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|RL 49|  Richardson indep. sch. dist. v michael z. and carolyn z. ex. rel. leah z.
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|RL 49| Richardson indep. sch. dist. v michael z. and carolyn z. ex. rel. leah z.


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  • 1. Special Ed Connection Case Report50 IDELR 69 parents were entitled to recover for the students room108 LRP 23717 and board. The court further noted that the students defiant and aggressive behaviors interfered with her RICHARDSON INDEPENDENT learning -- a factor that made counseling and SCHOOL DISTRICT, Plaintiff, v.MICHAEL Z. and CAROLYN Z., as next therapeutic services a necessity. Similarly, the student friends of LEAH Z., a minor child, required nursing services to manage the psychiatric Defendants and behavioral problems that impeded her classroom function. Finally, the court observed that the 561 F. Supp. 2d 610 neurological testing performed at the residential U.S. District Court, Northern District of facility allowed for a more complete diagnosis and Texas helped doctors to develop and appropriate treatment 3:05-CV-535-M plan. Concluding that the student required the services April 22, 2008 to receive FAPE, the court ordered the district toRelated Index Numbers reimburse the parents.365.073 Hybrid Placement Full Text410.020 Related Services Appearances:430.020 Purpose of Placement APPEARANCES:Judge / Administrative Officer For Richardson Independent School District,BARBARA M. G. LYNN Plaintiff: Nona C. Matthews, LEAD ATTORNEY,See related decision reported at 48 IDELR 149 Walsh, Anderson, Brown, Schulze & Aldridge,Case Summary Irving, TX. The fact that a teenager with bipolar disorder, For Michael Z., Carolyn Z., as next friends ofODD and ADHD received educational services at a Leah Z., a minor child, Defendants: Myrna B. Silver,public high school did not let a Texas district off the LEAD ATTORNEY, Law Office of Myrna B. Silver,hook for the cost of the students residential Dallas, TX.placement. The services provided in the residential For Richardson Independent School District,facility, which included therapeutic services and Counter Defendant: Nona C. Matthews, LEADneurological diagnostics, were "inextricably ATTORNEY, Walsh Anderson Brown Schulze &intertwined" with the students educational progress. Aldridge, Irving, TX.The court rejected the districts argument that it was Memorandum Opinion and Orderonly responsible for related services identified in thestudents IEP. "The [U.S.] Supreme Court has held Before the Court are Defendants Motionthat private placements are exempt from [20 USC Regarding Reimbursement of Non-Medical Costs for1401(9)], which defines the requirements of a free Defendants Residential Placement ("Motionappropriate public education," U.S. District Judge Regarding Reimbursement"), and Motion forBarbara M.G. Lynn wrote. "Thus, services provided Attorneys Fees. The Motion for Attorneys Fees wasin a residential setting that are necessary to enable a referred to Magistrate Judge Irma C. Ramirez, andchild to benefit from special education are timely objections to the Magistrate Judges Findings,reimbursable, notwithstanding their omission from the Conclusions, and Recommendations ("Findings")childs IEP." In a previous opinion, reported at 48 were filed by both parties. Defendants MotionIDELR 149, the court determined that the students Regarding Reimbursement is GRANTED in part, and"hybrid" placement was appropriate. As such, the DENIED in part. The Court awards attorneys fees,Copyright # 2007 LRP Publications 1
  • 2. Special Ed Connection Case Reportbut reduces the hours subject to reimbursement to Defendants seek reimbursement for a wideaccount for counsels failure to demonstrate billing variety of services provided by TNRC, includingjudgment and her work on non-reimbursable matters. room and board, comprehensive therapy, nursing services, and laboratory tests. Before analyzing Statement of Facts which, if any, of these services are reimbursable, the This case concerns the education of Leah Z., a Court addresses a general limitation onminor child at all relevant times, and the steps taken reimbursement urged by the Richardson Independent School District Plaintiff contends that only services described in("District") to provide her a free appropriate public Leahs Individual Education Program ("IEP") areeducation, as required by the Individuals with reimbursable. The IEP, a written academic programDisabilities Act ("IDEA"). The Court shall refer to developed to address a childs unique disabilities, isLeah by her first name and to her parents -- Michael jointly prepared by a representative of the schoolZ. and Carolyn Z. -- as Defendants. The District is the district, a teacher, and the childs parents. PlaintiffPlaintiff, and Leahs parents are the Defendants, relies on 20 U.S.C. # 1401(9), which defines freebecause the District appealed the decision of the appropriate public education as special education andHearing Officer at Leahs administrative due process related services "provided in conformity with thehearing ("Hearing"). The record in this case, which [childs] individualized education program." Plaintiffthe Court has reviewed in considering Defendants contends that this restriction equally applies to hybridMotions, is substantial. Aspects of the procedural placements, in which a student is jointly enrolled in ahistory relevant to the pending Defendants Motions public and a private institution. If Section 1401(9)are summarized here. applies to Leahs placement at TNRC and UCS, only In its Memorandum Opinion and Order of services specifically included in Leahs IEP areAugust 21, 2007 ("Opinion"), the Court determined reimbursable.that the District failed to provide Leah a free In its Opinion, the Court determined that anappropriate public education, and that Leahs joint identical legal standard governs private and hybridplacement at the Texas NeuroRehab Center placements. The Supreme Court has held that private("TNRC"), a private residential facility, and the placements are exempt from Section 1401(9), whichUniversity Charter School ("UCS"), a public school, defines the requirements of a "free appropriate publicwas appropriate. In its Opinion, the Court directed education."1 Thus, services provided in a privateDefendants to identify all reimbursable services residential setting that are necessary to enable a childprovided by TNRC between June 2, 2004 and to benefit from special education are reimbursable,November 12, 2004. In their Motion, Defendants notwithstanding their omission from the childs IEP.seeks reimbursement for room and board, and As the Supreme Court explained in Florence Countynursing, therapeutic, and diagnostic services provided School District v. Carter:by TNRC. This case presents the narrow question of In her Findings, entered on February 1, 2008, whether Shannons parents are barred fromJudge Ramirez recommended reducing the fee award reimbursement because the private school in whichby fifty-percent to reflect Defendants partial Shannon enrolled did not meet the # 1401(a)(18)monetary recovery and counsels failure to definition of "free appropriate public education." Wedemonstrate billing judgment. Timely objections to hold that they are not, because # 1401(a)(18)sJudge Ramirezs recommendations were filed by both requirements cannot be read as applying to parentalparties. placements .... # 1401(a)(18)(D) requires schools to Reimbursement of Non-Medical Costs provide an IEP, which must be designed by aCopyright # 2007 LRP Publications 2
