Court awards attorney fees after parent rejected settlement offer for inadequacy of attorney fees

Y.B. v. Williamson County Bd. of Educ., Slip Copy, 2009 WL 4061311 (M.D.Tenn.,2009): Parent rejected settlement proposals that initially contained no fees and subsequently contained inadequate fees. The matter went to hearing and the state level hearing officer ordered the enforcement of the terms of settlement to which the parties had agreed at the resolution session. The parent sued for attorney fees. The district argued that the parent was not a prevailing party–an argument rejected by the Court– and that even if the parent was a prevailing party, the fees should be limited to the amounts previously offered by the district on the theory that the district had offered the ultimately obtained relief prior to hearing.

Consistent with every court that has looked at this issue in the last few years, this court found that attorney fees are a legitimate consideration for a parent when assessing the adequacy of a settlement offer.

neither the Offer of Judgment nor the June 13, 2007 settlement offer make any mention of attorneys' fees or contain any proviso indicating who is the “prevailing party.” Moreover, even if either of these proposed agreements would have, at some point, acquired the “necessary judicial imprimatur” that would allow the plaintiff to seek attorneys' fees in this proceeding, both of these documents contain language clearly stating that the proposed settlement would be the “full and final agreement of all issues raised in the due process complaint in this matter.”

This language would have presented significant challenges to the plaintiff in terms of recovering attorneys' fees in a subsequent proceeding such as this one. Therefore, the relief that the plaintiff obtained from the AJ, whose Final Order did not foreclose further litigation on the attorneys' fees issue and explicitly deemed the plaintiff the “prevailing party,” was plainly “more favorable” than the offers of settlement, which were silent on the “prevailing party” issue, would have arguably foreclosed future litigation, and certainly put the issue of attorneys' fee recovery into significant question.

Virginia district court makes substantial attorney fee award and grants interest to parents

JP ex rel. Peterson v. County School Bd. of Hanover County, Va., 641 F.Supp.2d 499 (E.D.Va. 2009): Parents lost at hearing on their private school reimbursement claim. The district court reversed in favor of the parents; the 4th Circuit Court of Appeals vacated and remanded for reconsideration finding that the district court had failed to accord sufficient deference to the hearing officer’s decision. Upon reconsideration, the district court again found for the parents. The court awarded interest and credit card transaction fees to compensate for tuition payments made on their credit cards. The court also found that the parents were substantially justified in rejecting the district’s offer of judgment due to the inadequacy of the amount of attorney fees offered. The court ultimately awarded the attorneys over $300,000 in fees. The court’s attorney fee analysis is worth reading.

Failure to provide prior notice does not justify granting of motion to dismiss

Erin K. v. Naperville School Dist. No. 203, 2009 WL 3271954, N.D.Ill.,2009: Parents did not give prior notice of intent to make reimbursement claim prior to placing their daughter at a residential facility. The hearing officer dismissed the parents’ hearing request for failure to give proper notice. The district court reversed. The Court explained that “section 1412(a)(10)(C)(iii) provides that reimbursement may be reduced if proper notice was not given. It is not an automatic denial, as a matter of law, as the Hearing Officer concluded in this case. Rather, a hearing officer is permitted to consider all of the circumstances and then fashion an equitable result based on his or her discretion.”

Rule 56.1 statements not required in IDEA cases

T.Y. v. NYC, 2nd Circuit, decided 10/9/09, 08-3527-cv: In the course of affirming the District Court’s ruling in favor of the NYC Board of Ed., the 2nd Circuit addressed the role of the summary judgment motion in IDEA cases and in particular, the rule 56.1 statement of material facts not in dispute. The parent’s attorney argued that the 56.1 statement was not required and that it was improper for the district to have submitted a 56.1 statement. The district court castigated the parent’s attorney for not filing a 56.1 statement and not responding to the district’s 56.1 statement. The District Court characterized the 56.1 statement as “necessary” stating that “it goes to the heart of the Court’s determination of whether or not summary judgment is appropriate.” The 2nd Circuit disagreed stating that:

