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P.G. v. BRICK TP. BD. OF EDUC.

December 11, 2000

P.G., A MINOR, AND B.G. AND P.G., HIS GUARDIANS, PLAINTIFFS,
V.
BRICK TOWNSHIP BOARD OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Cooper, District Judge

  MEMORANDUM OPINION

This matter comes before the Court on motions for summary judgment and attorneys' fees by plaintiffs P.G., a minor, and B.G. and P.G., his guardians, against defendant Brick Township Board of Education ("Board"). Plaintiffs seek attorneys' fees and costs under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. For the reasons expressed in this Memorandum Opinion, plaintiffs' motions are granted.

BACKGROUND

P.G. was born on June 3, 1993. (Certif. of Michaelene Loughlin, Esq., dated 6-29-00 ("Loughlin Certif.") ¶ 10.) He resides with his family in the Brick Township School District. (Id.) P.G., classified by the Board as autistic, engages in self-injurious and aggressive behavior that interferes with his own learning and poses a danger of harm to himself and others. (Id. ¶¶ 10-11.)

1. P.G. will be placed at Children's Seashore House ("CSH"). It is anticipated that his placement at CSH will be paid in substantial part by his parents' insurance carrier. Any costs not paid by the insurance carrier will be paid by the district, with the exception of non-diagnostic, non-evaluative medical costs. . . . If the [insurance] company declines coverage or if P.G. is not accepted into the program at CSH, then the parents reserve the right to seek, through due process, placement of P.G. at Bancroft Neurohealth — the Lindens ("Lindens") or CSH at district expense. . . .
2. P.G. will be evaluated for intake by CSH on or before March 8, 1999, and will be placed in the program as soon as an opening is available.
3. In the meantime, the following services will be provided to P.G. or on his behalf:
A. Three hours per day, five days per week, extended day program in the home.

B. Parent training.

C. Teacher/aide training for P.G.'s teacher and aide at Children's Center of Monmouth County ("Children's Center").

D. The Children's Center parent trainer.

4. The services outlined in number three will be coordinated and supervised by Dr. Bridget Taylor. The budget for services included in item number three (3) is $6,750.00. Dr. Taylor will be compensated at the rate of $175.00 per hour; the balance of the money will be made available to compensated providers of the extended day program in the home. Payments will be made by the district upon submission of vouchers on forms to be supplied by it. If P.G. has not been placed by the end of ten (10) weeks, then this provision will be reviewed by the parties.
5. The parties reserve on issues regarding the development of a post-CSH placement [Individualized Education Program], including related and supplemental services to be provided to P.G. and on his behalf.
6. The parents waive their claim for transportation expenses and for reimbursement of money expended by them in providing a home program for P.G. to date.

(Id. ¶ 12 and Ex. F: Stipulation of Settlement dated 3-3-99 ("Stipulation of Settlement").) After reaching this settlement, plaintiffs filed a Complaint in this Court on July 14, 1999 seeking reasonable attorneys' fees and costs. (Memorandum and Order filed 3-23-00 in Civil Action No. 99-3313(MLC) ("Memorandum and Order") at 4.) This Court, with a Memorandum and Order filed March 23, 2000 ("Memorandum and Order"), granted plaintiffs' motion for summary judgment and awarded plaintiffs $18,433.01 in attorneys' fees and costs. (Id. at 24.)

During P.G.'s placement evaluation, it was decided to close CSH and not accept any new children such as P.G. (Loughlin Certif. ¶ 14.) Plaintiffs' counsel, Michaelene Loughlin, Esq., ("Loughlin"), wrote a letter dated April 21, 1999 to Scott D. Thompson, Esq. ("Thompson"), counsel for the Board ("April Letter"), requesting P.G.'s placement at Bancroft Neurobehavioral Stabilization Unit — The Lindens ("Bancroft"). (Id. ¶ 15 and Ex E: Letter from Michaelene Loughlin, Esq., to Scott Thompson, Esq., dated 4-21-99 ("April Letter") ¶ 2.) The April Letter states that, if no response is received within ten days or defendant denies the proposed placement, plaintiffs will file another due process petition. (April Letter ¶ 2.)

After the Board did not respond within ten days of the April Letter (Loughlin Certif. ¶ 17), plaintiffs filed a due process petition on or about May 4, 1999. (Loughlin Certif. ¶ 17). Plaintiffs sought: (1) P.G.'s placement at Bancroft or another appropriate facility as soon as an opening was available; (2) development of goals concerning P.G.'s self-injurious and aggressive actions; (3) continuation of the extended day program regardless of the financial cap in the Stipulation of Settlement; and (4) payment of transportation to and from Bancroft for appointments. (Id. ¶ 17 and Ex F: Letter from Michaelene Loughlin, Esq., to Dr. Barbara Gantwerk dated 5-4-99 ("Due Process Petition") section III.) The due process petition was assigned to an administrative law judge. (Id. ¶ 18.)

