MEMORANDUM OPINION AND ORDER
MANISH S. SHAH, District Judge.
This is an action to recover attorneys' fees under the Individuals with Disabilities Education Act. Plaintiffs prevailed before an independent hearing officer on, among other things, their claim that defendant failed to properly evaluate the needs of their disabled son Guillermo. Both sides currently agree that plaintiffs are entitled to some reimbursement for fees, but they disagree on how much. The parties have filed cross-motions for summary judgment. For the following reasons, both motions are granted in part and denied in part.
I. Legal Standard
Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). A genuine dispute as to any material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On cross-motions for summary judgment, all facts are construed and all reasonable inferences are drawn in favor of the nonmoving party. Garofalo v. Village of Hazel Crest, 754 F.3d 428, 430 (7th Cir. 2014).
II. Background
Plaintiff Guillermo G. was diagnosed at birth with spastic diplegic cerebal palsy. Dkt. 23 ¶ 5. At the time of the events in this case, Guillermo was 14 years old and enrolled in defendant Board of Education of the City of Chicago's Public School District No. 299. Id. ¶¶ 1, 5. Because of his learning disabilities and physical impairment, Guillermo was eligible for special education provided by defendant. Id. ¶ 5. On August 22, 2012, Guillermo's parents, plaintiffs Antonio G. and Tomasa G., requested an impartial due process hearing under the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.). Dkt. 25 ¶ 5. Plaintiffs' amended administrative complaint raised 12 issues. See Dkt. 1-1 at 3-4. In summary, they were (1) whether defendant provided plaintiffs a complete and timely copy of Guillermo's school records; (2) whether defendant conducted a full individual evaluation of Guillermo when it re-evaluated him in October 2010; (3) whether defendant developed appropriate Individualized Education Programs (often called IEPs) in school years 2010-11, 2011-12, and 2012-13; (4) whether Guillermo required assistive technology; (5) whether Guillermo needed social work or psychological services; (6) whether Guillermo needed speech/language, occupational, or central auditory processing disorder therapy and services; (7) whether Guillermo required extended school year services (i.e., summer school) in 2011 and 2012; (8) whether Guillermo made academic progress since 2010-11; (9) whether Guillermo required a therapeutic day school as his least restrictive environment; (10) whether Guillermo was bullied by other students; (11) whether defendant notified plaintiffs that it was changing Guillermo's special education, related services, or educational placement; and (12) whether defendant implemented IDEA's "stay-put provision" in a timely manner. See id.
On November 1, 2012 and December 27, 2012, defendant extended written settlement offers to plaintiffs. Dkt. 25 ¶ 6. Defendant's latter proposal offered to (1) provide all of Guillermo's student records then in its possession or that later became available; (2) conduct evaluations by Chicago Public Schools clinicians; (3) fund an independent psychological evaluation in the amount of $3,375.00 and an independent central auditory processing evaluation in the amount of $600.00; (4) place Guillermo, with transportation, at a therapeutic day school such as Acacia Academy; (5) develop an IEP incorporating plaintiffs' choice of placement and including "the appropriate recommendations from the CPS evaluations and from any private evaluations provided by the Parent [sic] for consideration"; (6) include extended school year for 2013; and (7) provide 140 one-hour sessions of after-school reading tutoring for compensatory education at a rate of twice a week. See Dkt. 21-2 at 7-8.
Plaintiffs rejected this offer and the hearing began on January 7, 2013. Dkt. 25 ¶ 7. After several days of testimony, the hearing officer found that defendant "had not fully evaluated [Guillermo's] [occupational therapy, speech/language, and assistive technology] needs . . . [and had] failed to provide [Guillermo's] parents with [an] IEP that made significant changes to [Guillermo's] program. [Defendant also] failed to develop [an] appropriate IEP and transition [plan,] . . . failed to implement [the] stayput [provision,] [and] failed to implement [the] IEP as written." Dkt. 1-1 at 1. At the same time, the hearing officer found that Guillermo "did not nee[d] [social work or psychological] services, [extended school year], or therapeutic day school." Id. After the hearing, plaintiffs complained to the Illinois State Board of Education about defendant's noncompliance with the officer's decision. Dkt. 23 ¶ 20. On October 8, 2013, the State Board confirmed that defendant was not in compliance. Id. ¶ 22.
Plaintiffs and defendant eventually resolved the matter by means of a settlement agreement. Id. ¶ 25. Among other things, the agreement provided for (1) waiver of attorneys' fees and costs incurred after February 13, 2014, (2) placement of Guillermo at Acacia Academy, (3) six weeks of extended school year, and (4) additional afterschool tutoring. Id. Plaintiffs submitted a claim for attorneys' fees on August 1, 2013, as well as supplemental claims on September 16, 2013, February 24, 2014, and March 19, 2014. Id. ¶¶ 27-28. Defendant has not paid any of these claims. Id. ¶ 31.