  • 3. Special Ed Connection Case Reportrepresentative of the local educational agency, and applicable to private placements. As the Fifth Circuitmust be established, revised, and reviewed by the held in Alamo Heights Independent School District These requirements do not make sense in the State Board of Education, private placements arecontext of a parental placement. In this case, as in all governed by a more permissive standard than areBurlington reimbursement cases, the parents rejection public placements: "[r]eimbursement will beof the school districts proposed IEP is the very reason permitted under Burlington when unilateral placementfor the parents decision to put their children in a by parents [in a private setting] is generally found toprivate school .... [T]o read the # 1401(a)(18) be appropriate, even though it is not the exact properrequirements as applying to parental placements placement required under the Act."4 As proof that thewould effectively eliminate the right of unilateral TNRC was not an appropriate placement for Leah,withdrawal recognized in Burlington. Moreover, the Plaintiff emphasizes her aggressive and uncooperativeIDEA was intended to ensure that children with behavior after admission to TNRC. Further, Plaintiffdisabilities receive an education that is both argues that it was not TNRCs structured environmentappropriate and free. To read the provisions of # that contributed most to Leahs improved behavior in1401(a)(18) to bar reimbursement in the the late summer of 2004, but rather the prescription ofcircumstances of this case would defeat this statutory Clozaril. Identical arguments were considered andpurpose.2 rejected by the Court in its earlier Opinion. Because Because the holding in Carter also governs TNRC was an appropriate placement for Leah,hybrid placements, 1401(9) is inapplicable to Leahs Defendants are entitled to reimbursement for herenrollment in TNRC and UCS. Thus, Defendants may room and board at TNRC between June 2, 2004 andobtain reimbursement for services provided by TNRC November 12, 2004.that were not included in Leahs IEP. Comprehensive Therapy Services Having disposed of Plaintiffs threshold Defendants also seek reimbursement forobjection, the Court next determines the specific comprehensive therapy services, including individual,services for which reimbursement is available. family, and group psychological therapy, and Room and Board occupational, recreational, speech, and other therapy received by Leah at TNRC between June 2, 2004 and Defendants seek reimbursement for Leahs room November 12, 2004. Plaintiff levels a procedural andand board at TNRC between June 2, 2004 and a substantive objection to reimbursement of theseNovember 12, 2004. Reimbursement of room and costs. The procedural objection is that the evidenceboard is available when a childs placement at a establishing the number of hours of therapy receivedprivate residential program is "necessary to provide by Leah is inadmissible. The substantive objection isspecial education and related services to a child."3 that the therapeutic services provided did not serve an Plaintiffs principal contention is that Leahs educational purpose and thus are not reimbursable.placement at TNRC was not necessary under Section The first issue is whether Defendants established1401(9). In its Opinion, the Court rejected this by admissible evidence the number of hours ofargument, determining that Section 1401(9) was therapy received by Leah. Defendants introduced twoinapplicable to Leahs hybrid placement at TNRC and pieces of evidence to substantiate these hours. First,UCS. Plaintiff does not offer any new arguments or Defendants submitted billing records detailing theauthority for its position and, therefore, its objection number of "units" of therapy provided. All but fiveis denied. pages of these records were previously introduced at Alternatively, Plaintiff argues that Leahs Leahs Hearing. Second, Defendants submitted anplacement at TNRC was improper under the standard affidavit from Dr. Nilima Mehta, Leahs treatingCopyright # 2007 LRP Publications 3
  • 4. Special Ed Connection Case Reportphysician at TNRC, stating that a "unit" of service has disabling conditions in children."6 The IDEA lists thea time equivalent of fifteen minutes. following as examples of related services: Plaintiff moves to exclude the five pages of speech-language pathology and audiologybilling records, which were not previously introduced services, interpreting services, psychological services,at either the Hearing or the additional evidence physical and occupational therapy, recreation,hearing held on October 4, 2006. Plaintiffs argument including therapeutic recreation, social workis meritless. The relevant records were appended as services, school nurse services designed to enable aExhibit 12 to Defendants Motion Regarding child with a disability to receive a free appropriateReimbursement, filed on September 12, 2007, and as public education as described in the individualizedExhibit 3 to Defendants Re-filing of Authenticated education program of the child, counseling services,Statements, filed with the Courts permission on including rehabilitation counseling, orientation andMarch 4, 2008. Plaintiff first objected to the records mobility services, and medical services.7admissibility in its Response to Defendants Re-filing A federal court has broad discretion to define theof Authenticated Statements. Plaintiff does not services "required to assist a child with a disability toidentify any specific prejudice from Defendants benefit from special education."8 The determinationsubmission of the records in September of 2007. of reimbursable services should be made in light ofPlaintiffs objection is denied. the IDEAs central purpose -- to provide handicapped Plaintiff also objects to the admissibility of Dr. children with an appropriate education thatMehtas affidavit specifying the time equivalent to a "emphasizes special education and related services"unit" of service, contending Dr. Mehta lacked designed to meet their unique needs."9personal knowledge of the matter. In her affidavit, Dr. Leah benefited behaviorally, emotionally, andMehta states that she had personal knowledge of the academically from the counseling provided at TNRC.time equivalent of a "unit" of service. Plaintiff At the Hearing, the Hearing Officer determined, anddemands evidence substantiating Dr. Mehtas this Court concurred in its Opinion, that Leahsfamiliarity with TNRCs billing practices. Defendants academic difficulties were inextricably intertwinedrespond that Dr. Mehta, a TNRC employee of four with her emotional and behavioral problems. Theyears and Defendants treating physician at TNRC, Court does not provide an exhaustive recital of thewas aware of the time equivalent of a unit of service, arguments and evidence previously presented, butand Plaintiff provides no reasons for the Court to rather distills the key facts. Leah suffered fromdoubt Dr. Mehtas plausible assertion of that. numerous debilitating conditions, including bipolarPlaintiffs request to exclude Dr. Mehtas affidavit is disorder, separation anxiety disorder, oppositionalthus denied. defiant disorder, attention deficit hyperactivity Having disposed of Plaintiffs procedural disorder, and pervasive developmental disorder.arguments, the Court turns to Plaintiffs substantive Defiant and aggressive, Leah lashed out at teachers,objection -- that the therapy provided to Leah did not skipped class, and was generally unreceptive toconfer an educational benefit and, therefore, is not instruction. Repeated outbursts also limited her abilityreimbursable. The IDEA guarantees every child an to focus, to absorb lessons, and to completeappropriate education, including "special education assignments in a timely manner. As a result, Leahand related services."5 Related services include struggled academically in the approximately twelve"developmental, corrective, and other supportive schools she attended. The Court finds persuasive theservices ... as may be required to assist a child with a district courts analysis of an identical issue indisability to benefit from special education, and Township of Bloomfield Board of Education v. S.C.:includes the early identification and assessment of T.M.s psychiatric stabilization is a necessaryCopyright # 2007 LRP Publications 4
