The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
K.N. and J.N., on behalf of 17-07976-NLH-AMD
J.N.,
Plaintiffs, OPINION
v.
GLOUCESTER CITY BOARD OF
EDUCATION,
Defendant.
Appearances:
CATHERINE MERINO REISMAN
REISMAN CAROLLA GRAN & ZUBA LLP
19 CHESTNUT STREET
HADDONFIELD, NJ 08033-1810
Counsel for Plaintiffs
BRETT E. J. GORMAN
PARKER MCCAY PA
9000 MIDLANTIC DRIVE
SUITE 300
MT. LAUREL, NJ 08054
Counsel for Defendant
HILLMAN, District Judge
Background and Procedural History
The relevant factual and procedural history of this matter
is set forth in this Court’s previous Opinion, K.N. v.
Gloucester City Bd. of Educ., 379 F. Supp. 3d 334 (D.N.J. 2019),
and need not be fully repeated. This Court previously found
that the Defendant Gloucester City Board of Education
(“District”) had violated Section 504, the ADA, and the NJLAD by
(1) failing to provide J.N. meaningful access to the after-
school program (“ASP”); and (2) subjecting J.N. to unnecessary
social isolation.
After this determination, the Court found that Plaintiffs
“have not provided the Court with (1) appropriate briefing on
the remedies available in this type of action; and (2) if
compensatory education is the appropriate remedy, record
evidence supporting the amount of hours J.N. has been deprived
of meaningful access and the rate at which each hour should be
charged.” Id. at 355.
This Court highlighted that Plaintiffs merely asserted,
“without citation to the record, that J.N. was deprived of a
certain amount of hours and that an appropriate rate per hour
would be $80.00.” Id. For this reason, the Court ordered the
parties to file supplemental briefing addressing: (1) what
remedies are appropriate under law; (2) whether damages are
available; (3) the appropriate legal measure of damages in a
case such as this; and (4) whether Plaintiffs should be
considered a prevailing party, and whether, if so, Plaintiffs
should be allowed attorneys’ fees. Id.
Analysis
A. Compensatory Education in the Form of a Trust is an
Appropriate Remedy
Plaintiffs argue compensatory education is an appropriate
remedy in this case and that one accepted form of compensatory
relief is the establishment of a fund to be expended for such
services for the benefit of J.N. Plaintiffs argue the “broad
remedial mandate of Section 504 and the ADA mirrors that of the
IDEA, and the New Jersey legislature has emphasized that the
NJLAD should be read liberally to allow the courts to award all
appropriate damages.” (ECF No. 30 at 8.) Plaintiffs also
highlight that courts within the Third Circuit have “affirmed
awards of compensatory education as a remedy specifically for
claims under Section 504.” (Id. at 9.) For these reasons,
Plaintiffs contend the most appropriate relief in this case is
for money to be set aside to provide J.N. with services. (Id.
at 10.)
In response, the District does not dispute that
compensatory education is the appropriate remedy. However, the
District argues the appropriate form of compensatory education
is services to be provided by the District through the IEP team.
(ECF No. 31 at 5.) The District explains that this Court is not
bound to order monetary relief and explained that the
appropriate award is for additional services to be provided by
J.N. as determined by the I.E.P. team. (Id.) The District
argues the I.E.P. team should be provided with specific hours to
allocate to J.N. throughout the remainder of his education at
the District. (Id.)
Plaintiffs respond that they are not arguing the Court’s
power is limited to awarding monetary damages and instead their
argument is that the establishment of a fund to be spend on the
child’s education is an appropriate remedy. (ECF No. 35 at 1.)
Plaintiffs further argue that “even for a violation of the
[IDEA], it is not appropriate to delegate the determination of
appropriate compensatory education services to the [I.E.P.]
team.” (Id.) This Court agrees with Plaintiffs and conclude
the most appropriate remedy is compensatory education in the
form of a trust.