The parties agree that the lodestar amount—a calculation based on a reasonable, market-based hourly rate and the reasonable time expended—is $100,162.06. Dkt. 18 at 1-2; Dkt. 20 at 13.
III. Analysis
The Individuals with Disabilities Education Act grants me discretion to award attorneys' fees to parents who have prevailed in an administrative proceeding brought under the statute. 20 U.S.C. § 1415(i)(3)(B)(i)(I). One limit to my discretion, however, is that the law bars fees for services performed after the parents have received a written settlement offer and (1) the offer was made more than 10 days before the administrative proceeding, (2) the parents did not accept the offer within 10 days, and (3) the relief the parents finally obtained was not more favorable than the settlement offer. Id. § 1415(i)(3)(D)(i). This limit does not apply, though, if the prevailing parents were substantially justified in rejecting the offer. Id. § 1415(i)(3)(E).
While defendant acknowledges plaintiffs prevailed at the due process hearing, it also believes the relief plaintiffs finally obtained was less favorable than its December 27th offer.1 In support of this position, defendant provides a chart assessing whether each individual term of relief it offered was finally obtained. See Appendix A to this Opinion. As defendant sees it, plaintiffs obtained (1) transportation to school, (2) funding for a central auditory processing evaluation, and (3) development of a new IEP, but did not obtain (1) placement at Acacia Academy, (2) 140 hours of compensatory reading tutoring, (3) funding for a psychological evaluation, (4) an extended school year, or (4) an order to produce all records. Id.2
As defendant notes, its chart omits certain relief that was not offered to plaintiffs, but which plaintiffs obtained. According to defendant, even with this additional relief, the hearing officer's decision was less favorable than the December 27th offer. Dkt. 20 at 7. Specifically, although the officer granted 144 hours of compensatory occupational therapy and individual speech/language therapy, defendant offered a comparable 140 hours of compensatory reading education. Id. Likewise, while the officer ordered defendant to pay for plaintiffs' independent speech/language and occupational therapy evaluations at a combined cost of $3,275, defendant offered to fund an independent psychological evaluation costing $3,375. Id. at 8.
Taking umbrage with defendant's representation of the hearing officer's decision, plaintiffs offer a chart of their own. See Appendix B to this Opinion. The primary difference between the two charts is that plaintiffs' individually sets forth each IEP modification the officer ordered. Plaintiffs note that none of these modifications were proposed in defendant's settlement offer. On this point, defendant replies that its offer did in fact include these adjustments because the adjustments came from plaintiffs' independent evaluators, and defendant's offer states that it would "develop an IEP incorporating the parent's choice of placement as reflected in the LRE section; to include the appropriate recommendations from the CPS evaluations and from any private evaluations provided by [plaintiffs] for consideration." Dkt. 21-2 at 8 (emphasis added). Thus, according to defendant, its "offer did not have to specifically delineate everything included in the parents' IEE [independent education evaluation] reports because its agreement to include the appropriate recommendations from the parents' IEEs incorporates all the items specifically delineated in the hearing officer's decision." Dkt. 28 at 4.
Finally, though both charts acknowledge that the officer denied plaintiff's request for placement in a therapeutic day school such as Acacia Academy,3 plaintiffs' chart notes that the officer instead ordered a change in Guillermo's placement for both 8th grade and high school, with transportation included.
Comparing the values of defendant's offer and plaintiffs' award is a tricky proposition. The difference between the two is not so great as to make the answer obvious. Reasonable arguments can be (and have been) made in favor of both sides. On the one hand, it is tempting to adopt defendant's proposal and focus on the fact that plaintiffs did not obtain placement at a therapeutic day school—relief valued at $28,500 a year. Looking at dollars and cents, it would seem that defendant's offer was more favorable than what the hearing officer awarded plaintiffs. On the other hand, the officer's decision specifically articulated and adopted the recommendations of three of plaintiffs' independent evaluators. While defendant did offer to incorporate "appropriate recommendations" that were "provided . . . for consideration," this vague offer is unquestionably inferior to the well-defined, concrete, and fully independent IEP improvements plaintiffs in fact received. Thus, if value is defined by guaranteed meaningful improvements to Guillermo's educational program (in conjunction with incremental improvements in his placement), the relief obtained would appear to have been more valuable than defendant's offer.
