United States District Court, E.D. Pennsylvania
B. BRODY, J.
Ida and Richard D., individually and on behalf of their child
J.D., and Plaintiff Cynthia L., individually and on behalf of
her child J.R., brought this action against Defendants Pedro
Rivera and the Commonwealth of Pennsylvania
Department of Education (collectively, “PDE”) and
Khepera Charter School (“Khepera”) pursuant to
the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400, et seq.
On November 19, 2018, I granted in part and denied in part
Plaintiffs' motion for summary judgment against Khepera
and Plaintiffs' motion for summary judgment against PDE.
Plaintiffs now move for reasonable attorneys' fees and
costs under the IDEA, 20 U.S.C. § 1415(i)(3)(B)(i)(I),
because they prevailed in this action against Khepera and
PDE. Specifically, Plaintiffs seek an award of $151, 297.48
in attorneys' fees and $499.50 in costs. For the reasons set
forth below, I will grant Plaintiffs' Motion for
Attorney's Fees and Costs.
relaying the facts of this case, a brief overview of the IDEA
is necessary. “The IDEA protects the rights of disabled
children by mandating that public educational institutions
identify and effectively educate those children, or pay for
their education elsewhere if they require specialized
services that the public institution cannot provide.”
P.P. ex rel. Michael P. v. W. Chester Area Sch.
Dist., 585 F.3d 727, 735 (3d Cir. 2009). The IDEA
provides that all states receiving federal education funding
must guarantee to all children with disabilities a FAPE. 20
U.S.C. § 1412(a)(1). The IDEA defines a FAPE as special
education and related services that: “(A) have been
provided at public expense, under public supervision and
direction, and without charge; (B) meet the standards of the
State educational agency; (C) include an appropriate
preschool, elementary school, or secondary school education
in the State involved; and (D) are provided in conformity
with the individualized education program . . . .” 20
U.S.C. § 1401(9).
IDEA divides responsibilities for ensuring access to FAPE
between State Educational Agencies (“SEAs”) and
Local Educational Agencies (“LEAs”).”
Lejeune v. Khepera Charter Sch., 327 F.Supp.3d 785,
789 (E.D. Pa. 2018) (citing 20 U.S.C. § 1413). To
receive federal funding under the IDEA, a state must submit a
plan to the Secretary of Education with policies and
procedures that ensure that the state is complying with the
IDEA and providing students with a FAPE. 20 U.S.C. §
1412. In turn, the SEA makes funding available to LEAs that
comply with the SEA's plan under the IDEA. 20 U.S.C.
§ 1413. “The SEA is responsible for general
supervision of the implementation of the IDEA in the state,
while the LEA is responsible for directly providing
educational programming.” Lejeune, 327
F.Supp.3d at 789 (citation omitted). In Pennsylvania, charter
schools are considered LEAs that “assume the duty to
ensure that a FAPE is available to a child with a disability
in compliance with IDEA and its implementing
regulations.” 22 Pa. Code § 711.3(a).
provides a FAPE to a child with disabilities “by
designing and implementing an individualized instructional
program set forth in an Individualized Education [Program]
(“IEP”), which ‘must be reasonably
calculated to enable the child to receive meaningful
educational benefits in light of the student's
intellectual potential.'” P.P. ex rel Michael
P., 585 F.3d at 729- 30 (quoting Shore Reg'l
High Sch. Bd. Of Educ. V. P.S., 381 F.3d 194, 198 (3d
Cir. 2004). However, an SEA may be responsible “to
provide special education and related services directly to
children with disabilities residing in the area served by
that local educational agency . . . if the State educational
agency determines that the local educational agency . . . is
unable to establish and maintain programs of free appropriate
public education.” 20 U.S.C. § 1413(g)(1)(B).
the extent a school district fails to provide a student with
a FAPE, a parent may file a due process complaint on behalf
of his or her child, with a subsequent hearing held before an
administrative hearing officer.” G.L. v. Ligonier
Valley Sch. Dist. Auth., 802 F.3d 601, 608 (3d Cir.
2015) (citing 20 U.S.C. §§ 1415(b)(6), (f)(1)(A)).
“A party dissatisfied with the result of that hearing
may then file an action in state or federal court.”
