented serious interventions to address a student's difficulties in the classroom before a referral is allowed to proceed to evaluation. The advent of RtI methodology, together with an expanding range of interventions available outside of special education, has thus created a tension with the schools' duty to comply with child-find, particularly in cases where parents approach schools with concerns about their children's performance or outright request testing.
While schools are expending resources and energies on making effective use of interventions outside of special education for struggling students, however, the child-find requirement remains ever-present and mostly unchanged. Another fact is that a number of students who meet criteria for regular education interventions may in fact be struggling in the classroom due to the effects of learning disabilities.
Given the existing dynamic, new and difficult questions have arisen about how the child-find requirement of IDEA works in the context of expanded regular education interventions and RtI methodology. These questions include the following:

At what point should schools suspect that students who are struggling with the curriculum while receiving regular education interventions might actually have a specific learning disability?

How long should a student receive regular interventions before a school initiates an IDEA evaluation?

Is the child-find obligation triggered if a child moves through tiers of interventions with some improvement, but nevertheless continues to show deficits in achievement?

How should schools handle parents' requests for evaluations when interventions have only just been initiated and/or appear to show promise?

How can schools avoid failure-to-identify IDEA hearing claims while attempting to make best use of regular education interventions prior to a referral?

It is in answering these questions that we are likely to see the complex legal disputes in this area of education. Questions may be raised about the timeliness of implementation of high-quality interventions, the rate of the student's progress in the interventions, the timeline for interventions, and situations where parents are encouraged to allow interventions to proceed only to lead to limited response and an ultimately delayed placement in special education. Some parents may feel that participating in the RtI process ultimately led to a delay in having special education services provided to their children and may attempt to seek legal redress in the form of compensatory services.
There is a significant related question, moreover, as to whether the existing legal rules on referrals for evaluation in fact reflect and support RtI initiatives that many schools have been working diligently to put into place.

The Federal Regulation on Referral

The federal regulation addressing referrals to special education-in the all-important context of potential learning disabilities-envisions that interventions will be considered for a struggling child, but at the same time it respects the parents' ultimate right to request an evaluation at any time. The regulation in question states that schools must promptly seek parental consent to evaluate a child for special education, under regular timeframes, if the child has not made adequate progress after an appropriate period of time when provided with appropriate instruction, and whenever the child is referred for an evaluation (see IDEA 2004, 34 C.F.R. § 300.309(c)).
Another regulation addressing initial evaluations in all situations also serves to emphasize that "either a parent or a public agency may initiate a request for an initial evaluation to determine if the child is a child with a disability" (see IDEA 2004, 34 C.F.R. § 300.301(b)). The United States Department of Education (ED) commentary accompanying the regulation indicates that the same timelines and procedures applicable to all initial evaluations would apply to evaluations involving students with potential LDs (see IDEA 2004 Consent for Initial Evaluations, 2006). The only exception to the regular timelines to complete evaluations is in situations where the school staff and parents mutually agree in writing to extend the timeline, ostensibly to allow additional time for interventions to proceed. The USED commentary also reminds us that interventions can be provided during the weeks while the evaluation is conducted, a point made in response to concerns that parents, by requesting evaluation, could "short-circuit" or opt out of the intervention process (and in the commentary, ED stated that "if parents request an evaluation and provide consent, the timeframe for evaluation begins and the information required in §300.309(b) must be collected (if it does not already exist) before the end of that period"; IDEA 2004 Consent for Initial Evaluations, 2006). In sum, however, the referral scheme under IDEA's federal regulations respects the parent's right to request an evaluation with no specialized exception for circumstances where the school is attempting high-quality research-based interventions.
Indeed, the current legal framework makes little concession to the expanding universe of regular education interventions available in an increasing number of public schools. Although schools can, technically, refuse to refer the student, they must then provide parents with written notice of refusal and notice of IDEA procedural safeguards (since parents must be informed that they can challenge the school's refusal to evaluate the student). This course of action also creates the possibility that the school will face a failure-to-identify legal action challenging the refusal to evaluate. If the parents can prove that there are reasonable grounds to suspect disability and the need for special education services (admittedly not a high threshold), then the school will lose the case, will be ordered to evaluate the student, and will likely be liable for the parents' attorneys' fees.
Against this backdrop, one would think schools would be treading quite cautiously in addressing referral questions, particularly when faced with parents' requests for evaluation. The emerging court cases, however, demonstrate otherwise. Unfortunately, some persistent and inaccurate notions may be at work in how schools observe child-find under IDEA in the modern RtI era.

Common RtI/Child-Find Misconceptions

The advent of RtI, together with the modernization of the SLD evaluation process, has given rise to some common notions and confusion spots that can lead schools awry in complying with child-find while also implementing RtI programs. Some of these misconceptions include the following:

RtI interventions are a mandatory prerequisite to LD evaluation

Intervention programs must be implemented for the entire period of instruction

In tiered intervention models, all tiers must be completed prior to referral

Data from RtI intervention programs is a mandatory part of an LD evaluation

The most entrenched misconception involves the need for RtI data as part of SLD evaluations. Although individual states may, if they wish, make the use of RtI data mandatory, the federal statute or regulations do not. Rather, the 2006 regulation allows for part of the evaluation to include a determination of whether a child responded to high-quality research-based interventions, but it does not require it (see IDEA 2004, 34 C.F.R. § 300.309(a)(2)(i); see also Memorandum to State Directors of Special Education, 2011; Alexandria Comm. Sch. Corp., 2010; and Meridian Sch. Dist., 2010. Indeed, from a practical standpoint, the regulation could not have possibly required such a determination, since many schools would have been unprepared to fully implement such intervention programs at that time. This is why the regulation also contains an option for an assessment-based determination based on patterns of strengths and weaknesses in assessment scores instead of the RtI determination option (see IDEA 2004, 34 C.F.R. §300.309(a)(2)(ii)).
In addition, the component of the SLD evaluation under which the team must rule out that the performance difficulties are not caused by lack of appropriate instruction does not require high-quality research-based instruction or interventions-plain, appropriate, regular instruction in regular classes with periodic progress assessments (e.g., classroom quizzes and tests) can meet this requirement. In fact, the ED commentary states that the regulation requires that "the public agency promptly requests parental consent to evaluate a child suspected of having an SLD who has not made adequate progress when provided with appropriate instruction, which could [emphasis added] include instruction in an RTI model...." (IDEA 2004 Consent for Initial Evaluations, 2006). Thus, although provision of high-quality research-based interventions would certainly meet-and, indeed, would exceed-the requirement for "appropriate" instruction, it is not required.
Consequently, ED stated in a 2011 letter that "it has come to the attention of the Office of Special Education Programs (OSEP) that, in some instances, local educational agencies (LEAs) may be using Response to Intervention strategies to delay or deny a timely initial evaluation for children suspected of having a disability" (Memorandum to State Directors of Special Education, 2011). The memo states that while ED supports RtI initiatives and programs, "the use of RTI strategies cannot be used to delay or deny the provision of a full and individual evaluation,... to a child suspected of having a disability...." The memo also reiterates, as discussed above, that IDEA and its regulations currently "allow" the use of RtI data as part of the criteria for determining if a child has a specific LD, as opposed to mandating such an evaluation procedure. The memo therefore concludes that "it would be inconsistent with the evaluation provisions [of the IDEA regulations] for an LEA to reject a referral and delay provision of an initial evaluation on the basis that the child has not participated in an RTI framework" (see also City of Chicago Sch. Dist. 299, 2009, in which the Hearing Officer holds that "because RTI is a general education tool, districts cannot use it to delay disability identification in the face of parents' requests for immediate formal testing for eligibility"). The position of ED is that while schools have the discretion to reject parental requests for referral, the fact that a student has not participated in an RtI program cannot be the basis for the denial, as such participation is not required by law as a prerequisite to an evaluation request.
In light of ED's pronouncement, the wisest course of action for schools may be to avoid unilateral decisions on regular education interventions, including decisions on timelines for interventions, choice of available interventions, schedules for progress monitoring, and, most importantly, the point at which to initiate an IDEA evaluation. Schools appear to stand in the best position to defend their actions if they are undertaken in collaboration with parents who are informed they are free to request an IDEA evaluation at any time. The difficult cases for schools, on the other hand, are likely to be those where school staff unilaterally decide on interventions, discourage or reject parental requests for evaluation in order to implement interventions, or insist that a time certain for interventions must be exhausted as a prerequisite to referral in all cases.

