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Ryan M. v. Board of Education of the City of Chicago

August 9, 2010

RYAN M., A MINOR, AND SCOTT M. AND GEYSY M., INDIVIDUALLY AND AS PARENTS AND NEXT FRIEND OF RYAN M. PLAINTIFFS,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, DISTRICT 299 DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiffs Ryan M., Scott M., and Geysy M. (collectively "Plaintiffs") filed suit against Defendant Board of Education of the City of Chicago, District 299 ("the Board") pursuant to 20 U.S.C. § 1415(i)(3), seeking attorneys fees and costs incurred by Plaintiffs in prevailing in a due process hearing against the Board. Plaintiffs and the Board have filed cross-motions for summary judgment. Plaintiffs have also filed a Motion for Leave to Supplement the Record. For the reasons stated below, the Court grants Plaintiffs' Motion for Leave to Supplement the Record, grants in part and denies in part the Board's Motion for Summary Judgment, grants in part and denies in part Plaintiffs' Cross-Motion for Summary Judgment.

STATEMENT OF UNDISPUTED FACTS*fn1

I. Background

At the time of his due process hearing, Ryan M. was a 4 year old boy with autism who attended a pre-Kindergarten class at Otis Elementary School ("Otis Elementary"), a Chicago Public School in School District 299. (Pl. 56.1 Resp. ¶ 1; Def. 56.1 Resp. ¶ 1.) Scott M. and Geysy M. are Ryan M.'s parents. (Pl. 56.1 Resp. ¶ 2.) The Board is a body politic and corporate organized to maintain Chicago Public School District 299; it is also the relevant Local Education Agency as defined in 20 U.S.C. § 1402(15). (Pl. 56.1 Resp. ¶ 3; Def. 56.1 Resp. ¶ 3.) The Board has periodically made decisions concerning this matter. (Def. 56.1 Resp. ¶ 3.)

When Ryan M. was two years old, he was assessed by the Illinois Department of Human Services and found to have significant delays in communication, play sensory, and social-emotional skills. (Def. 56.1 Resp. ¶ 7.) In May 2007, the Family Clinic at the University of Illinois ("the UIC Family Clinic") evaluated Ryan M. and diagnosed him with autism, finding him to be severely limited in communication, behavior, and activities of daily living. (Def. 56.1 Resp. ¶ 8.) The UIC Family Clinic recommended that Ryan M. receive a year-round educational program that included at least 25 hours per week of classes. (Def. 56.1 Resp. ¶ 9.) In November and December 2007, when Ryan M.'s parents attempted to enroll him in a Chicago Public School Early Childhood Program, Chicago Public Schools conducted a psychological evaluation, speech assessment, occupational therapy evaluation, social assessment, and nursing assessment. (Pl. 56.1 Resp. ¶ 5; Def. 56.1 Resp. ¶ 10.) Chicago Public Schools found Ryan M. eligible for special education and related services as a child with autism. (Pl. 56.1 Resp. ¶ 6; Def. 56.1 Resp. ¶ 10.)

Ryan M.'s parents then met with school officials to develop an Individualized Education Program ("IEP"). (Pl. 56.1 Resp. ¶ 6.) In December, Ryan M.'s IEP team determined that he should be placed in a half-day self-contained classroom for autistic students at Otis Elementary for 2.5 hours each day until the end of the school year. (Pl. 56.1 Resp. ¶ 7.) This IEP did not include a behavior intervention plan. (Def. 56.1 Resp. ¶ 10.) Ryan M. attended this program for 2.5 hours per day between January and June 2008. (Def. 56.1 Resp. ¶ 11.) During the summer of 2008, Ryan M. was admitted to an extended school year program for four weeks. (Pl. 56.1 Resp. ¶ 8.)

II. Due Process Hearing

Scott and Geysy M. filed a request for a due process hearing on June 9, 2008, alleging that Ryan M. was not receiving a Free and Appropriate Public Education ("FAPE") at Otis Elementary because he was not being afforded the UIC Family Clinic's recommendation of 25 hours per week of intensive therapeutic and educational services in a year round program. (Pl. 56.1 Resp. ¶ 9; Def. 56.1 Resp. ¶ 12.) They also claimed that Ryan M.'s IEP goals were vague, included inaccurate statements about his present performance, and did not include all areas of need. (Pl. 56.1 Resp. ¶ 9; Def. 56.1 Resp. ¶ 12.) Finally, they argued that he should be given a one-on-one aid in his general program. (Pl. 56.1 Resp. ¶ 9; Def. 56.1 Resp. ¶ 12.) The parties unsuccessfully attempted mediation in July 2008. (Pl. 56.1 Resp. ¶ 10; Def. 56.1 Resp. ¶ 13.)