Id. (citing 20 U.S.C. § 1415(i)(2). The IDEA,
however, encourages parents to resolve their disputes prior
to any due process hearing. See 20 U.S.C. §
1415(e), (f)(1)(B). Before a due process hearing occurs, the
IDEA provides parents with the option of mediation and
requires them to participate in a mandatory resolution
session. Id. “In the case that a resolution is
reached to resolve the complaint” during the resolution
session, “the parties shall execute a legally binding
agreement that is . . . enforceable in any State court of
competent jurisdiction or in a district court of the United
States.” 20 U.S.C. § 1415(f)(1)(B)(iii).
Students J.D. and J.R.
J.D. and J.R. are currently enrolled in Khepera, but they
attend Our Lady of Confidence Day School (“OLC”).
Khepera is a charter school that is an LEA within the meaning
of the IDEA. Khepera is experiencing financial difficulties
and will not be in existence beyond June 30, 2019.
has been identified as a student with an intellectual
disability, speech communications deficits, and visual-motor
deficits, related to a diagnosis of Down Syndrome. By reason
of these disabilities, J.D. is eligible for and in need of
special education and related services pursuant to the IDEA.
J.D. began attending Khepera as a kindergarten student during
the 2012-13 school year.
2015, J.D.'s parents, Ida and Richard D., entered into a
resolution agreement with Khepera to resolve their disputes
regarding J.D.'s education (“J.D.
Agreement”). The J.D. Agreement was reached in the
context of a resolution session provided for under the IDEA.
See 20 U.S.C. § 1415(f)(1)(B). Under the J.D.
Agreement, Khepera agreed to, in relevant part:
• pay J.D.'s tuition and transportation costs at
OLC, a private school, for the 2015-2021 school years;
• pay J.D.'s tuition and transportation costs for
extended school year (“ESY”) services at a
private school for the summers of 2016 through 2021; and
• deposit $25, 000 into a third-party special needs
trust established for J.D. and administered by The Advocacy
has also been identified as a student with an intellectual
disability and visual-motor deficits, related to a diagnosis
of Down Syndrome. By reason of these disabilities, J.R. is
eligible for and in need of special education and related
services pursuant to the IDEA. J.R. began attending Khepera
as a kindergarten student during the 2014-15 school year.
2016, J.R.'s parent, Cynthia L., entered into a
resolution agreement with Khepera to resolve her dispute
regarding J.R.'s education (“J.R.
Agreement”). The J.R. Agreement was reached in the
context of a resolution session provided for under the IDEA.
See 20 U.S.C. § 1415(f)(1)(B). Under the J.R.
Agreement, Khepera agreed to, in relevant part:
• pay J.R.'s tuition and transportation costs at
OLC, a private school, for the 2015-2023 school years;
• pay J.R.'s tuition and transportation costs for
ESY services at a private school for the summers of 2016
through 2023; and
• deposit $10, 000 into a third-party special needs
trust established for J.R. and administered by The Advocacy
the J.D. Agreement and the J.R. Agreement (collectively, the
“Resolution Agreements”), allowed the third-party
special needs trusts to be used for, among other things,
secondary education instruction, vocational training, and
educational evaluations. Additionally, the Resolution
Agreements each stated: “Nothing in this Agreement
shall constitute an acknowledgement by the Charter School
that placement at OLC or any alternative educational setting
or approved private school is necessary to provide Student 
with a Free and Appropriate Education (“FAPE”) or
that Student  could not be appropriately educated in
another program or placement as recommended by the Charter
School.” J.A. 406 ¶ 10, 471-72 ¶ 10, ECF No.
50. The parties also agreed: “The Charter School's
obligation to pay or reimburse the cost of tuition and/or
transportation in accordance with this Agreement shall also
cease immediately and without further notice . . . upon
Parent's withdrawal or removal of Student  from
enrollment at the Charter School . . . .” Id.
at 398 ¶ 1, 464 ¶ 1. Moreover, the parties
stipulated: “This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania and is enforceable in the state or federal
courts of Pennsylvania with jurisdiction.” Id.
at 409 ¶ 20, 474 ¶ 20.
failed to fulfill its obligations under the Resolution
Agreements by failing to pay the following for each J.D. and
• the full tuition amount for the 2016-17 school year;
• any tuition for the 2017-18 school year; and
• the remaining $5, 000 owed to each student's
special needs trust.
