United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY
JUDGMENT (DKT. NOS. 14 AND 18)
KATHERINE A. ROBERTSON United States Magistrate Judge
an action brought by N.P. ("Plaintiff"), a minor
child, who seeks from the Hampden-Wilbraham School District
("Defendant") an award of the attorney's fees
and costs incurred in Plaintiff's pursuit of an
administrative claim before the Bureau of Special Education
Appeals ("BSEA") pursuant to the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C.
§ 1415(i)(3)(B)(i)(I). Plaintiff has moved for summary
judgment on the basis that her requested fees are reasonable
and that she prevailed on all of her claims before the BSEA
(Dkt. Nos. 1, 14). Defendant disputes both contentions in its
cross motion for summary judgment. It asks for a reduction of
Plaintiff's counsel's hourly rate to reflect what it
claims is the prevailing market rate of attorneys in the
local geographic area, and a determination that Plaintiff
succeeded on only one of her two claims (Dkt. No. 18). After
considering the parties' cross motions, for the reasons
set forth more fully below, the court grants Plaintiff's
motion and orders judgment in favor of the Plaintiff for
attorney's fees in the amount of $38, 887.50 and for
costs in the amount of $916.48. Defendant's motion is
is disabled within the meaning of the IDEA due to attention
deficit hyperactivity disorder (ADHD), dyslexia, and a
specific learning disability in reading (Dkt. No. 16
¶¶3, 4; Dkt. No. 16-2 at 3, 29). Plaintiff's
disabilities, along with "significant memory and
processing deficits, " impede her ability to read (Dkt.
No. 16 ¶5; Dkt. No. 16-2 at 8). Plaintiff attended first
grade at a private school during the 2013-2014 school year
(Dkt. No. 16-2 at 6 & n.14). After Dr. Joanna Miles
conducted a psychoeducational assessment of Plaintiff in
April 2014, Dr. Miles recommended that Plaintiff be placed in
a substantially separate language-based program due to her
learning disability in reading (Dkt. No. 16 ¶6; Dkt. No.
16-2 at 8-9, 29-30). In May 2014, Dr. Miles's evaluation
was shared with Defendant and a team meeting was held to
develop Plaintiff's second grade Individualized Education
Program ("IEP") for the 2014-2015 school year (Dkt.
No. 16 at ¶7; Dkt. No. 16-2 at 9). The IEP that
resulted from this meeting proposed an inclusion program at
Defendant's Stony Hill School ("Stony Hill")
with support in the general education classroom for math and
written expression and with removal from the classroom
(so-called "pull out" sessions) five times per week
for forty-five minutes each for "reading/decoding"
(Dkt. No. 16 ¶8; Dkt. No. 16-2 at 10). Plaintiff's
parents accepted the services in the IEP, but rejected
Defendant's failure to place Plaintiff in a substantially
separate language-based program as Dr. Miles had recommended
(Dkt. No. 16 ¶9; Dkt. No. 16-2 at 10).
September 2014, Plaintiff began the second grade in a
full-inclusion classroom of more than twenty students at
Stony Hill (Dkt. No. 16 ¶10; Dkt. No. 16-2 at 10).
Plaintiff received services under the May 2014 IEP, which
included pull-out sessions for reading and phonics
(id.). Plaintiff's parents engaged Alicia
Ziegler, a speech and language pathologist, to evaluate
Plaintiff in September 2014 (Dkt. No. 16 ¶11; Dkt. No.
