Knox v. St. Louis City School District
Filing
79
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the District's motion for judgment on the administrative record [ECF No. 62 ] is DENIED. IT IS FURTHER ORDERED that the District's motion for summary judgment on Grandmother's complain t for attorney fees [ECF No. 65 ] is DENIED. IT IS FURTHER ORDERED that Grandmother's motion for judgment on the administrative record [ECF No. 59 ] is GRANTED. IT IS FINALLY ORDERED that Grandmother's motion for summary judgment on her complaint for attorney fees and costs [ECF No. 59 ] is GRANTED in part and DENIED in part. Defendant shall pay Grandmother $115,206.00 in attorney fees and $1,169.95 in costs, for a total of $116,375.95. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Patricia L. Cohen on 6/30/2020. (SMM)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CAROLYN KNOX,
On behalf of her minor grandson, J.D.,
)
)
)
Plaintiff,
)
)
vs.
)
)
ST. LOUIS CITY SCHOOL DISTRICT, )
)
Defendant.
)
Case No. 4:18-CV-216-PLC
MEMORANDUM AND ORDER
Plaintiff Carolyn Knox (Grandmother) initiated this lawsuit seeking attorney fees and
costs after the Administrative Hearing Commission (AHC) found that Defendant St. Louis City
School District (the District) had denied her grandson J.D. (Student) a free appropriate public
education (FAPE) in violation of the Individuals with Disabilities Education Act (IDEA), 20
U.S.C. § 1400 et seq. [ECF No. 1] In its answer, the District denied Grandmother’s entitlement
to fees and costs and counterclaimed for judicial review of the AHC’s decision. [ECF No. 14]
Both sides moved for judgment on the administrative record [ECF Nos. 59, 62] and summary
judgment on Grandmother’s complaint for attorney fees [ECF Nos. 59, 65]
I.
Background
Student, who was born in July 2008, has the medical diagnoses of attention deficit
hyperactivity disorder (ADHD) and disruptive mood dysregulation disorder. Student attended
Peabody Elementary School (Peabody) from August 2013 until March 2017.
Grandmother filed a due process complaint in February 2017, alleging that the District
denied Student a FAPE and violated its child-find obligation by failing to initiate “a full and
individual initial evaluation” to determine Student’s eligibility under the IDEA, despite evidence
of a suspected disability. [R. at 6]1 Grandmother asked the District to (1) immediately evaluate
Student to determine his eligibility under the IDEA, as well as (2) provide compensatory
services, such as academic tutoring and counseling.
She later amended the due process
complaint to allege that the District denied Student a FAPE and violated the IDEA’s child-find
obligation by failing to find Student eligible for special education services and failing to develop
an individualized education plan (IEP) for Student until March 2017. [R. at 26]
After a hearing, the AHC found that the District did not deny Student a FAPE in April
2015 when it determined that Student did not satisfy the eligibility criteria for Emotional
Disturbance (ED), but it violated the IDEA’s procedural requirements because it failed to
consider whether Student satisfied the criteria for Other Health Impairment (OHI), a category
that can qualify children with ADHD for special education services. Next, the AHC found that
the District violated its child-find obligation when it failed to reevaluate Student’s IDEA
eligibility after receiving a copy of his independent educational evaluation (IEE) in November
2016.
Grandmother filed a complaint in this Court for attorney fees claiming that she was the
prevailing party in the administrative proceeding and therefore entitled to attorney fees pursuant
to 20 U.S.C. § 1415(i)(3)(B). The District counterclaimed, requesting that the Court reverse the
portions of the AHC’s decision that are adverse to the District and enter judgment in favor of the
District on all claims.
II.
Evidence Presented to the AHC
A. Kindergarten (2014-2015 School Year)
1
Throughout this Order, the Court refers to the record of proceedings before the Administrative
Hearing Commission [ECF No. 35] by the abbreviation “R.”
2
Student repeated kindergarten at Peabody during the 2014-2015 school year.2 Student
exhibited disruptive behaviors throughout Fall 2014, including fighting with staff and other
students, running from the classroom and the building, and throwing things. Student was sent
home early and suspended “numerous times” during this period. [ECF No. 60-1 at ¶ 11]
In September 2014, Grandmother requested an IDEA evaluation for Student, and a
Student Intervention Team (SIT) met later that month.3 The SIT determined that Student’s
“behavior is preventing him from learning,” but decided to “track the times, duration and
frequency it occurs, and if any learning is taking place.” [R. at 970] The SIT scheduled another
meeting for the following month.
In January 2015, Student’s kindergarten teacher, Ms. Dubbs, emailed Peabody’s school
counselor, Ms. Harris, expressing concern that Student’s behavior was escalating as he fell
“further behind academically.” [R. at 974] Ms. Dubbs inquired about the status of an IEP for
Student and requested an SIT or review of documents (RED) meeting, as well as counseling or
group therapy for Student. [R. at 974] Later that month, Student received a two-day suspension
for threatening to stab Ms. Harris. [R. at 976-77]
In early-February 2015, Peabody’s principal emailed the District’s special education
process coordinator regarding Student’s behavioral problems. [R. at 978-79] The principal
wrote that, earlier in the day, Student threatened a student with a rock, threw a toy at another
student, tried to elope from the building, yelled profanity, and masturbated in class. [R. at 979]
On February 20, Peabody conducted an RED meeting as part of an initial eligibility evaluation.
2
Student was a kindergartener at Peabody during the 2013-2014 school year, but he stopped
attending when his mother, who was addicted to drugs, ceased to bring him to school. In August
2014, the Missouri Children’s Division placed Student and his three siblings with Grandmother.
Grandmother is Student’s legal guardian.
3
The SIT included the school counselor, the school social worker, and Student’s kindergarten
teacher.
3
In March 2015, Student began treatment with advanced practice nurse (APN) Gina Bufe
at Mercy Clinic Child and Adolescent Psychiatry. APN Bufe diagnosed Student with ADHD
and prescribed Adderall, which Student began taking on March 27.4 The same day, Ms. Harris,
Ms. Dubbs, Peabody’s principal, the District’s psychological examiner, and the school social
worker met to consider Student’s eligibility and decided to monitor Student’s response to the
medication and reconvene in April.
The District held Student’s eligibility meeting on April 17, 2015 and issued an “Initial
Psycho-educational Evaluation.” [R. at 1065-77] The eligibility team concluded that: (1)
Student did not satisfy the eligibility criteria for a diagnosis of Intellectual Disability; (2) Student
was not eligible for a diagnosis of Specific Learning Disability because his “achievement is
commensurate with cognition”; (3) Student was able to “learn in an educational setting”; and (4)
although Student “demonstrates inappropriate behaviors in the classroom, there is insufficient
information at this time to warrant a diagnosis of Emotional Disorder.”
[R. 1076]
The
evaluation did not address whether Student satisfied the criteria for OHI.
B. First Grade (2015-2016 School Year)
Student’s disciplinary records reveal that the “extreme” behaviors Student exhibited in
kindergarten continued in first grade. In September 2015, Student received a one-day suspension
after he refused to sit down, chased a student around the room while cursing, threw a chair at a
student, and ran from the classroom. [R. at 909-10]
Later that month, Student punched two
students in their faces. [R. at 913]
On October 2, Student received a one-day suspension because he “launched himself” at a
4
Because Student had an allergic reaction to Adderall, APN Bufe switched Student to Concerta
in April 2015. APN Bufe increased Student’s Concerta dosage in August 2015 and, in October
2015, she added Abilify, an anti-psychotic medication used to treat aggression.
4
classmate who was “sitting quietly at her desk” and “punch[ed] her several times in the face and
side of the head.” [R. at 915-16] A report from October 20, stated that Student pushed a chair at
his teacher, Ms. Washington, and continuously eloped from the classroom and ran through the
halls. On November 9, Student fought with another student. [R. at 917]
On December 7, 2015, Student “started running around hitting the other students,” cursed
and threw a chair at his teacher, “ran over to a little girl and smacked her in the face,” ran out of
the classroom and upon, his return, “started kicking and punching another female student[.]” [R.
at 920-21] Three days later, Student was disciplined for using profanity during class and
threatening to hit the teacher. [R. at 922] On December 16, Student began punching and kicking
another child. [R. at 923] When Ms. Washington attempted to intervene, Student threw a chair
at her, hitting her in the chest. [Id.] Student received a two-day suspension. That same month,
Dr. Liberati, began providing Student therapy at school, focusing on anger management and
skills building.
In February 2016, at Ms. Washington’s request, Student transferred to another teacher’s
first-grade classroom. Student had a positive relationship with that teacher and demonstrated
improvement in her classroom. In April, the District’s psychological examiner, informed the
District’s special education process coordinator that Student had made “great strides in his
behavior” and, according to his new teacher, Ms. Lindsey, “there are times when [Student’s]
behavior is off task but [he] can be redirected.” [R. at 1042] In May, Dr. Liberati closed
Student’s therapy citing Student’s improvement.5
Despite the reported improvements in Student’s behavior and academic performance
during Spring 2016, he received a grade of “X”, meaning “area of concern,” in every subject
5
Student resumed therapy sessions with Dr. Liberati in October 2016.
5
except physical education. [R. at 900-01] Student’s effort grades reflected “little or no effort” in
math and “minimal effort” in language and reading. [Id.]
Student attended three days of
summer school but withdrew due to behavior problems. [R. at 881]
C. Second Grade (2016-2017 School Year)
During Fall 2016, Student’s behavioral problems, including physical and verbal
aggression, destruction of property, elopement, and refusal to complete assignments, escalated.
Peabody staff implemented numerous behavioral interventions, all of which were ineffective.
In late-September 2016, Student underwent an IEE at Miriam Learning Center.6 [R. at
1081-1102] In regard to Student’s academic performance, the IEE concluded:
[Student’s] academic skills are severely depressed with skills at the
kindergarten level across the board. The WJ-IV yielded scores that were
generally 1-2 years below his current grade placement. Basic reading skills
were Low (76); reading comprehension Low (70); reading fluency Very Low
(67); math calculation skills Low (76); math problem solving Low Average
(81); and written language Low Average (81). The Gray Oral Reading
quotient found rate, accuracy, fluency, and comprehension to be below the 1st
grade level. The overall quotient of 73 fell at the 4th percentile. [Student] has
a very limited sight word vocabulary. He struggles so much to decode words
that he misses the meaning of the passage.