Parental Requests for IDEA Evaluation

Certainly, a school addressing the difficulties of a student who is struggling academically is free to consider, explore, and apply its range of intervention options prior to deciding on a referral for special education evaluation. The circumstances change, however, when the parent approaches the school asking for special education testing. Because the parent not only has a right to request evaluation, but can initiate legal action against a school that fails to act on their request, a parent referral places the school in a unique situation. As recent case law indicates, these scenarios can easily lead to disputes. The cases that illustrate the present tension between RtI and child-find seem to break down into distinct types.
In one variety of case, the parent approaches the school with concerns about the child's performance, some suspicions of disability, and questions about initiating an evaluation. The school responds by providing interventions, but takes no action on the requested evaluation, and provides neither prior written notice under IDEA explaining its refusal to evaluate, nor notice of IDEA procedural safeguards (see Student v. Austin ISD, 2010). The parents, getting no straight answers on their request for evaluation, subsequently initiate legal action claiming a child-find violation. This type of case is characterized by school staff laboring under misconceptions about RtI programs and child-find, confusion in communications with parents, and by a lack of collaborative decision making.
In another type of case, the parent requests an evaluation of their struggling child but, after conferring with the school, agrees to the interventions proposed by the school instead. Likewise, in these scenarios, the school provides neither prior written notice, nor notice of IDEA rights. Later, however, the parent files a legal action alleging a child-find violation (see Scott v. District of Columbia, 2006, and El Paso Ind. Sch. Dist. v. R.R., 2008 [which was vacated on other grounds]). These scenarios are marked by school staff lobbying parents to accept provision of interventions in lieu of a referral and a lack of compliance with procedural requirements (usually because the school does not see itself as having refused an evaluation outright). But, the courts tend to take the position that if a parent asks for an evaluation but does not get it, the school has de facto refused the evaluation request, even if it never actually said the word "no." Schools tend to lose this type of case.
In yet another form of RtI/child-find dispute, the school provides interventions over a period of time with the parents' agreement, although it subsequently conducts an evaluation once the student's response to interventions appears to slow (see S. v. Wissahickon Sch. Dist., 2008; Lake Park Audubon Ind. Sch. Dist. #2889, 2008); and Dowington Area Sch. Dist., 2007). The parents, feeling that the school has tarried too long in deciding to evaluate, request a due process hearing to seek compensatory services. The results in these cases tend to hinge on whether the students were positively responding to initial interventions, and whether the school acted in a timely fashion to evaluate the child when intervention response began to lag. At times, the cases also turn on whether state law required the school to provide a certain amount of intervention prior to referral (see Lake Park Audubon Ind. Sch. Dist. #2889, 2008, in which state law required schools to attempt two types of interventions prior to referral, and Montgomery County Bd. of Educ., 2008, which involved a consent decree on overidentification of African-American students that required provision of interventions prior to referral). If the student was progressing with interventions, if the school acted quickly to evaluate the student once progress slowed, or if a state law requires interventions prior to referral, the school tends to prevail in the dispute.
Lastly, in another type of scenario, the parents and the school collaboratively agree on proceeding with interventions rather than pursue an evaluation. The decision making is by consensus, collaborative, and with parents receiving full information of all options, including their right to request an evaluation (see Salado Ind. Sch. Dist., 2008, in which all stakeholders, including parents, participated in decision to attempt interventions, and see Joshua Ind. Sch. Dist., 2010, in which parents agreed to interventions, which were sufficient to address student's difficulties). For various reasons, litigation nevertheless erupts, but schools tend to fare well in these scenarios.
The dispute scenarios outlined above demonstrate the difficulties both schools and parents face in making decisions in regard to a struggling student who may also have a disability. Ultimately, the key question is how schools can both make effective use of available high-quality research-based interventions while at the same time avoiding potentially complicated child-find legal claims. Schools risk child-find litigation and potentially poor results when they make unilateral decisions, act under misconceptions, and apply overly rigid intervention timelines, especially in the face of parent inquiries about evaluation. But, schools must also guide parents in exploring the range of high-quality research-based interventions available outside of special education, so that RtI programs have a chance to work their benefits. The tension between the two priorities, therefore, is one that must be addressed with a carefully balanced approach.

Active Steps for Schools to Avoid RtI-Based Child-Find Disputes

From an IDEA liability standpoint, the main challenge for schools attempting to implement interventions for struggling students prior to referral for a special education evaluation is avoiding disputes with parents. Again, the tightrope schools walk is one where they make effective use of regular education interventions while also respecting parent rights and child-find obligations under IDEA. The dispute scenarios discussed above tell us that the key to this balancing effort lies in actively involving parents as partners in the decisions regarding interventions and the timing of a special education evaluation. This effort could include the following operational steps:

Providing parents with detailed information on the range of regular education interventions available (pamphlets, research support, rates of success, etc...)

1. Meeting with parents to discuss intervention options, agreed timelines, and available courses of action

2. Making clear to parents their right to request an IDEA evaluation and providing written notice of IDEA procedural safeguards

3. Reaching a consensus on a course of action in a collaborative manner

4. If the consensus decision is to pursue regular education interventions, sharing progress data frequently with parents

5. Initiating follow-up communication regarding progress or lack thereof

6. Convening follow-up meetings to review progress and renew consensus on current course of action

7. Documenting the steps above.

Parents who are partners in the intervention decision-making process will be less likely to raise legal challenges, and evidence of consensual action will be important should the matter lead to litigation. The issue is of importance, because there will be situations where even after application of high-quality interventions, the student does not make sufficient progress, an IDEA evaluation takes place, and the student is placed in special education. Thus, parents should be informed that there are no guarantees that regular education interventions will work.
Schools that invest resources and time on RtI-oriented intervention programs should also use RtI's data-based approach to study the effectiveness of the program on school-wide and district-wide bases. The important question to answer with the data is the degree to which the interventions are proving effective in reducing the need for special education referrals by improving student performance on the whole. In other words, what schools need to know is whether their RtI program is yielding positive results in the form of student improvement, to the point that the need for IDEA referrals is reduced. If the data show that a substantial number of students who, in the past, would have been evaluated do in fact improve significantly with interventions and thus do not need referral, then the program is being successful. If, on the other hand, most of the students who would have been referred in the past simply get referred at a later time-after a potentially lengthy intervention period-then the program might appear to simply be slowing down or delaying the eventual referral and evaluation process. Certainly, the RtI movement did not intend to replace the discrepancy-based wait-to-fail SLD model with yet another version of a wait-to-fail model that requires failure in potentially lengthy RtI programs prior to referral to IDEA.

