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S.M., By and Through His Parents and Guardians, G.M. v. the School District of

July 20, 2012

S.M., BY AND THROUGH HIS PARENTS AND GUARDIANS, G.M. AND R.M, AND G.M. AND R.M. IN THEIR OWN RIGHT, PLAINTIFFS,
v.
THE SCHOOL DISTRICT OF UPPER DUBLIN, DEFENDANT.



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

S.M., an elementary school student, and his parents are seeking attorneys' fees from Upper Dublin School District (the "District") for work in creating, litigating, and enforcing a Section 504 service plan under the Rehabilitation Act. Currently before this Court is Plaintiffs' motion for summary judgment requesting $77,435 in attorneys' fees, $525.96 in costs, and $2,816 in expert fees pursuant to 29 U.S.C. § 794a. As Judge Pollak has already held that Plaintiffs are a prevailing party, the Court treats this motion as a petition for attorneys' fees. For the following reasons, the Court will grant this motion but will reduce Plaintiffs' recovery to account for their limited success.

I. BACKGROUND

A. Administrative Action

S.M., who lives in Upper Dublin, Montgomery County, Pennsylvania, was born with a severe allergy to peanut and tree nut products. (Pls.' Mot. for Summ. J. Ex. 1 [Due Process Compl.] at 1.) Early in 2008, before S.M. started kindergarten in the District, S.M.'s parents approached the District about creating a Section 504 plan for S.M. under the Rehabilitation Act, 29 U.S.C. § 794. (Id.) A Section 504 plan specifies the accommodations and modifications that a school district will provide to ensure that a disabled student receives an appropriate education. See Blunt v. Lower Merion Sch. Dist., 262 F.R.D. 481, 486 n.4 (E.D. Pa. 2009).

Plaintiffs retained a law firm, Ronald V. McGuckin and Associates ("McGuckin"), and after several months of negotiation, the parties signed a Section 504 service agreement for 2008-09, S.M.'s kindergarten year. (Pls.' Br. in Supp. of Mot. for Summ. J. [Pls.' Br.] at 2.) Plaintiffs maintain that they were "never presented . . . with an acceptable plan" but that they "relented" and signed the Section 504 plan. (Id. at 2.)

In Summer 2009, Plaintiffs began meeting with District officials to formulate a Section 504 plan for the 2009-10 school year. (Due Process Compl. at 3.) In July 2009, they retained the services of another attorney, David Arnold, in an effort to avoid "being bullied again into taking an inappropriate [Section] 504" plan. (Pls.' Br. at 2.) However, in October 2009, Plaintiffs filed a Due Process Complaint with the Pennsylvania Department of Education after they were unable to reach a satisfactory agreement. (Due Process Compl. at 3.)

In their Due Process Complaint, Plaintiffs presented nine objections to the 2008-09 and the proposed 2009-10 Section 504 plans. (Id. at 1-7.) First, Plaintiffs wanted substitute teachers trained in emergency procedures. (Id. at 3.) Second, they requested a ban on all items containing peanuts or tree nuts, including items made in facilities that manufacture or package peanut or tree nut products and any items containing traces of peanuts, from grade-wide classroom activities and the daily snack. (Id. at 4.) Third, they asked for S.M.'s lunch table to be washed with soap and water after every use and to have the seating arrangement changed so that S.M. was not isolated. (Id. at 4-5.) Fourth, they wanted students to wash their hands with soap and water rather than antibacterial wipes. (Id. at 5.)

Fifth, they sought to ensure that S.M. had the opportunity to go on all field trips. (Id. at 5-6.) This would require the District to wipe school bus seats with soap and water before S.M.'s use and to ban all eating on the bus that was not medically necessary. (Id.) Sixth, they petitioned for all home-baked items to be sequestered from food that was deemed "safe" for S.M.'s consumption. (Id. at 6.) Seventh, they asked for S.M. to have his own computer keyboard and for all other shared equipment to be cleaned with soap and water before S.M.'s use. (Id. at 7-8.) Eighth, they requested that S.M. have access to the nurse anytime he felt an oncoming allergic reaction. (Id. at 8.) Ninth, they sought an effective monitoring mechanism to ensure that the District was complying with the regulations. (Id. at 9.)

On April 2, 2010, Hearing Officer Anne Carroll rendered her decision in the case. (Pls.' Mot. for Summ. J. Ex. 3 [Due Process Hr'g Order] at 23.) She ordered the District to:

1. Convene [S.M.'s] § 504 team to revise the written [plan] in the following respects

a. Assure that all protections and accommodations currently provided to [S.M.] are reflected in the terms of the written § 504 [plan] by including

i. training of substitute teachers to respond to an allergic reaction;

ii. prohibiting serving all items containing traces of peanuts/tree nuts; items manufactured or processed in a facility where peanut/tree nut products are manufactured and all homemade items, as well as peanut/tree nut products, in classrooms at [S.M.'s] grade level;

b. Add a provision permitting [S.M.] to go to the nurse for evaluation/treatment of possible allergic reactions at his request, as well as by referral from school staff.

2. Inform the [Parent-Teacher Organization] that it is obligated to implement the § 504 [plan] with respect to any program/activity conducted within an Upper Dublin school building or on school grounds.

(Id.)

The Hearing Officer's decision was in Plaintiffs' favor on six of their objections to the prior and proposed Section 504 plans. Plaintiffs also succeeded in requiring the Parent-Teacher Organization ("PTO") to follow the service agreement and in incorporating into the legally binding Section 504 agreement services that the District had been voluntarily providing. (Id. at 18-19, 21.) In addition, the parties reached a settlement on their requests involving the lunch table, lunchtime seating arrangement, bus cleanliness, and eating on the bus during field trips. (Id. at 16; Pls.' Reply Br. in Supp. of Mot. for Summ. J. [Pls.' Reply Br.] at 4.) However, Plaintiffs were unsuccessful in getting S.M. his own keyboard and in changing the hand-washing policy and the cleaning policy for shared equipment. (Due Process Hr'g Order at 20-21.)

At the conclusion of the Due Process Hearing, Plaintiffs had expended $42,705 in fees and costs. (See Pls.' Mot. for Summ. J. Ex. 5 [McGuckin Att'y Fees]; Pls.' Mot. for Summ. J. Ex. 7 [Arnold Att'y Fees].) The accommodations achieved in the Due Process Hearing were subsequently incorporated into the 2010-11 service plan, but Plaintiffs felt that the agreed-upon accommodations were not being fully implemented and filed a Pennsylvania Department of Education ("DOE") complaint in September 2011. (Pls.' Reply Br. Ex. 1 [DOE Compl.] at 10.) The DOE found that the District did not comply with the Section 504 agreement during the 2010-11 school year, but that the DOE could take no action because there was no evidence of non-compliance during the 2011-12 school ...


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