[a] Rule 56.1 statement, while not required, may assist the court’s inquiry into whether IDEA procedures were followed and whether the result was reasonably designed to confer educational benefits. But while a Rule 56.1 statement may assist the court in reviewing
particular issues, it is not in and of itself dispositive. The district court's characterization of Appellee’s Rule 56.1 statement as "necessary" was therefore not entirely correct. The court's error was of no consequence, however, because we are satisfied that the court conducted an independent review and carefully reviewed the record, as is required by the statute.

SRO rejects Connors claim and reimbursement claim

SRO 09-079: This case was litigated as both a reimbursement case and a Connors prospective funding case. First, SRO Paul Kelly rejected the parent’s reimbursement claim noting that although there was contract language purportedly obligating the parent to pay the school in full, no payments had been made and there was no evidence that the school would seek payment. Kelly also found that the notice of intent to make a reimbursement claim was defective in that the parent utilized a form that did not provide specific details of the parent’s concerns.

As for the Connors claim, Kelly found that it was the private school that incurred the financial burden for the child’s education going forward, that the private school has no entitlement to relief, and that the parent cannot assert a claim on behalf of a private entity that lacks standing under the IDEA to maintain a claim against a school district in its own right.

Education Law §3602-c places obligations upon public school, not private school

In re Pelose, --- N.Y.S.2d ----, 2009 WL 3152988, N.Y.A.D. 4 Dept.,2009: Parent challenged the private school’s decision to expel their child. The New York State Appellate Division 4th Department, an intermediate level appellate court, determined that the private school has no obligation to provide services to a child with a disability. Rather, the obligation falls on the public school district. Further, the appeal procedures afforded to parents of kids with disabilities apply to public schools, not private and therefore, the private school “was not required either to undertake or to await the outcome of a manifestation review prior to expelling” the child.

Parent was justified in rejecting settlement agreement

As previously noted in this blog, certain attorneys in New York State have successfully moved to dismiss parents’ hearing requests by offering to settle without attorney fees or in one case, by offering to have the CSE revisit the issues raised by the parents (SRO 06-109, 07-122, 08-008). SRO Paul Kelly has uniformly sided with the districts on these cases. The federal courts that have addressed the issue have sided with the parent. In the latest and strongest worded of such decisions, the Western District of Texas federal court last week decided Ruben A. v. El Paso Independent School Dist., 657 F.Supp.2d 778, 2009 WL 3094859(W.D.Tex. Sep 25, 2009). The relevant section follows:

Ruben A.'s purpose in filing his administrative due process complaint was to compel EPISD to undertake actions it was already legally bound to take. EPISD had failed to evaluate R.A. more than ten months after it was informed such evaluations were necessary. Only Ruben A.'s administrative action compelled the evaluations. By failing to properly evaluate R.A., R.A.'s IEP was based on inadequate information, which meant he was not receiving a FAPE. EPISD's settlement offers never acknowledge its failure to evaluate R.A. The numerous proposed settlement agreements variously required Ruben A. to waive his right to a due process hearing; to “acquit” EPISD of any claims; to dismiss his due process complaint with prejudice; to release EPISD from paying any of Ruben A.'s attorney's fees; or to accept only $750.00 in attorney's fees.

In light of EPISD's failures, Ruben A. was justified in rejecting EPISD's efforts to deny liability or to make Ruben A. waive any right to attorney's fees under the IDEA. He was entitled to proceed to an impartial due process hearing. Furthermore, the Administrative Record reveals EPISD rejected Ruben A.'s proposed consent order, which could have otherwise ended this matter earlier, prior to the due process hearing. Likewise, EPISD rebuffed Ruben A.'s efforts to enter into mediation. When viewing these facts in isolation, just as EPISD asks the Court to view Ruben A.'s rejections of EPISD's proposed settlement offers, EPISD appears to be the one protracting this litigation. In fact, one could reasonably conclude it was only EPISD's refusal to enter into Ruben A.'s proposed consent order or into mediation, which led to the due process hearing and the instant litigation. Similarly, had EPISD refrained from filing an untimely counterclaim; asserting issues, which the Court had already decided, such as subject matter jurisdiction; filing frivolous motions, such as its motion to strike Ruben A.'s Motion for Attorney's Fees, this litigation may have ended much sooner.