  • 5. Special Ed Connection Case Reportpart of his educational program. This is a continuing, Defendants are entitled to reimbursement forinterrelated process in which his psychological occupational, recreational, and speech therapy, anddifficulties and his education continue in tandem. individual, group, familial and other therapy providedWhile medical doctors and psychiatrists may diagnose to Leah by TNRC between June 2, 2004 andand evaluate T.M. and aides may provide continuing November 12, 2004.14counseling and monitoring, it is part of an educational Nursing Servicesprocess. Without the diagnosis and evaluation and Defendants seek reimbursement for "Intensivewithout the counseling and monitoring the Nursing Care" and an "Intensive Nursing Careeducational process could not take place.10 Increment" provided to Leah. The IDEA provides for Similarly, Leahs doctors recognized that reimbursement of health services and school nurseextensive counseling was critical to treat the services necessary to enable a child with a disabilitypsychological and behavioral problems underlying to benefit from special education.15 Here, the nursingher academic difficulties. regimen, developed after extensive testing and To develop a therapy regimen tailored to Leahs evaluation of Leah, was part of an integratedunique emotional and behavioral needs, TNRC first approach to managing Leahs psychiatric andconducted numerous diagnostic tests, including behavioral problems and improving her classroompsychiatric, educational, vocational, motor function. Accordingly, Defendants are entitled toimpairment, therapeutic recreation, occupational reimbursement for nursing services provided bytherapy, and speech-language evaluations. Based on TNRC.Leahs test results, Dr. Mehta developed acomprehensive program "to control the behaviors and EKG/ECG Tests & Laboratoryimprove overall emotional functions and also oral Diagnosticsfunctioning in the school setting, home setting, and Defendants seek reimbursement for laboratoryoutside in the community." Leahs therapy regimen diagnostics and EKG/ECG tests performed by TNRC.included individual, family, and group psychological Although the IDEA and its interpretive regulations dotherapy, and recreational, occupational, and speech, not specifically authorize reimbursement fortherapy. Dr. Mehta concluded that counseling and EKG/ECG tests, they broadly permit reimbursementtherapy sessions were instrumental to Leahs for non-medical services required to enable a childacademic progress. with disability to benefit from special education.16 "Medical services," on the other hand, are only The Court also draws guidance from the Second reimbursable if they confer an educational benefit andCircuits decision in Mrs. B v. Milford Board of are for diagnostic or evaluation purposes.17 TheEducation.11 There, the student suffered from Supreme Court has narrowly defined medical servicesdebilitating social, emotional, and behavioral to embrace only services that must be performed by aproblems, which "seriously affected" her ability to licensed physician.18 Plaintiff asserts, withoutlearn and "le[d] to regressive behaviors, disinhibition contradiction, that the laboratory diagnostics andof impulses, loss of contact with reality, and confused EKG/ECG tests provided here were non-medicalthought processes."12 The Second Circuit approved services. The relevant issue, therefore, is whetherreimbursement of "intensive therapy services" and these tests were required to enable Leah to benefitbehavioral modification techniques to address the from special education.underlying emotional and psychological problemshampering the students academic progress.13 Here, Before addressing the substantive issuebecause intensive therapy was equally critical to presented, the Court overrules Plaintiffs proceduralenable Leah to benefit from special education, objection that Dr. Mehtas affidavit is inadmissibleCopyright # 2007 LRP Publications 5
  • 6. Special Ed Connection Case Reportbecause she lacks personal knowledge of the purpose administration of EKG/ECG tests. Defendants do notof the lab diagnostics. To the contrary, the Court identify the nature or purpose of these tests, making itconcludes that Dr. Mehta, Leahs treating physician at impossible for the Court to conclude that they wereTNRC, grasped Leahs condition and the purpose for necessary to enable Leah to benefit from specialthe relevant lab tests.19 education. The Court now addresses Plaintiffs substantive Thus, Defendants are entitled to reimbursementobjection -- that the lab diagnostics did not confer an for room and board, neurological diagnostics, andeducational benefit to Leah. In her affidavit, Dr. therapeutic and nursing services provided to LeahMehta identifies two categories of lab diagnostics between June 2, 2004 and November 12, 2004.administered: the tests were conducted "either for Calculation of Reimbursementpurpose of a neurological diagnostic workup or asdiagnostic tools to monitor blood levels while various (1) Adjustments to Chargespsychotropic medications and/or combinations of The Court now determines the specific amountpsychotropic medications were prescribed for Leah to of reimbursement to which Defendants are entitled.control her behaviors."20 The first category of tests -- Between June 2, 2004 and November 12, 2004, theneurological diagnostics -- identified potential causes total invoices ("gross total charges") for all servicesof Leahs behavioral difficulties, including thyroid provided by TNRC to Leah were $171,761.38.problems, anemia, autoimmune disorders, and other However, Defendants insurance carrier, Blueneurological conditions presenting as psychiatric Cross/Blue Shield ("BCBS"), negotiated an adjustedproblems. By enabling more precise diagnosis of rate for the complete package of services provided toLeahs behavioral and emotional disorders, Leah by TNRC. Between June 2, 2004 and June 24,neurological tests enabled TNRC to develop an 2004, the adjusted rate for these services was $360.00effective treatment regimen to improve Leahs per day. Between June 25, 2004 and November 12,function in the classroom. Because the first category 2004, a variable daily rate was negotiated by BCBS.of tests, administered between June 2 and July 8 of Because of these negotiated rates, the actual total2007, was required to enable Leah to benefit from a amount charged to Defendants between June 2, 2004special education program, Defendants expenditures and November 12, 2004 was $57,280 -- substantiallyfor these tests are reimbursable. less than the $171,761.38 in gross charges. The second category of tests -- blood diagnostics The Court deducts from the actual total charges-- was administered while Leah was taking Clozaril Defendants expenditures for four items:and Lithium. The tests, performed between August 20 pharmaceutical drugs and a respiratory inhalationand October 12 of 2007, were used to evaluate study, which the parties agree are not reimbursable,potential side effects from these drugs, including liver blood diagnostics, and EKG/ECG tests.and kidney problems, hypothyroidism, and changes in The Court first addresses the appropriateLeahs white blood and neutrophil counts. The deductions for the pharmaceutical drugs and theconnection between these tests, designed to avoid respiratory inhalation study. In making theseharmful side effects from Leahs medications, and deductions, the Court utilizes the actual, rather thanLeahs academic progress is too tenuous to justify the invoiced, charges for these items, based on thetheir classification as "related services." Thus, adjusted rates negotiated by BCBS. Because BCBSDefendants expenditures for blood diagnostics are did not negotiate rates for specific, individualnot reimbursable. services, but rather a package rate for all services Finally, Defendants have not met their burden of provided, an additional step is necessary to determinedemonstrating an educational benefit from the the actual charges for pharmaceutical and inhalationCopyright # 2007 LRP Publications 6