In the end, though, I find plaintiffs were substantially justified in rejecting defendant's offer. By the time defendant made its offer, plaintiffs had already incurred over $20,000 in attorneys' fees. Dkt. 17-2 at 3-17; Dkt. 24 at 10. Plaintiffs' counter to defendant's November 1st offer put defendant on notice that fees would be a material part of any settlement. See Dkt. 17-1 at 90. Nevertheless, defendant's final offer included no provision for the payment of plaintiffs' attorneys' fees. Plaintiffs therefore had a choice: accept the offer and owe a hefty sum,4 or seek to prevail at the hearing and have their attorneys' fees shifted to defendant. Faced with these two options, plaintiffs were substantially justified in rejecting defendant's offer. Cf. Gary G. v. El Paso Independent School District, 632 F.3d 201, 210 (5th Cir. 2011) ("[W]e do not hold that every plaintiff rejecting a settlement offer because it does not include [attorney's] fees is, per se, not substantially justified in rejecting it.") (emphasis in original). Plaintiffs are therefore not barred from recovering post-offer fees.
Having determined the scope of a possible fee award, the next step is to determine what would be reasonable in light of the results achieved. Farrar v. Hobby, 506 U.S. 103, 114-16 (1992). The most critical factor in determining the reasonableness of a fee award "is the degree of success obtained" in relation to the other goals of the lawsuit. Linda T. v. Rice Lake Area School District, 417 F.3d 704, 707 (7th Cir. 2005). Defendant argues that the fee should be significantly reduced based on the difference between the judgment recovered and the recovery sought. Defendant contends that plaintiffs "did not succeed on half the issues they raised" and that plaintiffs received only 41% of the relief they sought. Dkt. 20 at 10-11. Defendant supports this position with two additional charts. See Appendix C to this Opinion. Defendant also argues that plaintiffs did not succeed "on the most significant issue—placement at a private therapeutic day school." As a result, defendant suggests the agreed lodestar ($100,162.06) should be reduced by 59%, resulting in an award of $41,066.44.
Plaintiffs once again disagree with defendant's representations and provide two more charts of their own. See Appendix D to this Opinion. Regarding the issues they raised at the hearing, plaintiffs admit that they failed to prove that (1) Guillermo did not make academic progress, (2) defendant did not provide Guillermo necessary social work services, and (3) the school staff did not prevent bullying of Guillermo. Dkt. 24 at 11. As for relief plaintiffs requested, they reject defendant's claim that the officer denied a request for a finding that a lack of records denied Guillermo a free appropriate public education. Dkt. 24 at 11-12. Plaintiffs also take issue with the fact that defendant's chart does not separately consider each IEP and related service modification ordered by the hearing officer. Id. at 13. Nevertheless, plaintiffs acknowledge that they did not obtain all relief they sought, including (1) reimbursement for a private psychological evaluation, (2) private school placement, (3) extended school year, (4) after school tutoring for reading and math, or (5) social work services. Id.
I find that plaintiffs substantially achieved what they set out to achieve. Plaintiffs successfully proved that Guillermo had not been properly evaluated with regard to his occupational therapy, assistive technology, central auditory, and speech/language needs. More importantly, plaintiffs successfully obtained relief addressing each one of these needs. Plaintiffs also proved that Guillermo's IEPs were deficient from 2010 through 2013, and plaintiffs were granted an immediate IEP meeting to correct these deficiencies. Plaintiffs proved that defendant denied them the right to participate in the decision-making process for their son. And plaintiffs obtained placement for Guillermo in a public school that could implement his proper IEP.
At the same time, plaintiffs failed to achieve a number of their goals. Plaintiffs did not prove any deficiencies with regard to Guillermo's need for a social worker or psychologist. They did not demonstrate a need for extended school years in 2011 and 2012, or that Guillermo failed to make academic progress. Plaintiffs did not prove that Guillermo required a therapeutic day school as his least restrictive environment. Plaintiffs also failed to prove that bullying conduct was sufficiently severe, persistent, or pervasive. Thus, a reduction in the lodestar to reflect this more limited success is appropriate. The need for a social worker or psychologist and a therapeutic day school represented a significant portion of plaintiffs' request, and a reduction of 25% appropriately accounts for the plaintiffs' failure to achieve those results in the contested hearing. I therefore award $75,121.55 in attorneys' fees (75% of the lodestar).
Plaintiffs request prejudgment interest. Whether to award prejudgment interest is within my discretion; though it is presumptively available to victims of federal law violations. McRoberts Software, Inc. v. Media 100, Inc., 329 F.3d 557, 572 (7th Cir. 2003). Defendant argues against prejudgment interest, noting that § 1415 characterizes attorneys' fees as being "part of the costs[.]" 20 U.S.C. § 1415(i)(3)(B)(i). Defendant cites Library of Congress v. Shaw for the proposition that "[t]he term `costs' has never been understood to include any interest component." 478 U.S. 310, 321 (1986). Nevertheless, in a post-Shaw decision, the Seventh Circuit held that "adjustment for delay in payment of attorney's fees is appropriate under § 1988."5 Smith v. Village of Maywood, 17 F.3d 219, 221 (7th Cir. 1994). The court further held that when, as here, the lodestar is calculated using the attorney's historic rates, the award is properly adjusted by adding interest. Id.
