E.H. v. Wissahickon Sch. Dist.

E.H. and R.H., individually and on behalf of their daughter, K.H.,T.C. and M.C., individually and on behalf of their daughter, E.C.,G.K. and W.M., individually and on behalf of their son, E.K.,J.B. and J.B., individually and on behalf of their daughter, G.B., Plaintiffs, v. WISSAHICKON SCHOOL DISTRICT, Defendant.

CIVIL ACTION No. 19-5445

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

October 27, 2020

MEMORANDUM

Schiller, J.

Plaintiffs in this action are four pairs of parents, individually and on behalf of their children, who prevailed in special education due process hearings in 2019 alleging violations of the Individuals with Disabilities Education Act ("IDEA"), Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act ("ADA") against Defendant Wissahickon School District (the District or Wissahickon). Plaintiffs were all represented by Judith A. Gran of Reisman Carolla Gran & Zuba LLP in their individual administrative proceedings. Plaintiffs now seek attorneys' fees and costs pursuant to 20 U.S.C. § 1415(i)(3). After engaging in unsuccessful settlement efforts, Plaintiffs filed the present motion for attorneys' fees and costs, and the District has opposed. The Court grants the motion, in part, and orders the District to pay reasonable fees and costs.

I. BACKGROUND

Plaintiffs are four sets of parents of children with disabilities, as defined by the IDEA, who each filed due process complaints against the Wissahickon School District. The facts of each administrative proceeding, as set forth below, are drawn from the decision of each hearing officer. No party appealed the decision on the administrative record in any of these cases.

1. K.H.

K.H., a kindergarten student in the 2018-19 school year, has Attention Deficit Hyperactivity Disorder, Global Developmental Delay, and a language disorder. (Doc. No. 1-1, [Hr'g Officer Decisions] at 4-5.) K.H. was provided early intervention services during preschool and had an Individualized Education Program (IEP) in place during the 2017-18 preschool year. (Id. at 5-6.) After a reevaluation in the spring of 2018, the District proposed an IEP for the 2018-19 school year that would have placed K.H. in an autistic support classroom for 2.5 hours per day at a school that was not K.H.'s neighborhood school. (Id. at 6-10.) K.H.'s parents did not approve the proposed 2018-19 IEP. (Id. at 10.) While the due process complaint was pending, the District agreed that the 2017 IEP would remain in place. (Id. at 11.)

The hearing officer identified six discrete issues in K.H.'s complaint but noted that the "primary objection" was that the District's proposed IEP "did not comport with the least restrictive environment principles embodied in the IDEA...." (Id. at 3-4.) The hearing officer found that the District's 2018 reevaluation of K.H. was insufficient and the proposed IEP was substantively inappropriate and not in compliance with the least restrictive environment (LRE) principles. (Id. at 23-29.) However, the hearing officer found that the IEP's proposed placement had not been predetermined. (Id. at 28.) The decision ordered the District to implement a publicly funded independent evaluation for K.H. and reconvene the IEP team after the evaluation was complete.(Id. at 30-31.) The continuing implementation of the pendent IEP had not denied K.H. a free and appropriate public education (FAPE), and therefore K.H. was not eligible for any compensatory public education. (Id. at 29.)

2. E.C.

E.C., a kindergarten student during the 2018-19 school year, has Intellectual Disability, Autism Spectrum Disorder, and speech/language impairment. (Id. at 35-36.) E.C. had an IEP in place in 2017 that included specialized instruction, speech/language therapy, and behavioral support; most of these services were implemented in the typical preschool environment. (Id. at 37.) After reevaluations in the spring of 2018, the District proposed an IEP for the 2018-19 school year that would have placed E.C. in an autistic support classroom for the majority of the school day at a school that was not E.C.'s neighborhood school. (Id. at 39-41.) E.C.'s parents did not approve this IEP. (Id. at 42.) The 2017 IEP remained in place in the 2018-19 school year during the administrative hearing process. (See id. at 44.) The District also conducted additional reevaluations of E.C. in the fall of 2018. (Id. at 42-43.)