“Compensatory education is crucial . . . and the courts, in
the exercise of their broad discretion, may award it to whatever
extent necessary to make up for the child’s lost progress and to
restore the child to the educational path he or she would have
traveled but for the deprivation.” G.L. v. Ligonier Valley Sch.
Dist. Auth., c, 625 (3d Cir. 2015) (citing D.F. v. Collingswood
Borough Bd. of Educ., 694 F.3d 488, 498-99 (3d Cir. 2012)). “It
is well settled that compensatory education is an equitable
remedy that is available only after a parent has proven that a
child has been denied FAPE or the benefits of school.” Perrin
v. Warrior Run Sch. Dist., No. 13-2946, 2015 WL 6746306, at *15
(M.D. Pa. Sept. 16, 2015) (citing M.C. ex rel. J.C. v. Central
Regional Sch. Dist., 81 F.3d 389, 397 (3d Cir. 1996)). The
Third Circuit has held “[o]ne accepted form of compensatory
education relief is the establishment of a fund to be spent on
the child’s education.” D.F. v. Collingswood Borough Bd. of
Educ., 694 F.3d 488, 498 (3d Cir. 2012). As Plaintiffs
highlight, courts within the Third Circuit have affirmed awards
of compensatory education as a remedy specifically for claims
under Section 504. See, e.g., Pocono Mt. Sch. Dist. v. T.D.,
No. 3:15-CV-764, 2018 U.S. Dist. LEXIS 121824, at *16-17 (M.D.
Pa. July 20, 2018); Centennial Sch. Dist. v. Phil L. ex rel.
Matthew L., 799 F. Supp. 2d 473, 488 (E.D. Pa. 2011). In Pocono
Mt. Sch. Dist., the Third Circuit recently affirmed the district
court’s award of twenty-six hours of compensatory education
under Section 504. Pocono Mt. Sch. Dist. v. T.D., 790 Fed.
Appx. 387, 390 (3d Cir. 2019).
Here it is undisputed by both parties that compensatory
education is an appropriate remedy. The real issue is which
form of compensatory education is appropriate. This Court does
not find the District’s arguments persuasive that the actual
appropriate remedy is to essentially have the very entity that
committed the discrimination in the first place create an
appropriate remedy for J.N. Instead, this Court agrees with
Plaintiffs that the most appropriate remedy is compensatory
education in the form of a special needs trust to be used at the
Plaintiffs’ elections for J.N.’s reasonable educational,
rehabilitative, therapeutic, or recreational programming.
B. The Proper Amount for a Compensatory Education Fund
Plaintiffs have submitted a declaration from Dr. Kathleen
McCabe-Odri which they believe establishes the hourly rate for
the services that the District denied J.N. Dr. McCabe-Odri
declares that the hourly rate at the relevant time was $120 per
hour, which consists of two one-to-one Applied Behavior Analysis
(“ABA”) therapists at $60 per hour. (ECF No. 30 at 10-11.)
Plaintiffs further contend the relevant amount of hours is 810,
which consists of 3 hours per day for a total of 270 days, which
consists of 90 days for the fall semester of the 2013-2014
school year and 180 days for the entire 2014-2015 school year.
(Id. at 11.)
For this reason, Plaintiffs request this Court to order the
District to place $97,200 in a trust for J.N.’s reasonable
educational, rehabilitative, therapeutic, or recreational
programmed to be used at Plaintiffs’ election and for such funds
to continue to be available to J.N. if funds remain in trust
when J.N. reaches the age of 21. (Id. at 11-12.)
In response, the District argues Plaintiffs’ proposed rate
vastly exceeds the amounts of awards in the cases cited by
Plaintiffs and are not related to services that the Court deemed
reasonable but instead the specialized services of ABA
therapists. (ECF No. 31 at 7.) The District highlights the
Court deemed reasonable the accommodation of a special education
and a one-to-one aid and not an accommodation of two ABA
therapists. The District further argues Plaintiffs are
incorrectly using the cost of the ABA therapy services that J.N.
has received after the relevant timeframe. (Id.) The District
contend the appropriate focus instead should be on what the
costs the District would have incurred had it provided the
relevant services. (Id. at 8.) The District provides this
Court with certification of Paul Whitman, who declares that the
actual costs that the District would have incurred for retaining
the services of a paraprofessional and/or substitute teacher
during the relevant timeframe was $16.06 per hour. (Id.)