[R. 1092] As to Student’s behavior, the IEE stated that Grandmother and Student’s second grade
teacher, Ms. Burkins both “reported problems related to hyperactivity, aggression, conduct,
depression, attention, and withdrawal resulting in Behavioral Symptom Index scores of 79 and
99 in the ‘Significant’ range.” [Id.] The IEE concluded: “Both scales indicated significant
problems in multiple areas of executive function which support his current medical diagnosis of
ADHD, despite medical intervention.” [Id.] The IEE also set forth twenty recommendations,
A parent or guardian is entitled to an IEE, at the school district’s expense, if he or she disagrees
with the school’s evaluation. 20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502(b)(1). Grandmother
sent the District a letter in March 2016, stating that she disagreed with the April 2015 eligibility
determination and requesting an IEE at the District’s expense. [R. at 1012]
6
6
including a functional behavioral assessment and a research-based early-intervention reading
program. [R.at 1093-94]
In November 2016, Ms. Harris received a copy of the IEE and forwarded it to Peabody’s
principal and the District’s psychological examiner, Ms. Jefferson. [R. at 322-23] Ms. Jefferson
did not review the IEE at that time because the school counselor informed her that Grandmother
had not requested a new IDEA evaluation. [R. at 538-39]
In early December 2016, Student was disciplined for repeatedly leaving his seat,
disrupting other students, refusing to comply with the teacher’s directives, fighting another
student, and running from the classroom. [R. at 938] Five days later, Student left the building
without permission, threw rocks at other students, entered other classrooms and disrupted
instruction, removed items from another classroom, and urinated in the stairwell. [R. at 939]
During this time period, therapist Dr. Liberati wrote a letter to the District, at the request
of school counselor Ms. Harris, regarding Student’s lack of progress in therapy. Dr. Liberati
reported that Student “continues to have intermittent explosive anger episodes, along with
conduct difficulties.”
[R. at 950]
Dr. Liberati concluded that “[o]verall, [Student] is
unsuccessful in treatment and would benefit from more intensive services.”
[Id.]
He
recommended that Student “be placed into intensive therapeutic services for his behavior and
anger management problems…. [Student] would benefit from a more restrictive environment to
ensure his safety and access to intensive therapeutic services.” [Id.]
In mid-December, Student’s teacher Ms. Burkins emailed Ms. Harris and the school
social worker requesting “some guidance as to what to do with [Student] in my classroom” 7 [R.
7
Ms. Burkins explained that, earlier that afternoon, Student began roaming the classroom,
knocking students’ work off their desks and kicking over chairs. When Ms. Burkins asked him
to stop, he threw a chair “towards some students that [were] sitting at a table,” yelled profanity at
7
at 941] About one week later, in Ms. Harris’s office, Student threw items, such as books and a
trash can, and repeatedly threatened to stab Ms. Harris. [R. at 942, 955] Ms. Harris completed a
risk screening worksheet and, based on its results, referred Student to the emergency room for
further evaluation. Student subsequently received three days’ inpatient psychiatric treatment at
DePaul Hospital. [R. at 1458-56]
In early-January 2017, Ms. Burkins reported that Student ran from the classroom and,
upon his return, refused to sit down, retrieved a pair of scissors from Ms. Burkins’ desk, and
began hitting another student’s desk with the scissors. When Ms. Burkins asked Student to give
her the scissors, he “shoved the scissors very hard towards the student who was sitting at the
desk.” [R. at 992] Student also yelled profanity, threw various items, and repeatedly pushed Ms.
Burkins. Later that month, Student ran around the building evading staff until two staff members
cornered him and escorted him to Ms. Harris’s office. In the office, Student threw various items
at Ms. Harris and “dismantled the teacher’s desk and tried to hit [her] with it.” [R. at 945]
In early-February 2017, Student underwent a four-day psychiatric hospitalization for
“unsafe behavior, mood symptoms, and psychopharmacology review.” [R. at 1459] During his
hospital stay, Student was diagnosed with ADHD and disruptive mood dysregulation disorder.
[R. at 1461]
On February 13, the principal sent the District a “request for response” relating to Student
because he “continues to elope from designated areas (daily), and display aggressive behavior
towards staff members.” [R. at 998]. In the “request for response form,” the principal stated that
Ms. Burkins, and continued knocking things to the floor and kicking tables. [R. at 941] Ms.
Burkins wrote: “[Student] has had meltdowns in class before, but never to the point where I had
to have my entire class removed for their safety. He is really disrupting the educational process,
the culture of the classroom, and becoming a threat to the safety of my other students.” [R. at
941] Ms. Burkins added that Student was “working below grade level and refuses to even
attempt to complete any of the assignments.” [Id.]
8
Student’s “behaviors are recurrent, violent and unsafe,” and she listed twenty-two unsuccessful
interventions implemented by the Peabody faculty and staff.8
[R. at 956-57] In response, the
District convened a Section 504 meeting on February 21 to determine whether Student qualified
for accommodations under the Rehabilitation Act. The 504 team determined that Plaintiff’s
ADHD substantially affected his learning and decided to assign Student a child-care attendant.
[R. at 963]
On February 24, 2017, Grandmother filed her due process complaint against the District,
requesting the District evaluate Student immediately to determine IDEA eligibility.9 Upon
receipt of Grandmother’s due process complaint, the District’s “special education process
coordinator for assessment and related services” requested an RED meeting for Student. [R. at
1028]
On March 6, the RED team considered Student’s IEE and the information provided by
Peabody personnel and determined that Student had an Emotional Disturbance (ED) and was
therefore eligible to receive special education services. [R. at 1118] On March 15, the District
held an initial IEP meeting and placed Student at a “Private Separate School (Day) Facility.” [R.
at 1124] Pursuant to the IEP, Student began attending school at Great Circle on March 27, 2017.
III.
Due Process Complaint and AHC Decision
In the amended due process complaint, Grandmother claimed that the District denied
Student a FAPE and violated its child-find obligation “by failing to find [Student] eligible for
special education services and failing to develop an IEP to provide FAPE until March 2017.” [R.
8
The request for response was not part of the IDEA process. At the AHC hearing, Ms. Harris
explained that the request for response form is sent “down to the student support office here at
the district to ask for interventions….It’s like at the end of everything that we’ve exhausted, now
we have nothing, what kind of help can you provide?” [R. at 336]
9
With leave of the AHC, Grandmother filed an amended due process complaint in July 2017. [R.
at 97-121]
9
at 116] More specifically, Grandmother argued that the District: (1) denied Student a FAPE by
failing to make the educational diagnoses of either OHI or ED when it evaluated Student’s IDEA
eligibility in April 2015; and (2) violated its child-find obligation and denied Student a FAPE by
failing to develop an IEP “at all times after April 2015 until it finally found him eligible under
Emotional Disturbance and developed an IEP in March 2017.” [R. at 116, 120] The District
countered that it “ha[d] not denied [Student] a free appropriate public education and did not
violate the IDEA’s ‘child find’ obligation.” [R. at 129-31]
After a two-day hearing,10 the AHC issued its decision in January 2018. [ECF No. 1-1]
In its decision, the AHC first considered whether the District denied Student a FAPE when, in
April 2015, it did not assess Student for OHI and failed to diagnose him with either OHI or ED.
The AHC rejected the District’s argument that Plaintiff did not qualify for ED because his
behavioral issues were “transient” and attributable to a “specific crisis or stressful experience.”
[Id. at 24] Nevertheless, the AHC found that the District did not err in finding that Student did
not meet the criteria for ED. The AHC reasoned that Student did not satisfy the criteria for ED
because he was only seven years old and had attended school for less than three semesters, and
the State Plan11 requires that the characteristics of ED present “to a marked degree and over an
extended period of time.” [Id. at 25]
In regard to the District’s failure to assess Student with OHI, the AHC found that
10
The AHC held a two-day due process hearing in November 2017. The following witnesses
testified at the hearing: Grandmother; Ms. Harris; Dr. Liberati; Ms. Jefferson, the District’s
psychological examiner; APN Bufe; Ms. Kennedy, the school psychological examiner from the
Miriam Learning Center; Ms. Miller-Seawood, Peabody’s principal; Amy Konsewicz,
Peabody’s school social worker; Ms. Dubbs, Student’s kindergarten teacher; and Molly Estes,
licensed professional counselor at Great Circle.
11
The Missouri State Plan for Special Education (“State Plan”) contains regulations
implementing Part B of the IDEA. The Missouri State Plan for Special Education,
http://dese.mo.gov/special-education/compliance/laws-regulations.
10
Grandmother did not satisfy her burden to demonstrate that Student’s ADHD adversely affected
his education. [Id.] However, the AHC also found that, in failing to assess Plaintiff for an OHI,
the District violated the IDEA’s procedural requirements for initial evaluations. The AHC
further found that the procedural violation resulted in a denial of FAPE because it denied
Grandmother the “opportunity to participate meaningfully” in the IEP process. [Id. at 26-27]
Given that an educational diagnosis of OHI “only requires that ADHD ‘adversely affect’” a
student’s performance, Grandmother “could certainly have…provided additional information for
consideration by the IEP team.” [Id. at 26-27]
Next, the AHC addressed Grandmother’s claim that the District violated the IDEA’s
child-find requirement by failing to diagnose Student with ED or OHI before March 2017. [Id.
at 27] The AHC rejected Grandmother’s claim as to OHI because it found that “the record lacks
sufficient information regarding ADHD generally or its specific manifestation in Student.” [Id.
at 28] Likewise, the AHC found that the District did not violate its child-find obligation by
failing to diagnose Student with ED between April 2015 and November 2016 because, for a
period of time in Spring 2016, Student’s behavior improved.12
The AHC determined, however, that the District “violated its child find duties when it
failed to reevaluate Student shortly after” receiving the IEE report from Miriam Learning Center
in November 2016. [Id.] The AHC explained that, under the regulations, the District had a duty
to consider the IEE in any decision made regarding FAPE. [Id. citing 34 C.F.R. § 300.502(c)(1)]
In light of Student’s escalating behavior in Fall 2016 (including a homicidal threat and
psychiatric hospitalization) and the District’s receipt of the IEE, which the District “later deemed
The AHC explained: “Either as a result of changing classrooms and having a teacher more
attuned to Student’s behaviors, starting Abilify, seeing Liberati, or some combination thereof,
Student showed signs of progress that could reasonably excuse the District’s failure to reevaluate
Student.” [Id. at 29]
12
11
sufficient to support an educational diagnosis of ED,” the AHC found that the District “ignored
clear evidence of Student’s ED and therefore violated the IDEA’s child find requirement
resulting in a denial of FAPE.” [Id. at 29-30]
In summary, the AHC stated: “We grant Grand[mother]’s due process complaint on the
grounds that the District failed to assess Student for OHI and failed to identify Student’s ED in
November 2016.” [Id. at 30] The AHC found that Student was entitled to “the equivalent of
four school months of compensatory education in math and reading for the District’s failure to
evaluate him for ED upon receiving the IEE.” [Id.] More specifically, the AHC provided that
the compensatory education “shall include…a functional behavior assessment, preferential
seating, instruction in math and reading, and a research-based early intervention reading
program” and “at least 88 hours of education in math and 88 hours in reading.” [Id.] With
respect to the District’s April 2015 procedural violation, the AHC ordered that the District
“reconvene the IEP team to evaluate whether Student’s ADHD adversely affects his education to
determine whether he has an OHI.” [Id.]
IV.
Discussion
In its counterclaim to Grandmother’s complaint for attorney fees and expenses under the
IDEA, the District requested judicial review of the AHC’s decision. [ECF No. 14] Grandmother
and the District filed cross-motions for judgment on the administrative record and summary
judgment on the complaint for attorney fees. [ECF Nos. 59, 62, 65] The Court will consider the
motions for judgment on the administrative record before turning to the question of attorney fees.