Accordingly, I grant plaintiffs' request for prejudgment interest, beginning to accrue 30 days after each respective fee petition was filed.6 I also accept plaintiffs' proposal of using the average prime rate from 2012-2014, or 3.25%, compounded annually.
IV. Conclusion
Plaintiffs' motion for summary judgment, Dkt. 16, is granted in part and denied in part. Defendant's motion for summary judgment, Dkt. 19, is granted in part and denied in part. Plaintiffs shall submit a proposed final judgment order consistent with the findings in this opinion by November 3, 2014.
Appendix A
Board's Offer Hearing Officer's Order
Place Guillermo at a private therapeutic day school, Denied
such as Acacia, which costs approximately
$28,500.00 per school year
Provide transportation to and from school Ordered
Provide 140 one-hour sessions of after-school reading Denied
tutoring for compensatory education at the rate of 60
minutes per week twice a week
Fund the independent psychological evaluation in Denied
the amount of $3,375.00
Fund the independent central auditory processing Ordered
evaluation in the amount of $600.00
Develop an [Individualized Education Program] to Ordered
include the appropriate recommendations from the
[Chicago Public Schools] evaluations and from any
private evaluations provided by the Plaintiffs
[Extended School Year] for Summer 2013 Denied
Conduct evaluations by [Chicago Public Schools] Not addressed by Hearing
clinicians, including, but not limited to, a Officer
psychological evaluation, a central auditory
processing evaluation, a social work evaluation, an
occupational therapy evaluation, a speech-language
evaluation and an [assistive technology] evaluation
Provide all student records in its possession and to Denied
provide any and all additional documents as they
may become available
Dkt. 20 at 7.
Appendix B
[Offer] [Relief Obtained]
1 Para 1. to provide all student records in its No order re production of
possession; and to provide any and all additional additional documents; but,
documents as they may become available. finding that withholding of
IEP "grid" was "a
significant and egregious
procedural violation"
resulted in an order for
High School services (Para
2 on p. 61), not mentioned
in CPS offer
2 Para 2. to conduct evaluations by CPS clinicians, Denied psych report and
including (but not limited to), a psychological social assessments, but
evaluation, a central auditory processing ordered payment for
evaluation, a social work evaluation, an independent evaluations
occupational therapy evaluation, a speech-language for the other four
evaluation and an assistive technology categories: CAPD, OT,
evaluation Speech/language and AT,
based on findings that
CPS conducted an
inadequate assessment
(speech/language) or failed
to conduct assessments
(CAPD, OT, AT) Decision
at pp 43-46).
3 Para 3. to fund the independent Psychological Not granted.
evaluation in the amount of $3,375.00
4 Para 4. to fund the independent Central Auditory Ordered, Para 5 at p.61.
Processing Evaluation in the amount of $600.00
5 Para 5. to place the student: Para 1 at p. 59: IHO
a. at a CPS multisensory program that will ordered:
provide Orton-Gillingham type systematic a) peer reviewed
reading instruction; or special education
b. at a separate day school, such as Acacia. instruction in
placement would include transportation services language arts
to and from school (para 1(g) of
Decision, at p.
59);
b) placement in
different school
for 8th grade
(para 1(a) of
Decision at p.
59) and for 1st
year of high
school (para 2 of
Decision at p.
61);
transportation ordered
(Id.).
6 Para 6. to develop an IEP incorporating the IHO ordered IEP meeting
parent's choice of placement as reflected in the within 10 days to arrange
LRE section; to include the appropriate placement "at a public
recommendations from the CPS evaluations and school or at one of the
from any private evaluations provided by the district's charter schools
Parent for consideration. that can provide the
placement required by,
and described in, the 2011-12
LRE grid for language
arts and math special
education instruction. The
parents shall have input
into the placement,
including visiting proposed
schools that can
implement the placement.
The district shall provide
round-trip transportation
to the school" (Para 1(a) at
pp 59-60).
7 Para 7. to include Extended School Year (ESY) for Not ordered.
Summer 2013.
8 Para 8. to provide 140 one-hour sessions of IHO ordered 60 minutes
after-school reading tutoring for compensatory per week hours of after
education at the rate of 60 minutes per week school services in
twice a week occupational therapy for
two years and 60 mpw for
two years in written
language by a
speech/language
pathologist (para 3 at p.
61) CPS states this equals
144 hours of after-school
services (Doc #20 at p.7).
