(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.

Terms Used In Oregon Statutes 343.175

  • Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
  • Child with a disability: means a school-age child who is entitled to a free appropriate public education as specified by ORS § 339. See Oregon Statutes 343.035
  • Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
  • Decision: means the decision of the hearing officer. See Oregon Statutes 343.035
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Individualized education program: means a written statement of an educational program for a child with a disability that is developed, reviewed and revised in a meeting in accordance with criteria established by rules of the State Board of Education for each child eligible for special education and related services under this chapter. See Oregon Statutes 343.035
  • Instruction: means providing children and families with information and skills that support the achievement of the goals and outcomes in the child's individualized family service plan and working with preschool children with disabilities in one or more of the following developmental areas:

    (a) Communication development;

    (b) Social or emotional development;

    (c) Physical development, including vision and hearing;

    (d) Adaptive development; and

    (e) Cognitive development. See Oregon Statutes 343.035

  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Litigation: A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
  • Mediation: means a voluntary process in which an impartial mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of the controversy and includes all contacts between a mediator and any party or agent of a party, until such time as a resolution is agreed to by the parties or the mediation process is terminated. See Oregon Statutes 343.035
  • Order: has the meaning given that term in ORS Chapter 183. See Oregon Statutes 343.035
  • Parent: means the parent, person acting as a parent or a legal guardian, other than a state agency, of the child or the surrogate parent. See Oregon Statutes 343.035
  • School district: means a common or union high school district that is charged with the duty or contracted with by a public agency to educate children eligible for special education. See Oregon Statutes 343.035
  • Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.

(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)(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; 2023 c.189 § 9]

 

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