16-2 at 12). After Ms. Ziegler conducted tests and observed
Plaintiff at Stony Hill, Ms. Ziegler diagnosed Plaintiff with
a moderate receptive language disorder and with dyslexia, and
recommended Plaintiff's placement in a language-based
program that included instruction by a teacher who was
"trained in an evidence based reading program that
incorporates phonological awareness" (Dkt. No. 16
¶¶11, 12; Dkt. No. 16-2 at 12-16, 29-30). As a
result of Ms. Ziegler's assessment, Plaintiff's team
amended her IEP in November 2014 by adding additional
pull-out sessions in math and speech and language, for a
total of twelve pull-out sessions per week (Dkt. No. 16
¶13; Dkt. No. 16-2 at 17).
parents notified Defendant on December 2, 2014 that Plaintiff
would attend the private Curtis Blake Day School
("CBDS") due to their dissatisfaction with
Plaintiff's program at Stony Hill (Dkt. No. 16 ¶14;
Dkt. No. 16-2 at 18). In response, Defendant developed a new
IEP in December 2014 (Dkt. No. 16 ¶15; Dkt. No. 16-2 at
18-19). The new IEP, which Defendant continued to
characterize as a "full-inclusion program, " added
four pull-out sessions (Dkt. No. 16 ¶¶15, 16; Dkt.
No. 16-2 at 19). This IEP increased the time Plaintiff spent
outside the classroom to sixteen sessions per week (Dkt. No.
16 ¶¶16, 32; Dkt. No. 16-2 at 19).
attended the CBDS from January through June 2015 (Dkt. No.
16-2 at 21, 24). The CBDS was approved by the Massachusetts
Department of Education ("DOE") to provide special
education services for students in kindergarten through grade
9 with language-based learning disabilities (Dkt. No. 16
¶21; Dkt. No. 16-2 at 21). Linda Lafontaine, the
principal of the CBDS, testified, and the BSEA hearing
officer found, that "the programs and methodology used
with [Plaintiff] at [the CBDS] [were] necessary for her to
make meaningful progress in language and reading" (Dkt.
No. 16-2 at 24, 31-32).
about March 27, 2015, Plaintiff's parents, through
counsel, filed a due process complaint and requested a
hearing before the BSEA pursuant to 20 U.S.C. §
1415(b)(6), (f) (Dkt. No. 16 ¶19; Dkt. No. 20 ¶1).
They sought retroactive reimbursement for their unilateral
placement of Plaintiff at the CBDS in January 2015, and
"an order of placement in [an] appropriate
language-based program for the 2015-16 school year"
(Dkt. No. 16 ¶20; Dkt. No. 16-5 at 13; Dkt. No. 20
11, 2015, Plaintiff's mother was invited to attend a team
meeting, which was scheduled to be held three days before the
commencement of the BSEA hearing, to "[r]eview . . .
programming" (Dkt. No. 16-2 at 25; Dkt. No. 20
¶12). But when Plaintiff's mother arrived at the
meeting, the school principal told her that it was "a
'resolution meeting to discuss programming
issues'" (Dkt. No. 16-2 at 25). Although the
principal was corrected, Plaintiff's mother left the
process hearing extended over four days: June 23, 25, 29, and
30, 2015 (Dkt. No. 16 ¶24; Dkt. No. 16-2 at 2). The BSEA
hearing officer identified the issues for her resolution as
follows: (1) whether the IEPs and their amendments, which
Defendant developed from May 2014 to June 23, 2015, and which
were in effect when Plaintiff's parents unilaterally
placed her at the CBDS, were reasonably calculated to provide
Plaintiff with a free appropriate public education
("FAPE") in the least restrictive environment; (2)
if not, whether Plaintiff's placement at the CBDS was
appropriate, which would entitle her parents to
reimbursement; and (3) whether Defendant's proposed
[Focus] [P]rogram for the 2015-2016 school year was an
appropriate placement for Plaintiff and, if not, whether it
could be made appropriate (Dkt. No. 16 ¶25; Dkt. 16-2 at
3; Dkt. No. 20 ¶¶3, 9). Plaintiff's parents did
not request prospective placement at the CBDS for the
2015-2016 school year because prior to their request for a
hearing, they learned that the CBDS would lose its status as
a DOE approved school in June 2015 and would not operate
during the next school year (Dkt. No. 16 ¶¶22, 23;
Dkt. No. 16-2 at 21 n.46; Dkt. No. 16-5 at 5 & n.1). As a
result, the hearing officer did not consider prospective
placement at the CBDS for the 2015-2016 school year (Dkt. No.
