C.W. v. Bd. of Educ. of the City of Chicago

• Decision Date: 01 February 2012
• Docket Number: Case No. 11-CV-2349
• Parties: C.W. and DEVLON R., Individually and as Parent and Next Friend of C.W., Plaintiffs, v. Board of Education of the City of Chicago, District 299, Defendant.
• Court: U.S. District Court — Northern District of Illinois

C.W. and DEVLON R., Individually and as Parent and Next Friend of C.W., Plaintiffs, v. Board of Education of the City of Chicago, District 299, Defendant.

Case No. 11-CV-2349

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Dated: February 1, 2012

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiffs C.W. and his parents, C.W. and Devlon R., filed suit against Defendant Board of Education of the City of Chicago, District 299 ("the Board") pursuant to 20 U.S.C. § 1415(i)(3), seeking attorneys fees and costs incurred by Plaintiffs as a result of a due process hearing brought pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Plaintiffs maintain that the hearing provided substantial relief regarding improvements in the student's IEP and compensatory education services. Defendant admits that Plaintiffs are prevailing parties but denies that all of Plaintiffs' fees are reasonable. Plaintiffs have moved for summary judgment [17] on the request for fees and costs in the amount of $112,319.77. Defendant contends that Plaintiffs fees should be reduced to $93,812.52. For the reasons set forth below, Plaintiffs' motion [17] is granted in part and denied in part.

I. Background

At the time of his due process hearing, C.W. was an eleven-year-old who attended fifth grade at a Chicago Public School in District 299. The Board is the relevant local educationagency as defined in 20 U.S.C. § 1402(15). During the school years from 2004 through the date of the hearing in July 2010, C.W. attended Reavis Elementary School.

During 2003 or 2004, when C.W. was in pre-kindergarten, C.W.'s mother observed academic delays and requested that CPS conduct a full and individual evaluation. An initial referral for an evaluation was made in January 2004. Second and third referrals for evaluations were made in September 2004 and May 2005. C.W. was found eligible to receive special education services in February 2006, when he was in first grade. His initial IEP listed his impairments as a learning disability and speech/language impairment. C.W.'s mother, Devlon, repeatedly asserted that the District's program and placement were not meeting her child's educational needs. Devlon retained Veena Gurshani, Elizabeth Walker, and Sarah O'Connor of Health & Disability Advocates, Inc. (HDA) to represent her and C.W.'s interests in September 2009. Elizabeth Walker was the principal attorney at HDA until she went on maternity leave and Sarah O'Connor became the principal attorney. Veena Gursahani worked under the supervision of Elizabeth Walker and Sarah O'Connor. Devlon also retained Mauk & O'Connor LLP as co-counsel, and Sarah E. Mauk undertook role of lead attorney in this case.

On February 17, 2010, Devlon filed a request for a due process hearing to redress violations of the Individuals with Disability Act (IDEA). An interim order was issued on June 19, 2010, ordering the initiation and completion of Independent Educational Evaluations ("IEEs") of C.W. at the District's expense. IEEs were conducted in the areas of psychological evaluation (Dr. Carol Jansson, Ph.D.), speech/language and assistive technology evaluation (Dr. Janet Marsden-Johnson, Ph.D.), occupational therapy (Ms. Mary Block), and central auditory processing disorders evaluation (CAPD) (Dr. Jeananne Ferre, Ph.D.). Prior to the start of the hearing on July 26, 2010, on July 14, 2010, CPS counsel sent a letter offering terms forsettlement. The letter noted that the District would be funding the private evaluations that were completed and submitted for C.W. The letter also stated that the District agreed to place C.W. at either Acacia Academy or The Cove School (Parent's choice), including transportation and ESY, for the 2010-11 school year. Finally, the letter stated that the District agreed to maintain C.W.'s placement at either Acacia or Cove for two additional school years (2011-12 and 2012-13 school years), including transportation and ESY. After consulting with C.W.'s mother, Plaintiffs' counsel declined to accept the settlement offer, but proposed a counter-offer. However, the parties could not agree on terms for settlement and proceeded to a hearing.