In September 2008, Scott and Geysy M. hired psychologist Dr. Robert E. Daniels ("Dr. Daniels") to evaluate Ryan M. (Pl. 56.1 Resp. ¶ 11; Def. 56.1 Resp. ¶ 14.) After observing Ryan M. in the classroom, Dr. Daniels determined that the Otis Elementary program did not meet his needs. (Pl. 56.1 Resp. ¶ 11; Def. 56.1 Resp. ¶ 14.) On November 21, 2008, the parties participated in an IEP meeting to discuss Dr. Daniels' report. (Pl. 56.1 Resp. ¶ 12; Def. 56.1 Resp. ¶ 15.) They met again on December 12, 2008 to review a report from Mara Lane ("Lane"), a speech and language pathologist who also evaluated Ryan M. (Pl. 56.1 Resp. ¶ 13; Def. 56.1 Resp. ¶ 15.) On January 7, 2009, the parties convened a third meeting to develop an IEP for Ryan M. for the following year. (Pl. 56.1 Resp. ¶ 14.) This IEP still placed Ryan M. at Otis Elementary but expanded his educational program to five hours of instruction per day with additional time allotted for all services. (Pl. 56.1 Resp. ¶ 15; Def. Resp. ¶ 15.) Following the implementation of this program, Scott and Geysy M. complained that the January 2009 IEP did not adequately address Ryan M.'s needs and that continuing to place him at Otis Elementary was inappropriate. (Pl. 56.1 Resp. ¶ 16.) The parties then held a third IEP meeting making further adjustments to the services offered to Ryan M. (Def. 56.1 Resp. ¶ 16.)

On January 23, 2009, a due process hearing commenced. (Pl. 56.1 Resp. ¶ 17; Def. 56.1 Resp. ¶¶ 1, 17.) The hearing lasted four to five total days over the course of January, February, and March 2009. (Pl. 56.1 Resp. ¶ 17; Def. 56.1 Resp. ¶¶ 1, 17.) Scott and Geysy M. requested the following remedy at the hearing: 1) a determination that the District failed to provide Ryan M. with a FAPE; 2) a determination that Ryan M. is entitled to compensatory services; 3) a decision that Ryan M. be provided with a FAPE and placed in a private facility if appropriate; 4) a decision that Ryan M. be provided with individual, one-on-one speech/language occupational therapy and direct social work services; and 5) that the new IEP goals reflect Ryan M.'s present level of performance. (Pl. 56.1 Resp. ¶ 18.)

Following the hearing, the parties submitted post-hearing memoranda. (Def. 56.1 Resp. ¶ 17.) On May 23, 2009, the hearing officer entered a written Decision and Order concluding:

a) The position of the Parents is upheld. R.M. did not have IEPs that provided him with education benefits and FAPE.

b) R.M. is to be placed in an ISBE-approved private day therapeutic school serving young children with autism in a full day, year round educational program with intensive educational and therapeutic services that address his core deficits in the areas of behavior, communication, functional independence and childhood development.

c) The parties are directed to develop an IEP within thirty days of the date of this Decision that implements Order No. 2, develops a Functional Behavior Analysis/Behavior Implementation Plan, and requires charting of progress in meeting goals and benchmarks.

d) R.M. is to receive one year of compensatory education in the placement and program to be determined in Order No. 2 to compensate him for the District's failure to provide FAPE under his two previous IEPs.

e) The District shall submit proof of compliance with these orders to the Illinois State Board of Education, Program Compliance Division, 100 North First Street, Springfield, Illinois, 62777 within 35 days from the receipt of this Decision. (Pl. 56.1 Resp. ¶ 19; Def. 56.1 Resp. ¶ 21.) The hearing officer also found that "the District's arguments in support of its position in this case are not persuasive.... The evidence shows that [Ryan M.'s classroom] has not allowed [him] to achieve educational benefits." (Def. 56.1 Resp. ¶ 19.) The hearing officer explained that "the evidence shows R.M has made little, if any, progress in this classroom. In addition, CPS contends questions of educational methodology are best left to the schools to determine. However, this case does not focus on the adequacy of a methodology. This case is concerned with evaluating the appropriateness of IEPs and deciding whether they enable R.M. to obtain educational benefits." (Def. 56.1 Resp. ¶ 20.) Plaintiffs' counsel later filed a complaint with the Illinois State Board of Education regarding non-compliance with the hearing officer's determination. (Def. 56.1 Resp. ¶ 22.)

