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PATRICIA E. v. BOARD OF EDUC. OF COMMUNITY HIGH SC

August 2, 1995

PATRICIA E., MARIANNE F., on their own behalf and on behalf of RACHEL F., a minor, Plaintiffs,
v.
BOARD OF EDUCATION OF COMMUNITY HIGH SCHOOL DISTRICT #155, Defendant.



The opinion of the court was delivered by: JAMES F. HOLDERMAN

 JAMES F. HOLDERMAN, District Judge:

 Plaintiffs Patricia E. and Marianne F., on their own behalf and on behalf of Rachel F., a minor ("plaintiffs"), filed this action against defendant Board of Education of Community High School District #155 ("District") to recover attorneys' fees and costs as an alleged prevailing party pursuant to Section 1415(e) of the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(e), and the Illinois School Code ("School Code"), 105 ILCS 5/148.02. Presently before the court are both parties' cross-motions for summary judgment and defendant's motion to strike portions of plaintiffs' 12(m) Statement. *fn1" For the reasons stated below, defendant's motion to strike is granted, plaintiffs' motion for summary judgment is denied, and defendant's motion for summary judgment is granted.

 BACKGROUND

 The following facts are undisputed. Marianne F. is the mother of Rachel F., and Patricia E. is the aunt of Rachel F. Patricia E. resides in Cary, Illinois within School District #155. The District is a public school district created by statute to provide public education services to students within its boundaries in McHenry County. The IDEA and the Illinois School Code provide administrative procedures for resolving differences between school districts and parents over the educational services provided to students, including impartial due process hearings and a system for appeals.

 In August of 1992, Rachel's psychiatrist, Dr. Vermuri, recommended a change in Rachel's living environment and asked Rachel's Aunt Patricia if Rachel could live with her. After making inquiries as to enrolling Rachel in District #155 schools, Patricia was appointed guardian of Rachel. Patricia registered Rachel as a student in the District at Cary-Grove High School on September 2, 1992. At that time Patricia requested a special reading class and/or English class for Rachel because Rachel had problems with reading in the past. Patricia also advised the school personnel that Rachel was attending an after-school counseling program called the "TAG Program."

 By the end of September, Rachel started receiving school detentions due to behavior problems and seemed to be depressed. Patricia talked about Rachel's problems with the school social worker and the vice-principal. In October of 1992, Rachel was hospitalized at Woodstock Hospital in Woodstock, Illinois, for approximately one week because of depression and threats of suicide. The District provided Home/Hospitalization educational services pursuant to its obligations under the IDEA and Illinois School Code.

 In October of 1992, Patricia expressed concerns to school personnel that Rachel was not enrolled in classes commensurate with her abilities. On October 30, 1992, shortly after Rachel's discharge from the hospital, Patricia met with school personnel to discuss Rachel's situation. At the meeting, the social worker told Patricia that Rachel had access to a gun and was planning on committing suicide immediately before the October 1992 hospital admission. The meeting was stopped at that point to allow Patricia to talk with Rachel's counselor at the TAG Program about the gun and the threat of suicide.

 The parties met again on November 9, 1992. At that meeting Patricia was advised that Rachel needed further testing before the District could provide Rachel with specific special educational services. During this time Rachel returned to the District and was provided with educational services pending a determination of potential need for special education placement.

 On January 6, 1993, while Rachel remained hospitalized, Patricia had a conference with District personnel to review Rachel's case and recommend placement. At the conference Patricia informed the District that Rachel had been transferred to the Henry Horner Psychiatric Center. Patricia also stated that she did not think Rachel could come back to Patricia's home upon release from Henry Horner because of the threats that Rachel made to harm Patricia's child. Patricia asked questions about residential treatment and was advised that a residential placement for educational purposes included a requirement that the placement be transitional and not permanent. The District then contacted the Henry Horner Center to discuss Rachel's situation and evaluate her records.

 Soon after the meeting with the District, Patricia contacted an attorney to find out what educational services could be obtained for Rachel. On January 22, 1993, plaintiffs' attorney filed a request with the District for an impartial due process hearing under the IDEA. Rachel ran away from the Henry Horner Center on January 23, 1993. The District was first notified of this on January 27, 1993.

 On February 10, 1993, Rachel was admitted at Hartgrove Hospital in Chicago, Illinois. On February 15, 1993, the District was notified that Rachel had been found and had been admitted to Hartgrove Hospital where she required 4-6 weeks of treatment. On February 24, 1993, District personnel consisting of the Director of Special Services, the District Psychologist and the District Social Worker visited Rachel as part of the educational evaluation process. On March 5, 1993, Patricia, along with her attorney and a representative from the District, attended a staffing Hartgrove Psychiatric Hospital to make a determination of appropriate special education services to be provided to Rachel. The meeting included discussions regarding the need to properly identify Rachel's difficulties and to prepare an individualized educational program ("IEP") for Rachel. Rachel was identified as behavior disordered and attention deficit disordered pending review of records not provided at that time but in possession of Rachel's mother, with further periodic review and evaluations. In addition, the parties discussed placement of Rachel in the Allendale Residential Facility in Lake Villa, Illinois, and Allendale was contacted.

 On March 12, 1993, Allendale accepted Rachel and the District confirmed the placement. On March 19, 1993, Rachel was transferred to Allendale. On March 26, 1993, a staffing was held at Allendale to incorporate additional handwritten notes into the IEP developed on March 5, 1993. Both Rachel's mother and her Aunt Patricia chose not to attend this meeting. The March 26, 1993 IEP was signed by all in attendance. The substance of the March 26 staffing was discussed with Patricia by telephone immediately after the staffing. A final conference was scheduled for April 6, 1993. This meeting was canceled by the family's attorney. On April 29, ...


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