Referral Decisions Versus Eligibility Decisions

With all of the discussion about preventing unnecessary referrals to special education, we should not forget that IDEA eligibility requires two separate findings (see IDEA 2004 34 C.F.R. §300.8(a)(1)): (1) meeting of state and federal criteria for at least one IDEA disability eligibility category, and (2) a resulting need for special education (i.e., specially designed instruction). A complexity is presented, however, when a school is capable of successfully providing high-quality and beneficial individualized instruction to a student with disabilities as part of its regular education program.
This scenario raises a concrete legislative question: Does the 35-year-old definition of "specially designed instruction" require modernization as a broader and deeper range of instructional intervention options becomes available within regular education? This question will likely be fodder for upcoming legislative discussion when IDEA is again reauthorized in a timeframe fully within the RtI era. As a broader range of struggling students' needs can be met outside of the special education system, IDEA might evolve to reflect this reality by updating its definition of special education services. Perhaps this debate will also lead to reform in child-find and referral rules, in recognition of schools' local intellectual and resources investments in high-quality intervention programs. For now, however, it is clear we are in a time where reform is taking place and effecting change on a system-wide basis, which inevitably leads to some degree of tension and confusion. The benefits of moving forward, however, are simply too significant to turn away.

References
Alexandria Comm. Sch. Corp., 110 LRP 68,623 (SEA Indiana 2010).
City of Chicago Sch. Dist. 299, 102 LRP 72479 (SEA Illinois 2009).
Dowington Area Sch. Dist., 107 LRP 63155 (SEA Pennsylvania 2007)
Education for All Handicapped Children Act of 1975, Pub. L. No. 94-142.
El Paso Ind. Sch. Dist. v. R.R., 567 F. Supp.2d 918, 50 IDELR 256 (W.D.Tex. 2008)
Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. § 1400 et seq.
Individuals with Disabilities Education Improvement Act of 2004 Consent for Initial Evaluations, 71 Fed. Reg. 46,658 and 46,659 (August 14, 2006)
Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 34 C.F.R. § 300.111.
Joshua Ind. Sch. Dist., 111 LRP 4,652 (SEA Texas 2010).
Lake Park Audubon Ind. Sch. Dist. #2889, 50 IDELR 117 (SEA Minnesota 2008).
Memorandum to State Directors of Special Education, 56 IDELR 50 (U.S. Department
of Education, Office of Special Education Programs, January 21, 2011).Meridian Sch. Dist. 223, 56 IDELR 30 (SEA Illinois 2010).
Montgomery County Bd. of Educ., 51 IDELR 259 (SEA Alabama 2008).
S. v. Wissahickon Sch. Dist., 50 IDELR 216 (E.D.Pa. 2008).
Salado Ind. Sch. Dist., 108 LRP 67,655 (SEA Texas 2008).
Scott v. District of Columbia, 45 IDELR 160 (D.D.C. 2006)
Student v. Austin ISD, 110 LRP 49317 (SEA Texas 2010).

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legal implications of rti and ld identification

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Legal Implications of Response to Intervention and Special Education Identification

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The Response-to-Intervention (RtI) movement is enabling public education in the United States to evolve from a reactive model in which students had to seriously deteriorate before being moved on to special education programs, to one that emphasizes early and high-quality research-based interventions in regular programs that generate useful data with which to make key decisions for each struggling student.

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The scope of this article highlights the unique nuances of counselors engaging in the RTI process with English Language Learners.  This article provides specific insight that may be helpful to school counselors such as ensuring the presence of key stakeholders, providing cultural context, and advocating for culturally relevant interventions and policies.

Johnson, L., Shell, M., Tuttle, M., & Groce, L. (2019). School counselors experiences of response to intervetnion with english learners. Professional School Counseling 22(1). https://journals.sagepub.com/doi/pdf/10.1177/2156759X19859486

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Constitutional Law
IDEA 2004, 20 U.S.C. § 1412(a)(3)
https://sites.ed.gov/idea/statute-chapter-33/subchapter-ii/1412/a/1
-Schools are obligated to identify, locate, and evaluate students who may have a disability.

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Individuals with Disabilities Education Act

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Section 1412 (a) (1) - Individuals with Disabilities Education Act

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Statute/Regs Main » Statute » Subchapter II (Part B) » 1412 » A » 1 (1) Free appropriate public education (A) In general A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilit…

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Judicial Law
El Paso v. RR, 2008
https://caselaw.findlaw.com/us-5th-circuit/1498532.html
- In the case of El Paso v. R.R. (2008) the court ruled that schools are obligated that to evaluate students with a suspected disability within a reasonable time to meet legal requirements.

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United States Court of Appeals,Fifth Circuit.

EL PASO INDEPENDENT SCHOOL DISTRICT, Plaintiff-Appellant, v. RICHARD R., as next friend of R.R.; Mark Berry, Defendants-Appellees.

R.R., by his next friend E.R., Plaintiff-Appellee, v. El Paso Independent School District, Defendant-Appellant.

No. 08-50830.

Decided: December 16, 2009
Before KING, DAVIS and BENAVIDES, Circuit Judges. Todd Aaron Clark, Walsh, Anderson, Brown, Aldridge & Gallegos, P.C., Austin, TX, Elena M. Gallegos, Walsh, Anderson, Brown, Schulze & Aldridge, Albuquerque, NM, Joe Ruben Tanguma, II (argued), Walsh, Anderson, Brown, Aldridge & Gallegos, P.C., Irving, TX, for Plaintiff-Appellant. Charles Mark Berry (argued), El Paso, TX, for RR and Richard R. Coilbert N. Coldwell, Guevara, Rebe, Bauman, Coldwell & Reedman, El Paso, TX, for Berry. Christopher Paul Borreca, Thompson & Horton, L.L.P., Houston, TX, for Amici Curiae.
The El Paso Independent School District appeals the district court's award of attorney's fees to R.R. under the Individuals with Disabilities Education Act. The district court determined that R.R. was the prevailing party in his suit against the school district because he had won a judicial order granting him his requested relief; the court awarded attorney's fees to R.R. in the amount of $45,804. We assume, without deciding, that R.R. was the prevailing party in this litigation. But because R.R. rejected a written settlement offer that included all the educational relief that he requested and reasonable attorney's fees, we also conclude that R.R. unreasonably protracted the resolution of this dispute and VACATE the award of attorney's fees to R.R. We AFFIRM the dismissal of EPISD's claim for attorney's fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

R.R. claims to suffer from Attention Deficit/Hyperactivity Disorder. Over the past twelve years, R.R. has sought special education and accommodative services from the El Paso Independent School District (EPISD) under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. R.R. has been evaluated several times for special education services, admitted to special education programs, and assisted in his education through the provision of accommodative services.

In 2005, R.R. was struggling in school, despite receiving accommodative services that included test preparation and study skills assistance. Later that year, after failing the Texas standardized skills assessment test for the third consecutive year, R.R. requested an evaluation for special education services. In response to this request, the school district set up a committee to evaluate R.R.'s academic placement. The committee determined that because R.R. was very close to passing the Texas standardized skills test, there was no need to either evaluate him for special education or change his current academic placement and accommodative services.