  • 7. Special Ed Connection Case Reportservices. To determine the actual charges for these inhalation services provided. Third, Plaintiff objectsitems, the Court first calculates the fractional that the gross, rather than the actual, charges forproportion of the total gross charges represented by pharmacy and respiratory services should be deductedthe pharmacy charges and the respiratory charges, from the total actual charges. Fourth, Plaintiff urgesrespectively. Next, the Court multiplies the resulting that Defendants incorrectly calculated room and boardratios by the gross pharmacy and gross respiratory costs between June 2, 2004 and June 10, 2004.charges to arrive at the actual pharmacy and actual Plaintiffs fourth objection is meritorious; the othersrespiratory charges, respectively. are overruled. The calculations described above are partially Plaintiffs first objection -- that Exhibit 13 is notreflected in Exhibit 13 to Defendants Motion "direct evidence" -- is unpersuasive. Exhibit 13Regarding Reimbursement, a spreadsheet generated merely summarizes billing records previouslyfrom billing records that were either introduced at the admitted at the Hearing or appended to DefendantsHearing or appended to the Motion Regarding Motion Regarding Reimbursement. The simpleReimbursement. Exhibit 13 includes calculations of mathematical calculations reflected in the spreadsheetthe following: (1) the ratio of gross pharmacy and are readily verifiable, and Plaintiff does not allege anygross respiratory charges, respectively, to the total computational errors, other than the singlegross charges for each two-week session that Leah miscalculation addressed below. Plaintiffs secondwas at TNRC; (2) the actual charges for pharmacy objection -- that Exhibit 13 does not itemize theand respiratory services, obtained by multiplying individual pharmacy and inhalation services providedthese ratios by the gross pharmacy and gross in each two-week session -- is similarly unavailing.respiratory charges, respectively; and (3) the total The itemized costs are included in the billing recordsamount of reimbursement owed, determined by appended as Exhibits 1 through 12 to Defendantssubtracting the actual pharmacy charges ($317.02)21 Motion Regarding Reimbursement. Plaintiffs thirdand actual respiratory charges ($141.35) from the objection is that the gross charges, rather than theactual total charges ($57,280). actual charges, for pharmacy and respiratory services The Court next calculates the appropriate should be deducted from the total actual charges.deductions for Defendants expenditures on blood However, the gross charges do not reflect the ratesdiagnostics and EKG/ECG tests. Because Defendants negotiated by BCBS and, therefore, are not ando not provide the actual charges for these items, the accurate statement of the charges actually incurred.Court utilizes the invoiced amounts. The invoices for Further, because the Court utilizes the negotiated ratesEKG/ECG tests and blood diagnostics totaled to calculate reimbursement for "related services,"$159.8422 and $637.60,23 respectively. After consistency also requires using the negotiated rates todeducting these amounts, as well as the actual charges calculate the appropriate deduction for pharmacy andfor pharmacy services ($317.02) and the respiratory inhalation ($141.35), the total reimbursable charges are Plaintiffs final objection is that Defendants$56,024.19. made a mathematical error in calculating the gross Plaintiff objects to these calculations on four room and board charges between June 2, 2004 andgrounds. First, Plaintiff urges that Exhibit 13, a June 10, 2004. Defendants state that the gross roomspreadsheet prepared by Defendant Carolyn Z., is not and board charges for this period are $9,940."direct evidence." Second, Plaintiff notes that the Defendants arrived at this amount by multiplying thegross pharmacy and gross inhalation costs for each pre-adjusted, per diem cost of room and board ($710)two-week session, which are summarized in Exhibit by nine days. Plaintiff, however, correctly observes13, do not itemize the individual pharmacy and that multiplying $710 by nine yields a product ofCopyright # 2007 LRP Publications 7
  • 8. Special Ed Connection Case Report$6,390, not $9,940 -- a difference of $3,550 (which is Defendants $20,292 as reasonable attorneys fees andthe additional days). The Court adjusts this difference $1,168.20 as costs. Timely objections to theseto reflect the negotiated billing rate between June 2 recommendations were filed by the parties.and June 10, 2004. After making the appropriate Standard of Reviewadjustment, the actual total charges between June 2 Under 28 U.S.C. # 636(b)(1)(B), a magistrateand June 10, 2004 are reduced from $3,240 to judges recommendation regarding attorneys fees is$1,930.22 -- a difference of $1,309.78. After subject to de novo review by the district court, whichdeducting $1309.78 from the total reimbursement may accept, reject, or modify the magistrate judgesamount of $56,024.19 determined above, the Court recommendation.24finds that Defendants are entitled to $54,714.41.Reduction in Lifetime Insurance Benefits Methodology for Calculation of Attorneys Fees Defendants also seek reimbursement for the The Fifth Circuit interprets the IDEAs attorneysamount by which their lifetime health insurance fees provision in accordance with Hensley v.benefits were reduced as a result of Leahs residential Eckerhart, 461 U.S. 424 (1983). Under Hensley, aplacement. BCBS paid TNRC benefits of $9,179.58. prevailing party may recover only those fees that areHowever, Defendants damages from the reduction in reasonably expended on the litigation.25their lifetime benefits are too speculative to warrantreimbursement. Although Defendants lifetime health In adjudicating an attorneys fees award, a courtinsurance benefits have been reduced as a result of first calculates a "lodestar" fee by multiplying theLeahs placement, this reduction would only cause reasonable number of hours expended on the case byPlaintiff actual losses to the extent that (1) the reasonable hourly rates for the participatingbenefits-triggering events occur in the future, and (2) lawyers.26 The fee applicant bears the burden of proofbecause of the $9,179.58 previously paid by BCBS, on this issue.27 In the second step of the lodestarthese events result in benefit payments exceeding the method, a court must consider whether the lodestarapplicable policy limit. The Court has insufficient figure should be adjusted upward or downwardinformation to evaluate the probability of these depending on its analysis of the twelve factorscontingencies. Defendants have not introduced any established in Johnson v. Georgia Highway Express,evidence regarding the nature or scope of Defendants Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).28 Many ofhealth benefits, the total benefits paid to Defendants these factors are subsumed within the initialto date, or Defendants policy limit. Thus, the Court calculation of hours reasonably expended at adenies Defendants request for reimbursement of the reasonable hourly rate, and should not be$9,179.58 paid by BCBS. double-counted.29 The most critical factor in determining the reasonableness of an attorneys fee Attorneys Fees award is the degree of success obtained.30 In its Opinion of August 21, 2007, the Courtawarded Defendants reasonable attorneys fees and Calculation of the Lodestarcosts, and referred the specific fee amount to which The first step in the lodestar analysis requires theDefendants are entitled to Magistrate Judge Irma C. court to determine the reasonable number of hoursRamirez for findings and recommendations. expended by Defendants attorney on the lawsuit, asDefendants requested $65,798.22 in attorneys fees. well as her reasonable hourly rate. Defendants offerJudge Ramirezs Findings, filed on February 1, 2008, time records and affidavits in support of theirrecommended granting Defendants Motion for application.Attorney Fees and Costs in part, and awarded Reasonable Number of HoursCopyright # 2007 LRP Publications 8
