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N.P. v. Hampden-Wilbraham Regional School District

United States District Court, D. Massachusetts

June 29, 2016

N.P., Plaintiff,
v.
HAMPDEN-WILBRAHAM REGIONAL SCHOOL DISTRICT, Defendant.

          MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT (DKT. NOS. 14 AND 18)

          KATHERINE A. ROBERTSON United States Magistrate Judge

         I. Introduction

         This is 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 denied.

         II. Background[1]

         Plaintiff 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).[2] 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).

         In 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).

         Plaintiff's 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).[3]

         Plaintiff 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).

         On or 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 ¶¶1, 2).

         On June 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).[4] Although the principal was corrected, Plaintiff's mother left the meeting (id.).[5]

         The due 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).

         At the 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).

         The 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).

         The 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 32).[6] 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 ¶17).

         Because 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).[7] 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).

         II. Discussion

         A. Standard of Review

         Rule 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 ...

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