In 2006, after R.R. again failed the Texas standardized test, R.R. requested a full evaluation to determine his eligibility for special education services. In response, EPISD scheduled a meeting for September 25, 2006, to address R.R.'s request. On September 25, R.R. cancelled the scheduled meeting and, on September 26, filed a request for a state due process hearing. In that filing, R.R. sought an order from the Texas Education Agency Hearing Officer directing EPISD to (1) perform a "full independent evaluation" of R.R.; (2) provide written notice to R.R.'s parents whenever the district proposed to change R.R.'s status, accommodations, or evaluation report; (3) provide notice of procedural safeguards to R.R.'s parents; (4) conduct an Admissions, Review, and Dismissal Committee (ARDC) meeting; and (5) pay reasonable attorney's fees.

At the required pre-hearing resolution meeting, held on October 11, 2006, EPISD contended that there was no dispute between the parties because it was willing to provide all requested relief. Specifically, EPISD offered to (1) conduct a full evaluation of R.R. within sixty days of the parents' consent to evaluate; (2) convene an ARDC meeting within thirty days from the completion of the evaluation; (3) continue to comply with the applicable federal and state laws regarding the provision of prior written notice and procedural safeguards to parents; and (4) pay attorney's fees. At the meeting, EPISD asked for a quantification of R.R.'s attorney's fees. R.R. did not quantify his attorney's fees demand and instead asked for an "agreed order." EPISD demurred, contending that an "agreed order" was not appropriate because there were factual and legal disputes between the parties. R.R. then left the meeting.

Later that day, EPISD formalized the offer made at the resolution meeting in a written settlement offer faxed to R.R. The faxed letter included everything offered at the resolution meeting and initially suggested an attorney's fee award of $3,000. However, EPISD stated that it "remain[ed] ready to negotiate a private settlement, and in so doing, ․ [requested] the amount of attorney's fees that w[ould] be necessary to finalize the settlement." Rather than continue negotiating, R.R. refused EPISD's settlement offer, did not make a counter-offer, and proceeded to a due process hearing.

At the due process hearing in November 2006, EPISD reasserted that there was no dispute between the parties because it was willing to grant all requested relief to R.R. As such, EPISD argued that R.R.'s complaint should be dismissed. Notwithstanding this argument, the state hearing officer conducted a two-day hearing on the issues presented in R.R.'s due process complaint. After the hearing, the hearing officer made factual findings and entered judgment in favor of R.R., ordering EPISD to conduct a full evaluation of R.R.

In April 2007, EPISD and R.R. each filed suit in district court under the IDEA. In its suit, EPISD argued that the hearing officer's refusal to dismiss R.R.'s complaint was error because the complaint was non-justiciable. As a result, EPISD urged, R.R.'s subsequent litigation was frivolous, and the court should award EPISD attorney's fees. R.R. also sought an award of attorney's fees, asserting in his complaint that, based on the state hearing officer's ruling, he was the prevailing party. The two suits were subsequently consolidated.

R.R. moved for summary judgment on the prevailing party issue in July 2007. The district court held that R.R. was justified in rejecting EPISD's settlement offer and continuing his litigation to obtain an "enforceable order." As part of this holding, the district court determined that there was a justiciable dispute before the Texas hearing officer because EPISD had not offered an enforceable settlement. Specifically, the district court concluded that EPISD's settlement offer would not have been enforceable in either state or federal court, and as such, R.R. had an interest in continuing litigation to obtain a judicial order that could be enforced against EPISD. The district court then held that R.R. had prevailed in the litigation by obtaining a judicial order entitling him to all of his requested relief. Because the district court determined that R.R.'s litigation was not frivolous, the court also dismissed EPISD's attorney's fee claim.

Following this prevailing party determination, R.R. moved for attorney's fees. In response, EPISD again argued that because R.R. had achieved nothing more than was originally offered, the district court should not award attorney's fees to R.R. The district court disregarded EPISD's contentions, stating that it had considered those arguments in making its prevailing party determination. Instead, the district court granted R.R.'s motion for attorney's fees in August 2008 and awarded $45,804 in fees to R.R.-an award that reflected the full amount of work R.R.'s attorney had done. EPISD now appeals the district court's prevailing party and attorney's fee decisions.

II. DISCUSSION

The IDEA requires that a party be a "prevailing party" in order to be entitled to attorney's fees. See 20 U.S.C. § 1415(i)(3)(B)(i) ("[T]he court, in its discretion, may award reasonable attorneys' fees ․ to a prevailing party ․"). Thus, in an action for attorney's fees under the IDEA, the threshold question is whether the party seeking attorney's fees is the prevailing party. See Jason D.W. ex rel. Douglas W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir.1998) (per curiam). However, "[a] finding that a party is a prevailing party only makes him eligible to receive attorneys' fees under the IDEA; it does not automatically entitle him to recover the full amount that he spent on legal representation." Id.

A. Prevailing Party Status

Under the IDEA, "a prevailing party is one that attains a remedy that both (1) alters the legal relationship between the school district and the handicapped child and (2) fosters the purposes of the IDEA." Jason D.W., 158 F.3d at 209. This test follows from Texas State Teachers Association v. Garland Independent School District, where the Court held that the "touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); see also Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ("[P]laintiffs may be considered 'prevailing parties' ․ if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.").

More recently, in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, the Supreme Court clarified that a prevailing party is one that has obtained a judgment on the merits, a consent decree, or some similar form of judicially sanctioned relief. 532 U.S. 598, 603-04, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). We now join our sister circuits in applying Buckhannon in the IDEA context and hold that a litigant must attain some judicial imprimatur on a material alteration of the legal relationship in order to be a prevailing party. We have already joined our sister circuits in holding that, after Buckhannon, whether a party is a prevailing party "is a legal question subject to de novo review." Bailey v. Mississippi, 407 F.3d 684, 687 (5th Cir.2005) (collecting cases).

EPISD argues that R.R. is not the prevailing party. EPISD contends that because it offered R.R. all requested relief before litigation, R.R.'s attainment of relief did not alter the legal relationship between the parties and did not foster the purposes of the IDEA. In response, R.R. points to the fact that both the hearing officer and the district court determined that R.R. was entitled to a full evaluation, thereby altering (as the district court held) the legal relationship between R.R. and EPISD and fostering the purposes of the IDEA by enabling the provision of an appropriate public education.

As discussed above, the IDEA provides that "[i]n any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees ․ to a prevailing party." 20 U.S.C. § 1415(i)(3)(B)(i)(I). The IDEA features a plethora of provisions dealing with attorney's fees, several of which contemplate reducing the attorney's fee award of a party that ultimately prevails in an administrative or judicial proceeding. For example, a prevailing party that ultimately achieves no more than what was earlier offered in settlement may not recover attorney's fees incurred subsequent to the settlement offer. Id. § 1415(i)(3)(D)(i). Similarly, a court may reduce the attorney's fees awarded to a prevailing party found to have unreasonably protracted the litigation. Id. § 1415(i)(3)(F)(i). Particularly at issue here is § 1415(i)(3)(D)(i), which provides that "[a]ttorneys' fees may not be awarded ․ in any action ․ for services performed subsequent to the time of a written offer of settlement ․ [if] the court ․ finds that the relief finally obtained ․ is not more favorable ․ than the offer of settlement." Id. § 1415(i)(3)(D)(i) (emphasis added). In imposing this bar against recovering attorney's fees incurred subsequent to the offer of settlement, that provision tacitly assumes that a party may reject such an offer and nevertheless attain prevailing party status: the statute permits an award of attorney's fees for work performed prior to the written offer of settlement, and prevailing party status is a predicate for any such award. See id. § 1415(i)(3)(B)(i).