  • 9. Special Ed Connection Case Report Defendants present two different totals for the expended on the Motion.number of hours expended on the lawsuit. The In its earlier Opinion, the Court deniedMotion states that counsel spent 328.99 attorney Defendants Motion for Summary Judgment,hours on the Hearing and appeal to the District Court. determining that the IDEA entitled Plaintiff to presentIn her sworn affidavit, however, counsel states that additional briefing on the specific services subject toshe spent 292.5 hours defending the case. The record reimbursement. Defendants argue that completecontains no explanation for the discrepancy between reimbursement is nonetheless appropriate, because thethe two figures. The Court utilizes the 292.5 hours Court denied the Motion on procedural grounds,provided in the sworn affidavit. rather than on the merits. Defendants cite no authority Judge Ramirez excluded approximately for their position. In any event, the basis for thetwenty-five percent of the hours requested based on Courts denial of the Motion does not governcounsels failure to demonstrate billing judgment. reimbursement -- the results are key.32 Here, theAdditionally, Judge Ramirez excluded hours Court denied Defendants Motion and, as a result,expended on unrelated matters and Defendants Plaintiff was entitled to submit additional evidenceunsuccessful Motion for Summary Judgment. and briefing on the reimbursement issue. ConsistentDefendants objected to these exclusions and the with Judge Ramirezs recommendation, the Courttwenty-five percent reduction. excludes the 74.5 hours expended by counsel on the Motion for Summary Judgment and Reply Brief. (1) Hours Expended on Non-Reimbursable Items (3) Excessive, Duplicative, Unspecified Plaintiff seeks to exclude hours expended on two Entries and Failure to Demonstratenon-reimbursable matters: (1) the Admission, Review Billing Judgmentand Dismissal ("ARD") committee meetings, and (2) The Plaintiff alleges that Defendants violateda "motion for release." 10.08 and 3.75 hours were Judge Ramirezs fee application instructions.expended by counsel on the ARD meeting and the Specifically, Plaintiff contends that multiple billingmotion for release, respectively. Judge Ramirez entries are duplicative, vague, and contain improperappropriately excluded, without objection, the 13.83 redactions, making it impossible for Plaintiff tohours expended on these matters. determine whether counsels expenditure of time was reasonable. Further, Plaintiff argues that Defendants (2) Hours Expended on Unsuccessful did not introduce evidence of appropriate billing Motions judgment. Finding Plaintiffs objections meritorious, Hours expended on unsuccessful motions, the Court accepts Judge Ramirezs recommendationclaims, or issues should be excluded. As the Supreme of a twenty-five percent reduction in the reimbursableCourt instructed in Hensley v. Eckerhart, "In some hours incurred by Defendants counsel.cases a plaintiff may present in one lawsuit distinctlydifferent claims for relief that are based on different (a) Vague Entries and Improperfacts and legal theories. In such a suit, ... counsels Redactionswork on an unsuccessful claim cannot be deemed to Only hours reasonably spent by counsel arehave been expended in pursuit of the ultimate result reimbursable.33 The fee applicant has the burden toachieved" and, therefore, "no fee may be awarded for submit adequate documentation of the hoursservices on the unsuccessful claim ...."31 Here, reasonably expended.34 To enable meaningful reviewPlaintiff seeks to exclude hours expended by counsel by the Court, a billing entry should contain a short buton Defendants unsuccessful Motion for Summary thorough description of the services rendered.35Judgment. Judge Ramirez excluded all hours District courts enjoy broad discretion to exclude orCopyright # 2007 LRP Publications 9
  • 10. Special Ed Connection Case Reportreduce hours based on insufficient documentation or unnecessary.39 "Ideally, billing judgment is reflectedvague entries in the billing records.36 Examples of in the fee application, showing not only hoursentries determined to be too vague and brief to inform claimed, but also hours written off."40 In concludingthe Court precisely what work was done include that Defendants failed to meet their burden of"research and review of cases," "review and revise establishing billing judgment, Judge Ramirezbrief," "review of materials," and "legal research re emphasized that the Defendants did not set forth5th Circuit issues."37 Accordingly, Judge Ramirezs specific facts establishing billing judgment, orOrder directed counsel that entries must be identify any matters on which the number of billablesufficiently specific to demonstrate the work was hours was reduced to reflect a reasonable expenditureperformed on the case at bar, and that "Entries of time. To the contrary, counsel merelyreflecting only "Research re," "Conference re," "Legal recharacterized simple administrative tasks asresearch re," and "Drafting re" are insufficient. "clerical" in the billing records and accordinglyApplicants submitting a vague or incomplete reduced the billing rate. After noting counsels failureapplication, therefore, clearly "take their chances" that to adduce any affirmative evidence of billingthe district court will reject or reduce the fee award.38 judgment, Judge Ramirez underscored facts Here, scores of billing entries were inadequately demonstrating a lack of billing judgment, includingdetailed. These entries related to four categories of dozens of vague billing entries and improperlyactivities: (1) legal research; (2) meetings, redacted items. Consistent with Judge Ramirezsconsultations, and telephone calls with the client and recommendation, the Court finds that Defendantswitnesses; (3) motion drafting; and (4) hearing failed to meet their burden of demonstrating billingpreparation. Counsels entries related to legal research judgment.generally identify the motion to which the research (c) Across-the-Board Reductionrelates, but fail to describe the issues researched, To substitute for the exercise of billingmaking it impossible for the Court to determine judgment, and to determine a reasonable expenditurewhether counsels effort was reasonable. Billing of hours in light of the counsels multiple violations ofentries describing consultations with the client her Order, Judge Ramirez recommended afrequently fail to specify the purpose of the meeting, twenty-five percent, across-the-board reduction in theprecluding meaningful review. "Office consultation" hours expended. The Fifth Circuit approved such anis a typical description. Summaries of counsels work approach in Walker v. U.S. Department of Housing &on motions and hearings are similarly sparse, failing Urban Development41 and Hopwood v. State ofparticularly to describe the tasks performed. Texas.42 In Hopwood, the Fifth Circuit concluded that"Reviewed documents" and "reviewed file" are the district court did not abuse its discretion inillustrative examples. ordering a flat, twenty-five percent reduction in Plaintiff also seeks to exclude several redacted attorneys hours when counsel exhibited poor billingbilling entries. Judge Ramirez expressly directed judgment, by performing hours of duplicative andDefendants to submit "[a]ll relevant unredacted time unnecessary work, expending time onentries." Defendants, however, redacted portions of non-reimbursable items, and insufficiently detailingthe descriptions associated with multiple billing work performed on certain motions. In Hopwood, theentries, in contravention of Judge Ramirezs Order. district court observed, "It was impractical for the (b) Billing Judgment Court to wade through literally hundreds of time entries in order to assess a specific number of Counsel is required to exclude from a fee request duplicative and excessive hours for each attorney."43hours that are excessive, redundant, or otherwise Similarly, in Walker, the Fifth Circuit ordered a flat,Copyright # 2007 LRP Publications 10
