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Ida D. v. Rivera

United States District Court, E.D. Pennsylvania

June 25, 2019

IDA D., et al., Plaintiffs,
v.
PEDRO RIVERA, et al., Defendants.

          MEMORANDUM [1]

          ANITA B. BRODY, J.

         Plaintiffs 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[2] 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[3] and $499.50 in costs. For the reasons set forth below, I will grant Plaintiffs' Motion for Attorney's Fees and Costs.

         I. BACKGROUND

         A. The IDEA

         Before 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).

         “The 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).

         An LEA 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).

         “To 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).

         B. Students J.D. and J.R.

         Both 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.

         J.D. 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.

         In 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 Alliance.

         J.R. 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.

         In 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 Alliance.

         Both 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.

         Khepera failed to fulfill its obligations under the Resolution Agreements by failing to pay the following for each J.D. and J.R:

• 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.

         In 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;[4] 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”).

         On June 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.

         In March 2018, PDE, on behalf of Khepera, paid the outstanding tuition owed to OLC for J.D. and J.R.[5] On March 26, 2018, PDE's counsel sent a letter to Plaintiffs' counsel, requesting that Plaintiffs dismiss all claims against PDE because it had:

• paid the balance of each student's tuition owed to OLC;
• 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, 150.

         The 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.

         In the 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.

         In June 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.

         C. Plaintiffs' Motions for Summary Judgment

         On 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 ...

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