9 Not mentioned Para 1(b) at p. 59:
Revise the draft IEP to
reflect the special
education placement and
service minutes for
language arts and math
provided in the 2011-12
LRE grid.
10 Not Mentioned Para 1(c) at p. 60:
Provide related services
in the amount specified
in the IEE reports, as
follows:
i. 90 minutes/week of
individual and/or
small group speech
and language services;
ii. 90 minutes/week of
AT support to the
student and additional
consultation time with
staff and the student's
parents;
iii. Provide aural
rehabilitation to
address his central
auditory processing
disorder;
iv. Provide 60
minutes/week of
direct occupational
therapy services and
45 minutes/month of
consult occupational
therapy services to
teachers and staff
who work with the
student;
Provide 30 minutes/week
direct services, either by a
qualified social worker or
speech/language
pathologist, to address the
student's difficulties in
semantic language as they
impact his peer
relationships. If Dr. M-J is
available to serve as a
consultant to develop this
service and appropriate
goals, the district shall
retain her as a consultant
for up to 10 hours and
reimburse her at her
normal hourly
consultation fee.
11 Not Mentioned Para 1(d) at p.60:
d. Provide the assistive
technology
recommended in Dr. M-J's
report, including:
i. A laptop computer
with Windows-based
operating system and
Internet capabilities,
and a printer and
scanner;
ii. Franklin Speller
(talking);
iii. Live-scribe pen;
iv. SOLO-6, which
includes Talking Word
Processor
(Write:Outloud 6), word
prediction program
(Co:Writer 6),
Draft:Builder-6, and
Read: Outloud-6;
Bookshare.org
membership (free) with
Read:Outloud 6 (free
version); and, vi. Premier
Assist Literacy Pack.
12 Not mentioned Para 1(e) at p. 60-61:
The IEP team shall
revise the student's IEP
to include the
Accommodations
recommended in Dr. F.'s
evaluation, found at
pages PD 332-333, and
the aural
rehabilitation goals
found at pages PD 337-339.
(see also Pl Add'l
Facts, ¶¶1 through 3
and Exhibit S, at S-5
through S-6, and
Exhibit S-10 through S-12).
13 Not mentioned Para 1(f) at p. 61:
The IEP team shall revise
the student's IEP to
include the
recommendations in Ms.
B's evaluation, found at
pages PD 400-402. (see
also Pl Add'l Facts, ¶4-¶5,
and Exhibit T, at T-25
through T-26).
14 Peer reviewed instruction in math not mentioned Para 1(g) at p. 61:
The IEP team shall revise
the student's IEP to
include a statement of the
peer-reviewed special
education instruction in
language arts and in math
that shall be provided to
the student.
15 Not mentioned Para 1(h) at p. 61:
The IEP team shall revise
the student's IEP to
include goals that have
objective baselines and
benchmarks with
objective measures of
progress.
16 Not mentioned Para 1(i) at p. 61:
The IEP team shall revise
the student's transition
plan to include goals that
address his need for
developing fundamental,
work related skills and his
needs in independent
functioning.
17 Not mentioned Para 2 at p. 61:
The district shall
provide a placement for
the student's first year
of high school that
includes 400
minutes/week of direct
services in a separate
class for language arts,
200 minutes/week of
direct services in a
separate class for math,
and 200 minutes/week
of direct service for
math in a regular
education class.
Related services of OT and
speech/language shall
continue as specified above
in c(i), (iv), and (v).
18 Not mentioned Para 4 at p. 61: The
district shall fund the
independent
speech/language
evaluation and pay Dr.
M-J
$1,375.00.
19 Not mentioned Para 6 at p. 61: The
district shall fund the
occupational therapy
evaluation and pay
Ms. B.
$1,900.00, as indicated on
her invoice on PD 404.
Because the invoice
indicates that the parents
have paid Ms. B. $50.00
for the evaluation, the
district shall reimburse
the parents $50.00 within
15 calendar days of
receipt of this Order, thus
fully funding the
independent OT
evaluation.
20 Not mentioned Attorney fees: $57,650.56
had accrued as of the date
of the offer. See CPS
memo, Doc #20 at p. 13
Dkt. 24-1 at 1-3.
