Special Education Case Law Update — Week of April 11, 2011

Posted on April 20, 2011

El Paso Indep. Sch. Dist. v. Berry, 400 Fed. Appx. 947 (5th Cir. Tex. 2010)

In this case brought pursuant to the Individuals with Disabilities Education Act (IDEA), the school district filed a third-party complaint requesting attorneys’ fees from the parents’ attorney, under 20 U.S.C.S. § 1415(i)(3). The trial court granted the request and awarded $ 10,000 in fees to the district.  On appeal to the 5th Circuit Court of Appeals, the Court found that the attorney waived any argument on the threshold question of whether the district was a prevailing party for purposes of an attorneys’ fee award under the IDEA because the attorney did not refute the district’s assertion that it qualified as a prevailing party in his response to the district’s motion for summary judgment on its third-party complaint.  The Court upheld the district court’s finding that the parents’ attorney continued to litigate claims after they clearly became frivolous, unreasonable, and without foundation such that an award of attorneys’ fees to the school district was permissible because the attorney refused to accept all offered relief, the continued litigation of a claim for compensatory services was arguably unnecessary as early as October 2007, and there were stonewalling tactics.

Bucher v. District of Columbia, 2011 U.S. Dist. LEXIS 38815, 5-6 (D.D.C. Apr. 11, 2011)

After a due process hearing for private tuition reimbursement, the Impartial Hearing Officer ordered the School District to reimburse the Parents for the costs of the student’s tuition for the 2008-2009 school year and the tutoring and evaluations undertaken at the Prents’ expense.  The IHO also ordered the School District to pay for Student to continue to attend his private school for the 2009-2010 and 2010-2011 school years.  After the issuance of the decision, Parents submitted a petition for attorneys’ fees and costs to the School District seeking $50,155.00.  The School District voluntarily reimbursed Parents in the amount of $26,436.00, resulting in a difference of $23,719.00 between what Parents believed they were owed for the total of attorneys’ fees and costs and what they were paid by the School District.  The School District’s main argument was that the Parents’ attorney’s hourly rate in the amount of $350.00 per hour was unreasonable.  The Court found that according to the Laffey Matrix (which provides a fee schedule for attorneys based on experience) an hourly rate of $465 for work performed in 2008-2009 by attorneys with more than twenty years of experience was standard in the community.  Accordingly, the Court found that the attorney’s rate of $350 was reasonable. 

Brad K. v. Bd. of Educ., 2011 U.S. Dist. LEXIS 38819, 1-3 (N.D. Ill. Apr. 7, 2011)

In this unilateral placement/private school tuition reimbursement case, the Student, who was born in June 2003, is a developmentally delayed girl with speech, language, and motor skill limitations.  An Individual Education Program (“IEP”) was developed in February 2008 for the Student and it was determined by the IEP team that the placement for implementing the IEP would be the Student’s neighborhood public school. The Parents objected to this placement and instead chose to place her at Keshet School in the Chicago suburb of Northbrook, which is where she continues to attend. Contending the IEP was procedurally and substantively  deficient, the parents sought reimbursement for the costs of sending the Student to Keshet. Following a hearing, the Independent Hearing Officer (“IHO”) denied reimbursement, denied a prospective placement at Keshet, and ordered that, should the Student be re-enrolled in the School District, the February 2008 IEP would be implemented with the additional provisions of (a) having a one-to-one aide from the time she gets off the bus until she gets back on the bus and (b) having 30 minutes a week of a specialist/consultant advising Student’s teachers regarding facilitating mainstreaming.  The Parents appealed.  The District Court upheld the IHO’s finding that that the placement at the neighborhood school was sufficient to provide Student with a FAPE.  The Court also found that any possible procedural error did not deny the Student a FAPE.  The Court also found that the evidence supported the IHO’s finding that aides would have been provided to ensure that Student could get into and out of the classroom and that the classroom was located near an exit to expedite emergency departures.

By Jack Robinson

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