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March 18, 2026Family Court Review0 citations

Justice, money or both: IDEA and the need for a definitive cause of action for counsel fees

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DMDean J. Musto

Key Points

  • The aim is to clarify the nature of attorney's fees actions in special education litigation and propose legislative amendments.
  • Analyzed existing legal precedents and Circuit decisions regarding attorney's fees
  • Examined the impact of varying state limitation periods on attorney's fees claims
  • Proposed an amendment to federal law for a definitive statutory period
  • Identified a lack of consensus among Circuits regarding attorney's fees as ancillary or independent actions
  • Highlighted the inconsistent outcomes stemming from differing state law applications
  • Suggested a legislative solution for a standardized statutory period for fee claims

Abstract

Abstract Federal law allows either the parents or the opposing school district to reclaim attorney's fees upon winning a due process hearing. However, the Circuits of the United States Courts of Appeals are divided on if a fees action is either ancillary or independent from the special education litigation due to Congressional silence. When the Circuits adopted different state limitation periods from state law, it created varying results across the nation. This note explores the Circuit divide and proposes an amendment to federal legislation creating a definitive statutory period and considers a pendente lite approach to the hearing discovery process.

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Cite This Study

Dean J. Musto (2026) studied this question.

synapsesocial.com/papers/69ba44084e9516ffd37a5dfehttps://doi.org/10.1111/fcre.70065
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