  • 11. Special Ed Connection Case Reportfifteen percent reduction when counsel did not must be established by "evidence in addition to [the]introduce sufficient evidence of billing judgment: attorneys own affidavits."48 Here, Judge Ramirezs"The proper remedy when there is no evidence of knowledge of rates charged for legal services andbilling judgment is to reduce the hours awarded by a experience in setting attorneys fees constitutedpercentage intended to substitute for the exercise of adequate, additional evidence. Further, Defendantsbilling judgment."44 Here, Defendants similar failure submitted the affidavits of two attorneys, Susan adduce sufficient evidence of billing judgment, Heiligenthal and Dorene J. Philpot, who were notcoupled with Defendants countless incomplete, involved in the litigation, to substantiate thevague, and redacted entries, warrants an prevailing market rate. These affidavits, which wereacross-the-board reduction. The Court thus accepts not relied on by Judge Ramirez, attest to theJudge Ramirezs recommendation of a flat, prevailing rate charged by attorneys with similar skill,twenty-five percent reduction in the number of experience, and reputation practicing specialreimbursable hours. education law. In her affidavit, Ms. Heiligenthal attests that she exclusively represents parents of Reasonable Rate children with special educational needs and charges Judge Ramirez found that counsels hourly rate $175 and $225 for prehearing and trial work,of $200 for hearing and prehearing work, which was respectively, and that her fees are comparable to thoseconsistent with the prevailing market rate, was of other special education attorneys in Texas.reasonable. Plaintiff objects that Judge Ramirezs Similarly, Ms. Philpots affidavit indicates that herdetermination of the prevailing market rate was not hourly rate of $200 and $250 for prehearing and trialsupported by sufficient evidence. work, respectively, in special education cases The reasonable hourly rate is determined based conforms to the prevailing market rate.on the prevailing market rate in the relevant legal Plaintiff levels a procedural and a substantivecommunity.45 The applicant bears the burden of objection to these affidavits. The procedural objectionestablishing by satisfactory evidence the prevailing is that the affidavits must be excluded becausemarket rate.46 When an attorneys customary hourly Defendants did not timely designate Ms. Philpot andrate is within the range of hourly fees in the prevailing Ms. Heiligenthal as expert witnesses. It is undisputedmarket, that rate should be considered in setting a that the Defendants failed to designate either attorneyreasonable hourly rate.47 as an expert witness by November 3, 2005, as Here, Judge Ramirez concluded that counsels required by the Courts Scheduling Order, entered onhourly rate of $200 for pretrial and trial work was October 25, 2005. However, the Court rejectsconsistent with the prevailing market rate for Plaintiffs objection, finding Judge Fitzwatersattorneys with similar qualifications, experience, and analysis of an identical issue persuasive:reputation practicing special education law. The Court Scheduling disputes concerning attorneys feeconcludes that Judge Ramirezs determination was matters are addressed by this court under a standardsupported by sufficient evidence, including Judge that is more flexible than that which applies in otherRamirezs (and this Courts) knowledge of rates contexts. This is true primarily because attorneys feecharged for legal services, her experience in setting requests are typically handled by post-judgmentattorneys fees in other cases, and counsels own motion, and because these claims are by nature lessaffidavit, which indicated that $200 per hour was likely to present issues of undue surprise, since thecustomary for attorneys of similar experience and attorneys in the case are themselves usually expertsability. with regard to fee claims .... [I]n the attorneys fee Plaintiff responds that the prevailing market rate context, the court discerns no undue prejudice fromCopyright # 2007 LRP Publications 11
  • 12. Special Ed Connection Case Reportpermitting the designation of Eggleston as an success. Defendants sought reimbursement for Leahsattorneys fee expert."49 placement at TNRC from April 1, 2004 through Here, Plaintiffs objection is particularly November 12, 2004, but only received an award ofunpersuasive because Plaintiff does not identify any reimbursement for expenses incurred from June 2,prejudice from Defendants untimely designation of 2004. Because Defendants only obtainedMs. Philpot and Ms. Heiligenthal as experts. Thus, reimbursement for 164 of 226 of the days requestedMs. Philpot and Ms. Heiligenthals affidavits are (seventy-three percent), Judge Ramirez recommendedadmissible to establish the prevailing market rate. a proportional reduction in the number of reimbursable hours. Plaintiffs substantive objection is that theaffidavits address the prevailing rate for attorneys The Court now addresses whether Defendantsstatewide rather than in Dallas, the relevant legal degree of success warrants a complete fee award. Inmarket. However, Ms. Philpot attested, without assessing a partys degree of success, the Courtcontradiction, that there are fewer than ten attorneys focuses on two key factors: whether counselsin the entire state of Texas who primarily represent expenditure of time was justified in light of the reliefdisabled children in special education proceedings, obtained,52 and the relationship between the reliefand that counsels rate here was consistent with that sought and the relief obtained.53 The first factor,charged by these attorneys for such proceedings. The which focuses on the relationship between the reliefCourt concludes that counsels hourly rate fell within obtained and the number of hours billed, addressesthe prevailing market rate, regardless of whether the whether counsels expenditure of time was reasonablerelevant legal community is the city of Dallas or the in light of the results achieved. 54 Here, DefendantsState of Texas. seek attorneys fees in the amount of $65,798.22 and have recovered $54,714.40 in non-medical costs, Accordingly, the Court accepts Judge Ramirezs excluding pre- and post-judgment interest. The Fifthfinding that counsels hourly rate fell within the Circuit, which has approved attorneys feesprevailing market rate and was thus reasonable. "exceed[ing] the total monetary recovery," has not Lodestar deemed a particular ratio of attorneys fees to After consideration of the Plaintiffs objections damages as excessive per se.55 In cases where theand making an appropriate reduction to the requested Fifth Circuit has concluded that the district courts feehours, the Court finds that a reasonable number of award was excessive, the fee ratio presented washours times a reasonable hourly rate yields a lodestar significantly larger than that found here. In Migis v.of $30,600.50 Pearle Vision, Inc., for example, the district court awarded attorneys fees that were six and one-half Adjustment to Lodestar Calculation times the damages awarded. There, Plaintiff also The Court next considers whether the lodestar sought damages over twenty-six times the amountcalculation should be adjusted in light of the four recovered.56 Concluding that "these ratios are simplyprincipal Johnson factors: (1) the time and labor too large," the Fifth Circuit overturned the fee award.involved; (2) the customary fee; (3) the amount However, the ratio of attorneys fees sought toinvolved and the results obtained; and (4) the damages recovered here is 1.20 -- well within theexperience, reputation, and ability of counsel.51 range suggested by Migis, and smaller than thatPlaintiff argues that the third factor -- Defendants approved by other district courts in this circuit.57limited success -- warrants a downward adjustment. Defendants argument is also unpersuasive Judge Ramirez excluded twenty-five percent of because Migis is distinguishable from the case at barcounsels total hours based on Defendants partial in two significant respects. First, the double-digit ratioCopyright # 2007 LRP Publications 12
