United States District Court, W.D. Washington, Seattle
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
JAMES L. ROBART, District Judge.
Before the court are: (1) Plaintiff L.P.'s motion for summary judgment (L.P.'s Mot. (Dkt. # 11), and (2) Defendant Lake Washington School District's ("the District") cross-motion for summary judgment (Dist. Mot. (Dkt. # 10)). L.P. alleges that she was the prevailing party under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(3)(B), in her administrative proceeding against the District for procedural and substantive violations of the IDEA, and therefore is entitled to an award of attorney's fees and costs in the total amount of $34, 447.00. ( See generally Compl. (Dkt. # 1); L.P.'s Mot.) The District asserts that L.P. is not a prevailing party under the IDEA and that, even if she is a prevailing party, any award of fees should be reduced on a variety of grounds so as to negate any award at all. ( See generally Dist. Mot.) The court has considered the parties' cross-motions, all submissions filed in support of and opposition to each motion, the balance of the record, and the applicable law. Having heard oral argument on May 16, 2014, and being fully advised, the court GRANTS in part and DENIES in part each motion. The court finds that L.P is a prevailing party under the IDEA, but awards only a portion of the fees she has requested.
L.P. is the mother and sole custodian of Z.P.S., a child with disabilities as a result of a stroke suffered during infancy. (Compl. (Dkt. # 1) ¶¶ 3, 5.) Z.P.S. attended an elementary school within the District. ( Id. ¶ 4; Dist. Mot. at 2.) Z.P.S. received a number of accommodations pursuant to an Individualized Education Plan ("IEP"). L.P. removed Z.P.S. from the school in December 2011, during Z.P.S.'s second grade year. (L.P.'s Mot. at 6; 3/6/14 Sullivan Decl. (Dkt. # 10-1) ¶ 3, Ex. A ("Admin. Order") at 18.) On July 13, 2012, L.P. filed a Due Process Hearing Request with the Office of the Superintendent of Public Instruction ("OSPI"). ( Id. at 1.) The District also filed a Due Process Hearing Request with OSPI related to L.P. on December 4, 2012. ( Id. ) The two cases were consolidated, a hearing was held on February 5-6, 11-12, 15, and 19, 2013, and the Administrative Law Judge ("ALJ") issued her Findings of Fact, Conclusions of Law, and Order on May 17, 2013. ( Id. at 1, 82.)
On January 17, 2013, prior to the due process hearing, the District sent L.P. a written settlement offer via email. (3/6/13 Sullivan Decl. Ex. E.) The District offered L.P. $1, 800.00 in exchange for withdrawal of L.P.'s due process hearing request. ( Id. ) L.P. declined the offer. (3/6/13 Sullivan Decl. ¶ 7.)
L.P.'s due process hearing request raised claims concerning the District's special education programming for Z.P.S. during the 2011/2012 and 2012/2013 school years. The ALJ determined that there were three overarching issues for the due process hearing: (1) whether the District violated the IDEA and denied Z.P.S a free appropriate public education ("FAPE") beginning June 1, 2011, (2) whether L.P. is entitled to her requested remedies, and (3) whether the District's evaluation of Z.P.S. was appropriate and, if not, whether the District should pay for an independent education evaluation ("IEE") of Z.P.S. (3/6/14 Sullivan Decl. ¶ 5, Ex. D at 3-6.) The ALJ ruled that L.P. had the burden of proof on the first two issues, but that the District had the burden of proof on the last issue because it had filed its own due process complaint to avoid conducting an IEE. (Admin. Order at 51, ¶ 2.)
The ALJ broke the first issue down into eight subparts, some of which the ALJ further subdivided. Thus, the ALJ considered whether the District denied Z.P.S a FAPE by: (1) failing to appropriately evaluate Z.P.S. (with 14 further subparts); (2) refusing to amend Z.P.S's IEP until it completed Z.P.S's three-year reevaluation, (3) failing to provide the least restrictive environment for Z.P.S. by reducing Z.P.S.'s time in general education; (4) failing to implement Z.P.S.'s IEPs by providing inadequate paraeducator support; (5) failing to adopt IEPs in or after June 2011 (with 13 further subparts); (6) failing to adopt an appropriate IEP in December 2012 (with six further subparts); (7) violating procedural requirements in or after June 2011 (with five further subparts). ( Id. at 3-5.) Under this issue, the ALJ also considered whether L.P.'s private tutoring program, including instruction at Foundations for Learning Behavior, has been and is appropriate. ( Id. at 5.) When counting all subparts and subparts of subparts, the first issue (whether the District violated the IDEA by denying Z.P.S a FAPE) comprises a total of 42 sub-issues. ( See id.; see Dist. Mot. at 6 (asserting the existence of 43 separate issues, which includes whether the District should pay for an IEE of Z.P.S. as described below); Dist. Resp. at 4-5 (providing a chart of the issues and sub-issues itemized by the ALJ).) The ALJ, however, clarified that L.P. did not need to prove "each of the itemized allegations" listed by the court "in order to prevail on any given issue."
