34 CFR §21.1

1. (a)The Equal Access to Justice Act (the Act) provides for the award of fees and other expenses to applicants that—
   1. (1)Are prevailing parties in adversary adjudications before the Department of Education; and
   2. (2)Meet all other conditions of eligibility contained in this part.
2. (b)An eligible applicant, as described in paragraph (a) of this section, is entitled to receive an award unless—
   1. (1)The adjudicative officer, the Civil Rights Reviewing Authority (CRRA), or the Secretary on review, determines that—
      1. (i)The Department's position was substantially justified; or
      2. (ii)Special circumstances make an award unjust; or
   2. (2)The adversary adjudication is under judicial review, in which case the applicant may receive an award only as described in § 21.11.
3. (c)The determination under paragraph (b)(1)(i) of this section is based on the administrative record, as a whole, made during the adversary adjudication for which fees and other expenses are sought.