Several of our sister circuits have addressed provisions of the IDEA that contemplate reducing attorney's fee awards for those parties who reject settlement offers and later obtain no more than what was offered. In so doing, these circuits have recognized that such a party still "prevails" by obtaining judicially sanctioned relief, notwithstanding the reduced attorney's fee award. In T.D. v. LaGrange, the Seventh Circuit addressed T.D.'s argument that the IDEA, by virtue of its complex array of provisions dealing with attorney's fees, fell beyond the scope of Buckhannon and that private IDEA settlements could therefore convey prevailing party status. 349 F.3d at 476. In rejecting that argument, the Seventh Circuit discussed generally the provisions of the IDEA that deal with settlement offers and reduction of fees. In this discussion, the Seventh Circuit noted that "if a plaintiff rejects a settlement offer and eventually receives a judicially sanctioned victory that is less beneficial than the settlement offer was, the plaintiff, though being a 'prevailing party,' may not get the fees incurred after the settlement offer." Id. at 476 (citing 20 U.S.C. § 1415(i)(3)(D)(i)). Similarly, the D.C. Circuit and the Third Circuit, in addressing whether Buckhannon applies to the IDEA, recognized that the IDEA contemplates reducing fees when a litigant rejects a settlement offer and does not achieve more favorable relief that what was offered, but that the litigant remains the prevailing party. See, e.g., Alegria ex rel. Alegria v. District of Columbia, 391 F.3d 262, 267 (D.C.Cir.2004) ("A parent who refuses a written offer to settle a complaint, and later prevails at an administrative hearing or in court but obtains a result that is not more favorable than the written settlement offer, would still be eligible for an award of attorneys' fees for work performed prior to the settlement offer ․"); John T., 318 F.3d at 557 ("[Section 1415(i)(3)(D)-(G)] define situations in which attorney's fees [awarded to a prevailing party] may be prohibited or reduced, e.g., when a parent has unjustifiably rejected a settlement offer or when a parent has unreasonably protracted the final resolution.").

However, we have held that parties that extend litigation may be denied prevailing party status. In Michael T. ex rel. Oralee T. v. El Paso Independent School District, 37 Fed.Appx. 714, 2002 WL 1221847, at *1 (5th Cir.2002) (per curiam), an unpublished opinion which is not precedential, see 5th Cir. R. 47.5, but is nevertheless persuasive, we held that a district court did not clearly err (the test in this circuit pre-Buckhannon) in determining that Michael was not the prevailing party because Michael unreasonably withheld consent for an evaluation. Id. The facts in Michael T. were substantially similar to the present matter-EPISD and the attorney for R.R., Mark Berry, were both involved, and the end result was that Michael also achieved an order entitling him to a full evaluation at the due process hearing-but there the district court found that Michael was not the prevailing party because the results Michael achieved through litigation "could have been obtained at any time from the [school] district but for his mother's refusal to give consent to the initial assessment." Id. We affirmed, stating that "we cannot say that the district court clearly erred in determining that the purposes of the IDEA are not fostered by encouraging parents of potentially disabled children to withhold consent to an initial assessment in order to obtain prevailing party status." Id.

We need not resolve the issue today whether a party who rejects a settlement offer and obtains from an administrative hearing officer or the district court no more educational benefit than the settlement offered is technically a "prevailing party." Instead, we assume, without deciding, that R.R. is a prevailing party simply because he achieved a judicial order of relief, and we consider only whether R.R.'s rejection of EPISD's settlement offer should affect the amount of R.R.'s attorney's fees award. In so doing, we leave for another day the question whether denying prevailing party status in these circumstances might also be appropriate under the IDEA.

B. Attorney's fees

In considering the parties' attorney's fees arguments, we examine (1) the award of fees to R.R. for work performed after EPISD's written settlement offer; (2) the award of fees to R.R. for work performed prior to EPISD's written settlement offer; and (3) EPISD's claim for attorney's fees.

1. R.R.'s Attorney's Fees Post-Settlement Offer

The first question is whether the district court abused its discretion in awarding attorney's fees to R.R. for work performed after EPISD's written settlement offer-formalizing the offer made at the resolution meeting-which was made the day of the resolution meeting and more than ten days before the administrative proceeding. That question is answered by several provisions of the IDEA.

The IDEA envisions that the parties to a dispute should resolve their differences cooperatively. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) ("The core of the [IDEA] is the cooperative process that it establishes between parents and schools."). To effectuate this goal, the statute requires that "[p]rior to the opportunity for an impartial due process hearing ․ the local education agency shall convene a meeting with the parents and the relevant ․ members of the [educational program t]eam ․" 20 U.S.C. § 1415(f)(1)(B)(i). The statute further contemplates resolution without resort to litigation by endorsing settlement agreements: "In the case that a resolution is reached to resolve the complaint at [the resolution] meeting described in [20 U.S.C. § 1415(f)(1)(B)](i), the parties shall execute a legally binding agreement that is ․ enforceable in any State court of competent jurisdiction or in a district court of the United States." Id. § 1415(f)(1)(B)(iii)(II).

Early resolution through settlement is favored under the IDEA. The statute bars an award of attorney's fees for work performed subsequent to a written settlement offer that does not achieve anything more than that which was offered. See supra Section II(A) (discussing 20 U.S.C. § 1415(i)(3)(D)(i)). Notwithstanding that bar, a court may award attorney's fees to a "parent who is the prevailing party and who was substantially justified in rejecting the settlement offer." 20 U.S.C. § 1415(i)(3)(E).

i. Settlement Enforceability

Because it is undisputed that R.R. did not achieve any educational benefits beyond what EPISD offered, the question is whether R.R. was substantially justified in rejecting EPISD's settlement offer. The district court held that EPISD's settlement offer would not have been enforceable if it had been reduced to an agreement. Specifically, the district court determined that a private settlement would have lacked the judicial imprimatur required to be enforceable in federal court. Further, the district court determined that Texas had not waived its immunity from suit in state court for the type of settlement offered by EPISD, and accordingly, EPISD's settlement offer would not have been enforceable in state court. The district court, after determining that R.R. would not have been able to enforce the settlement in either federal or state court, concluded that R.R. had an interest in continuing litigation to obtain an "enforceable" order of relief, and declined to reduce R.R.'s attorney's fee award. With respect, we disagree.

The IDEA states that "district courts of the United States shall have jurisdiction of actions brought under this section [20 U.S.C. § 1415] without regard to the amount in controversy." 20 U.S.C. § 1415(i)(3)(A); see also 34 C.F.R. § 300.516(d). The statute further contemplates that, if the parties are able to resolve their dispute at the resolution meeting, they should "execute a legally binding agreement that is ․ enforceable in any State court of competent jurisdiction or in a district court of the United States." 20 U.S.C. § 1415(f)(1)(B)(iii)(II); see also 34 C.F.R. § 300.510(d). Pretermitting any discussion of whether R.R. could have enforced a settlement agreement against EPISD in state court, we determine that a settlement agreement reached at the resolution meeting would have been enforceable in federal court.

