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B.K v. TOMS RIVER BD. OF EDUC.

March 30, 1998

B.K, Individually and as Guardian Ad Litem of D.K., Plaintiff,
v.
TOMS RIVER BOARD OF EDUCATION, Defendant.



The opinion of the court was delivered by: COOPER

 COOPER, District Judge

 This matter comes before the Court on cross-motions for summary judgment by plaintiff, B.K. and defendant, Toms River Board of Education ("Toms River" or "the Board") pursuant to Federal Rule of Civil Procedure 56. Plaintiff seeks attorneys' fees, expert fees and other costs under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(e)(4)(B), as amended, 20 U.S.C. § 1415(i)(3)(B) (Supp. 1997). *fn1" For the reasons expressed in this Memorandum Opinion, plaintiff's motion is denied without prejudice and defendant's motion is granted in part and denied in part without prejudice.

 BACKGROUND

 D.K., son of plaintiff, B.K., was born on December 26, 1982. D.K. suffers from cerebral palsy and is classified as multiply handicapped. (Certif. of John Gluck in Supp. of Def.'s Mot. for Summ. J. P 3 ("Gluck Certif.")); Certif. of B.K. in Supp. of Mot. for Summ. J., Ex. A (IEP dated Jan. 25, 1995).) Due to his disabling conditions, D.K. is wheelchair bound and connected to a spinal stimulator; he requires adult care for all of his basic needs. (Id.)

 At the April 26, 1994 IEP (Individualized Education Program) conference, B.K. demanded full inclusion for D.K. for the 1994-95 school year in the fourth grade at the Walnut Street School ("Walnut Street"). Walnut Street was plaintiff's local school. (Id., Ex. A (IEP Annual Review Info.).) The school district's initial reaction to plaintiff's request is not evident from the record.

 After the initial April 1994 IEP conference, plaintiff requested a second IEP conference to discuss her desire of including D.K. in his local district school by September 1994. (Id.) That second IEP conference was held on June 13, 1994, and attended by plaintiff, staff from Jackson Regional and Walnut Street, and the school district's child-study team. (Id.) Members of the child-study team as well as the staff from Jackson Regional and Walnut Street indicated at that time that they felt that D.K. should remain at Jackson Regional. Further, Theodore W. Cordes, the child-study team supervisor, offered a multiple-handicapped class at Silver Bay School ("Silver Bay") with mainstreaming. (Gluck Certif. P 12.) Plaintiff resisted the child-study team's offer to place B.K. at Silver Bay, and reiterated her desire for full inclusion at Walnut Street. (Id., Ex. C (Ltr. from Theodore W. Cordes, Child-Study Team Supervisor to Mr. John Gluck, Dir. of Special Servs. (June 14, 1994)).) She also requested that the school district provide the following for her son: (1) supportive services which would include a full-time teacher's aide; (2) speech/language instruction daily; (3) physical therapy three times per week; (4) occupational therapy two times per week; (5) consultant services to in-service staff in mini-speak and the use and programming of the "liberator", a computer device with various icons which may be used for communication; and (6) a full time computer for D.K.'s use. (Id., Ex. C.) The record does not reveal the school district's immediate reaction to B.K.'s demands.

 On August 4, 1994, B.K. requested mediation. (Id., Ex. D.) The request for mediation specifically states that plaintiff requests "full inclusion in the neighborhood school that [D.K.] would attend if he were not handicapped." (Id.)

 On August 8, 1994, B.K. met with Cordes, members of the child-study team, other staff and John Gluck, the Director of Handicapped Services for the Board of Education. (Id. P 14.) Gluck states in his certification that he suggested this meeting prior to B.K.'s filing for mediation. *fn2" (Id.) Plaintiff requested the following at that meeting: (1) full inclusion at Walnut Street; (2) speech therapy; (3) cross training in the use of the "Liberator"; (4) recorded books; (5) full-time paraprofessional aide; (6) a speech consultant; (7) extra time for D.K. to complete his work; (8) physical therapy; and (9) in-home tutoring. Gluck states that at that time, the school district experts, and those from Jackson Regional "believed that a special education class would best meet [D.K.'s] physical and educational needs." Plaintiff, however, did not agree to such placement at that time. (Id. P 14.)