Appendix C
Issue Decision
1 Separate Day School — Guillermo requires a Plaintiffs did NOT
private therapeutic setting ustain their burden of
proof
2 Progress — Guillermo failed to make adequate Plaintiffs did NOT
academic progress sustain their burden of
proof
3 IEP — Board failed to develop appropriate IEPs Plaintiffs sustained their
burden of proof
4 AT — Board failed to provide required assistive Plaintiffs sustained their
technology burden of proof
5 Social Work — Board failed to provide social Plaintiffs did NOT
work services sustain their burden of
proof
6 Full Individual Evaluation — Board failed to Plaintiffs sustained their
adequately evaluate Guillermo in October 2010 burden of proof
7 CAPD — Board failed to conduct an evaluation Plaintiffs sustained their
to determine if Guillermo had a central auditory burden of proof
processing disorder
8 ESY — Board failed to provide ESY in summers Plaintiffs did NOT
2011 and 2012 sustain their burden of
proof
9 Student Records — Board's failure to produce all While CPS failed to
student records hindered parents ability to produce all student
participate in FAPE decision-making process records in a timely
fashion, Plaintiffs did
NOT sustain their burden
of proof
10 Bullying — Guillermo was the victim of Plaintiffs did NOT
disability-based bullying sustain their burden of
proof
11 Procedural Violation — IEP changed without Plaintiffs sustained their
proper notice to parent and parent participation burden of proof
12 Stay-put — Board failed to implement hearing Plaintiffs sustained their
officer's stay-put order burden of proof
Dkt. 20 at 10-11.
Plaintiffs' Requests Hearing Officer's Order
Placement at Acacia Academy or Cove Denied
School
Interim order compelling the Board to Denied
provide all Guillermo's education
records and, if necessary a finding that
the lack of records denied Guillermo a
FAPE
Reimbursement for all costs associated Denied — psychological
with the IEEs that Plaintiffs have Ordered — speech/language,
obtained occupational therapy and central
auditory processing
Convene an IEP meeting to review the Ordered
IEE results and recommendations
Develop an IEP that implements all Ordered
IEE recommendations
ESY for Summer 2013 Denied
Compensatory education in the form of Denied
one-on-one tutoring beyond the school
day by a certified special education
teacher trained in scientific, research-based
interventions such as Wilson
Reading program for 60 minutes per
session twice a week for the period
FAPE was denied
Compensatory education in the form of Denied
additional one-on-one tutoring beyond
the school day by a certified special
education teacher trained in scientific,
research-based interventions in the
area of language
arts/English/reading/writing programs
for 45 minutes per session, once a week
for the period the district failed to
provide the stay-put placement
beginning in the 2012-13 school year
Compensatory education in the form of Denied
additional one-on-one tutoring beyond
the school day by a certified special
education teacher trained in scientific,
research-based interventions in the
area of mathematics programming for
45 minutes per session once a week for
the period the district failed to provide
the stay-put placement beginning in the
2012-13 school year
Compensatory education in the form of Ordered
one-on-one speech/language services
beyond the school day by a certified
speech language pathologist for 60
minutes per week once a week for the
period FAPE was denied
Compensatory education in the form of Ordered
one-on-one occupational therapy
services beyond the school day by a
certified occupational therapist for 60
minutes per week once a week for the
period FAPE was denied
Compensatory education in the form of Denied
social work services beyond the school
day to address the Guillermo's anxiety
and the bullying that occurred at school
Compensatory education in the form of Denied
additional AT to assist the student in
all academic areas
Compensatory education in the form of Denied
additional time at the Cove School for
the period of time the Board failed to
provide the stay-put placement at the
beginning of the 201-13 school year
Dkt. 20 at 11-12.
Appendix D
[Issue] [Result at Hearing]
I. Whether the district failed to provide Ruled in favor of Plaintiffs as to one
the parents a complete copy of the record. CPS failure to timely provide the
student's education records in a timely "2012-13 LRE grid . . . significantly
manner and if so, whether this impeded their participation in the
procedural violation significantly decision-making process regarding the
impeded the parents' opportunity to provision of FAPE to their son"
participate in the decision-making (Decision at p. 43).
process regarding the provision of a free
appropriate public education (FAPE) to
the student;
II. Whether the district conducted a full Ruled in favor of Plaintiffs (Decision at
individual evaluation of the student pp 43-46).
when it re-evaluated him in October
2010;
III. Whether the district failed to develop Ruled in favor of Plaintiffs:
appropriate IEPs in school years 2010-11, a) Regarding present level of
2011-12, and 2012-13 that include: performance, the "May 2011 IEP does
a. Accurate present levels of performance not meet this standard" (decision at p
that objectively state the student's 47);
current academic, functional, and b) Although the 2010 and 2011 IEPs
developmental skills; provide program modifications to help
b. Goal statements that are responsive to the student advance toward his goals,
the student's learning needs and they do not include a statement of the
objectively measure his progress; special education, based on peer-c.
Objectives that provide accurate and reviewed research that the district will
meaningful strategies for improving the provide to help the student accomplish
student's academic, developmental, and the goals." (Decision at p. 48); A draft
functional skills; IEP developed on 12/19/12 had "content
d. An appropriate transition plan; area goals do not meet the required
e. And, which provide an appropriate statutory procedural standard;"
educational program that utilizes c) see finding for b) above;
scientific, research based teaching d) the December 2012 IEP "draft
methods. transition plan is not appropriate"
(decision at pp 48-9).