16-2 at 21 n.46; Dkt. No. 16-6 at 4; Dkt. No. 20 ¶5).
hearing, Defendant proposed the Focus Program at Stony Hill
as an appropriate placement for Plaintiff during the
2015-2016 school year and presented testimony describing the
program as being a substantially separate language-based
program for three to five students (Dkt. No. 16-2 at 25-26;
Dkt. No. 20 ¶6). Terrie Henrich, who taught at the CBDS
for six years and continued to teach in their summer clinic,
was the designated teacher for the Focus Program (Dkt. No.
16-2 at 25-26; Dkt. No. 20 ¶¶6, 7).
The proposed Focus Program would include writing, social
skills, listening comprehension skills and math, based on the
underpinnings of a successful reading program: phonemic
awareness, comprehension, fluency and sight words. The
program would incorporate executive functioning,
organizational and pragmatic skills. The curriculum would be
primarily Lindamood, with comprehension elements - Story
Grammar Marker, ThemeMaker - and Social Thinking built in.
(Dkt. No. 16-2 at 26; Dkt. No. 20 ¶10). According to Ms.
Henrich's testimony, the CBDS used "'very nearly
the same programs'" during the time that she taught
there (Dkt. No. 16-2 at 26 n.55; Dkt. No. 20 ¶10). There
would be opportunities for inclusion in addition to the
program in the separate classroom (Dkt. No. 16-2 at 26; Dkt.
No. 20 ¶11).
BSEA hearing officer found that Defendant's failure to
offer Plaintiff a substantially separate language-based
program "that applies evidence-based approaches and
employs multisensory instruction consistently across
[Plaintiff's] day, " as Dr. Miles and Ms. Ziegler
recommended, deprived Plaintiff of a FAPE for the 2014-2015
school year (Dkt. No. 16 ¶¶27, 30, 31, 33; Dkt. No.
16-2 at 29-30, 31; Dkt. No. 20 ¶8). Because the CBDS
provided an appropriate program, Plaintiff's parents were
entitled to reimbursement by Defendant for tuition and costs
associated with her enrollment at the CBDS from January to
June 2015 (Dkt. No. 16 ¶34; Dkt. No. 16-2 at 31-32).
hearing officer also ordered Defendant "to locate or
create a substantially separate language-based program for
[Plaintiff], with opportunities for inclusion" (Dkt. No.
16 ¶35; Dkt. No. 16-2 at 32; Dkt. No. 20 ¶16). Due
to the fact that "no IEP had been developed placing
[Plaintiff] in the [Focus] [P]rogram, " the hearing
officer indicated that it was premature for her to determine
whether the program was appropriate to meet Plaintiff's
needs (Dkt. No. 16 ¶35 & n.3; Dkt. No. 16-2 at
The hearing officer found, however, that the Focus Program
"may well be" appropriate for Plaintiff if it
materialized as Ms. Henrich described it; that is, as a
"substantially separate, language-based program with
appropriate peers that incorporates Lindamood Bell and other
evidence based reading strategies across the curriculum, with
opportunities for inclusion and flexibility based on
students' needs" (Dkt. No. 16-2 at 32; Dkt. No. 20
Defendant refused to reimburse Plaintiff for attorney's
fees and costs incurred for legal representation during the
BSEA hearing, Plaintiff filed a complaint in this court (Dkt.
No. 16 ¶38; Dkt. No. 16-1 ¶16). The parties have
filed cross motions for summary judgment (Dkt. Nos. 14, 18),
and statements of material facts (Dkt. Nos. 16, 20).
Plaintiff responded to Defendant's statement of material
facts (Dkt. No. 26), and opposed the cross motion for summary
judgment (Dkt. No. 25). In turn, Defendant responded to
Plaintiff's opposition (Dkt. No. 27).
Standard of Review
56(c) of the Federal Rules of Civil Procedure sets forth the
standard for ruling on a motion for summary judgment:
The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the ...