Of these 42 sub-parts, L.P. prevailed on three. The ALJ concluded that the District violated the IDEA and denied Z.P.S. a FAPE by (1) "failing to evaluate [Z.P.S.] within 35 school days of the written consent provided by [L.P.] on May 7, 2012, " (2) "conditioning [Z.P.S.'s] evaluation on [L.P.] providing authorization to exchange information with other evaluators, " and (3) "failing to review [Z.P.S.'s] IEP not less than annually." (Admin. Order at 82.) The ALJ concluded that "[t]he District did not otherwise deny [Z.P.S.] a FAPE." ( Id. )
With respect to the second overarching issue-L.P.'s remedies, the ALJ identified four primary sub-issues: (1) whether L.P. was entitled to compensatory education to compensate for the time L.P. did not attend school due to health risks, including (a) speech and language services, (b) occupational therapy, and (c) academic tutoring; (2) whether L.P. is entitled to reimbursement for private tutoring and related services since February 16, 2012; (3) whether L.P. is entitled to an order finding that the educational program that she proposed on December 17, 2012, is appropriate and requiring the District to implement that proposal for one year beginning March 1, 2013; and (4) whether L.P. is entitled to any other equitable remedies, as appropriate. (3/6/14 Sullivan Decl. Ex. D at 6.)
L.P. partially prevailed in obtaining the remedies she requested. The ALJ ordered the District to provide Z.P.S. with a variety of "compensatory education services, " including: 1, 200 minutes of writing instruction, 2, 040 minutes of math instruction, 1, 200 minutes of reading instruction, and 680 minutes of adaptive skills instruction. (Admin. Order at 82.) In addition, if L.P. reenrolled Z.P.S. in the public elementary school, the ALJ ordered the District to conduct the classroom evaluation, program review, and functional behavior assessment which were missing from the 2012 reevaluation, and to consider private provider information from the parent. ( Id. )
The ALJ did not subdivide the third overarching issue at stake in the hearing- whether the District should pay for an IEE of Z.P.S. The District (which had the burden of proof) prevailed on this issue. The ALJ ruled that L.P. was not entitled to an IEE of Z.P.S. ( Id. )
In the ALJ's findings of fact, conclusions of law, and order following the due process hearing, the ALJ found that L.P. "was not truthful when she reported to the District on multiple occasions that she was keeping the Student home from school beginning in December 16, 2011, on the advice of his doctor, until it was safe for him to return to school." (Admin. Order at 6, ¶ 1.) The ALJ found that L.P. "did not keep [Z.P.S.] home [from school] based on the advice of his doctor, " and that "[b]ecause [L.P.] repeatedly told the District she was acting on doctor's advice during the time period she claimed to have received that advice, it is found that she was being untruthful with the District when she made these claims." ( Id. at 51, ¶ 300.) In addition, the ALJ found that "[o]n other issues, [L.P.'s] testimony or beliefs proved to be unreliable or incorrect, although it cannot be concluded whether this was due to a lack of memory, a lack of understanding, or untruthfulness." ( Id. at 6-7, ¶ 1.)
Over the District's objection, L.P. requested multiple continuances of the due process hearing so that the parties could complete the IEP reevaluation process for Z.P.S. (3/6/14 Sullivan Decl. Exs. B, C.) L.P. sought the continuances so that the parties could potentially resolve their dispute following the reevaluation process or so that she could amend her complaint so that it could be consolidated with the District's complaint for purposes of the due process hearing. (3/6/14 Admin. Order at 66, ¶ 51.) At the reevaluation feedback meeting on November 20, 2012, L.P. did not ask the District to consider any additional information or to contact third-parties such as Z.P.S.'s private school teachers or tutors, his pediatrician, or other service providers. ( See id. at 65-66, ¶¶ 46-51.) The ALJ found that, in the context of this case, "it was disingenuous for [L.P.] not to request ...