After the completion of the Board's case before the administrative law judge, plaintiffs moved for summary decision. (Id. ¶ 19 and Ex. G: Order dated 7-13-99 at 2.) The administrative law judge granted plaintiffs' motion with an order dated July 13, 1999 ("Summary Decision Order"), finding: (1) P.G. is not receiving a "significant and meaningful education"; (2) a functional behavioral assessment is necessary to develop an appropriate Individualized Education Program ("IEP") for P.G.; and (3) this assessment may have a medical component. (Summary Decision Order at 6-7.) The administrative law judge ordered the Board to arrange for the assessment, but she did not order immediate placement at Bancroft because of the unfamiliarity of the Board's Child Support Team with Bancroft and the absence of a full consideration on the part of the Child Support Team of whether Bancroft would be an appropriate alternative to CSH.*fn1 (Id. at 6-7) The administrative law judge therefore ordered the Board to select, in consultation with P.G.'s parents, a facility to conduct this behavioral evaluation within thirty days of July 13, 1999. (Id. at 7.) The administrative law judge further directed the Board to consider whether the facility can accept P.G. within a reasonable time. (Id.) The administrative law judge ordered the Board to continue the extended day program until P.G.'s placement at an appropriate facility. (Id.)

The parties did not reach an agreement on P.G.'s testing placement within the thirty-day period established by the Summary Decision Order. (Loughlin Certif. ¶ 21.) The parties did narrow the list of potential facilities to Bancroft and the Kennedy Krieger Institute ("Kennedy Krieger"). (Id. ¶ 22.) Plaintiffs preferred Bancroft because: (1) Bancroft had an immediate opening for P.G., whom it had already accepted, compared with an opening at Kennedy Krieger in November or December of 1999 at the earliest; (2) Bancroft was closer to P.G.'s home; (3) Bancroft provided follow-up services; and (4) it has a home-like setting. (Id. ¶ 22.) Plaintiffs, however, stated that a Kennedy Kreiger placement would be acceptable if P.G. could be placed at Kennedy Kreiger sooner than at Bancroft. (Id.) The Board preferred Kennedy Kreiger, but it would not commit to a placement at a particular facility. (Id. ¶ 23.)

The administrative law judge issued her final decision in this matter on September 13, 1999 ("Final Decision"). (Id. ¶ 24 and Ex. G: Decision dated 9-13-99 ("Final Decision").) The administrative law judge ordered P.G. to be placed at Bancroft for a "functional behavior assessment." (Final Decision at 4.) The judge, however, also ordered P.G. to be placed at Kennedy Kreiger for this assessment "if Bancroft cannot accept P.G. earlier than Kennedy Kreiger." (Id.) The Final Decision directed the Board to pay the transportation costs of P.G. and his parents for their participation in the assessment. (Id.)

During and after these administrative proceedings, Loughlin undertook various activities on behalf of her clients. Loughlin claims she worked 7.65 hours between the Summary Decision Order of July 13, 1999 and the administrative hearing conducted on August 24, 1999 gathering information about different facilities, consulting with P.G.'s parents and their expert, corresponding with Thompson, and attending an August 2, 1999 IEP meeting regarding P.G.'s placement. (Loughlin Certif. ¶ 26.) The Director of Special Services's refusal to obtain placement information and the harm caused to P.G. by the delay supposedly necessitated these actions. (Id. and Ex H: Letter from Michaelene Loughlin, Esq., to Scott Thompson, Esq., dated 8-6-99; Letter from Michaelene Loughlin, Esq., to Scott Thompson, Esq., dated 8-9-99; Letter from Michaelene Loughlin, Esq., to Hon. Beatrice S. Tylutki dated 9-7-99; Letter from Michaelene Loughlin, Esq., to Ben Montenegro, Esq., dated 9-9-99; Letter from Michaelene Loughlin, Esq., to Scott Thompson, Esq., misdated 8-9-99, actually drafted and faxed 9-15-99.)

Loughlin performed further tasks on her clients' behalf between September 1, 1999 and March 24, 2000. (Id. ¶ 27.) This work continued even after she filed the Complaint seeking attorneys' fees and costs on December 21, 1999. She allegedly worked a total of 24.45 hours: (1) making telephone calls and writing letters to secure P.G.'s placement at Bancroft; (2) communicating with Bancroft employees, P.G.'s parents, her clients' expert, and Thompson about P.G.'s progress and the possibility of an extension of his stay at Bancroft; and (3) attending two IEP meetings. (Id. and Ex. I: Letter from Michaelene Loughlin, Esq., to Scott Thompson, Esq., dated 12-23-99 ("December Letter"); Letter from Michaelene Loughlin, Esq., to Scott Thompson, Esq., dated 1-18-00; Letter from Maureen Zolkiewicz to Lenore Layton dated 2-1-00; Letter from Michaelene Loughlin, Esq., to Scott Thompson, Esq., dated 2-10-00 ("February Letter").)

Loughlin contends that it was necessary for her to attend one of these IEP meetings, held at Bancroft on January 13, 2000, in order to argue that P.G. should remain at Bancroft past the original January 17, 2000 date for ending P.G.'s placement because of the recommendations of the Bancroft staff. (Id. ¶ 28.) She earlier asked for an extension in a letter dated December 23, 1999 ("December Letter"). (December Letter ¶ 3.) She wrote another letter dated February 10, 2000 ("February Letter") complaining of the Board's failure to have an appropriate placement for P.G. upon the termination of his Bancroft placement and indicating an intention to file an emergency due process petition. (February Letter ¶¶ 2-3.) Loughlin attended another ...


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