Courts have recognized that federal courts can enforce IDEA settlement agreements reached at a resolution meeting. In H.C. ex rel. L.C. v. Colton-Pierrepont Central School District, the Second Circuit considered whether an agreement between the parties reached outside a resolution meeting or mediation was enforceable in federal court. No. 08-4221-CV, 2009 WL 2144016, at *2 (2d Cir. Jul. 20, 2009) (summary order). There, H.C. filed a due process complaint seeking greater educational services in November 2005. H.C. ex rel. L.C. v. Colton-Pierrepont Cent. Sch. Dist., 567 F.Supp.2d 340, 342 (N.D.N.Y.2008). The parties then met at the required resolution meeting later that November, but they were unable to reach an agreement. Id. However, in May 2006, before any administrative hearing had occurred, the parties entered into a written settlement agreement that resolved their dispute. Id.

In June 2006, the school district created a new educational plan for H.C. that reduced the level of services provided to H.C., and, in response, H.C. again made a due process request, seeking more services and enforcement of the May 16 settlement agreement. Id. At the due process hearing, the hearing officer, despite considering the substance of H.C.'s educational claims, declined to exercise jurisdiction over the May 2006 settlement agreement, and the state review officer concurred on appeal. Id. As a party aggrieved by the decisions of the hearing officer and the state review officer, H.C. filed suit in federal district court. The district court concluded, among other things, that the hearing officer erred in determining that he had no authority to enforce the settlement agreement, and the court accordingly remanded to the hearing officer for a new hearing. Id. at 344. The school district then appealed the district court's order to the Second Circuit.

On appeal, the Second Circuit vacated the district court's remand order. H.C., 2009 WL 2144016, at *3. In its opinion, the Second Circuit considered "[w]hether the district court had federal question jurisdiction to enforce the [May 2006] settlement agreement." Id. at *2. The court stated that "[while c]ontract enforcement is generally a question of state law[,] ․ Congress has expressly provided for enforcement of IDEA settlement agreements in federal district courts when the agreement at issue was entered into ․ at a 'resolution session' required by § 1415(f)(1)(B)." Id. (emphasis added). However, because the May 2006 settlement agreement was not entered into either at the resolution meeting or through mediation, the Second Circuit remanded the case to the district court to determine whether "there [wa]s a jurisdictional basis for considering plaintiff's contract claim." Id.

District courts across the country have also recognized that IDEA settlement agreements reached at a resolution meeting are enforceable in federal court. See, e.g., J.M.C. v. La. Bd. of Elementary & Secondary Educ., 584 F.Supp.2d 894, 898 (M.D.La.2008) (stating that an agreement reached at a resolution meeting would have been enforceable in federal court); L.K. ex rel. L.K. v. Burlingame Sch. Dist., No. C 08-02743, 2008 WL 2563155, at *4 n. 8 (N.D.Cal. June 23, 2008) ("The Court also notes that ․ the [IDEA] permits settlement agreements reached ․ through a resolution session under 1415(f) to be enforceable in federal courts ․"); Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep't of Educ., No. 5:06-CV-139, 2007 WL 2219352, at *7 (W.D.Mich. July 27, 2007) ("[W]ritten settlement agreements reached during the mediation process or in a resolution session which comply with the [IDEA] requirements are now enforceable in state and federal courts."); Bowman v. District of Columbia, No. 05-01933, 2006 WL 2221703, at *2 (D.D.C. Aug. 2, 2006) (recognizing that a district court has jurisdiction to enforce a settlement agreement reached either at the resolution meeting or during mediation).

Here, EPISD offered R.R. all of his requested educational relief at the resolution meeting. We conclude that if R.R. had accepted EPISD's offer, he could have enforced the resulting settlement agreement in federal court. As such, there was no need for R.R. to reject EPISD's settlement offer and continue litigation solely to obtain an "enforceable" order of relief.

ii. Substantially Justified Settlement Rejection

Given that R.R. did not need to continue litigation to obtain an enforceable agreement covering all requested relief, we conclude that R.R. was not "substantially justified" in rejecting EPISD's settlement offer. See 20 U.S.C. § 1415(i)(3)(E). Further, R.R.'s own filings indicate that he recognized that a settlement agreement made at the resolution meeting was enforceable.

Because R.R. was not substantially justified in rejecting EPISD's settlement offer, 20 U.S.C. § 1415(i)(3)(D) applies and prohibits an attorney's fees award for work performed subsequent to the time of EPISD's written settlement offer. See Shelly C. ex rel. Shelbie C. v. Venus Indep. Sch. Dist., 878 F.2d 862, 864 (5th Cir.1989) (recognizing that the IDEA bars an award of attorney's fees for work performed subsequent to a settlement offer of all requested relief); Duane M., 861 F.2d at 119 (same). Accordingly, the district court abused its discretion by awarding attorney's fees to R.R. for work performed subsequent to EPISD's written settlement offer.

2. R.R.'s Attorney's Fees for Pre-Settlement Offer Work

The next question is whether the district court abused its discretion in awarding R.R. attorney's fees for work performed during and prior to the resolution meeting. We determine that the district court abused its discretion because R.R. was not entitled to an award of attorney's fees for such work.

i. Fees for Participating in the Resolution Meeting

The IDEA allows an attorney's fees award for work performed in any "action or proceeding." 20 U.S.C. § 1415(i)(3)(B)(i). However, the IDEA specifically excludes resolution meetings from the scope of that definition. 20 U.S.C. § 1415(i)(3)(D)(iii) ("A [resolution meeting] shall not be considered ․ a meeting convened as a result of an administrative hearing or judicial action; or ․ an administrative hearing or judicial action."); see also 34 C.F.R. § 300.517(c)(2)(iii). Accordingly, R.R. cannot be awarded attorney's fees for work performed at the resolution meeting, and the district court below abused its discretion in awarding fees for work performed at that meeting. See, e.g., D.D. ex rel. Davis v. District of Columbia, 470 F.Supp.2d 1, 2 (D.D.C.2007) ("It is undisputed that attorneys' fees for time actually spent at a resolution session ․ generally are not compensable under the [IDEA]."); J.Y. ex rel. Thomas v. Seattle Sch. Dist. No. 1, No. C07-1226, 2007 WL 4111202, at * 7 (W.D.Wash. Nov. 16, 2007) ("Plaintiff[s] may not be awarded fees associated with participating in resolution sessions.").

ii. Fees for Work Performed Prior to the Resolution Meeting

Finally, we review whether R.R. is entitled to attorney's fees for work his attorney performed prior to the resolution meeting. The IDEA states that a court shall reduce fees "whenever the court finds that ․ the parent, or the parent's attorney ․ unreasonably protracted the final resolution of the controversy." 20 U.S.C. § 1415(i)(3)(F)(i). As such, we must determine whether R.R.'s rejection of EPISD's settlement offer unreasonably protracted the final resolution of the controversy such that a further reduction in the fee award is warranted.

As discussed above, when a party rejects an offer of settlement and later achieves at an administrative or judicial proceeding no more than what was previously offered, a court may, but is not required to, award reasonable attorney's fees for work performed prior to the written offer of settlement under § 1415(i)(3)(D)(i). On the other hand, if a party accepts an offer of settlement, that party may not be the prevailing party and thus not be entitled to an award of attorney's fees.

We need not speculate about these alternate situations. Here, EPISD wisely included the payment of reasonable attorney's fees to R.R. as part of its settlement offer. Consequently, R.R. was offered all requested educational relief and reasonable attorney's fees, leaving absolutely no need to continue litigating. Instead, R.R. and his attorney rejected EPISD's settlement, walked out of the resolution meeting, continued litigation, and unreasonably protracted the resolution of this dispute for over three years. See Jason D.W., 158 F.3d at 211 ("[F]ailing to settle can constitute protraction under [the IDEA]."); Shelly C., 878 F.2d at 863 (reversing summary judgment in part because the district court did not consider whether the parent's attorney unreasonably protracted resolution of the dispute when the parties ultimately settled). Accordingly, we conclude that the district court here abused its discretion in awarding attorney's fees to R.R. for work performed prior to EPISD's written settlement offer of all requested relief and reasonable attorney's fees. "[T]he IDEA only guarantees the right to a free education; it does not explicitly guarantee the right to attorney's fees incurred in pursuit of that education." T.D. v. LaGrange, 349 F.3d at 477.