On July 26, 2010, the due process hearing began and continued over six days before an independent hearing officer (IHO) appointed by the Illinois State Board of Education. Following the hearing, the IHO issued a decision and order on August 23, 2010. In that order, the IHO concluded that CPS denied C.W. a free and appropriate public education. The decision stated that, "[b]ased upon the testimony and evidence presented at Hearing, it is the opinion of this Hearing Officer that the Parent has successfully sustained its burden with respect to each and every issue raised in its initial Due Process Complaint." The hearing officer ordered the following relief:

1. The District is to place the student immediately at the Cove School and to provide transportation as the Student requires this LRE setting in order to benefit from a public education. As per Dr. Sover's testimony at Hearing, Cove's starting date begins on August 25, 2010 therefore, placement and related transportation services must occur as soon as practicable but not less than seven (7) days from the date of this Order.

2. The District was previously Ordered to fund the Parent's IEEs on June 19, 2010.

(a) The District is to reimburse Dr. Jansson for her evaluation and any other independent evaluators whose reimbursement is outstanding within 30 days of this Order.

3. A Behavior Assessment is Ordered completed by an independent evaluator at District expense upon the Parent's submission of 3 names for the District to choose the evaluator. The assessment must be completedwithin 45 days of this Order. Upon submission of the requisite billing documents required by the District, the District shall reimburse the independent evaluator within 30 days of completion of the independent evaluation or receipt of the independent evaluators billing documents whichever occurs first.

4. A Health/Nursing evaluations is Ordered to be completed by an independent evaluator at District expense upon the Parent's submission of 3 names for the District to choose the evaluator. The assessment must be completed within 45 days of this Order. Upon submission of the requisite billing documents required by the District, the District shall reimburse the independent evaluator within 30 days of completion of the independent evaluation or receipt of the independent evaluators billing documents whichever occurs first.

5. The District is to provide all of the Student's records maintained by the District regardless of the form and including, but not limited to, all IEP report cards, 2009-10 progress reports, emails from staff, sign in sheets for student records, etc. within 45 days of order.

6. The District is to convene an IEP at the Cove School to develop an appropriate IEP for the Student utilizing the Parent's obtained IEEs and any District evaluation results. The following must be included:

(1) The District shall review all evaluation results and recommendations and have appropriate staff in attendance at the IEP meeting;

(2) The District shall develop an IEP with individualized and measurable goals/objectives and accurate present levels of performance based upon the Student's eligibility and identified educational needs including appropriate modifications/accommodations;

(3) The District shall identity all direct and related services based on scientific researched based evidence including, but not limited to:

(a) psychological or social work services individual and group

(30-60 mpw),

(b) speech/language (60-90 mpw) direct services.

(c) CAPD (auditory processing) remediation and interventions (30 mpw 3 times a week coordinated with after school program);

(d) OT direct services (40 mpw direct and 30 mpm consult).

(4) The District shall provide appropriate assistive technology per Dr. Marsden-Johnson' recommendations (PO 432-Lexia and Earobics; PD 433-So10 6 program downloaded on lap top) including classroom implementation and training to student, parents and staff as required. A lap top computer shall be provided the student for school work to be performed at school and at home.

(5) The District shall provide compensatory services as stated in Paragraph No.7 below;(6) The District shall identify the Cove School placement as the LRE as a separate day school. The Cove School can provide a program that can immediately begin and includes such services as a specialized intensive private LD program at the for children with severe learning disabilities; dyslexia/language disorders that has appropriate methodology based scientific, research based evidence such as Orton Gillingham, Wilson or other multi-sensory, sequential systematic intensive reading program. 7. The District is to provide compensatory services for its failure to provide an appropriate evaluation and IEPs including appropriate placement in since February 2008. The compensatory services shall include:

(1) 1:1 tutoring services beyond the regular school day by a certified special education teacher trained in scientific research based interventions for non-readers at Cove School for the next two school years including ESY 2011 and 2012, the period determined to be that which the Student was denied FAPE for 60 minutes per session, twice a week. including transportation;

(2) 1:1 speech language services beyond the regular school day by a certified speech pathologist 60 mpw, I time at Cove School for the next two school years including ESY 2011 and 2012, including transportation;

(3) Dr. Ferre recommended compensatory services for the student to address auditory processing: direct individualized therapy; 30 minutes 3 times a week; computer assisted would be after school day and 90 minutes direct during and after school day; combination of during and after school.

(4) Additional assistive

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