A. Motions for Judgment on the Administrative Record
The District moves for judgment on the administrative record, urging the Court to
“reverse those portions of the Commission’s decision in favor of” Grandmother. [ECF No. 62]
12
The District argues that the AHC erred in finding the District committed a procedural violation
when it failed to consider an OHI diagnosis during Student’s April 2015 evaluation because: (1)
the amended due process complaint did not allege a procedural violation; and (2) the record did
not support the AHC’s finding that the District’s failure to consider OHI denied Grandmother the
“opportunity to meaningfully participate in the IEP process.” [ECF No. 64] The District also
contends the AHC erred in finding that the District violated its child-find obligation when it
failed to evaluate Student after receiving the IEE in November 2016. [Id.] Finally, the District
challenges the AHC’s decision to award compensatory services to Student. [ECF No. 71]
Grandmother moves for judgment on the administrative record, urging the Court to
uphold the AHC decision. [ECF No. 60] In her motion, Grandmother asserts that the AHC
properly found that the District denied Student a FAPE by failing to: (1) evaluate Student for
OHI in April 2015, thereby denying Grandmother her right to participate in the IEP process; and
(2) timely re-evaluate Student’s eligibility after receiving the IEE in November 2016.
1. Standard of Review
The IDEA permits aggrieved parties to seek review of an administrative hearing panel's
decision by bringing a civil action in federal court. Blackmon ex rel. Blackmon v. Springfield RXII Sch. Dist., 198 F.3d 648, 654 (8th Cir. 1999) (citing 20 U.S.C. § 1415(i)(2)(A)). In a motion
for judgment on the record brought pursuant to the IDEA, a district court must review the state
administrative record, hear additional evidence if requested, and grant such relief as it deems
appropriate based on the preponderance of the evidence. See 20 U.S.C. § 1415(i)(2)(B); C.J.N v.
Minneapolis Pub. Sch., 323 F.3d 630, 636 (8th Cir. 2003).
A court reviews de novo whether a school district provided a child with a FAPE.
Albright v. Mountain Home School Dist., 926 F.3d 942, 948 (8th Cir. 2019). At the same time,
13
the reviewing court must give “due weight” to the results of the administrative proceeding. Id.
A court’s “duty is to interpret and apply the law, not to substitute [its] own notions of sound
educational policy for those of the school authorities which [the court] review[s].” Id. (quoting
Special Sch. Dist. No. 1, Minneapolis Pub. Sch. v. R.M.M. ex rel. O.M., 861 F.3d 769, 771-72
(8th Cir. 2017)). The party challenging the outcome of the state administrative hearings has the
burden of proof. E.S. v. Indep. Sch. Dist., No. 196 Rosemount-Apple Valley, 135 F.3d 566, 569
(8th Cir. 1998)
2. Procedural Violation (April 2015)
The District challenges the AHC’s finding that the District violated the IDEA’s
procedural requirements when it failed to evaluate Student for OHI in April 2015 and thereby
denied him a FAPE. More specifically, the District contends that, because Grandmother did not
allege a procedural violation that prevented her from meaningfully participating in the eligibility
evaluation process, it “was not a matter over which the Commission had jurisdiction.” [ECF No.
64 at 20] Further, the District argues that, even if the claim was properly before the AHC, the
record does not support the finding of a parental participation violation because (1) the eligibility
team assessed Student’s OHI eligibility and (2) there was no evidence that the District impeded
Grandmother’s opportunity to participate in the process. [Id. at 22-23]
Grandmother argues that the AHC correctly found that the District’s failure to consider
OHI was a procedural violation of the IDEA. Grandmother asserts that: (1) she sufficiently
alleged a procedural violation in the amended due process complaint; and (2) the record
establishes that the District did not consider the educational diagnosis of OHI when it evaluated
Student’s IDEA eligibility in April 2015. [ECF No. 60 at 20-22] Grandmother therefore urges
the Court to uphold the AHC’s decision.
14
The IDEA requires all school districts receiving federal funds under the IDEA to provide
all children with disabilities “a [FAPE] which emphasizes special education and related services
designed to meet their unique needs [and] to assure that the rights of [such] children and their
parents or guardians are protected.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009)
(alteration in original) (quotation omitted). See also D.L. by Landon v. St. Louis City Sch. Dist.,
950 F.3d 1057, 1064 (8th Cir. 2020) (“D.L. by Landon”) (“Schools receiving federal funding
must provide qualifying disabled children with a FAPE tailored to meet the unique needs of the
disabled child.”). A FAPE “consists of educational instruction specially designed to meet the
unique needs of the handicapped child, supported by such services as are necessary to permit the
child ‘to benefit from the instruction.’” Parrish v. Bentonville Sch. Dist., 896 F.3d 889, 894 (8th
Cir. 2018) (quoting Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v.
Rowley, 458 U.S. 176, 188-89 (1982) (“Rowley”)).
The IDEA creates a system of procedural protections to ensure that parents, teachers, and
local education agencies work together to provide an appropriate education for children with
disabilities. See 20 U.S.C. § 1415; Powers v. Indiana Dep’t of Educ., Div. of Special Educ., 61
F.3d 552, 553 (7th Cir. 1995). The IDEA’s procedural requirements protect “the rights of
children with disabilities and their parents or guardians,” 20 U.S.C. § 1400(c), by ensuring that
“those individuals who have first-hand knowledge of the child’s needs and who are most
concerned about the child [are] involved in the IEP creation process.” Amanda J. ex rel. Annette
J. v. Clark Cty. Sch. Dist., 267 F.3d 877, 891 (9th Cir. 2001). See also Rowley, 458 U.S. at 20506 (discussing the significance of the IDEA’s “elaborate and highly specific procedural
safeguards”). A violation of the IDEA’s procedural requirements denies a student a FAPE if it
“result[s] in loss of educational opportunity or seriously deprive[s] parents of their participation
15
rights[.]” Brown v. Des Moines Indep. Cmty. Sch. Dist., No. 4:05-CV-686, 2008 WL 11422059,
at *7 (S.D. Iowa Dec. 5, 2008). See also Lathrop R-II Sch. Dist. v. Gray, 611 F.3d 419, 424 (8th
Cir. 2010).
As an initial matter, the Court considers the District’s claim that the AHC erred in finding
the District committed a procedural violation because “there was no allegation in the amended
due process complaint that [Grandmother] had been denied the opportunity to participate in the
evaluation.” [ECF No. 64 at 20] Grandmother maintains that she sufficiently raised the issue of
a procedural violation by alleging in her due process complaint that the District denied Student a
FAPE when it failed to assess him for an OHI. [ECF No. 73; see also ECF No. 60]
Pursuant to the IDEA, a party seeking judicial review must have exhausted
“administrative remedies with regard to the issues upon which [he or she] seeks judicial review.”
Blackmon, 198 F.3d at 655. See also 20 U.S.C. § 1415(i)(2)(A) (stating that a party aggrieved
by the due process hearing panel’s decision has the right to bring a civil action “with respect to
the complaint presented”). Any claim not “submit[ted] ... for the hearing panel’s determination
... is barred unless an exception to the exhaustion rule applies.”13 Blackmon, 198 F.3d at 656.
The purpose of the exhaustion requirement is “to allow[] for the exercise of discretion and
educational expertise by state and local agencies…” Handberry v. Thompson, 446 F.3d 335, 344
(2d Cir. 2006) (quotation omitted).
In support of its position that the AHC lacked authority to consider the parental
participation claim, the District cites K.E. v. Indep. Sch. Dist. No. 15, No. 09-2433 JNE/FLN,
“There are three exceptions to the exhaustion requirement in the IDEA context: (1) futility;
(2) inability of the administrative remedies to provide adequate relief; and (3) the establishment
of an agency policy or practice of general applicability that is contrary to law.” Nelson v.
Charles City Cmty. Sch. Dist., 900 F.3d 587, 593 (8th Cir. 2018) (internal quotations omitted).
Grandmother does not argue that any of the exceptions to the exhaustion requirement apply.
13
16
2010 WL 2132072 (D. Minn. May 24, 2010), aff’d 647 F.3d 795 (8th Cir. 2011). There, the
court found that the administrative law judge (ALJ) incorrectly restated the plaintiff’s claims to
such an extent that they did not correspond to the claims set forth in the amended due process
complaint. Id. at 15-16. As a result, the ALJ “decide[d] issues not raised by the parties.” 14 Id.
at *16.
Significantly, in response to the school district’s motion for judgment on the
administrative record, the plaintiff did “not identify any allegations in her amended due process
complaint that correspond to the restated issues.” Id. The court reversed the ALJ’s decision
insofar as it found that the school district committed errors that the plaintiff did not identify in
the amended due process complaint. Id.
The instant case is distinguishable because the amended due process complaint alleged
the procedural violation at issue here – namely, the District’s failure to assess Student for OHI.
In the amended due process complaint, Grandmother claimed that, despite ample evidence that
Student satisfied the criteria for OHI, the District “failed to appropriately consider th[is]
eligibility categor[y.]” [R. at 116, 118] Grandmother further argued that “since the District
should have found [Student] eligible but failed to do so, the District denied him a FAPE.” [Id. at
120] The AHC agreed that the District “did not assess Student for OHI by considering whether
his ADHD adversely affected his education” and concluded that “[t]his omission constitutes a
procedural violation of the IDEA initial evaluation requirements.” [ECF No. 1-1 at 26] Cf.
Blackmon, 198 F.3d at 655 (district court erred in finding that school district deprived the
parents of their procedural rights because parents expressly waived any procedural claims at the
due process hearing).
14
For example, the ALJ expanded a claim that the district disregarded recommendations made
by the student’s treating psychiatrist to allege that the district disregarded two IEEs and
information provided by the student’s parents. K.E., 2010 WL 2132072, at *15-16.
17
Having found that the District violated the IDEA’s procedural requirements, the AHC
considered whether this procedural violation resulted in a denial of FAPE. As previously
discussed, a procedural violation results in a denial of FAPE if it either: (1) causes the loss of
educational opportunity; or (2) seriously deprives parents of their participation rights. See
Lathrop R-II Sch. Dist., 611 F.3d at 424. Because the question of parental participation is a
factor courts consider in the course of the IDEA procedural violation analysis, Grandmother
sufficiently raised the issue when she alleged that the District’s failure to evaluate Student for
OHI denied him a FAPE.15 The Court therefore finds that the AHC did not err in considering the
issues of procedural and parental-participation violations because Grandmother alleged that the
District’s failure to assess Student for OHI denied him a FAPE.
The District contends that, even if this issue was properly before the AHC, the AHC
erred in finding it violated the IDEA’s procedural requirements by failing to assess Student’s
OHI eligibility in April 2015. The District acknowledges that the April 2015 evaluation report
did not analyze the OHI criteria, but it argues Student “was assessed with respect to OHI
eligibility” because “information was gathered regarding the impact of [Student’s] ADHD[.]”
[ECF No. 64 at 22] Grandmother counters that the “District’s allegation that OHI was discussed
by the eligibility team in April 2015 has no basis in the record.” [ECF No. 73 at 5]
To be eligible for special education services under the IDEA, a student must first be a
“child with a disability” as defined in 20 U.S.C. § 1401(3)(A). Indep. Sch. Dist. No. 283 v.
E.M.D.H., 960 F.3d 1073, 1080 (8th Cir. 2020). The statute recognizes thirteen categories of
See, e.g., C.F. ex rel. R.F. v. New York City Dep’t of Educ., 746 F.3d 68, 78 (2d Cir. 2014)
(arguments not directly raised in the due process complaint are not necessarily foreclosed so long
as: (1) the due process complaint “provided fair notice” to the school district of the argument at
issue; (2) the commission “reached the issue on the merits, giving [the district court] a record for
review”; or (3) the argument goes to “the heart of th[e] dispute.”)