  • 13. Special Ed Connection Case Reportof damages sought to damages awarded presented in placements, or the more stringent standard applicableMigis does not exist here, as discussed in greater to public placements.detail below. Second, the Fifth Circuit has Plaintiff responds that Defendants only achievedemphasized that a plaintiffs success is "not measured limited success, since they did not prevail on theirsolely by monetary damages."58 While the plaintiff in Motion for Summary Judgment, their counterclaims,Migis obtained only monetary relief, Defendants also and on whether Defendants properly notified Plaintiffobtained a determination that Leahs public school of Leahs placement at TNRC. Hours expended byplacement was inappropriate, a crucial step in counsel on the Motion for Summary Judgment haveensuring Leahs access to the necessary educational already been excluded and, therefore, Defendantssupport and resources. Thus, the first factor does not lack of success on this issue does not warrant a furtherwarrant a downward adjustment of the fee award. reduction of the fee award. Moreover, neither The second factor -- the relationship between the Defendants counterclaims nor the notice issue figuredrelief sought and the relief obtained -- also does not prominently in the litigation. Defendantssupport a reduction of the fee award. The Supreme counterclaims were first presented to the district courtCourt explained in Hensley, "A reduced fee award is and were voluntarily dismissed by Defendants beforeappropriate if the relief, however significant, is trial. Indeed, the parties submissions on thelimited in comparison to the scope of the litigation as counterclaims were limited to the initial pleadings.a whole.59 In assessing the extent of a partys success, The notice issue was similarly minor in relation to thethe relationship between the damages sought and the litigation as a whole. The heart of the litigation,damages obtained is a relevant consideration.60 including the key factual and legal issues, centered onHowever, "[t]here is no precise rule or formula for whether Plaintiff had provided Leah with a freemaking these [attorneys fee] determinations."61 appropriate education, and whether her placement atBecause the trial judge is in the best position to grasp TNRC was appropriate under the IDEA. Thesethe scope and complexity of the litigation, a district overarching issues also presented the most complexcourt has broad discretion to determine reasonable legal questions, which Defendants counsel skillfullyattorneys fees.62 Accordingly, a reduction in litigated.63 In contrast, the notice issue wasattorneys fees is not mandated because the applicant straightforward and did not assume a central role indid not recover all of the monetary relief sought. the litigation. This was reflected in the brief space Here, Defendants were overwhelmingly devoted to the issue in the Courts opinion, occupyingsuccessful. In proceedings before the Hearing Officer only two and a half of the Opinions thirty-four pages.and this Court, Defendants sought a determination As the Fifth Circuit stated in Taylor v. Sterrett, "[T]hethat Leah was denied a free appropriate public proper focus is whether the plaintiff has beeneducation, and that Leahs residential placement was successful on the central issue as exhibited by the factappropriate under the IDEA. In both proceedings, that he has acquired the primary relief sought."64Defendants prevailed on these crucial questions, Thus, Defendants failure to prevail on the noticewhich embraced multiple subsidiary issues. The issue did not diminish the significance of their successCourts determination that Leahs joint placement at on the paramount issues in the case.TNRC and the University Charter School ("UCS") Plaintiff places great weight on the fact thatwas proper under the IDEA was particularly Defendants only obtained approximately seventy-fivesignificant, because it involved a difficult question of percent of the monetary relief sought. Defendantsfirst impression for the Fifth Circuit -- whether a inadequate notice precluded reimbursement for Leahsstudents placement in a hybrid, public-private setting placement at TNRC between April 1 and June 2, 2004is governed by the standard applicable to private -- approximately twenty-five percent of the totalCopyright # 2007 LRP Publications 13
  • 14. Special Ed Connection Case Reportperiod that Leah was enrolled at TNRC. The Court litigation as a whole.rejects Plaintiffs argument for three reasons. First, Third, Plaintiffs analysis of Defendants successthere is no strict requirement of proportionality: the is overly narrow, focusing only on the monetaryfee award need not be reduced to reflect the ratio of damages recovered. In Coleman v. Houstondamages awarded to damages sought. To the contrary, Independent School District, the Fifth Circuitthe Supreme Court and the Fifth Circuit, eschewing a endorsed a broader notion of success at trial than that"precise rule or formula" for calculating attorneys advanced by Plaintiff: "while the amount of monetaryfees, 65 have repeatedly rejected a strict damages recovered should be considered as one of theproportionality requirement.66 twelve Johnson factors, it should not be given Second, a plaintiffs partial recovery does not determinative effect where the plaintiff has receivedmandate a reduction in the fee award,67 and, where other meaningful relief."72 Here, Defendants obtainedthe other Johnson factors favor an upward adjustment, two legal determinations crucial to Leahs academicsuch a reduction is potentially inappropriate.68 In future: (1) that Leah was denied a free appropriateSinger v. City of Waco, Texas, plaintiffs only public education, and (2) that Leahs residentialrecovered $180,000 of the over $5,000,000 in placement, including the numerous related servicesdamages sought. Nonetheless, the district court, provided, were appropriate under the IDEA. Thus,rejecting a downward adjustment to account for Defendants partial monetary recovery does notplaintiffs partial recovery, awarded plaintiff a fully mandate a reduction in the fee award.compensatory fee.69 The Fifth Circuit upheld the Viewing the scope of the litigation as a whole,district courts fee award, emphasizing the novelty of the Court finds that Defendants achieved significantthe questions presented, the skill required to litigate success. Thus, the Johnson factors do not warrant athe case, and counsels experience and reputation.70 downward adjustment of the lodestar, particularly inHere, the novel questions presented and counsels light of the other reductions.skill also militate against a reduction in the fee award.Further, in Hensley, the Supreme Court recognized Hours Expended on Motion for Attorneysthat success on every claim is not a prerequisite for Fees and Motion Regardingrecovery of a complete fee: Reimbursement Defendants also seek reimbursement for hours Where a plaintiff has obtained excellent results, expended by counsel on Defendants Motion forhis attorney should recover a fully compensatory fee. Attorneys Fees and Motion RegardingNormally this will encompass all hours reasonably Reimbursement. Defendants did not specify the hoursexpended on the litigation, and indeed in some cases expended on these Motions. At the time Defendantsof exceptional success an enhanced award may be filed their Motion for Attorneys Fees, the parties hadjustified. In these circumstances the fee award should not completed briefing on Defendants Motionnot be reduced simply because the plaintiff failed to Regarding Reimbursement. Thus, Defendants couldprevail on every contention raised in the lawsuit. not specify the total hours expended on the MotionLitigants in good faith may raise alternative legal Regarding Reimbursement in their initial fee request.grounds for a desired outcome, and the courts To avoid protracted and extended briefing on fees, therejection of or failure to reach certain grounds is not a Court applies the Johnson factors to Plaintiffs claimsufficient reason for reducing a fee. The result is what for fees relating to the fee motion and Motionmatters.71 Regarding Reimbursement. The Court preliminarily Here, Defendants, prevailing on the most concludes that a fee of $5,000, based on twenty-fivesignificant issues litigated, obtained substantial hours at the rate of $200 per hour, represents amonetary relief, in comparison to the scope of theCopyright # 2007 LRP Publications 14