III. Attorney's Fees

Following the hearing officer's Decision and Order, Plaintiffs, through their counsel, filed a petition for attorneys fees on July 21, 2009 in the amount of $101,251.77. (Pl. 56.1 Resp. ¶ 20; Def. 56.1 ¶ 23.) Plaintiffs' July 21, 2009 letter included an itemized list of the attorney's fees and costs allegedly incurred during the due process hearing. (Pl. 56.1 Resp. ¶ 21.) In this bill of costs, Plaintiffs' attorneys Deborah Pergament ("Pergament") and Mary Mulae ("Mulae") billed at a rate of $300.00 per hour and their paralegals billed at a rate of $75.00 per hour. (Pl. 56.1 Resp. ¶ 22.)

A. Drafting Documents

Plaintiffs' counsel billed 3.0 hours on April 21, 2008, 5.0 hours on May 3, 2008, and 3.0 hours on May 15, 2008 drafting the Due Process Complaint, for a total of 14.0 hours. (Pl. 56.1 Resp. ¶ 25.) Plaintiffs' counsel billed 6.5 hours on June 23, 2008 to prepare a response to the District's Notice of Insufficiency, and 2.3 hours on November 29, 2008 and December 1, 2008 to prepare a motion to set hearing dates. (Pl. 56.1 Resp. ¶ 26-27.) On December 11, 2008, Plaintiffs' counsel billed.5 hours to email their clients and experts about the IEP meeting that occurred on that day. (Pl. 56.1 Resp. ¶ 28.) On January 3, 2009, Plaintiffs' counsel billed 3.0 hours to draft stipulations of fact, and billed 3.0 hours on January 4, 2009 to draft a dissent to Ryan M.'s IEP. (Pl. 56.1 Resp. ¶ 29-30.)

Plaintiffs' counsel billed 5.0 hours on January 17, 2009 to prepare a motion for reconsideration of the hearing officer's denial of Mara Lane's classroom observation, 4.0 hours on January 27, 2009 to prepare a reply brief, and 1.0 hours on January 27, 2009 to review the District's pleadings and supporting case law. (Pl. 56.1 Resp. ¶ 23.) On January 20, 2009, Plaintiffs' counsel billed 4.0 hours on January 20, 2009 to write an opening statement. (Pl. 56.1 Resp. ¶ 36.) On March 15, 2009, Plaintiffs' attorney billed.5 hours to draft a two page letter requesting transcripts to the Board's attorney. (Pl. 56.1 Resp. ¶ 31.)

In preparing Plaintiffs' post-hearing brief, Plaintiffs' counsel billed a total of 66.4 hours, divided as follows: 3 hours on April 7, 2009, 2.0 hours on April 22, 2009, 6.0 hours on April 23, 2009; 3.5 hours on April 26, 2009; 5.0 hours on May 1, 2009; 4.0 hours on May 2, 2009; 5.5 hours on May 3, 2009; 11.4 hours on May 4, 2009; 17.0 hours on May 5, 2009; and 9.0 hours on May 6, 2009. (Pl. 56.1 Resp. ¶ 37.)

B. Preparing Hearing Documents

On August 14, 2008 and August 15, 2008, Plaintiffs' counsel billed 1.5 hours to prepare disclosure documents listing witnesses and exhibits for the hearing officer. (Pl. 56.1 Resp. ¶ 34.) Plaintiffs' counsel billed 2.0 hours on August 20, 2008 to prepare hearing documents. (Pl. 56.1 Resp. ¶ 32.) Plaintiffs' counsel's law clerk billed 4.5 hours on September 19, 2008 to prepare material for the administrative hearing and billed 7.0 hours on September 20, 2008 to prepare pre-trial materials and documents. (Pl. 56.1 Resp. ¶ 33.) Finally, Plaintiffs' counsel billed 4.0 hours on January 15, 2009 to prepare trial books and 4.5 hours ...


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