15
18
IDEA-eligible disabilities, including OHI. Hansen v. rel. J.H. v. Republic R-III Sch. Dist., 632
F.3d 1024, 1026 (8th Cir. 2011). OHI means “having limited strength, vitality, or alertness,
including a heightened alertness to environmental stimuli, that results in limited alertness with
respect to the educational environment” that: (1) “is due to chronic or acute health problems
such as … attention deficit hyperactivity disorder.…”; and (2) “adversely affects a child’s
educational performance.”16 34 C.F.R. § 300.8(c)(9) (emphasis added). See also E.M.D.H., 960
F.3d at 1081; Hansen, 632 F.3d at 1027.
The first step in determining whether a child is eligible for special education services
under the IDEA is to provide a child who is suspected of having a disability with an appropriate
evaluation. See 34 C.F.R. § 300.8(a)(1)-(2). Either a child’s parent or guardian or the school
district “may initiate a request for an initial evaluation to determine if the child is a child with a
disability.” 20 U.S.C. § 1414(a)(1)(B). Importantly, the IDEA requires that the school district
“ensure that ... the child is assessed in all areas of suspected disability.”
20 U.S.C. §
1414(b)(3)(B).
Student was diagnosed with ADHD in March 2015. In April 2015, the eligibility team
completed a fourteen-page “Initial Psycho-educational Report.” [R. at 1064-77] The report
contained:
summaries of the information collected at the February 2015 RED meeting;
behavioral observations; and results of various tests including, among others, the Behavior
Assessment System for Children-Second Edition (BASC-2), Wechsler Intelligence Scale for
Children – Fourth Edition (WISC-IV), and the Young Children’s Achievement Test (YCAT).
Pursuant to the State Plan, a child displays an OHI when: (1) “[a] health impairment has been
diagnosed by a licensed physician, licensed psychologist, licensed professional counselor,
licensed clinical social worker, or school psychologist”; and (2) “[t]he health impairment
adversely affects the child’s educational performance.” Missouri State Plan for Special
Education, Regulation III(B).
16
19
The eligibility team concluded:
[Student’s] intellectual functioning is in the Low Average range on the WISCIV (FSIQ=83) with ability being evenly developed. Achievement in all areas
is at grade level and near expectation relative to cognition. Rating scales
completed by [Student’s kindergarten teacher] and [Grandmother] suggest
there are some concerns in the areas of Hyperactivity, Aggression, and
Conduct Problems in the learning environment….
[Tr. at 1076]
The evaluation report considered the eligibility criteria and concluded that, based on the
results of the evaluation, Student did not have an intellectual disability, which required
intellectual functioning “two or more standard deviations below the mean and adaptive behavior
[that] is commensurate with intellectual functioning.” [R. at 1076] Next, the evaluation report
stated that Student was not eligible for a diagnosis of specific learning disability because his
“achievement [was] commensurate with cognition….Although [Student] does have a diagnosis
of ADHD, he has the ability to learn in a[n] educational setting.” [Id.]
Finally, the evaluation
report concluded that there was insufficient evidence to diagnose Student with an emotional
disorder and Student did not have a language impairment because his language “score [was]
commensurate with cognitive ability.” [Id.] The report did not reference or analyze the OHI
criteria, and the District admitted that “OHI was not considered.” [ECF Nos. 60-1 at ¶ 23, 78 at
¶23]
The District argues that, despite the absence of a formal OHI analysis, Student “was
assessed with respect to OHI eligibility” because the District gathered information about the
impact of Student’s ADHD in that: (1) the eligibility team discussed the effect of Student’s
medications on his behavior; and (2) the BASC-2 provided information relating to the impact of
20
ADHD.17 [ECF No. 64 at 22]
Contrary to the District’s argument, the record contains no evidence that the eligibility
team discussed the effects of Student’s medications on his behavior at the April 2015 meeting.
The April 2015 evaluation report stated that Student had a medical diagnosis of ADHD and
began taking Adderall in March 2015, but it did not mention the effects of Student’s medication
on his behavior.
In regard to the results of the BASC-2 completed by Grandmother and
Student’s kindergarten teacher, the evaluation did not discuss which areas of concern, if any,
were attributable to Student’s ADHD and how those problems affected Plaintiff’s educational
performance. Simply collecting evidence potentially related to a student’s ADHD does not
demonstrate that the school district “assessed [the student] in all areas of suspected disability.”18
Finally, the District argues that the AHC’s finding that the procedural violation denied
Grandmother the right to participate was “based solely on speculation about what [Grandmother]
‘could certainly have’ done.” [ECF No. 64 at 22] The Court finds, however, that in light of
Student’s ADHD diagnosis and history of disruptive behavior and poor academic performance,
the AHC’s conclusion did not require speculation.19 The AHC reasonably determined that, if the
According to the evaluation report, the BASC-2 is a “general rating scale designed to assess
emotional and behavioral characteristics in a variety of areas including externalizing (acting-out,
disruptive), internalizing (affect, emotional distress), and adaptive (positive, pro-social)
behavioral patterns.” [R. at 1067] Grandmother and Student’s kindergarten teacher, Ms. Dubbs,
completed the BASC-2 in March 2015. [R. at 1068] Grandmother’s and Ms. Dubbs’ scores
placed Student in the “clinically significant” range in the areas of hyperactivity, aggression,
attention problems, depression, and atypicality. [R. at 1069]
18
The Court also notes that the District’s psychological examiner testified at the AHC hearing
that she noted ADHD in the evaluation report, but she could not recall why she did not analyze
OHI. [R. at 524]
19
Indeed, the evaluation report stated that Student’s kindergarten teacher reported: “[Student]
uses profanity, hits with belts, and will throw objects. [Student] is considered to be a bully in the
classroom. He has difficulty … interacting with peers and making friends. [Student] previously
had attention concerns with running out of the classroom.” [R. at 1065] Likewise, according to
the evaluation report, Grandmother expressed “more than a mild concern” about the following
17
21
District had explored the question of whether Student’s ADHD adversely affected his
educational performance, Grandmother would have been able to provide insight into this issue.
See E.M.D.H., 960 F.3d at 1081, 1082 (school district failed to properly evaluate the student for
OHI where the “preponderance of the evidence in the administrative record” showed that the
student “suffers from ‘limited … vitality’ and ‘a heightened alertness to environmental stimuli’
that are ‘due to chronic or acute health problems,’ including ADHD, all of which are symptoms
of ‘other health impairments’”); Hansen, 632 F.3d at 1027-28 (student with ADHD met the
eligibility requirements for OHI where father presented evidence that students’ impulsivity and
inattention adversely affected his educational performance and the district “fail[ed] to cite any
evidence in the record that ADHD [did] not adversely affect” his educational performance).
The AHC did not err in finding that the District prevented Grandmother from fully
participating in the IDEA process when, without considering the OHI criteria, it determined that
Student was not eligible for special education. See Indep. Sch. Dist. No. 413, Marshall, v.
H.M.J. ex rel. A.J., M.N., 123 F.Supp.3d 1100, 1111 (D. Minn. 2015) (failure to consider the
“other health disability” criteria prevented parents from fully participating in the process). As
the AHC explained in its decision, if the District had properly evaluated Student for OHI,
Grandmother “could certainly have participated [] and provided additional information for the
IEP team.” [ECF No. 1-1 at 26-27] The Court finds that the administrative record supports the
AHC’s ruling that the District failed to evaluate Student for OHI and this procedural violation
behaviors:
“yelling out during class, hitting other students, does not remain in
seat/line/classroom, defies authority, curses, stands on tables/chairs, extremely hyperactive with
short attention span, and inappropriate sexual behaviors during class.” [R. at 1066] Consistent
with Grandmother’s and the teacher’s observations, the examiners noted that, during testing,
Student was “at times…uncooperative and had to be redirected,” “was very impulsive and
appeared antsy and distracted during testing,” and “wander[ed] around the testing room or
crawl[ed] on the floor.” [R. at 1067, 1074]
22
resulted in a denial of FAPE.
3. Child-Find Violation (November 2016)
The District claims the AHC erred in finding that the District violated its child-find
obligation by failing to evaluate Student after receiving the IEE in November 2016. [ECF No.
64] More specifically, the District argues that the AHC erred in: (1) finding that the IEE was the
sole basis for the District’s eligibility determination in March 2017; (2) failing to consider the
evidence “in the context of [Student’s] life at the time”; and (3) failing to consider the IDEA’s
evaluation timelines. Grandmother urges the Court to uphold the AHC’s determination because
“ample evidence was presented at [the] hearing to support the AHC’s finding that the District
denied [Student] a FAPE beginning in November 2016. [ECF No. 60]
“In order that all children with disabilities may receive a FAPE, the IDEA imposes a
‘child find’ obligation on school districts.” Indep. Sch. Dist. No. 283 v. E.M.D.H. by and
through L.H., 357 F.Supp.3d 876, 888 (D. Minn. 2019) (citing 20 U.S.C. § 1412(a)(3)) (aff’d in
relevant part E.M.D.H., 960 F.3d at 1083). Pursuant to this obligation, districts have a duty to
ensure that:
All children with disabilities residing in the State ... regardless of the severity of
their disabilities, and who are in need of special education and related services,
are identified, located, and evaluated and a practical method is developed and
implemented to determine which children with disabilities are currently receiving
needed special education and related services.
20 U.S.C. § 1412(a)(3)(A). This provision imposes an affirmative duty on school districts to
“identify, locate, and evaluate all children with disabilities … to ensure that they receive needed
special-education services.” Forest Grove Sch. Dist., 557 U.S. at 245 (internal quotation marks
and brackets omitted).
Once a child is identified as potentially having a disability, the school district “shall
23
conduct a full and individual initial evaluation” to determine whether the child has a disability.
20 U.S.C. § 1414(a)(1)(A). “An unreasonable delay in complying with this duty ‘may constitute
a procedural violation of the IDEA.’” Krawietz by Parker v. Galveston Indep. Sch. Dist., 900
F.3d 673, 676 (5th Cir. 2018) (quoting D.K. v. Abington Sch. Dist., 696 F.3d 233, 249-50 (3d
Cir. 2012)).
In this case, Grandmother informed the District in March 2016 that she did not agree with
its IDEA eligibility determination and requested an IEE. When a parent or guardian “obtains an
[IEE] at public expense or shares with the public agency an evaluation obtained at private
expense, the results of the evaluation … [m]ust be considered by the public agency … in any
decision made with respect to the provision of FAPE to the child[.]” 34 C.F.R. § 300.502(c)(1).
See also Dallas Indep. Sch. Dist. v. Woody, 865 F.3d 303, 317 (5th Cir. 2017) (failure to
reconvene IEP team to consider IEE resulted in denial of FAPE).
The IEE, completed by the Miriam Learning Center in September 2016, revealed that
Student’s “academic skills are severely depressed with skills at the kindergarten level across the
board.”