3. EPISD's Claim For Attorney's Fees

EPISD also requests that we reverse the district court's dismissal of its suit for attorney's fees. The IDEA provides that a court "may award reasonable attorneys' fees ․ to a prevailing party who is a ․ local educational agency against the attorney of a parent who files a complaint ․ 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." 20 U.S.C. § 1415(i)(3)(B)(i)(II) (emphasis added). A court may also "award reasonable attorneys' fees ․ to a prevailing State educational agency or local educational agency 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 ․" Id. § 1415(i)(3)(B)(i)(III) (emphasis added); see also Weber, supra note 10, at 29 (discussing these provisions). As such, prevailing party status is a predicate for an award of attorney's fees to EPISD.

Here, there is no indication that EPISD did prevail or would have prevailed on R.R.'s underlying request for educational relief. Indeed, EPISD's whole argument rests on the fact that it offered to provide R.R. all of his requested educational relief. Thus, even though EPISD has "prevailed" by successfully arguing for a reduction in R.R.'s fees award, EPISD has not prevailed in arguing that R.R. is not entitled to his requested educational relief. Thus, we cannot say that EPISD was the "prevailing party" such that it is entitled to attorney's fees under the IDEA. Accordingly, we affirm the district court's dismissal of EPISD's claim for attorney's fees.

III. CONCLUSION

For the foregoing reasons, we vacate the award of attorney's fees to R.R. We affirm the dismissal of EPISD's claim for attorney's fees.

AFFIRMED in part; VACATED in part. Costs shall be borne by Mark Berry.

FOOTNOTES

1. R.R. has acted through his parents in this litigation. As a procedural matter, EPISD brought suit against R.R.'s father and R.R.'s attorney. For simplicity, we refer to R.R., his attorney, and his parents as "R.R.," unless otherwise noted or made apparent from context.

2. This meeting is held during the "resolution session," 20 U.S.C. § 1415(f)(1)(B), and is described under the heading "preliminary meeting," id. § 1415(f)(1)(B)(i). For clarity, we refer to this meeting as the "resolution meeting."

3. See, e.g., T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 478-79 (7th Cir.2003) ("[T]o be a prevailing party [post-Buckhannon,] a litigant must have obtained a judgment on the merits, a consent decree, or some similar form of judicially sanctioned relief ․ on any significant issue in litigation which achieves some of the benefits the parties sought in bringing suit." (internal quotation marks omitted)); see also J.D. ex rel. Davis v. Kanawha County Bd. of Educ., 571 F.3d 381, 386-87 (4th Cir.2009) ("As the Supreme Court noted in Buckhannon, an award of attorneys' fees requires a material alteration of the legal relationship of the parties ․,[but] a party need not prevail on every issue ․ [O]btaining judicially sanctioned and enforceable final relief on some claims is sufficient." (internal quotation marks omitted)); Doe v. Boston Pub. Sch., 358 F.3d 20, 29-30 (1st Cir.2004) ("Consistent with each of the circuit courts that have considered the application of Buckhannon to the IDEA, we hold that IDEA plaintiffs who achieve their desired result via private settlement may not, in the absence of judicial imprimatur, be considered 'prevailing parties.' "); John T. ex rel. Paul T. v. Del. County Intermediate Unit, 318 F.3d 545, 556 (3rd Cir.2003) ("The [Buckhannon] Court acknowledged that a party benefitting from a settlement agreement, for example, could be a prevailing party, provided the change in the legal relationship of the parties was in some way judicially sanctioned." (internal quotation marks omitted)).

4. An administrative hearing officer's order provides the requisite "judicial imprimatur" for a party to be considered a "prevailing party" for attorney's fee purposes, despite the fact that the administrative hearing officer does not have the authority to award attorney's fees. The IDEA provides that a court may award attorney's fees to any party that prevails in an "action or proceeding," 20 U.S.C. § 1415(i)(3)(B)(i), and the statute implies that administrative hearings are "proceedings." See, e.g., id. § 1415(d)(2)(F) ("due process proceedings"); id. § 1415(i)(2)(C)(i) ("administrative proceedings"); id. § 1415(i)(3)(D)(i)(I) ("administrative proceeding"). Our sister circuits have also recognized that attorney's fees can be awarded to a party who prevails at an administrative hearing. See, e.g., A.R. ex rel. R.V. v. N.Y. City Dep't of Educ., 407 F.3d 65, 76 (2d Cir.2005) ("In order to give effect to the IDEA's intent to permit awards to winning parties in administrative proceedings even where there has been no judicial involvement, as the parties agree that we must, we conclude that the combination of administrative imprimatur, the change in the legal relationship of the parties arising from it, and subsequent judicial enforceability, render such a winning party a 'prevailing party' under Buckhannon's principles."); T.D. v. LaGrange, 349 F.3d at 479 ("[W]e held in Brown v. Griggsville Comm. Unit Sch. Dist. No. 4, that the IDEA does allow fees to the prevailing party in administrative hearings. 12 F.3d 681, 683-84 (7th Cir.1993). While we recognize that this opinion was issued before Buckhannon, we do not perceive that Buckhannon requires a different conclusion."). These authorities are consonant with our pre-Buckhannon precedent holding that success at an administrative proceeding entitles a party to attorney's fees. See Duane M. v. Orleans Parish Sch. Bd., 861 F.2d 115, 120 (5th Cir.1988) ("The legislative history of section 1415[ ] reflects Congress' unequivocal intent to award attorneys' fees to parents for legal representation at due process hearings which the [IDEA] requires. To hold that prevailing parties in these hearings cannot bring a separate suit for attorneys' fees would defeat that intent ․").

5. EPISD spends over half of its brief on appeal arguing that R.R. did not present a justiciable case or controversy to either the state due process hearing officer or the district court. We respond simply by noting that EPISD itself admitted in its settlement offer to R.R. that "[t]here are genuine issues of fact and law in dispute in this matter; thus, an agreed order is not in order." (Offer of Settlement from EPISD to R.R., Oct. 11, 2006.)

6. Section 1415(i)(3)(D)(i) provides:Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under this section for services performed subsequent to the time of a written offer of settlement to a parent if-(I) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins;(II) the offer is not accepted within 10 days; and(III) the court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.20 U.S.C. § 1415(i)(3)(D)(i).

7. Section 1415(i)(3)(F) contemplates that an attorney's fee award will be reduced under several enumerated circumstances:Except as provided in subparagraph (G), whenever the court finds that-(i) the parent, or the parent's attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy;(ii) the amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience;(iii) the time spent and legal services furnished were excessive considering the nature of the action or proceeding; or(iv) the attorney representing the parent did not provide to the local educational agency the appropriate information in the notice of the complaint described in subsection (b)(7)(A),the court shall reduce, accordingly, the amount of the attorneys' fees awarded under this section.20 U.S.C. § 1415(i)(3)(F).