2017, as a result of Khepera's failures, Plaintiffs filed
separate due process complaints with the Office of Dispute
Resolution against Khepera and PDE. Plaintiffs claimed that
Khepera had failed to provide a FAPE to J.D. and J.R. On
November 3, 2017, in separate opinions, the Hearing Officer
dismissed Plaintiffs' cases against PDE for lack of
jurisdiction. On December 8, 2017, in separate opinions, the
Hearing Officer concluded that Khepera “failed to offer
and provide a FAPE to [J.D and J.R.] and continues to fail to
do so.” J.A. 443, 499. For both J.D. and J.R., the
Hearing Officer ordered Khepera to:
• pay the tuition it owes to OLC;
• deposit $14, 300 of compensatory education into each
student's special needs trust, as designated by his
parent(s), for its failure to provide ESY services in the
summers of 2016 and 2017; and
• conduct a comprehensive educational re-evaluation of
each student. Khepera failed to comply with the Hearing
Officer's orders awarding relief to Plaintiffs
(“Hearing Officer's Orders”).
10, 2017, Plaintiffs' counsel notified PDE that Khepera
was failing to provide a FAPE to students with disabilities.
Pursuant to its general supervisory authority under the IDEA,
PDE, through the Bureau of Special Education, completed a
fact-finding investigation concerning the compensatory
education owed to J.D and J.R. On February 22, 2018, the
Bureau of Special Education mailed separate fact-finding
reports to J.D.'s parents and J.R.'s parent, which
made $19, 300 in compensatory education available for each
student, to be administered through the Pennsylvania Training
and Technical Assistance Network (“PaTTAN”).
Plaintiffs were advised that the PaTTAN funds would not be
made available until they exhausted other available
third-party special needs funds and that the PaTTAN funds
would cease to be available after J.D. and J.R. turned
twenty-one years old.
March 2018, PDE, on behalf of Khepera, paid the outstanding
tuition owed to OLC for J.D. and J.R. On March 26, 2018, PDE's
counsel sent a letter to Plaintiffs' counsel, requesting
that Plaintiffs dismiss all claims against PDE because it
• paid the balance of each student's tuition owed to
• made $19, 300 in compensatory education available for
each student's benefit; and
• would make arrangements to pay a qualified ESY
provider for ESY services for the summer of 2018 for each
student, for up to four hours per day, five days per week,
for five and a half weeks, for up to a total value of $7,
letter instructed Plaintiffs to contact Rebecca Fogle at
PaTTAN to seek assistance locating a qualified ESY provider
and to finalize payment of ESY services for the summer of
2018. On March 28, 2018, Plaintiffs' counsel notified
PDE's counsel that PDE had not offered the full measure
of relief that they requested in their suit.
later part of May 2018, Plaintiffs sent emails to Fogle at
PaTTAN, informing her that OLC does not offer ESY and they
were having trouble locating any ESY program at a private
school that would accept J.D. and J.R. and meet their needs.
By June 1, 2018, Fogle had responded to Plaintiffs'
emails, informing them that she “was not aware of the
specific schools that offer programming for students that are
designed for students who are not enrolled with them.”
PDE Sur-reply Exs. 28, 29, ECF No. 63. Despite Plaintiffs
efforts to locate an ESY program for the summer of 2018, J.D.
and J.R. did not have access to ESY services because both
J.D.'s parents and J.R.'s parent “could not
identify a program that would accept” J.D. or J.R.
Pls.' Mot. Expedite Ruling Exs. A ¶ 3, B ¶ 3,
ECF no. 65.
2018, J.D. and J.R. each received a tuition bill from OLC
stating that tuition for the 2018-19 school year was due by
July 15, 2018. Id. Exs. A ¶ 6, B ¶ 6. By
July 15, 2018, neither Khepera nor PDE had paid any portion
of J.D.'s or J.R.'s tuition. Id. Exs. A
¶ 7, B ¶ 7. At the end of July 2018, J.D.'s
parents and J.R.'s parent each paid a $250 reenrollment
fee to OLC. Id. Exs. A ¶ 10, B ¶ 10.
Plaintiffs' Motions for Summary Judgment
April 30, 2018, Plaintiffs moved for summary judgment against
Khepera and PDE, seeking the following for each student:
• payment of all tuition and transportation costs at OLC
for the 2018-19 school year;
• a deposit of $19, 300 into a special needs trust
administered by The Advocacy Alliance;
• payment of all tuition and transportation costs for
ESY services for ...