[R. at 1092]
The IEE evaluated Student in the areas of cognition, academic
achievement, basic reading, social/emotional behavior, and executive functioning. According to
the IEE, Student’s reading ability ranked in the “poor” range, with an overall score in the 4th
percentile. The Stanford-Binet Intelligence Scales Fifth Edition showed that Student’s full-scale
IQ score was 88, with significant scatter among the five subtests due to “inconsistent visual and
auditory attention to details.” [Id.]
The IEE also analyzed the results of BASC-3 scales
completed by Grandmother and Student’s second-grade teacher, who “both reported problems
related to hyperactivity, aggression, conduct, depression, attention, and withdrawal resulting in
Behavior Symptom Index scores of 79 to 99 in the ‘Significant’ range.” [Id.]
24
Grandmother provided the IEE to Peabody’s school counselor, Ms. Harris, in November
2016, and Ms. Harris forwarded it to the principal and the District’s psychological examiner.20
The District does not dispute that, despite its receipt of the IEE in November 2016, the District
neither formally reviewed the IEE nor scheduled a meeting to consider the IEE until March 6,
2017, the date the District convened a RED meeting in response to Grandmother’s due process
complaint. [ECF Nos. 60-1 at ¶ 45, 78 at ¶ 45]
In its decision, the AHC found that the District violated its child-find obligation when it
received the IEE in November 2016 but failed to reevaluate Student. The AHC reasoned that the
IEE, which served as the basis for Student’s March 2017 ED diagnosis and eligibility
determination, in combination with Student’s escalating behavioral problems,21 placed the
District on notice that Student suffered a disability. The AHC concluded: “Given the clear
sufficiency the District found in the IEE report and the behavioral cues Student presented, we
find that [the] District ignored clear evidence of Student’s ED and therefore violated the IDEA’s
child find requirement resulting in a denial of FAPE.” [Id. at 29-30]
The District challenges the AHC’s suggestion that the District based its March 2017
eligibility determination solely on the IEE. The District contends: “While it is true that the
eligibility team determined on March 6, 2017, that it was not necessary to conduct any additional
assessments of [Student], it is not true that the team relied solely on information contained in the
IEE to reach its conclusion[.]” [ECF No. 64 at 24] According to the District, “key information
… when making the eligibility determination in 2017 was information provided by school
At the AHC hearing, the District’s psychological examiner stated that she did not review the
IEE because she was told that Grandmother had not requested a new IDEA evaluation. [R. at
257]
21
Student’s escalating behavior problems included “a homicidal threat that resulted in Student’s
hospitalization and repeated incidents of eloping, destroying items in the school, fighting
classmates, throwing rocks at classmates, and other threatening behaviors.” [ECF No. 1-1 at 29]
20
25
personnel[.]” [Id.]
Plaintiff acknowledges that the eligibility team relied on anecdotal information, as well as
the IEE, when completing the March 2017 eligibility determination and evaluation report.
Plaintiff argues, however, that this fact does not excuse the District’s failure to consider the IEE
and initiate the evaluation process before March 2017. The Court agrees. Even if the AHC
overstated the IEE’s eligibility team’s reliance on the IEE, the fact remains that, under the
regulations, a school district “must” consider an IEE and the District failed to do so until
Grandmother filed the due process complaint months later. The IEE, in combination with
Student’s academic and disciplinary records, triggered the District’s duty to evaluate Student and
determine whether he qualified for special education services under the IDEA.
Next, the District claims that the AHC erred in finding that the District violated the
IDEA’s child-find obligation because the AHC “failed to consider the evidence in the context of
[Student’s] life at the time.”22 [ECF No. 64 at 25] More specifically, the District argues that the
death of Student’s uncle in August 2016 was of “critical importance … to the question of
[Student’s] IDEA eligibility” because:
(1) the end of Student’s previous school year was
“relatively successful”; and (2) under the State Plan, children with “transient symptoms due to a
specific crisis or stressful experience are not considered to have an emotional disturbance.”
23
[ECF No. 64 at 26 (quoting State Plan at 26)] Grandmother counters that, given the District’s
failure to raise the issue of the uncle’s death when determining Student’s eligibility in March
22
Neither party challenges the appropriateness of the March 2017 determination that Student
satisfied the criteria for ED.
23
Additionally, the State Plan provides that “the characteristic(s) [of an emotional disturbance]
must have existed to a marked degree and over an extended period of time. In most cases, an
extended period of time would range from two (2) through nine (9) months.” State Plan, Reg.
III, at 26. See also 34 C.F.R. § 300.8(c)(4)(i) (to qualify as a child with an ED, the child must
exhibit characteristics of ED “over a long period of time”).
26
2017, “it is disingenuous to expect the AHC to do so.” [ECF No. 73 at 10]
The District identifies no evidence in the record supporting the District’s suggestion that
it did not review the IEE and evaluate Student until March 2017 because it attributed Student’s
academic and behavioral problems to his uncle’s death.
To the contrary, the District’s
psychological examiner testified before the AHC that the District did not review the IEE in
November 2016 because Grandmother had not formally requested another evaluation.
Furthermore, the record establishes that, but for a brief period of improvement in Spring 2016,
Student’s characteristics of ED existed to a marked degree and for an extended period of time.
Under these circumstances, the Court finds that the AHC did not err in failing to consider
Student’s life events when it determined that the District violated its child-find obligation.
Finally, the District argues that, even if it had reason to suspect that Student had an IDEA
disability and a corresponding obligation to initiate the evaluation process, the District acted
within the timelines provided in the State Plan. According to the District, the State Plan provides
a school district “120 days from the date of a referral to complete an evaluation and to develop
an initial IEP.” [ECF No. 64 at 26] The District states: “Taking into consideration days when
school was not in session … the District completed an initial IEP for [Student] within the 120day timeline.”24 [Id. at 27] In response, Grandmother argues that, even if the Court considered
the District’s “120-day timeline argument, it does not support the District’s contention that it
considered the IEE within a reasonable time.” [ECF No. 73 at 12]
Pursuant to the State Plan, a school district “shall provide the parent with a Notice of
Intent to Evaluate as soon as possible, but within thirty (30) calendar days of the date of referral
24
With its motion for judgment on the administrative record, the District submitted a copy of its
2016-2017 school calendar. [ECF No. 64-1] Plaintiff objects to the introduction of new
evidence at this stage of the litigation without “a solid justification.” Because the Court does not
apply the 120-day timeline, it will not resolve this issue.
27
for evaluation.”
State Plan, Regulation III, at 34. The school district must complete the
evaluation and render an eligibility decision “within sixty (60) calendar days following consent
or notice[.]” Id. If the school district determines that the student needs special education and
related services, it must “ensure that a meeting to develop an IEP is conducted within thirty (30)
days….” State Plan, Regulation IV, at 53.
The issue in this case is not only the amount of time that elapsed between the referral
(receipt of the IEE)25 and the IEP meeting, but the fact that the District did not, upon receiving
the IEE, initiate the process required by the regulations and the State Plan. Despite receiving the
IEE In November 2016, the District took no appreciable steps toward complying with its childfind obligation until Grandmother filed the due process complaint in February 2017.
See
Krawietz, 900 F.3d at 677 (four-month delay in conducting evaluation was unreasonable
because, during that time period, the school made no effort to comply with the IDEA and did not
seek consent to conduct the evaluation until student’s family requested a due process hearing).
Based on the above, the Court concludes that the AHC did not err in finding that the District
violated its child-find obligation resulting in a denial of FAPE.
4. Compensatory services
In response to Grandmother’s motion for judgment on the administrative record, the
District argues that the record did not support the AHC’s award of compensatory services. [ECF
No. 71 at 14] More specifically, the District argues that the testimony of Ms. Kennedy, Miriam
Learning Center’s school psychological examiner who completed Student’s IEE, “showed that
she had virtually no basis for connecting [Student’s] delays in reading and math to the limited
25
See e.g., Hupp v. Switzerland of Ohio Local Sch. Dist., 912 F.Supp.2d 572, 590-91 (S.D. Ohio
2012) (letter from the student’s psychologist was the “triggering event in terms of conducting an
initial evaluation”).
28
failure by the District to timely provide a [FAPE] to [Student.]” [Id.]
Notably, the District
provides no authority supporting its position that, to receive an award of compensatory services,
a student must demonstrate that the District’s IDEA violations caused his or her academic
delays. Grandmother asserts that Ms. Kennedy’s expert testimony and the IEE provided a
sufficient basis to support the compensatory services award. [ECF No. 76 at 12]
“[O]rdering compensatory educational services is appropriate relief under the IDEA for
the denial of a FAPE because such relief is necessary to secure the child’s right to a FAPE.”
Reese ex rel. Reese v. Bd. of Educ. of Bismarck R-V Sch. Dist., 225 F.Supp.2d 1149, 1164 (E.D.
Mo. 2002) (citing Miener by and through Miener v. State of Mo., 800 F.2d 749, 754 (8th Cir.
1986)). “A disabled student’s right to compensatory education accrues when the school knows
or should know that the student is receiving an inappropriate education.” D.K., 696 F.3d at 249
(quotation omitted).
The AHC awarded Student “the equivalent to four months of compensatory education in
math and reading for failure to evaluate him for ED upon receiving the IEE.” [ECF No. 1-1 at
30] The award of four months’ compensatory services represents the period of time, beginning
in November 2016, when the District denied Student a FAPE. The Court finds this award is an
appropriate remedy in this matter. See N.L. ex rel. Lordo v. Special Sch. Dist. of St. Louis Cty.,
No. 4:08-CV-1804 CEJ, 2010 WL 1170044, at *13 (E.D. Mo. Mar. 23, 2010).
B. Motions for Summary Judgment on Grandmother’s Complaint for Attorney
Fees
Both parties move for summary judgment on Grandmother’s complaint for attorney fees.
Grandmother claims that she is entitled to attorney fees and costs because she was the
29
“prevailing party” in the AHC proceeding.26 [ECF No. 60] In her complaint for attorney fees
and costs, Grandmother seeks compensation for counsel’s representation of Student at the
administrative level and time spent preparing the fee request.27 [ECF No. 1] More specifically,
Grandmother requests an award based on 376.4 hours of attorney time28 at the rate of $300.00
per hour, plus costs of $1,169.9529, for a total of $114,089.95. In her motion for summary
judgment, Grandmother requests an additional $48,090 for 160.3 hours spent litigating the case
in this Court. [ECF No. 60]
The District contests both Grandmother’s right to a fee award and the amount requested.
In its motion for summary judgment, the District asserts that Grandmother is not entitled to
attorney fees because she unreasonably protracted resolution of the matter by filing the due
process complaint before requesting that the District reevaluate Student’s IDEA eligibility.
[ECF No. 66] In its response to Grandmother’s motion for summary judgment, the District
26
In the WHEREFORE clause of her complaint for attorney fees, Grandmother also requests
“prejudgment interest associated with bringing this action[.]” [ECF No. 1] However,
Grandmother pleaded neither allegations nor claims in the complaint to support an award of
prejudgment interest for attorney fees. See Peitzman v. City of Illmo, 141 F.2d 956, 962 (8th
Cir. 1944) (“[T]he prayer for relief is in fact no part of the claim or cause of action.”). Nor did
Grandmother present any legal authority or argument to support such an award. The Eighth
Circuit has not determined whether prejudgment interest for attorney fees is available under the
IDEA and, as other districts have noted, this remains an “open question.” See T.B. v. San Diego
Unified Sch. Dist., 293 F.Supp.3d 1177, 1207 (S.D. Cal. 2018); McAllister v. District of
Columbia, 160 F.Supp.3d 273, 277 n.1 (D. D.C. 2016). But see Williams by and through
Williams v. Fulton Cty. Sch. Dist., 717 Fed.Appx. 913, 918 (11th Cir. 2017) (IDEA does not
provide prejudgment interest for attorney fees because it allows reasonable attorney fees “as part
of the costs,” 20 U.S.C. § 1415(i)(3)(B)(i), and the United States Supreme Court considers
prejudgment interest damages rather than costs). Because Grandmother makes no argument and
cites no authority for the proposition that she could or should recover interest under the IDEA,
the Court does not address this request.