  • 15. Special Ed Connection Case Reportreasonable and necessary fee for such services. If v. Dept of Educ., 471 U.S. 359, 369 (1985).either party objects to that preliminary determination, 9Id.; Burlington, 471 U.S. at 369.that party shall notify the Court by May 5, 2008. The 10 No. Civ. 04-3725, 2005 WL 2320029 (D.N.J.Defendants may then file a brief of up to ten pages, Sept. 22, 2005).and supporting evidence, by May 19, 2008. The 11 103 F.3d 1114 (2nd Cir. 1997).Plaintiff may respond by June 6, 2008. 12 Id. at 1116. Clerical and Other Costs 13 Id. at 1118. Neither party objected to Judge Ramirezs 14recommendation regarding recovery of clerical and 20 U.S.C. # 1401(a)(8). 15other costs. Accordingly, Defendants may recover 20 U.S.C. # 1401(26)(a); 34 CFR 300.34(a).$1,168.20 in clerical costs, but are not entitled to 16 20 U.S.C. # 1401(26)(a).reimbursement for $4,898.22 in other costs billed. 17 Id.; 34 CFR 300.34(a). Conclusion 18 Cedar Rapids Community School District v. Defendants are entitled to reimbursement of Garrett F., 526 U.S. 66, 73-74 (1999).$54,714.40 for Leahs private placement and related 19 A.R. Vol. III, pp., $35,600 in attorneys fees, and $1,168.20 in 20 Aff. of Nilima Mehta, M.D., # 4.clerical costs, plus other attorneys fees to be 21 Exhibit 13 indicates that actual pharmacydetermined. charges are $243.30. Defendants calculation of actual SO ORDERED. pharmacy charges, however, assumed gross total 1 20 U.S.C. # 1401(9); Florence County Sch. charges of $8,781.60 between June 2, 2004 and JuneDist. v. Carter, 510 U.S. 7, 9-10 (1993). 10, 2004. As discussed further below, the total gross 2 charges assumed for this period rely on an incorrect 510 U.S. at 13-14 (internal citations omitted). 3 34 C.F.R. # 300.104. calculation of room and board costs and, therefore, 4 are wrong. Using the correct gross total charge of 790 F.2d 1153, 1161 (5th Cir. 1986). $5,231.60 for this time period yields an actual 5 20 U.S.C. # 1401(9). As discussed, # 1401(9)s pharmacy charge of $91.17, $36.86 greater than therequirements are not strictly applicable to hybrid $54.31 calculated by Defendants for this period. Theplacements. However, federal regulations interpreting Court accordingly increases the total actual pharmacy# 1401(9) have presumed that its guarantee of charges between June 2 and November 12, 2004 from"special education and related services" is equally $280.16 to $317.02.applicable to private placements and, therefore, 22 The specific invoiced amounts are described inhybrid placements. See 34 C.F.R. # 300.104. the Motion Regarding Reimbursement, which 6 20 U.S.C. # 1401(26)(a). contains citations to the relevant billing records. 7 Id. (emphasis added). 23 The specific invoiced amounts are summarized 8 20 U.S.C. # 1401(a)(8); 20 U.S.C. # 415(e)(2) in Exhibit 1 to Defendants Statement of the Nature("[T]he court shall receive the records of the and Purpose of Laboratory Tests.administrative proceedings, shall hear additional 24 28 U.S.C. # 636(b)(1)(B).evidence at the request of a party, and, basing its 25 See 461 U.S. at 433-34; Watkins v. Fordice, 7decision on the preponderance of the evidence, shall F.3d 453, 458 (5th Cir. 1993).grant such relief as the court determines is 26appropriate."); see Sch. Comm. of Town of Burlington See Hensley, 461 U.S. at 433; Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 324Copyright # 2007 LRP Publications 15
  • 16. Special Ed Connection Case Report 41(5th Cir. 1995). 99 F.3d 761, 770 (5th Cir.1996) ("The proper 27 remedy when there is no evidence of billing judgment See Riley v. City of Jackson, Miss., 99 F.3d757, 760 (5th Cir. 1996); Kellstrom, 50 F.3d at 324. is to reduce the hours awarded by a percentage 28 intended to substitute for the exercise of billing The twelve factors are: (1) the time and labor judgment.").required for the litigation; (2) the novelty and 42difficulty of the questions presented; (3) the skill 236 F.3d 256. 43required to perform the legal services properly; (4) the Hopwood, 999 F. Supp. at 916.preclusion of other employment by the attorney due to 44 Walker, 99 F.3d at 770.acceptance of the case; (5) the customary fee; (6) 45 Blum v. Stenson, 465 U.S. 886, 895 (1984).whether the fee is fixed or contingent; (7) time 46 Washington v. Philadelphia County Court oflimitations imposed by the client or the Common Pleas, 89 F.3d 1031, 1035 (3rd Cir. 1996).circumstances; (8) the amount involved and the result 47obtained; (9) the experience, reputation, and ability of League of United Latin American Citizens No.the attorneys; (10) the "undesirability" of the case; 4552, 119 F.3d at 1234.(11) the nature and length of the professional 48 Blum, 465 U.S. at 895 n.11.relationship with the client; and (12) awards in similar 49 Greystone Realty Corp. v. Ecklandcases. Cobb v. Miller, 818 F.2d 1227, 1231 n.5 (5th Consultants, Inc., No. 3:96-CV-0237-D, 1997 WLCir. 1987) (citing Johnson, 488 F.2d at 717-19). 30903 (N.D.Tex. 1997) (unreported) (internal citation 29 Jason D. W. v. Houston Ind. Sch. Dist., 158 omitted).F.3d 205, 209 (5th Cir. 1998) (internal citations 50 The Court arrives at this figure as follows:omitted). 292.5 - 88.58 in identified reductions (74.75 + 13.83) 30 Hensley, 461 U.S. at 436. = 203.92 attorney hours. This sum is then reduced by 31 25%, based on counsels failure to exercise billing Id. at 434-35. 32 judgment, to arrive at a total of 153 attorney hours See id. at 434. 33 reasonably expended, which is then multiplied by a Id. at 434. rate of $200 per hour. 34 Wegner v. Standard Ins. Co., 129 F.3d 814, 51 Migis v. Pearle Vision, Inc., 135 F.3d 1047822 (5th Cir. 1997). (5th Cir. 1998). 35 League of United Latin American Citizens 52 Hensley, 461 U.S. at 438.#4552 v. Roscoe Ind. Sch. Dist., 119 F.3d 1228, 1236 53 See Migis, 135 F.3d at 1041.(5th Cir. 1997). 54 36 Hensley, 461 U.S. at 436. Id. at 1233. 55 37 Branch-Hines v. Hebert, 939 F.2d 1311, 1322 Id.; see also Hopwood v. State of Texas, 999 (5th Cir. 1991).F.Supp. 872, 916 n.93 (W.D.Tex. 1998), revd on 56other grounds 236 F.3d 256 (5th Cir. 2000). 135 F.3d at 1047. 38 57 Kellstrom, 50 F.3d at 326-27. See Lewis v. Hurst Orthodontics, PA, 292 39 F.Supp.2d 908 (W.D.Tex. 2003) (approving an Henlsey, 461 U.S. at 434. 40 attorney fee award of four times the settlement Alberti, 896 F.2d at 930; see Leroy v. City of amount); Williams v. City of Balch Springs,Houston, 831 F.2d 576, 585 n.15 ("[T]he billing o.3:97-CV-1453-P, 1999 WL 1146802 (N.D.Tex.records are completely devoid of any hours written Nov. 17, 1999) (approving an attorney fee award ofoff."). three times the settlement amount) (unreported);Copyright # 2007 LRP Publications 16
  • 17. Special Ed Connection Case ReportDonihoo v. Dallas Airmotive, Inc., No. Civ. A. 34 CFR 300.34(a)3:97-CV-0109-P, 1999 WL 740692 (N.D.Tex. Sept. Cases Cited15, 1999) (approving an attorney fee award of 3.7 510 U.S. 7times the settlement award) (unreported). 790 F.2d 1153 58 471 U.S. 359 See Coleman v. Houston Indep. Sch. Dist., No. 45 IDELR 9798-20692, 1999 WL 1131554 (5th Cir. 1999) 103 F.3d 1114(unpublished). 526 U.S. 66 5 461 U.S. 424 9Hensley, 461 U.S. at 440 (emphasis omitted). 158 F.3d 205 60 Migis, 135 F.3d at 1048. 61 Hensley, 461 U.S. at 436. 62 Id. at 436-37; see also Associated Builders &Contractors of Louisiana, Inc. v. Orleans Parish Sch.Bd., 919 F.2d 374, 379 (5th Cir. 1990). 63 See Johnson, 488 U.S. at 714 (noting that thenovelty and difficulty of the questions presented is arelevant consideration). 64 640 F.2d 663, 669 (5th Cir. 1981). 65 Hensley, 461 U.S. at 436. 66 See Branch-Hines, 939 F.2d at 1322; Singer v.City of Waco, Tex., 324 F.3d 813, 829-30 (5th Cir.2003). 67 See Migis, 135 F.3d at 1048. 68 See Singer, 324 F.3d at 829-30. 69 Id. 70 Id. 71 Hensley, 461 U.S. at 435 (internal citationomitted). 72 1999 WL 1131554, see Singer, 324 F.3d at 830("We have made clear that while a low damagesaward is one factor which a district court mayconsider in setting the amount of attorneys fees, thisfactor alone should not lead the district court toreduce the lodestar.") (quoting Hollowell v. OrleansRegl Hosp. LLC, 217 F.3d 379, 392 (5th Cir. 2000)).Statutes Cited20 USC 1401(9)20 USC 1401(26)(A)20 USC 1415(e)(2)Regulations Cited34 CFR 300.104Copyright # 2007 LRP Publications 17