E.C.'s administrative hearing was before the same hearing officer as K.H.'s. The decisions were issued mere days apart, and they include similar reasoning. The hearing officer characterized E.C.'s complaint as presenting six discrete issues but noted that the "overarching contention" was that the District's proposed IEP "did not conform to the law with respect to the least restrictive environment." (Id. at 34.) The hearing officer found that the District's 2018 reevaluation of E.C. was insufficient and the proposed IEP was substantively inappropriate and not in compliance with LRE principles. (Id. at 55-61.) The decision ordered the District to implement a publicly-funded independent evaluation for E.C. and reconvene the IEP team after the evaluation was complete. (Id. at 66.) However, the hearing officer concluded that the IEP rightly included some level ofautistic support and ordered that the District should begin implementing those aspects of the proposed IEP immediately, but for not more than 90 minutes per day outside of the regular education environment. (Id. at 61-62, 65.) In reaching this conclusion, the hearing officer noted that the parties' major dispute was how much of the day E.C. should spend outside the regular education environment. (Id. at 62.) The hearing officer also found that the IEP's proposed placement had not been predetermined. (Id. at 61.) Finally, the decision concluded that the continuing implementation of the pendent IEP had not denied E.C. a FAPE, and therefore E.C. was not eligible for any compensatory public education. (Id. at 64.)

3. E.K.

E.K. was a kindergarten student in the 2018-19 school year. (Id. at 71.) E.K. has autism and a rare genetic condition that is associated with hearing loss, developmental delay, and hypotonia. (Id. at 70.) E.K. had an early intervention IEP in place in 2017. (Id. at 71.) After evaluations in the spring of 2018, the District proposed an IEP for the 2018-19 school year that would have placed E.K. in an autistic support classroom for 4.5 hours daily, which was nearly 70% of the school day, at a school that was not E.K.'s neighborhood school. (Id. at 72.) E.K.'s parents rejected this proposal, and the District then proposed placement in the autistic support classroom for half of the school day. (Id. at 73.) E.K.'s parents again rejected the proposed IEP and requested a due process hearing. (Id.)

The hearing officer found that the District's evaluation of E.K. satisfied the IDEA's procedural requirements, so E.K. was not entitled to a publicly-funded independent evaluation. (Id. at 80.) The decision also approved of the District's selected verbal behavior methodology to effectuate the IEP and the District's building selection for E.K. (Id. at 82-83.) The hearing officer found deficiencies with the proposed IEP, however. For example, the IEP lacked academic goalsand did not contain goals targeting E.K.'s identified needs in attention, focus, and age-appropriate social skills. (Id. at 81.) Most significantly, the hearing officer concluded that the District's proposed placement was inappropriately restrictive, predetermined, violated the LRE mandate, and denied the student a FAPE. (Id. at 82-84.) Therefore, the decision ordered that the District revise the IEP to place E.K. in a regular education classroom for no less than 65% of the school day and provide compensatory education. (Id. at 83-84.)

4. G.B.

G.B. was a third-grade student in the 2018-19 school year. (Id. at 92.) G.B. has down syndrome, severe childhood apraxia of speech, and significant difficulty with articulation. (Id.) Prior to the due process challenge, G.B. had attended the neighborhood elementary school with IEPs in place from Kindergarten through third grade. (Id. at 93, 95-98, 101.) In October 2018, the District issued a reevaluation report for G.B. and proposed a revised IEP to place G.B. in an autistic support classroom for one-third of the school day at a school that was not G.B.'s neighborhood school. (Id. at 99.) At the time, G.B. was in general education for 80% of the school day at the neighborhood school. (See id. at 113.) G.B.'s parents rejected this proposed change and requested a due process hearing. (Id. at 99-100.)

The hearing officer concluded that the District's proposed change to G.B.'s IEP violated the LRE provision of the IDEA and had been inappropriately predetermined prior to the IEP meeting. (Id. at 112-22.) The decision instructed that G.B. should remain in the current placement at the neighborhood school and ordered the District to conduct training for all staff who participate in IEP meetings on the LRE requirement. (Id. at 129.) The decision also addressed three other issues that G.B. had raised in pre-hearing filings but did not argue in the post-hearing brief: (1) whether the District had denied G.B. a FAPE between 2016 and 2019; (2) whether the Districtadministered a reevaluation without parental consent; and (3) whether the District violated the ADA or Section 504. (Id. at 123-26.) The hearing officer stated G.B. had waived these issues. (Id.)

After the conclusion of all four administrative hearings, Plaintiffs sent their billing records for each matter to the District. The parties were unable to agree on payment, and now it is for the Court to decide the issue of attorneys' fees and costs.

II. LEGAL STANDARD

The IDEA allows courts to "award reasonable attorneys' fees as part of the costs . . . to a prevailing party who is the parent of a child with a disability." 20 U.S.C. § 1415(i)(3)(B)(i). A party...