27
“Time spent preparing fee applications is generally compensable[.]” El-Tabech v. Clarke, 616
F.3d 834, 843-44 (8th Cir. 2010).
28
Margaret LaMore requests compensation for 264 hours, and Michelle Weltman requests
compensation for 112.4 hours. [ECF Nos. 1, 1-2]
29
The District does not contest the amount of costs sought by Grandmother.
30
argues that Grandmother was not the prevailing party because the relief the AHC awarded “did
not materially alter the relationship between the parties by modifying the District’s behavior in a
way that benefited [Student]” and Grandmother “did not receive most of the relief she sought.”
[ECF No. 71 at 3, 5] The District further argues, in the alternative, that the Court should reduce
the Grandmother’s fee award because her counsel’s hourly rates and hours worked on this matter
were excessive. [Id. at 7-9]
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The movant “bears the initial responsibility of informing the district court of the basis for
its motion” and must identify “those portions of [the record] ... which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant meets its burden, the non-movant must set forth specific facts, by affidavit or other
evidence, showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e); Gannon
Int’l, Ltd. v. Blocker, 684 F.3d 785, 792 (8th Cir. 2012). A party moving for summary judgment
on legal fees under the IDEA must demonstrate prevailing party status and the reasonableness of
the fees requested in terms of hours spent and hourly rate. See 20 U.S.C. § 1415(i)(3).
1. Unreasonably Protracted Resolution
The Court first considers the District’s claim that it is entitled to summary judgment on
Grandmother’s complaint for attorney fees because Grandmother unreasonably protracted
resolution of the matter by failing to request the District evaluate Student before filing the due
process complaint. [ECF No. 66] The District maintains that Grandmother denied it notice and
an opportunity to resolve the dispute and suggests that Grandmother rejected the District’s
settlement offer “solely because of a desire … to obtain attorney’s fees.” [Id. at 3] In response,
31
Grandmother asserts that the District “was well aware of [Grandmother’s] concerns and had
every opportunity to remedy those concerns prior to the filing of the Due Process Complaint.”
[ECF No. 72 at 3] She further asserts “a parent is substantially justified in rejecting a school
district’s proposed settlement offer … if it does not include reasonable attorney’s fees.” [Id. at 5]
Section 1415(i)(3)(B) governs the award of attorney fees in actions to enforce IDEA
rights. The statute provides, in relevant part: “… the court, in its discretion, may 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). However, “whenever the court finds that the
parent, or the parent’s attorney, during the course of the action or proceeding, unreasonably
protracted the final resolution of the controversy … the court shall reduce, accordingly, the
amount of the attorneys’ fees awarded….” 20 U.S.C. § 1415(i)(3)(F)(i). See also Neosho R-V
Sch. Dist. v. Clark, 315 F.3d 1022, 1030 (8th Cir. 2002).
The Eighth Circuit has recognized the “conflicting policy concerns [that] must be
carefully balanced” when awarding attorney fees under the IDEA. Johnson v. Bismarck Pub.
Sch. Dist., 949 F.2d 1000, 1003 (8th Cir. 1991). “On the one hand, procedural safeguards,
including those ensuring meaningful parent participation in the decision-making process, are a
major component of [the IDEA].” Id. at 1004. “On the other hand, … needless litigation
frustrates the [IDEA’s] objectives by fostering delay, exacerbating ill-will among parties who
should cooperate in educating the handicapped child, and wasting the resources of all
concerned.” Id. Therefore, the Eighth Circuit stated that a school district “should be [put] on
notice of disagreements and given an opportunity to make a voluntary decision to change or alter
the educational placement of a handicapped child” and litigation should not be “continued…in
an extensive and expansive fashion after… plaintiffs [achieve] most, if not all, of the substantial
32
results they seek.” Id. (alteration in original) (internal quotations omitted).
In support of its argument that Grandmother is not entitled to attorney fees, the District
relies on Johnson, 949 F.2d 1000. In that case, after the school district implemented an IEP for
the student, the parent became “upset about the adequacy of [the student’s] educational services
and the [school district’s] responsiveness to her concerns.” Id. at 1001. The school district
demonstrated a willingness to revisit the IEP, but the parent and her attorney failed to participate
in the IEP meetings and, without communicating to the district the type of relief the parent
desired, filed a due process complaint.
Id. at 1002.
After the parties entered a consent
agreement, the district court denied the parent’s complaint for attorney fees because “neither [the
parent] nor her attorney made an effort to resolve the matter or articulate [her] requests to the
[school district] prior to filing the due process complaint.” Id. at 1002. In affirming the denial of
attorney fees, the Eighth Circuit noted that the district court “was in the best position to evaluate”
whether the school district “had been recalcitrant in recognizing [the parent’s] rights until her
attorney appeared on the scene and filed the due process complaint, or whether the attorney
frustrated the statute’s purpose by withholding efforts at meaningful cooperation until formal
litigation was commenced.” Id. at 1004 (emphasis in original).
Unlike the parent in Johnson, Grandmother did not withhold efforts at meaningful
cooperation. Rather, this case resembles the alternative scenario recognized in Johnson, where
the District was “recalcitrant in recognizing” Grandmother’s rights until her attorneys filed a due
process complaint. Because Grandmother did not unreasonably protract the final resolution by
filing the due process complaint, the Court denies the District’s motion for summary judgment.
2. Prevailing Party
Turning to Grandmother’s motion for summary judgment, the Court first must determine
33
whether Grandmother was the prevailing party at the administrative level. Grandmother asserts
that she is the prevailing party because “the AHC order for compensatory services and other
relief materially altered the relationship between the parties and directly benefited [Student].”
[ECF No. 60 at 7] In response, the District argues Grandmother was not the prevailing party
because:
(1) Student had not accessed the compensatory services; (2) Grandmother never
requested a functional behavioral assessment and she did not materially benefit from the AHC’s
order to convene an IEP meeting; and (3) Grandmother did not receive most of the relief she
sought. [ECF No. 71]
The IDEA permits a court, in its discretion, to award reasonable attorney fees as part of
the costs to “a prevailing party who is the parent of a child with a disability.”30 20 U.S.C. §
1415(i)(3)(B)(i). “A litigant is a ‘prevailing party’ if he obtains ‘actual relief on the merits of his
claim [that] materially alters the legal relationship between the parties by modifying the
defendant’s behavior in a way that directly benefits the plaintiff.’” Birmingham v. Omaha Sch.
Dist., 298 F.3d 731, 734 (8th Cir. 2002) (alteration in original) (quoting Farrar v. Hobby, 506
U.S. 103, 111-12 (1992)). “A party does not need to succeed on the entirety of the litigation to
be considered the prevailing party under the IDEA; ‘[a] party prevails if it succeeded on any
significant issue which achieved some of the benefit it sought.’” Artichoker v. Todd Cty. Sch.
Dist., No. 3:15-CV-3021-RAL, 2017 WL 2495197, at *2 (D. S.D. June 9, 2017) (alteration in
original) (quoting Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1377 (8th Cir. 1996)).
In the first amended due process complaint, Grandmother claimed the District denied
Student a FAPE and violated its child-find duties by failing to find Student eligible for special
The statute further provides: “Fees awarded under this paragraph shall be based on rates
prevailing in the community in which the action or proceeding arose for the kind and quality of
services furnished.” 20 U.S.C. § 1415(i)(3)(C).
30
34
education services and develop an IEP until March 2017. [R. at 116] Grandmother requested
the “District to provide compensatory services, such as academic tutoring, counseling, and social
skills training, to make up for the District’s delay in finding [Student] eligible under the IDEA
and the resulting harm, attorney’s fees, and for such other and further relief as may be just and
proper.” [R. at 123]
The AHC found that the District:
(1) denied Grandmother the opportunity to
meaningfully participate in the IEP process by failing to evaluate Student for OHI in April 2015;
and (2) violated its child-find obligation when it failed to reevaluate Student shortly after
receiving the IEE in November 2016. [ECF No. 1-1] In regard to the District’s April 2015
procedural violation, the AHC ordered the District to evaluate Student for OHI. [Id. at 30] As to
the District’s violation of its child-find obligation in November 2016, the AHC ordered the
District to provide Student “the equivalent of four school months of education in math and
reading,” or “at least 88 hours of education in math and 88 hours in reading.” [Id.] Additionally,
the AHC specified that Student’s compensatory education “shall include the recommendations
contained in the IEE, including a functional behavior assessment, preferential seating, instruction
in math and reading, and a research-based early intervention reading program.” [Id.]
The AHC determined that the District’s child-find violation denied Student a FAPE for
approximately four months and granted Student four months’ compensatory educational services
in math and reading. See Miener, 800 F.2d at 753 (ordering compensatory educational services
is appropriate relief under the IDEA for the denial of a FAPE). The AHC altered the legal
relationship between the parties by requiring the District to provide Student compensatory
services and granting Student a legal right previously denied him by the District.
See
Birmingham, 298 F.3d at 734 (“This right to compensatory education suffices to make [the
35
plaintiffs] a ‘prevailing party’ entitled to attorneys’ fees.”). Student “would be directly benefited
by such compensatory education, since it would repair the harm [he] suffered from being
deprived of [his] educational rights.”31 Id. The Court therefore finds that Grandmother was the
prevailing party.32
3. Reasonable Attorney Fees
Having found that Grandmother was the prevailing party at the administrative proceeding
below, the Court must consider whether the amount of attorney fees sought is reasonable.
Grandmother’s counsel submitted declarations and itemized billing statements in support of the
motion seeking $161,010. The District urges the Court to reduce Grandmother’s fee request
because: (1) she obtained minimal relief; (2) counsel’s hourly rate is unreasonable; and (3) the
number of hours for which she seeks reimbursement is unreasonable. [ECF No. 71] In her reply
brief, Grandmother counters that:
(1) counsel achieved an “excellent result” in the AHC
proceeding; (2) counsel’s hourly rate of $300 per hour is “reasonable and well within the market
rate in St. Louis”; and (3) the amount of time billed by both of Grandmother’s attorneys is
reasonable. [ECF No. 76]
In determining the appropriate award of attorney fees, a court first calculates the lodestar,
which provides an initial estimate of the value of the attorneys’ services. R.M.M. by and through
31
To the extent the District suggests that Grandmother was not the prevailing party because
Student had not yet received the compensatory educational services to which he was entitled, the
Court notes that the Eighth Circuit rejected a similar argument. Birmingham, 298 F.3d at 734
(parents did not lose their prevailing party status when they refused to allow compensatory
education to begin).