A parent, whose child has suffered as a result of a school district's failings, should not be strong-armed into compromising a valid claim, for which the parent has had to seek legal counsel, because a school district purports to offer all the proposed relief listed in the administrative due process complaint. Not only does the IDEA provision setting forth the procedure for filing a due process complaint envision that there can be relief or remedies available that are not alleged in a due process complaint, courts have recognized this to be the case.FN49 Ruben A. did not protract this litigation and he was justified in rejecting a settlement offer, for which the parties could not reach an agreement.

In rejecting EPISD's proposed settlement offers and pursuing his administrative due process claim to its procedural end, Ruben A. secured a judgment, which bears judicial imprimatur. It holds EPISD accountable for its statutory violations, including finding EPISD failed to properly and adequately evaluate R.A. and EPISD denied R.A. a FAPE; orders EPISD to properly evaluate R.A.; requires EPISD to conduct an additional evaluation, which only became apparent after Ruben A. filed his administrative due process complaint, which compelled EPISD to undertake the overdue evaluation; and forces EPISD to convene an ARD Committee to consider the new evaluations and develop a new IEP for R.A. Likewise, Ruben A. did not have to waive his statutory right to attorney's fees in obtaining the warranted relief. Hence, Ruben A. received more relief than what was offered to him in EPISD's proposed settlement agreements, and therefore, IDEA'S bar for attorney's fees does not apply to him.

SRO rejects NYC argument that placement into for profit school precludes the right to reimbursement

see SRO 09-085. More importantly, the EDNY just rejected this argument in AD v. NYC, 110 LRP 9168 (EDNY, 2/9/10) (Judge Cote) (kudos to Steve Goldstein, with a tad bit of help by me).

Pendency in neighboring district

George A. v. Wallingford Swarthmore School Dist., 2009 WL 2837717, E.D.Pa.,2009: S resided in district A, but for many years had been placed at Strath Haven in district B. S’s 08-09 IEP placed him again in District B. In October of 2008, S was involved in an altercation and as a result, he was placed in an alternative school. The parent reluctantly agreed to this 45 day placement, but at all times thereafter sought his return to Strath Haven in District B. S’s 09-10 IEP recommended placement in a district A school. The parent filed a hearing request apparently against district B and asserted that pendency was Strath Haven. The Court agreed rejecting all district arguments including that district B was not the agency responsible for S’s education.

SRO holds that pendency can be applied retroactively

SRO 09-076: Parents sought reimbursement each year over a multi-year period. SRO rules against parent on the equities in year 1. Parents appeal to district court. Parents and district settle year 2 but agree that the settlement agreement will not be used to establish pendency. Parents submit hearing request for year 3. Hearing is delayed until spring at which time the district court rules in the parents’ favor, thus awarding reimbursement for year 1(see N.R. v. NYC). IHO determines that the district court decision establishes pendency at the private school and dates it back to the beginning of the school year including the summer. District appeals to the SRO contending that pendency should not attach until the date of the district court decision or alternatively, that it should not date back prior to submission of the hearing request. SRO Paul Kelly upheld the decision of the IHO reasoning first that although he had denied the parents year 1 claim on equitable grounds, he had ruled in the parents’ favor on prong 2; i.e. he had agreed that the parental placement was appropriate. Next, Kelly cited to the 2nd Circuit decision in Mackey which dealt with similar although not identical circumstances. The Mackey Court applied pendency retroactively. Then, without coming right out and saying it, he basically said that had he not gotten it wrong, there would have been no dispute that pendency would have been the private placement from July forward.