 On or about August 24, 1994, plaintiff met with the school district again to conduct an IEP meeting. At that meeting, the school district stated that while it agreed to place D.K. at Walnut Street, the child would have to be put in segregated classes with other disabled students until a final decision as to D.K.'s permanent placement was made in the due process hearing. *fn3" (B.K. Certif. P 7.) Plaintiff testified in her certification that "D.K.'s placement in a self-contained class in his neighborhood school with no opportunity for inclusion with non-disabled peers was not acceptable to D.K." (Id. P 8.) Thus, it does not appear from the record that the parties agreed to mainstreaming in the interim period before his final placement was determined.

 Plaintiff brought D.K. to Walnut Street School for the first day of classes on September 1, 1994. On September 7, 1994, plaintiff was approached by the school nurse who stated that plaintiff would "have to take D.K. home until the school 'was ready for [D.K.].'" (B.K. Certif. P 10.) Gluck states in his certification that he "informed B.K. not to bring D.K. to school until the district was set up for his health care needs, which date was tentatively scheduled for September 26, 1994." (Gluck Certif. P 19.) On September 12, 1994, plaintiff received a letter from the school stating that D.K. should receive home instruction until the school was ready for him. (B.K. Certif., Ex. A (Ltr. dated Sept. 12, 1994).)

 The parties contest the order of the following events, and the record presently before the Court does not resolve the dispute. Gluck contends that "despite the lack of a new IEP, and a current updated independent evaluation, D.K. began attending a PI [sic] special education class at the Walnut Street School on September 22, 1994." (Gluck Certif. P 22.) He also certifies that by September 26, 1994, the school district "started" several programs and procedures in preparation for D.K. to remain at Walnut Street. (Id.) The record does not reveal, however, the time-frame within which these changes were actually fully implemented, although it does not appear that all of them were completed as of September 22, 1994. (See id.)

 In sharp contrast to defendant's recitation of the chronology of events, plaintiff flatly denies that D.K. returned to Walnut Street School prior to September 27, 1994. (B.K. Certif. P 12.) Plaintiff instead claims that she brought her child to Walnut Street on September 27, and that the school district informed her that it was not ready for D.K. to return to school. (Id.; see also Pl.'s 12 Stmt. of Facts P 17 ("B.K. denies that D.K. was attending school on September 27, 1994.").) Plaintiff claims that as a result of the school's failure to allow D.K. to return to school on September 27, plaintiff applied for emergency relief to enforce the interim mediation agreement and allow D.K. to attend school in the resource room until a final decision was made concerning D.K.'s permanent inclusion into classes with non-disabled students. (B.K. Certif. P 13; Gluck Certif., Ex. L (Request for Due Process).) By letter dated October 3, 1994, defendant confirmed with plaintiff's attorney that B.K. withdrew her emergency relief request, as D.K. was attending Walnut Street School as of that date. (Id. P 24 & Ex. N.) The record does not reveal, however, the exact date that D.K. began attendance at the Walnut Street School.

 On October 26, 1994, plaintiff again withdrew from mediation and requested a due process hearing to compel the school district to properly train the staff for D.K. and to include him in general educational classes. (B.K. Certif. P 19 & Ex. D.) Again, by letter dated December 2, 1994, B.K.'s attorney withdrew from mediation and renewed his due process request as per his letter dated October 26, 1994. (Gluck Certif. P 25 & Ex. P.) By letter dated December 14, 1994, hearings were set for January 27, 1995, January 30, 1995, February 8, 1995 and February 17, 1995. On January 18, 1995, plaintiff filed for emergency relief, indicating the lack of a properly trained aide to assist D.K. throughout the school day. (Id. P 28 & Ex. S.) Plaintiff alleged in her affidavit in support of emergency relief that the aide originally hired will not lift D.K. from his wheelchair, and a subsequent aide was out sick for one week without a replacement. (Id., Ex. S.) The school district contested plaintiff's contentions. Subsequently, plaintiff's request for emergency relief was denied. (Id., Ex. U.)

 On January 25, 1995, two days before the due process hearing began, the school district held an IEP meeting where an IEP for D.K. was developed. That IEP proposed removing D.K. from Walnut Street School and placing him back in the Jackson Regional Day School with mainstreaming into a fifth grade music and art class. *fn4" (Supp. Certif. of B.K. in Supp. of Pl.'s Mot. for Attorney's Fees ("B.K. Supp. Certif.") Ex. A. (IEP Implementation Form).)