IV. Whether the student required Ruled in favor of Plaintiffs (Decision at
assistive technology (AT) in the p. 49).
classroom setting for all schoolwork and
if so, whether the district failed to
provide the necessary AT for the student
and training for staff, student, and
parents in a timely manner;
V. Whether the student needed social Ruled against Plaintiffs (Decision at p.
work services and/or psychological 49-50).
services to address his emotional needs
in the school setting that impact his
access to education and if so, whether
the district failed to provide those
required services in a timely manner
VI. Whether the student needed Ruled in favor of Plaintiffs: IHO ruled
speech/language therapy, occupational that CPS should have, but did not,
therapy, central auditory processing conduct occupational therapy and
disorder (CAPD) interventions, and CAPD assessments, and that the
services to address attention, executive speech/language assessment was
functioning, and adaptive functioning inadequate (Decision at pp. 43-46).
and if so, whether the district's failure to
provide these services deprived the
student of a FAPE
VII. Whether the student required Denied by hearing officer, however, ESY
Extended School Year (ESY) services in for 2014 awarded in post hearing
summers 2011 and 2012 and if so, settlement of non-compliance complaint
whether the district's failure to provide regarding CPS failure to implement
ESY deprived the student of a FAPE; decision (Doc # 17-1, Exh. I).
VIII. Whether the student failed to make Ruled against Plaintiffs.
academic progress since school year
2010-11 and if so, whether the district
failed to accurately and objectively report
that lack of progress to the parents
and/or to implement an appropriate
response to the student's continuous lack
of progress;
IX. Whether the student required a Ruled against parent; however,
therapeutic day school as his least settlement of post hearing non-compliance
restrictive environment (LRE) since complaint provided for
August 22, 2010 and if so, whether the placement at therapeutic day school
district's failure to provide that LRE has (Acacia Academy (Doc # 17-1, Exhibit I).
deprived the student of a FAPE;
X. Whether the student was bullied by Ruled against Plaintiffs; however,
other students and whether the parents ordered 60 mpw services by social
and student reported the alleged worker or speech/language pathologist
bullying to administration and staff and "to address the student's difficulties in
if so, whether the district failed to semantic language as they impact his
address the impact the bullying had on peer relationships" (Decision/Order at
the student's ability to function and to para 1(c)(v) at p. 60).
access a FAPE.
XI. Whether the district failed to notify Ruled in favor of Plaintiffs (Decision at
the parents on the May 2012 IEP p. 56-59).
Conference Recommendation Form that
it was changing the student's special
education, related services, and/or
educational placement, as described in
the IEP and if so, whether this
procedural violation significantly
impeded the parents' opportunity to
participate in the decision-making
process regarding the provision of a
FAPE to the student; and,
XII. Whether the district failed to Ruled in favor of Plaintiffs (Decision at
implement the IDEA's stay-put provision p. 59).
in a timely manner when it did not
provide the student with the services and
program indicated on the IEP's 2011-12
LRE grid sheet at the beginning of the
2012-13 school year, and whether the
district failed to implement the student's
services on the 2012-12 LRE grid sheet
in a separate class as required on that
grid sheet when it did implement the
stay-put placement.
Dkt. 24-1 at 4-5.
[Relief Requested] [Result at Hearing]
1. An interim order compelling the district IHO declined to issue order, but noted
to provide all the student's education "District's counsel provided some
records and, if necessary a finding that the records during the hearing and more
lack of records denied the student a FAPE; on the final day of hearing" (Decision
at p. 29). IHO ruled in favor of
Plaintiffs on one document —
withholding 2011 grid determined to
be "persuasive evidence of a
significant and egregious procedural
violation" . . . remedy is "is placement
at a public high school that can
implement the student's education
program for language arts and math
as described on the 2011-12 LRE grid"
(Decision, pp 58-59).
2. Reimburse the parents for all costs Denied as to private psychological
associated with the IEE that the parents report ($3,375; see Decision at p. 39-have
obtained; 41; Awarded as to private
speech/language evaluation (($1,375);
occupational therapy evaluation
($1,950) and central auditory
processing evaluation ($600) (Decision
at p. 61).
3. Convene an IEP meeting to review the Ordered CPS to "convene an IEP
IEE results and recommendations; meeting within 10 school days of
receipt of this Final Decision to revise
the student's IEP in accordance with
the findings of this Decision"
(Decision at p. 59).