...but for the denial of tuition reimbursement in July 2007 and the passage of time that elapsed while the parent ultimately secured the relief she sought in District Court, the parties would have concluded that the student's "then current placement" after July 2007 was the Rebecca School while the parent pursued her claims for tuition reimbursement for the 2007-08 and 2008-09 school years.

SDNY reverses SRO again

Bougades v. Pine Plains,______ (SDNY August 24, 2009): In a fact intensive and well reasoned decision, the SDNY held for the parent in this tuition reimbursement case despite rulings by the SRO and IHO in favor of the district. The Court defined the issues as whether

(1) the IHO and SRO decisions are entitled to deference even though they are premised on a faulty understanding of a key aspect of the factual record; and (2) M.B.'s 2003-04 IEP can be considered adequate when it did not suggest any method for addressing M.B.'s educational needs other than through the provision of the same services and program modifications (or lack thereof) that had proven inadequate the previous year.

SDNY reverses SRO again

G.R. v. New York City Dept. of Educ., 2009 WL 2432369(S.D.N.Y. Aug 07, 2009): Parent sought reimbursement for private placement at Winston Preparatory School. NYC had conceded on prong one as they had failed to offer the student a placement. The IHO ruled against the parent on prong two finding that there was insufficient proof at that time of R.R.'s progress at WPS and that WPS was not providing speech and language therapy to R.R. She left open the possibility of plaintiff renewing her request for reimbursement once more evidence of R.R.'s progress was available, and therefore denied the application without prejudice. SRO Paul Kelly denied the parent’s appeal and sustained the district’s appeal, holding that it was error to dismiss without prejudice–i.e. the dismissal was final. In a very common sense opinion, the SDNY (Judge Griesa) reversed the SRO finding that there was sufficient proof of the appropriateness of WPS.

9th Circuit rejects attack on Rowley

J.L. v. Mercer Island, --- F.3d ----, 2009 WL 2393323, C.A.9 (Wash.),2009: This case is the latest unsuccessful parent effort to convince a court that Congress superceded the Rowley standard by amending the IDEA. Of particular note, the Court found that

three omissions suggest that Congress intended to keep Rowley intact. First, Congress did not change the definition of a free appropriate public education in any material respect. If Congress desired to change the free appropriate public education standard, the most logical way to do so would have been to amend the free appropriate public education definition itself. Second, Congress did not indicate in its definition of “transition services,” or elsewhere, that a disabled student could not receive a free appropriate public education absent the attainment of transition goals. Third, Congress did not express disagreement with the “educational benefit” standard or indicate that it sought to supersede Rowley. In fact, Congress did not even mention Rowley.

District failure to properly serve appeal papers results in SRO affirmance of reimbursement award

SRO 09-062 and 09-075: Parents prevailed at hearing on private school reimbursement claim. NYC attorneys served appeal papers on parent’s attorney despite requirment that papers be personally served upon the parent. SRO held that service was improper and thus, refused to consider the district’s appeals.

U.S signs the U.N. Convention on the rights of persons with disabilities

On July 30, 2009, the United States became one of 142 countries that have signed the UN Convention on the Rights of Persons with Disabilities. The purpose of this convention is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” Notable with respect to the rights of students with disabilities is the following:

*In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. Article 7, §2.

*States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to “the full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity” and
the “development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential.” Article 24, §1.

*Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion. Article 24, §2.

*Signatory nations (i.e. the U.S. and others) agree to “adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention” and “to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities”

Thus, our country has made a commitment to the world at large that we will engage in a course of conduct that, inter alia, maximizes the academic development of children with disabilities. Therefore, arguably, any decision made, subsequent to the signing of this convention, that enforces the traditional, overly restrictive, access only interpretation of Rowley, would be at odds with this commitment that we as a nation have made to maximize, rather than to merely provide an opportunity to acquire meaningful benefit.