 The matter proceeded to a due process hearing before the New Jersey Office of Administrative Law. After two days of testimony, the parties reached a settlement of the matter and entered into a Stipulation of Settlement. (Gluck Certif. Ex. V.) The school district agreed to modify the current IEP for the balance of the 1994-95 school year and develop an IEP for 1995-96 which incorporated the provisions of the settlement agreement. (Id. P 29.) In the settlement agreement, the school district agreed to: (1) hire a consultant to train appropriate staff and to develop and implement an appropriate educational program for D.K. at Walnut Street School; (2) place D.K. in art, music, computer and media classes with non-disabled students; (3) place D.K. in the resource room with both disabled and non-disabled students for math and reading; and (4) place D.K. at HMS School during the period of June 25, 1995 through July 13, 1995. (B.K. Certif. P 19.) The Stipulation of Settlement was dated March 16, 1995 and incorporated into the ALJ's decision dated March 28, 1995. (Id. Ex. E.)

 Plaintiff filed her Complaint in this Court on March 11, 1997, seeking reasonable attorneys fees, expert fees and remuneration for her services as a substitute aide for her son at the Walnut Street School. Plaintiff argues that she is a prevailing party pursuant to 29 U.S.C. § 1415(e)(4)(B), as the institution of mediation and due process procedures "totally changed [defendant's] position regarding D.K., first when it changed its decision not to allow D.K. to attend Walnut Street School, and second when it changed its decision not to include D.K. in general education classes or to hire a consultant for D.K." (Pl.'s Br. in Supp. at 8.) Plaintiff also contends that in order to ensure D.K.'s permanent placement at Walnut Street School, she "needed the evaluations of the experts, Dr. Henning and Dr. Dragan. Toms River refused to allow D.K. to attend Walnut Street or enroll him in general education classes without a showing that D.K. could be appropriately educated there." (Id.)

 Plaintiff next argues that she is entitled not only to attorneys' fees, but also expert fees, interest accrued on her credit card for payment of the experts, and remuneration for her time spent at the Walnut Street School as D.K.'s aide. (Id. at 9.) In support of her application for attorneys' fees, plaintiff provides her own affidavit setting forth the amount that she was billed for the efforts of her attorney, John Capasso, Esq. (Id. at 10.) It appears that Mr. Capasso has not responded to plaintiff's requests for a certification setting forth his hours spent working on behalf of B.K. and the amounts charged to plaintiff. (Certif. of Rebecca K. Spar, Esq. in Supp. of Pl.'s Mot. for Summ. J. ("Spar Certif.") Ex. B.) Plaintiff also submits the affidavit of her present counsel, which provides her time spent prosecuting this fee application. (Id.) Plaintiff does not, however, provide supporting affidavits of other attorneys concerning what should be considered a reasonable hourly rate.

 Defendant opposes plaintiff's motion and has filed its own cross-motion for summary judgment. Defendant argues that (1) plaintiff's fee application is barred by the applicable statute of limitations, (Def.'s Br. in Supp. of Mot. for Summ. J. ("Def.'s Br. in Supp.") at 4); (2) plaintiff is not a "prevailing party" under IDEA, as plaintiff "sought nothing short of full inclusion for D.K." but "failed to obtain this primary goal," (id. at 12), (3) plaintiff's fee claim should be reduced and her claim for expert's fees denied, (id. at 16), and (4) plaintiff is not entitled to reimbursement for services B.K. provided to her own child at the Walnut Street School, nor is she entitled to reimbursement for the interest accrued on her credit card. (Id. at 18.) With respect to plaintiff's prevailing party argument, defendant maintains that the school district had already agreed to the related services set forth in the settlement agreement, and had also agreed to placement in a special education classroom with mainstreaming. (Id. at 12.) Defendant states that the only dispute between the parties was the location of placement, as between the Walnut Street School and the Silver Bay School. However, the district maintains that the ultimate placement remained the same, and that D.K.'s academic subjects are taught in a resource class with only pupils classified as handicapped. (Id.)

 DISCUSSION

 A court shall enter summary judgment when the moving party demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party has satisfied this initial burden, the opposing party must establish that a genuine issue of material fact exists. Jersey Cent. Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109 (3d Cir. 1985), cert. denied, 475 U.S. 1013, 89 L. Ed. 2d 305, 106 S. Ct. 1190 (1986). The opposing party cannot rest on mere allegations; rather, it must present actual evidence that creates a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (quotation omitted); Schoch v. ...


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