4. Develop an IEP that: 4(a) — IHO ordered development of
a. Implements all IEE recommendations; IEP adopting recommendations by
b. Contains individualized and measureable four of five IEE's (Speech/language,
goals and objectives, accurate present levels OT, AT, and central auditory
of performance, and appropriate processing evaluations)
modifications and accommodations; (Decision/order at Para (1)(c)(ii) and
c. Identifies and provides all direct and (1)(d) at p. 60); (Decision at pp. 60-61).
related services based on scientific research 4(b) — awarded (Decision/Order para
based evidence including but not limited to 1(h) at p. 61).
social 4(c) — awarded, except for
work, psychological, speech/language direct psychological services
services, CAPD interventions, occupational (Decision/Order, para 1(c) through
therapy services, and learning disability para 1(h) at pp 59-60).
services with appropriate individual and 4(d) — awarded: IHO directed IEP
group services across all educational developed with 90 mpw support in use
settings; and, of AT, and additional consultation
d. Provides appropriate AT per IEE time for student, staff and parent
recommendations, including classroom (Decision/Order at para 1(c)(ii).
implementation and training for student, IHO also ordered that CPS pay for 10
parents, and staff as required; hours of consultation and technical
support by author of AT report, Dr.
M-J (Decision/order, para 1(c)(v) at p.
60). IHO ordered AT equipment and
software recommended by Dr. M-J
(Decision/order, para 1(d) at p. 60).
5. Placement at Acacia Academy or Cove Denied by hearing officer, however,
School, which are private therapeutic day placement at Acacia awarded in post
schools for students with severe learning hearing settlement of non-compliance
disabilities and which use methodologies complaint regarding CPS failure to
based on scientific, research-based implement decision (Doc # 17-1, Exh.
evidence; I).
6. ESY [extended school year] for summer Denied by hearing
2013; and, officer(Decision/Order, p. 51-52),
however ESY for 2014 awarded in
post hearing settlement of non-compliance
complaint regarding CPS
failure to implement (Doc # 17-1, Exh.
I).
7. Compensatory education in the form of: 7
a. 1:1 tutoring beyond the school day by a a. not awarded
certified special education teacher trained
in scientific research based inventions such
as Wilson Reading program for 60
minutes/session twice a week for the period
of FAPE denial;
b. additional 1:1 tutoring beyond the school b. Did not award after school tutoring,
day by a certified special education teacher but ordered placement for first year of
trained in scientific research based high school with specified level of
inventions in the area of language services (Decision/Order, para 2 a p.
arts/English/reading/writing programs for 61).
45 minutes/session, once a week for the
period the district failed to provide the
stay-put placement beginning in the 2012-13
school year;
c. additional 1:1 tutoring services beyond c. not awarded
the regular school day by a certified special
education teacher trained in scientific
research based interventions in the area of
mathematics programming for 45
minutes/session once/week for the period
the district failed to provide the stay-put
placement at the beginning of the 2012-13
school year;
d. 1:1 speech/language services beyond the 7 d — awarded 60 minutes per week
school day by a certified speech language by a speech pathologist for two years;
pathologist for 60 minutes/week once/week CPS states this is 72 hours (Doc # 20
for the period of FAPE denial; at p. 7). [Settlement agreement
confirmed that 80 hours of
speech/language services would be
available after school for two years.
(PSMF ¶25 and Exhibit I (Doc # 17-1)].
e. 1:1 occupational therapy services beyond 7(e) — awarded 60 minutes per week
the regular school day by a certified OT for by a occupational therapist for two
60 minutes/week once/week for the period years; CPS states this is 72 hours
of FAPE denial; (Doc # 20 at p. 7)
Settlement agreement confirmed that
80 hours of occupational therapy
would be available after school for two
years. (PSMF ¶25 and Exhibit I (Doc
# 17-1).
f. social work services beyond the school 7(f) — not awarded.
day to address the student's anxiety and
the bullying that occurred at school;
g. additional AT to assist the student in all 7(g) — awarded 90 minutes per week
academic areas, placed on a laptop AT support during the school day
computer with appropriate program (Order para 1(c)(ii) at p. 60) and
interventions identified by the IEE awarded AT equipment recommended
evaluators to enable the student to by private evaluator (Order para 1(d)
complete homework and additional AT for at p. 60).
the time the district failed to provide the
stay put placement;
h. additional compensatory time in the 7(h) — did not order Cove school, but
form of additional time at the Cove School awarded specific requirements for
for the period of time the district failed to placement in high school (Decision
provide the stay-put placement at the and order, para 2 at p. 61).
beginning of the 2012-13 school year; and
i. other relief ordered by the hearing officer 7(i) — IHO ordered placement at a
to provide FAPE; and, high school capable of implementing
the ordered services, along with the
"2011 grid"; also ordered
transportation.
8. Reasonable attorney fees and costs. IHO decision established prevailing
party status regarding reasonable
attorney fees.
Dkt. 24-1 at 6-8.