8. See also Dell v. Bd. of Educ., 918 F.Supp. 212, 217 (N.D.Ill.1995) ("[T]his court concludes that the relief finally obtained by Plaintiffs was not, in fact, more favorable than Defendant's offer, in spite of the fact that both hearing officers' decisions are replete with findings that Defendant violated Plaintiffs' son's rights ․ Thus, although Plaintiffs are 'prevailing parties' for purposes of a fee award ․ the relief they won consists only of reimbursement of $2,000.00 for the reasonable and customary expense of an independent evaluation of their son's needs. Because that sum is not more favorable than the $3,000.00 payment offered by Defendant School District before the administrative hearing, [Plaintiffs] are barred from recovery of fees for services rendered at that hearing or in these proceedings.").

9. We review an award of attorney's fees for abuse of discretion, and we review the factual findings upon which the award is based for clear error. Jason D.W., 158 F.3d at 208.

10. Several commentators also recognize that IDEA settlement agreements reached at a resolution meeting are enforceable in federal court. See, e.g., Andrea F. Blau, Available Dispute Resolution Processes within the Reauthorized Individuals with Disabilities Education Improvement Act (IDEIA) of 2004: Where Do Mediation Principles Fit In?, 7 Pepp. Disp. Resol. L.J. J. 65, 72 (2007) ("Decisions reached between the parties [at a resolution meeting] are binding and enforceable."); Allan G. Osborne & Charles J. Russo, Resolution Sessions Under the IDEA: Are They Mandatory?, 218 West Educ. L. Rep. 7, 9 (2007) ("A settlement agreement [reached at a resolution meeting] is enforceable by a state or federal court ․"); Mark C. Weber, Reflections on the New Individuals with Disabilities Education Improvement Act, 58 Fla. L.Rev. 7, 31 (2006) ("If the parent and school district reach an agreement in the resolution session, the parties execute a legally binding document, which may be enforced directly in court ․").

11. If R.R. had accepted EPISD's written settlement offer, made the day of the resolution meeting, then the parties would have entered into the "legally binding agreement" contemplated by 20 U.S.C. § 1415(f)(1)(B)(iii). Accordingly, we do not have occasion to decide today whether a district court would have jurisdiction to enforce a settlement agreement entered into outside a resolution meeting.

12. (See, e.g., R.R.'s Mem. in Supp. of Mot. to Dismiss ¶ 18, May 22, 2007 ("[S]ettlements with a school district (except those that result from a resolution meeting ․) are not enforceable ․" (emphasis added)); R.R.'s Reply to EPISD's Opp'n. to Mot. for Summ. J. 2, Dec. 14, 2007 ("Likewise, any written settlement agreement that is 'reached to resolve the complaint at a [resolution meeting]' ․ is enforceable in a state or federal court.").)

13. As a threshold matter, the IDEA states that § 1415(i)(3)(F) shall not apply "if the court finds that the ․ local educational agency unreasonably protracted the final resolution of the action or proceeding ․" 20 U.S.C. § 1415(i)(3)(G). Nothing in the record indicates that EPISD unreasonably protracted resolution of this dispute.

14. In considering this question, we note that extended litigation under the IDEA is disfavored because it imposes heavy costs on the litigants and delays implementation of an appropriate educational plan for children with disabilities. See Schaffer, 546 U.S. at 58-59, 126 S.Ct. 528 (discussing the costs of litigating IDEA disputes and Congress's intent to reduce IDEA litigation).

15. See, e.g., Doe v. Boston, 358 F.3d at 29-30 (" Consistent with each of the circuit courts that have considered the application of Buckhannon to the IDEA, we hold that IDEA plaintiffs who achieve their desired result via private settlement may not, in the absence of judicial imprimatur, be considered 'prevailing parties.' "); T.D. v. LaGrange, 349 F.3d at 476-78 (recognizing that a private settlement without judicial imprimatur is insufficient to convey prevailing party status); John T., 318 F.3d at 557 (same).

16. See, e.g., District of Columbia v. Ijeabuonwu, 631 F.Supp.2d 101, 104 (D.D.C.2009) (recognizing that a school district must be a prevailing party in order to be entitled to attorney's fees under the IDEA); Parenteau v. Prescott Unified Sch. Dist., No. CV-07-8072, 2009 WL 2169154, at *7 (D.Ariz. July 17, 2009) (same).

KING, Circuit Judge:

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FindLaw's United States Fifth Circuit case and opinions.

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EL PASO INDEPENDENT SCHOOL DISTRICT, Plaintiff-Appellant, v. RICHARD R., as next friend of R.R.; Mark Berry, Defendants-Appellees. R.R., by his next friend E.R., Plaintiff-Appellee, v. El Paso Independent School District, Defendant-Appellant. Before KING, DAVIS and BENAVIDES, Circuit Judges. Todd Aaron Clark, Walsh, Anderson, Brown, Aldridge & Gallegos, P.C., Austin, TX, Elena M.

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State Statute
19 TAC § 74.28
- It is a requirement of Texas Education Agency that students with dyslexia and related services are identified through the response to intervention process.

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Administrative Law
30 C.F.R.  § 300.111
https://www.ecfr.gov/current/title-34/subtitle-B/chapter-III/part-300/subpart-B/subject-group-ECFRf27988d69cd5d3a/section-300.111
-Child Find requires that schools adopt a system of seeking and identifying suspected disabilities in students.

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Welcome to the new eCFR! Check out our Getting Started guide to make the most of the new site.

The Code of Federal Regulations (CFR) is the official legal print publication containing the codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government. You are viewing a representation of the Electronic Code of Federal Regulations (eCFR), a continuously updated version of the CFR. It is not an official legal edition of the CFR.

Displaying title 34, up to date as of 3/03/2022. Title 34 was last amended 3/01/2022.

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Welcome to the new eCFR! Check out our Getting Started guide to make the most of the new site. The Code of Federal Regulations (CFR) is the official legal print publication containing the codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government.

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Local Policy
(College Station ISD Response to Intervention Handbook, 2021)
The Student Intervention Team (SIT) has the responsibility for ensuring that the RTI Process is implemented at each campus in the district.  The members of the SIT team may be an administrator, teacher, parents, diagnostician, counselor, speech pathologist, campus content specialist, and/or other support personnel.

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According to the Ethical Standards of the American School Counseling Association, school counselors should be concerned with students' academic, career, social and emotional needs and encourage each student's maximum development.

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I understand the application of these legal and ethical standards regarding the RTI process to be protective safe guards for students.  It is easy for educators to get busy and unintentionally allow a student to "fall through the cracks."  It is essential for these standards to be in place in order to promote success for all students.  I also have a personal connect to these legal and ethical standards involving the RTI process.  As a 504 student, I directly benefited from teachers identifying my strengths/weaknesses and developing an appropriate plan to enhance my educational experience.  I feel grateful that I was provided the opportunity to progress though my educational journey with these processes in place. As a school counselor I am committed to identifying needs and serving students in order to continue the cycle of intervention and monitoring to pass along the privilege of education to others.

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Best Practices for ensuring RTI legal and ethical standards are being upheld:
- Create a document to outline expectations including what the expectation is and who is responsible.
- Each step of the RTI process should include a timeline.
- Use a year long calendar to schedule important events.
- Communicate RTI process with all necessary stakeholders.
- Be transparent with staff and parents by posting flyers and newsletters.
- Consistently communicate with staff the value/importance of a consistent RTI process.
- It is essential to use reliable data in decision making.
- Have a plan for organizing and tracking student data and interventions.
- Remain student focused / Student success is the ultimate goal!