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DELL v. BOARD OF EDUC.

December 12, 1995

JEFFREY and PAT DELL, Plaintiffs,
v.
BOARD OF EDUCATION, TOWNSHIP HIGH SCHOOL DISTRICT 113, Defendants.



The opinion of the court was delivered by: PALLMEYER

 In the complaint now before the court, Plaintiffs seek an award of attorneys' fees expended in connection with the Administrative Level II hearing and this litigation. Defendant has moved for summary judgment, arguing, inter alia, that Plaintiffs are precluded from recovery of any fees because the relief they ultimately obtained was less favorable than the settlement offer Defendant had made prior to the administrative hearings. As explained below, Defendant's motion is granted.

 FACTS

 The facts, which are largely undisputed, are set forth in the parties' Local Rule 12(m) and 12(n) statements. *fn1"

 Plaintiffs are the parents of a student who suffered from a behavior disorder, learning disabilities, and Tourette's Syndrome. (Plaintiffs' Rule 12(n) Statement P 1.) Over the course of several years, some of which involved other school districts, Plaintiffs' son was placed in public schools, in a residential facility, and in a therapeutic day school, and had several psychiatric hospitalizations. (Id. P 2.) He was a student in Defendant School District during 1987-88. In that year, after leaving a residential placement and undergoing one of his hospitalizations, he was placed in a day school, but attacked a teacher there and was again hospitalized. (Id. P 3.) At this point, Defendant sought permission from the parents to conduct a Case Study Evaluation ("CSE") pursuant to state regulations, 23 Ill. Admin. Code § 226.535. (Id. P 4.) Plaintiffs responded to this request by requesting reimbursement from Defendant under 34 C.F.R. § 300.504(b) for an Independent Case Study Evaluation for which they had already contracted. (Id. P 4; Defendant's Rule 12(m) Statement P 5.) Defendant requested an administrative hearing, seeking a determination that the School District's evaluation of the student's educational placement was appropriate and that Plaintiffs' request for reimbursement for the independent evaluation should be denied. *fn2" (Decision of Hearing Officer Simon, Ex. A to Defendant's Rule 12(m) Statement, at 1.)

 By September 20, 1988, Plaintiffs' son had been placed in a residential treatment program in Washington state. The parties agreed that the placement was appropriate and was not a matter for dispute at any of the administrative hearings. (Ex. A to Defendant's Rule 12(m) Statement, at 4.)

 On October 6, 1988, prior to the initial hearing, Defendant tendered a written settlement offer to Plaintiffs. The October 6, 1988 letter from Defendant's attorney pointed out that Plaintiffs' independent evaluator had submitted invoices in the amount of $ 52,407.00 for her services between August 15 and September 21, 1988. Counsel's letter proposed a payment by Defendant to Plaintiffs of "Three Thousand Dollars and no/100 ($ 3,000.00) in full and complete satisfaction of the costs of [the] independent evaluation . . . ." (Letter from Attorney Sraga to Dells, Ex. 1 to Defendant's Rule 12(m) Statement.) Plaintiffs did not accept the offer. (Defendant's Rule 12(m) Statement P 8.)

 A Level I administrative hearing proceeded on October 24, 1988. (Id. P 9.) On November 1, 1988, Hearing Officer Bonita Simon issued her decision in which she concluded that the evaluation procedures that had been utilized by Defendant School District were not sufficient in nature or degree"; that the School District "seriously violated the student's rights by failing to complete [a CSE]" as required by Illinois law; that the School District had violated the student's "right to evaluations and a multidisciplinary conference" and that the record reflected "serious procedural errors and bad faith" by the School District in failing to consider the recommendations of independent evaluators or to provide appropriate services and in substituting an inappropriate placement for a more appropriate one. (Ex. A to Defendant's Rule 12(m) Statement, at 3-4.) Hearing Officer Simon concluded, in addition, however, that the independent evaluator engaged by Plaintiffs had submitted a request for payment of costs that were "a gross exaggeration of usual and customary costs," casting "serious[] question[]" on the evaluator's credibility. (Id. at 4.) In her order, Hearing Officer Simon directed Defendant to "bear the costs of an independent evaluation for the student," but directed that the costs be "no more than usual and customary costs" for such an assessment, without a statement of the specific amount to be awarded. (Id. at 7.)

 Both parties appealed from the Level I Hearing Officer's decision. In its Request for Level II Review, Defendant challenges a number of findings made by Hearing Officer Simon. Most of the School District's specific objections were directed at the Hearing Officer's substantive findings. The School District also specifically challenged (a) the Hearing Officer's refusal to issue a subpoena for the records of the independent evaluator; (b) the finding that the School District's conduct justified the parents' request for an ICSE at public expense; and (c) the order directing the School District to reimburse the parents for that expense. (Request for Level II Review, Ex. I to Plaintiffs' Response to Motion for Summary Judgment, at PP 2(a), (i), (n).) Plaintiffs retained counsel and appealed Officer Simon's findings that the evaluator's bill exceeded usual and customary charges. (Decision of Hearing Officer Malin, Ex. B to Defendant's Rule 12(m) Statement, at 1.)

 Hearing Officer Martin H. Malin rendered his decision on November 13, 1989. Officer Malin affirmed the Level I hearing officer's determination that Plaintiffs were justified in contracting for an independent evaluation of their son, and that Defendant's "cumulative bad faith delays" in performing an appropriate evaluation supported the conclusion that the expense for the independent evaluation was properly borne by Defendant. (Id. at 10, 14.) The parties disagreed concerning which of them should bear the burden of proof on the issue of the reasonableness of the evaluator's claimed expenses; Officer Malin concluded that, if Defendant bore that burden, Defendant amply met it by demonstrating that the expenses requested by the evaluator were grossly exaggerated and that the evaluator's credibility was a matter of "grave doubt[]." (Id. at 14, 16.) Even assuming that the case was of sufficient complexity to require expensive evaluation services, Officer Malin concluded that "a reasonable, usual and customary fee" for the evaluation was only $ 2,000.00. (Id. at 17.)

 DISCUSSION

 The Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (the "Act") confers legal rights on the parents of disabled school-age children. Among those rights is the right to seek an administrative hearing before an impartial hearing officer for review of a local school district's proposal for educating the disabled child, to appeal from such a hearing to a state agency, and to seek judicial review of the state agency's decision. § 1415(b)(2); (c); (e). The statute provides, as well, for an award of reasonable attorneys' fees to a parent or guardian who is the prevailing party in an action brought under the Act. § 1415(e)(4)(B). The statutory test for claiming "prevailing party" status is, as in claims for fees pursuant to 42 U.S.C. § 1988, whether plaintiffs have succeeded on "any significant issue in litigation which achieved some of the benefit the parties sought in bringing suit." Chagnon v. Town of Shrewsbury, 901 F. Supp. 32 (D. Mass. 1995). An award is available, as the Seventh Circuit has held, even where the efforts of counsel result in a concession from the school district before a requested due process hearing is conducted. Cf. Brown v. Griggsville Comm. Unit Sch. Dist. No. 4, 12 F.3d 681 (7th Cir. 1993) (denying fee award where student's improved school performance, rather than efforts of counsel, were the cause of the ...


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