32
The District also argued that Grandmother was not the prevailing party because she did not
receive most of the relief she sought. The Court will consider the degree of Grandmother’s
success when it calculates the amount of attorney fees. See Miller ex rel. S.M. v. Bd. of Educ. of
Albuquerque Pub. Schs., 565 F.3d 1232, 1247 (10th Cir. 2009) (quoting Farrar, 506 U.S. at 114)
(“[W]hile the ‘magnitude of the relief obtained’ is irrelevant for determining the prevailing party,
the ‘degree of the plaintiff’s overall success goes to the reasonableness of a fee award.”).
36
T.M. v. Minneapolis Pub. Schs., Special Sch. Dist. No. 1, No. 15-CV-1627 SRN/HB, 2017 WL
6453302, at *4–5 (D. Minn. 2017) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); see
also Brittany O. v. Bentonville Sch. Dist., No. 5:15-CV-5020, 2018 WL 1369923, at *6 (W.D.
Ark. Mar. 16, 2018). The lodestar “is calculated by multiplying the number of hours reasonably
expended by the reasonable hourly rates.” Paris Sch. Dist. v. Harter, 894 F.3d 885, 889 (8th Cir.
2018) (quotation omitted).
The lodestar “provides an objective basis on which to make an initial estimate of the
value of a lawyer’s services,” but does not end the inquiry. Hensley, 461 U.S. at 433. Various
considerations may lead a district court to adjust the fee “upward or downward,” but many of
these considerations will have been “subsumed within the initial calculation of hours reasonably
expended at a reasonable rate.”33 Id. at 434 & n.9.
a. Hourly rate
The District argues that the hourly rates of Grandmother’s counsel, Margaret LaMore and
Michelle Weltman, should be reduced. [ECF No. 71] The District asserts that $300.00 per hour
is unreasonable because: (1) the District’s attorney and his law partner bill $250.00 per hour but
have many more years’ experience and “assume [more] risk” than Grandmother’s counsel; and
(2) Grandmother’s counsel work for Legal Services of Eastern Missouri (LSEM), which “does
not ‘bill’ clients in the sense that it expects to be paid for services provided.”34 [Id. at 8] In
33
Those considerations include: (1) the time and labor required; (2) the novelty and difficulty of
the question; (3) the skill requisite to perform the legal services properly; (4) the preclusion of
other employment due to acceptance of the case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the experience, reputation and ability of the
attorneys; (10) the undesirability of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases. St. Louis Fire Fighters Int’l Ass’n
v. City of St. Louis, Mo., 96 F.3d 323, 332 n. 10 (8th Cir. 1996).
34
In support of its claim that Grandmother’s attorneys’ hourly rates are unreasonable, the
37
response, Grandmother asserts that: (1) an hourly rate of $300.00 is “reasonable and well within
the market rate in St. Louis”; and (2) the Eighth Circuit recognizes the right of pro bono and
legal services attorney to fee awards equivalent to private attorneys. [ECF No. 76]
“The burden is on the moving party to provide evidence supporting the rate claimed.”
Wheeler v. Missouri Highway & Transp. Comm’n, 348 F.3d 744, 754 (8th Cir. 2003). Under the
IDEA, any fee award must be based on “rates prevailing in the community in which the action or
proceeding arose for the kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)(C).
With her complaint for attorney fees, Grandmother submitted the declarations of her
attorneys Ms. LaMore and Ms. Weltman. [ECF Nos. 1-3, 1-4] Ms. Lamore was lead counsel in
this matter. She stated in her declaration that she had worked as a juvenile officer for the 20th
Circuit Juvenile Office in Union, Missouri from 2011 until 2013, when she joined the Children’s
Legal Alliance at LSEM. [ECF No. 1-3] During her time at LSEM, she had represented clients
in more than 200 special education, due process, and school discipline cases in Missouri,
primarily in the City of St. Louis. [ECF No. 1-3]
In Ms. Weltman’s declaration, she stated that she had worked in LSEM’s Children’s
Legal Alliance since 2017. [ECF No. 1-4] Her prior experience included two years at the Law
Offices of Thomas E. Kennedy, III in St. Louis, Missouri and three years at Land of Lincoln
Legal Assistance Foundation. [Id.] When she worked at the Law Office of Thomas E. Kennedy,
III she billed $300 per hour. [Id.]
In support of her motion for summary judgment, Grandmother submitted the declarations
of St. Louis civil rights attorneys John Amman and Thomas Kennedy, and a copy of the Missouri
Lawyer’s Weekly 2019 survey of billing rates. [ECF Nos. 60-3, 60-4, 60-5] Mr. Amman and
District presents only the affidavits of the District’s counsel and his law partner, James
Thomeczek. [ECF Nos. 71-1, 71-2]
38
Mr. Kennedy declared that they were familiar with Ms. LaMore and Ms. Weltman and
considered them highly experienced in the area of special education law. Mr. Amman and Mr.
Kennedy stated: (1) that Ms. LaMore’s and Ms. Weltman’s hourly rates of $300.00 were
comparable to similarly experienced attorneys in the St. Louis metropolitan area35; and (2) the
hours for which they seek compensation are fair and reasonable.
The District urges the Court to reduce Grandmothers’ attorneys’ hourly rates because
they work for LSEM, which neither “bills” its clients nor “assume[s] the same risk that attorneys
in private practice assume if they take a case on a contingency basis.” [ECF No. 71 at 8-9] The
Eighth Circuit has clearly stated, however, that “[t]he fact [the plaintiffs] were represented by
publicly funded counsel does not affect their right to fees.” Yankton Sch. Dist. v. Schramm, 93
F.3d 1369, 1377 (8th Cir. 1996). See also A.J. by L.B. v. Kierst, 56 F.3d 849, 864 (8th Cir.
1995).
In a recent IDEA case, a court in this District considered evidence of “billing rates of
$200-$350 for ‘attorneys’ or ‘associates’ practicing employment or civil rights law in the St.
Louis metropolitan area and $350-$500 for ‘partners’ practicing employment or civil rights law
in the St. Louis metropolitan area.” D.L. v. St. Louis City Public Sch. Dist., No. 4:17-CV-1773
RWS, 2019 WL 1359282, at *2 (E.D. Mo. Mar. 26, 2019) (“D.L.”). The court awarded the
plaintiff’s attorneys their requested hourly rates of $300 per hour and $400 per hour. Id. The
District has not presented any circumstances that would distinguish this case from D.L. for the
purposes of determining appropriate hourly rates under Section 1415(i)(3)(C). The Court finds
that hourly rates of $300 for Ms. LaMore and Ms. Weltman are appropriate and consistent with
35
In regard to hourly rates, Mr. Kennedy stated that: he charged fee-paying clients $400 per
hour; his partner with eight years’ experience charged $300 per hour; and his associate with one
year’s experience charged $200 per hour. [ECF No. 60-4]
39
the rates billed by lawyers of similar experience for similar work in the St. Louis region.
b. Hours billed for work at administrative level
The District contends that the Court should reduce Grandmother’s attorney fees because
her attorneys expended an unreasonable number of hours on a case that was “neither novel nor
complex by IDEA standards.” [ECF No. 71 at 8] More specifically, the District disputes as
excessive and/or redundant the amount of time Grandmother’s attorneys expended for:
(1)
drafting and filing the amended due process complaint (31.08 hours); (2) both attorneys’
participation in the AHC hearing (29.9 hours); (3) and drafting the post-hearing brief (111.2
hours). [ECF No. 71]
“In calculating the lodestar, courts must determine whether the hours claimed were
‘reasonably expended.’” Paris Sch. Dist., 894 F.3d at 889 (citation omitted). Courts “should
exclude … hours that were not ‘reasonably expended,’” such as excessive or redundant hours.
Hensley, 461 U.S. at 434 (citation omitted). “Trial judges ‘should weigh the hours claimed
against [their] knowledge, experience, and expertise of the time required to complete similar
activities.” Paris Sch. Dist., 894 F.3d at 889 (quoting Gilbert v. City of Little Rock, Ark., 867
F.2d 1063, 1066 (8th Cir. 1989)). “A party [in a civil rights action] is not entitled needlessly to
accumulate exorbitant legal fees with the expectation that the losing party will be called upon to
pick up the entire tab.” Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action, 558
F.2d 861, 871 (8th Cir. 1977).
First, the District argues that Grandmother’s counsel’s request for compensation for the
31.8 hours spent drafting and filing the amended due process complaint was unreasonable
because “[t]here was no clear reason for filing the amended due process complaint” and “the
hours spen[t] drafting it are grossly excessive.” [ECF No. 71 at 8] Grandmother does not
40
address this claim.
The IDEA provides that a “party may amend its due process complaint notice only if: (I)
the other party consents in writing to such amendment…; or (II) the hearing officer grants
permission….” 20 U.S.C. § 1415(c)(2)(E)(i). Grandmother filed a motion for leave to amend
the due process complaint stating that, at the time of the original due process complaint, she
possessed limited documentation regarding Student’s behavior and Peabody’s attempts to
implement general education interventions. [R. at 94] She explained that she had since received
from the District email correspondence, behavior reports, and other documentation “which
further clarified the factual circumstances of the case.” [Id.] Additionally, Grandmother sought
leave to amend the due process complaint to “further clarify the factual and legal issues
remaining in the case.”36 Finally, Grandmother averred that the District “agreed to consent to the
amendment attached to this motion on the condition that the case is continued to allow [the
District] time to attempt to resolve the complaint and prepare for a hearing on the amended
complaint.” [Id.] The AHC granted Grandmother’s motion for leave to file the amended due
process complaint. [R. at 124]
In the amended due process complaint, Grandmother significantly developed the factual
allegations, lengthening this section from four and a half pages to seventeen pages. Not only did
the amended due process complaint clarify the issues presented, it developed the legal arguments
by including supporting facts and citations to statutory authority and case law. The Court
recognizes that amending the due process complaint necessitated a significant amount of work
and Grandmother ultimately prevailed on the amended due process complaint. While such
Grandmother explained that, because the District found Student “eligible for special education
services in March 2017, after the filing of the initial [due process] complaint, the remaining
issues in the case do not involve whether [Student] should be eligible under the IDEA, but rather
when he should have been found eligible under the IDEA.” [R. at 94 (emphasis in original)]
36
41
services entitle an award of fees, the Court nevertheless finds that the 31.08 hours counsel claims
to have expended to be excessive. Accordingly, the Court reduces the reasonable time expended
to a total of 21.08 hours.
Next, the District argues that Grandmother should not receive attorney fees for “the
luxury of having two attorneys participate” in the AHC hearing because the “issues in this case
were neither novel nor complex by IDEA standards.”
[ECF No. 71 at 8]
In response,
Grandmother asserts that it was reasonable for both Ms. LaMore and Ms. Weltman to bill their
time for the AHC hearing because “both attorneys made distinct contributions to the case.”
[ECF No. 76 at 7] Grandmother explains that, because she bore the burden of proof before the
AHC, her attorneys “called significantly more witnesses and entered significantly more exhibits
into evidence” than the District over the course of the two-day hearing.37 [Id. at at7-8]
The Eighth Circuit has held that a court may not “reduce attorneys’ fees solely on the
basis that multiple attorneys helped to secure a prevailing party’s success.” Kierst, 56 F.3d at
864. However, “a court may reduce attorney hours, and consequently fees, for inefficiency or
duplication of services in cases where more than one attorney is used.” Id. “A fee award for
time spent by two or more attorneys is proper as long as it reflects the distinct contribution of
each lawyer to the case.” Trbovich v. Ritz-Carlton Hotel Co., 166 F.R.D. 30, 32 (E.D. Mo.
