B.D. v. Georgetown Pub. Sch. Dist.
| Decision Date | 27 September 2012 |
| Docket Number | CIVIL ACTION NO. 11-10692-DPW |
| Parties | B.D. by his parents and next friends, RACHEL and MICHAEL DOUCETTE, Plaintiffs, v. GEORGETOWN PUBLIC SCHOOL DISTRICT and the TOWN OF GEORGETOWN, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
The plaintiffs seek attorneys' fees arising from an essentially unnecessary appeal to the state Bureau of Special Education Appeals and for the litigation of the fee dispute in this Court as well. The case illustrates the incentive structure attorneys' fees litigation creates for those engaged with the Individuals with Disabilities Act.
The Act encourages collaborative decisionmaking by school administrators and parents in developing an Individualized Education Plan for a student. While the opportunity for appeal to the state Bureau of Education Appeals and thereafter to the courts assures disinterested enforcement of the Act's directives, it also raises the prospect of attorneys' fee awards to plaintiffs who prevail. But it is certainly not a goal of theAct to increase transaction costs, including attorneys' fees, through formal proceedings. The fundamental goal is rather to fashion an appropriate IEP as expeditiously as possible. Unnecessary transaction costs divert resources from other worthwhile initiatives of parents and schools alike.
Given the emotionally charged circumstances IDEA litigation involves, the pre-litigation collaborative process is subject to heightened tensions and potential breakdown. That is what happened here, where the parents refused even to review the school's developed proposal before initiating a BSEA appeal and, in the course of this litigation, have generated substantial fees to achieve a result obtainable without the litigation process at all.
In administering the Act, courts have an obligation to adjust and calibrate the incentive structure to serve the larger purposes of the Act. In acting on the dispositive motions in this matter, I consider the proper statute of limitations for IDEA attorneys' fees litigation and what constitutes a prevailing party when the degree of success is both marginal and effectively agreed upon by the school. I conclude that a lengthy statute of limitations beyond that customary in Massachusetts for judicial review of administrative proceedings is not called for and indeed would undermine the Act's obvious interest in resolving disputes promptly so that the parties may move on with their affairs.Consequently, I find this case - initiated some ten months after the administrative decision was rendered - to be time barred. For purposes of completeness, I also conclude, as alternative grounds for denying Plaintiffs relief that while the Plaintiffs might technically and superficially be denominated a prevailing party, the relief obtained before the BSEA did not cause a material change in Georgetown's provision of services under the IDEA and consequently is not entitled to attorneys' fees. Finally, although my alternative conclusions with respect to the statute of limitations and prevailing party status are sufficient to preclude any recovery at all, I outline the approach I would take in assessing attorneys' fees if the claim were not barred by the statute of limitations and the Plaintiffs' failure to establish prevailing party status under the law of attorneys' fees.
B.D., a minor, by his parents Rachel and Michael Doucette, filed this lawsuit seeking attorneys' fees under the Individuals with Disabilities Act against the Georgetown Public School District and Town of Georgetown (collectively, "Georgetown") where the family resides.
B.D. has been diagnosed with an extremely rare genetic disorder, Chromosome 15q Duplication Syndrome. Fewer than 500people in the world carry B.D.'s disorder. As a result of his disorder, B.D. has a number of developmental deficits, including "abnormal social interaction, sensory dysfunction, cognitive delays, communication deficits, and decreased ability to complete activities of daily living."
On March 29, 2010, Georgetown met with B.D.'s parents to develop a new Individualized Education Program (IEP) to meet B.D.'s needs, because the prior IEP was set to expire on April 1. At the meeting, B.D.'s parents brought a number of concerns to Georgetown's attention, including a concern for B.D.'s safety and a fear that B.D. was not making educational progress.
B.D.'s parents had first become concerned for B.D.'s safety in 2009, while the prior IEP was in effect. B.D.'s mother complained that between October and December 2009, there were multiple occasions during which she witnessed B.D. on the school's playground without his aide. Due to his disabilities, B.D. has a limited ability to report injury or pain, and has a high pain threshold, so B.D.'s parents were concerned that without his aide present at all times, B.D. could sustain an injury that would go unnoticed.
B.D.'s parents were also concerned that B.D.'s developmental delays were actually increasing, rather than improving. B.D.'s parents based this concern on a comparison between results from a February 2009 Early Intervention testing and a January 2010neuropsychological evaluation at Mass. General Hospital. B.D.'s teachers and aides disagreed with his parents' concern, based on their experiences with him in the classroom and outside of it while he received additional services.
At the March 29 meeting, two experts---Ms. Gretchen Timmel and a clinical psychologist---gave reports on their observations of B.D. Ms. Timmel, a certified elementary teacher and licensed educational psychologist at the Massachusetts General Hospital, observed B.D. running out the door of the classroom and into a hallway before being retrieved by his teacher. She also opined that B.D.'s new IEP should use Applied Behavioral Analysis ("ABA") methodology, and that B.D. should be given individual instruction for thirty minutes, three times per day.
After the experts gave their reports, B.D.'s parents took the position that B.D.'s current placement was inadequate, and requested that he be placed in either a more appropriate in-district or out-of-district placement.
In response to the March 29, 2010 meeting, Georgetown prepared a new IEP. That IEP proposed that for the 2009-2010 academic year, B.D. stay in his integrated pre-school program, but receive additional individual instruction in the afternoons, including occupational, speech, and physical therapy, motor skills training, home-based services, and six weeks of extendedyear services. B.D. would always be accompanied by an adult aide while at school.
In the 2010-2011 school year, the new IEP proposed that B.D. be placed in a substantially-separate1 six-child classroom with one special-education teacher and five aides. B.D. would continue to receive his additional individual instruction within the new substantially-separate placement, and would be offered an additional 30 minutes in an integrated pre-school classroom. As with the prior IEP, B.D. would be accompanied by an adult at all times while at school.
B.D.'s parents did not respond to Georgetown's proposed IEP.
In early May 2010, B.D.'s parents removed him from the school after B.D. ran from a classroom and in a separate incident fell off a bean-bag chair and hit his head. B.D. was not injured in either incident, but his parents concluded that he was not safe at school any longer.
On May 27, 2010, Georgetown held a further IEP Team meeting with B.D.'s parents to discuss the incidents and B.D.'s placement. The BSEA hearing officer described the events of that meeting:
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