1996).
37
Grandmother further explains:
For example, [Grandmother] called seven witnesses, three of whom were
considered ‘expert witnesses.’ In addition, [Grandmother] entered 31 exhibits
into evidence, totaling more than 720 pages. Both Ms. LaMore and Ms.
Weltman contributed equally to the questioning of Grandmother and [the
District’s] witnesses. It would have been difficult for one attorney alone to
prepare and question three separate expert witnesses over the course of a twoday hearing.
[R. at 7-8]
42
While the facts and legal issues in this case were neither novel nor complex, the many
exhibits and witnesses warranted the involvement of more than one attorney. Ms. LaMore and
Ms. Weltman both contributed to and participated in the hearing. This is not a situation where
the case was “overstaffed.” The Court concludes that the hours submitted by Grandmother’s
counsel for time expended at the AHC hearing are reasonable and not duplicative.
Finally, the District acknowledges the “extensive record to be addressed” in the posthearing brief but argues that 111.2 hours spent drafting it was unreasonable.38 [ECF No. 71 at 8]
Grandmother counters that drafting the 69-page post-hearing brief “took a significant amount of
time.” [ECF No. 76] She further states that her counsel “exercised considerable judgment by
only billing the time spent by Ms. LaMore and Ms. Weltman” and excluding from the fee request
compensation for time expended by other LSEM attorneys and a law student intern. [Id.]
Grandmother’s attorneys spent 111.2 hours preparing proposed findings of fact,
conclusions of law, and legal briefs totaling 69 pages. Drafting this post-hearing brief required
counsel to summarize approximately 500 pages of transcript and 750 pages of exhibits. The
Court recognizes that the work involved in summarizing the extensive record and briefing the
legal arguments was considerable.
However, the legal arguments were neither novel nor
complex, and the Court agrees that 111.2 hours was excessive. Accordingly, the Court reduces
the reasonable time expended to a total of 86.2 hours. Based on the foregoing, the lodestar
amount is as follows: 341.4 hours x $300.00 per hour = 102,420.00.
c. Degree of success at the administrative level
Calculation of the lodestar does not end the inquiry.
The District argues that
Grandmother’s attorney fees should be reduced because: (1) Grandmother “did not receive most
38
After the hearing, the AHC ordered counsel for both parties to file proposed findings of fact,
conclusions of law, and legal briefs. [R. at 133]
43
of the relief she sought”; and (2) as a result of the AHC proceeding, Student “received little more
than what the District had offered” to settle the matter. [ECF No. 71] Grandmother states that
the AHC awarded Student a “significant amount” of compensatory services, which was “nearly
three times the relief offered in settlement[.]” [ECF No. 76 at 6] She also asserts that she was
substantially justified in rejecting the District’s single settlement offer because it did not include
attorney fees. [ECF No. 60 at 14]
“In awarding attorney fees, ‘the most critical factor is the degree of success obtained.’”
Wheeler, 348 F.3d at 754 (quoting Hensley, 461 U.S. at 436). “If the plaintiff’s success is
limited, [s]he is entitled only to an amount of fees that is reasonable in relation to the results
obtained.” Jenkins by Jenkins v. State of Mo., 127 F.3d 709, 716 (8th Cir. 1997) (citing
Hensley, 461 U.S. at 440). “The award of fees to a prevailing party is intended to ‘encourage
prompt resolution of meritorious claims and to discourage unnecessary litigation. This policy
rationale … is served by declining to award fees when litigation yields only relief that in all
probability was attainable without the time and expense of adversarial proceedings.’” Brittany
O., 2018 WL 1369923, at *8 (alteration in original) (quoting Peter v. Jax, 187 F.3d 829, 837-38
(8th Cir. 1999)).
As previously discussed, Grandmother claimed in her amended due process complaint
that the District denied Student a FAPE and violated its child-find obligation by failing to find
Student eligible for special education services and develop an IEP until March 2017. Although
Grandmother alleged that the District erred in failing to find Student eligible for special
education services in April 2015, the AHC found only a procedural violation and not a
substantive violation. The AHC also rejected Grandmother’s argument that the District violated
its child-find obligation and denied Student a FAPE from April 2015 until March 2017, finding
44
instead that the District denied Student a FAPE for the four-month period of time between
November 2016 and March 2017. In light of Grandmother’s partial success, the Court finds that
a reduction in fees is appropriate. See e.g., Ogawa v. St. Paul Pub. Sch., Indep. Sch. Dist. No.
625, No. 17-1398 ADM/DTS, 2018 WL 354658, at *8 (D. Minn. Jan. 10, 2018). The Court will
reduce the lodestar amount of $102,420 by 20 percent, or $20,484.00, to a total of $81,936.00. 39
The District also asserts that Grandmother’s attorney fees should be reduced because the
District immediately provided her the primary relief she requested (eligibility evaluation of
Student and creation of an IEP) and offered to provide Student compensatory services. [ECF
No. 71] For her part, Grandmother argues that: (1) she was “substantially justified” in rejecting
the District’s “single offer of settlement” because it did not include attorney fees; and (2) the
AHC awarded her greater relief than the District offered. [ECF No. 60]
Under 20 U.S.C. § 1415(i)(3)(D)(i)(III), attorney fees “may not be awarded” if a court
finds that “the relief finally obtained by the parents is not more favorable to the parents than the
offer of settlement.” Notwithstanding that prohibition, subsection (E) provides that “an award of
attorneys’ fees and related costs may be made to a parent who is the prevailing party and who
was substantially justified in rejecting the settlement offer.” 20 U.S.C. § 1415(i)(3)(E). Courts
have found that a parent is “substantially justified” in rejecting settlement offers that include
insufficient or no attorney fees. See e.g., Rena C. v. Colonial Sch. Dist., 890 F.3d 404, 420 (3d
39
In her petition for attorney fees, Grandmother seeks compensation for attorney work
performed at the administrative level and in drafting the fee petition for this Court. [ECF No. 1]
However, Grandmother does not separate the amount of fees attributable to the AHC
proceedings from those attributable to drafting the fee petition. “[T]rial courts need not, and
indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to
either party) is to do rough justice, not to achieve auditing perfection.” Miller v. Bd. of Regents
of Univ. of Minn., 402 F.Supp.3d 568, 594 (D. Minn. 2019) (quoting Fox v. Vice, 563 U.S. 826,
838 (2011)). The Court therefore does not exclude fee-petition fee hours from the lodestar total
when performing this calculation.
45
Cir. 2018), cert. denied, 139 S.Ct. 244 (2018); Ogawa, 2018 WL 354658, at *7; McNeil v.
District of Columbia, 342 F.Supp.3d 156, 164 (D. D.C. 2018); Daniel v. District of Columbia,
174 F.Supp.3d 532, 545-46 (D. D.C. 2016).
In support of her motion for summary judgment, Grandmother provides a copy of the
District’s April 2017 settlement offer, in the form of a “Settlement Agreement and Release.”
[ECF No.60-7] In relevant part, the District offered Student: (1) private placement through the
end of the 2017-2018 school year; and (2) either $2,000 toward private tutoring or 60 hours of
tutoring provided by the District. [Id. at 2-4] The offer did not include attorney fees.
The Court need not determine whether the AHC-awarded relief was more or less
favorable than the District’s settlement offer because Grandmother’s rejection of the offer was
substantially justified. See Ogawa, 2018 WL 354658, at *7 (parents were substantially justified
in rejecting settlement offer where “certain issues remained unresolved that prevented settlement,
including the amount of attorneys’ fees and a consent decree.”). The District’s offer included no
compensation for attorney fees and costs. The Court will not reduce the award of attorney fees
based on Grandmother’s rejection of the District’s offer and decision to proceed with litigation.
Grandmother is entitled to $81,936.00 in attorney fees for work at the administrative level and
drafting the fee petition.
d. Hours billed for District Court proceedings
In her motion for summary judgment on her complaint for attorney fees and costs,
Grandmother requests $161,010.00 in attorney fees. [ECF Nos. 59, 60] Although Grandmother
fails to separate the hours spent at the administrative level and drafting the fee petition from
those spent litigating this matter in this Court, the Court deduces from the “Plaintiff’s Updated
Attorney’s Fees and Costs,” that Grandmother seeks compensation for an additional $48,090,
46
representing 160.3 hours billed by Ms. LaMore for her work in this Court. [See ECF No. 60-2]
In regard to the hours worked after the filing of Grandmother’s complaint for attorney
fees and costs, the District challenges only the 49.4 hours counseled billed for work on
Grandmother’s unsuccessful motion to dismiss the District’s counterclaim for lack of subject
matter jurisdiction and failure to state a claim. [ECF No. 71 at 8] The District asserts that
Grandmother’s motion to dismiss “served no purpose other than to waste time and resources and
to delay resolution of the case.” [Id.] Grandmother does not address the District’s claim that she
is not entitled to attorney fees for the hours spent on her unsuccessful motion to dismiss. [See
ECF No. 76]
Having reviewed the District’s argument and Grandmother’s counsel’s billing records,
the Court agrees with the suggested reduction. The Court denied Grandmother’s motion to
dismiss [See ECF No. 29], and it is inappropriate to award relief for work dedicated to that
motion. See, e.g., D.L., 2019 WL 1359282, at *2 (denying attorney fees for time spent on
matters that were either unnecessary to the relief obtained or unsuccessful). Accordingly, the
Court reduces the 160.3-hour total by 49.4 hours, for a total of 110.9 hours.
The District does not challenge the remaining 110.9 hours Grandmother’s counsel billed
for her work litigating in this Court. A review of Ms. LaMore’s time records reveal that she
spent time on tasks relating to alternative dispute resolution and the drafting of an: answer to the
District’s counterclaim; motion to unseal the administrative record; motion for summary
judgment and statement of uncontroverted material facts; and reply memorandum in support of
motion for summary judgment. [ECF No. 60-2] Given the large administrative record in this
case and the considerable work necessitated by the District’s unsuccessful counterclaim, the
Court finds that 110.9 hours, or less than three weeks’ work, is a reasonable amount of time for
47
Grandmother’s counsel to spend litigating her case in this Court. Accordingly, the Court awards
Grandmother additional attorney fees as follows: 110.9 hours x $300.00 per hour = $33, 270.00.
4. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the District’s motion for judgment on the
administrative record [ECF No. 62] is DENIED.
IT IS FURTHER ORDERED that the District’s motion for summary judgment on
Grandmother’s complaint for attorney fees [ECF No. 65] is DENIED.
IT IS FURTHER ORDERED that Grandmother’s motion for judgment on the
administrative record [ECF No. 59] is GRANTED.
IT IS FINALLY ORDERED that Grandmother’s motion for summary judgment on her
complaint for attorney fees and costs [ECF No. 59] is GRANTED in part and DENIED in part.
Defendant shall pay Grandmother $115,206.00 in attorney fees and $1,169.95 in costs, for a total
of $116,375.95. A separate judgment in accordance with this Memorandum and Order is entered
this same date.
PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 30th day of June, 2020
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