Accordingly, the District argues had it provided the ASP to J.N.
with two paraprofessional aides or a teacher and
paraprofessional aide the total cost to the District would have
been $26,017.20. The District does not contest the relevant
amount of hours is 810.
In response, Plaintiffs argue that the District is seeking
to calculate the amounts owed by referencing the cost of
inadequately trained and unsupervised staff. (ECF No. 35 at 2.)
Plaintiffs argue in order for J.N. to have access to the ASP “he
needed the support of an experienced special education teacher,
and experienced aide, and for the first six weeks of the
semester, an experienced social worker.” (Id.) Plaintiffs then
direct this Court’s attention to the annual salaries available
online for full-time special education teacher, aide, and school
social worker, along with the relevant hourly rates, in the
District. (Id. at 2-3.) Plaintiffs then provide this Court
with an adjusted rate of $91,800 and then explains that
“Plaintiffs do not assert that either this calculation or the
calculation in plaintiffs’ original memorandum ($97,200)
establishes the amount this Court must award. However,
plaintiffs do emphatically assert that the District
significantly undervalues the award by ignoring the fact that
appropriately trained supports were necessary for meaningful
access to the ASP.” (Id. at 3.)
In response, the District first points out that at this
point Plaintiffs have now asserted three different rates to the
Court throughout the course of this litigation. (ECF No. 38 at
4.) The first being in Plaintiffs’ Motion for Summary Judgment
where Plaintiffs attached a proposed Order seeking a rate of
$80/per hour for the compensatory education award calculation,
totaling $64,800. This Court rejected this initial rate for
failure to cite to any support in the record for calculating
such rate. K.N., 379 F. Supp. 3d at 355. The District further
explains the newly asserted rates by Plaintiffs are still not
applicable because (1) the District “did not pay the contract
rate for full-time staff when employing additional support staff
for the after school program in the years that it was in
existence;” and (2) “[t]here is absolutely no support cited in
Plaintiffs’ reply brief for the use of these rates to calculate
the cost of staffing the after school program.” (Id. at 4-5.)
The District explains that the District retained the
services of trained and certified professionals through Insight
Workforce Solutions, LLC for the relevant services and the rate
during the relevant timeframe was for $16.06 per hour. (Id. at
5.) Finally, the District argues Plaintiffs are “now requesting
a compensatory education award for accommodations which have not
been previously requested, briefed on, or reviewed by this
Court” and thus not the reasonable accommodation found by this
Court. (Id. at 6.) In addition to focusing on this Court’s
previous Opinion, the District also focuses on Plaintiffs’ own
moving papers which provided a calculation for the services for
a 2:1 support and made no mention of the need for 3:1 support.
(Id. at 7-9.)
This Court ultimately agrees with the District that the
appropriate award is $26,017.20. The Third Circuit has held
compensatory education “should aim to place disabled children on
the same position they would have occupied but for the school
district’s violations of” federal law. Ferren C. v. Sch. Dist.
of Phila., 612 F.3d 712, 717-18 (3d Cir. 2010). Here,
Plaintiffs have failed to cite to anything in the record to
suggest one of the three total amounts they have proposed to the
court actually reflect the amount the District would have
incurred by providing J.N. with the appropriate services.
This Court has already rejected the first amount of $64,800
for failure to cite to anything in the record. The Court now
rejects the second amount of $97,200 because the reasonable
accommodation found by this Court was not for services rendered
by ABA therapists. The Court also rejects the third amount of
$91,800 because Plaintiffs have failed to point to anything in
the record to suggest the full-time rate of the District
employees’ is actually the amount the District uses for the ASP
program, which was the program at issue here. Finally, this
Court additionally finds the third amount inappropriate because
the reasonable accommodation found by this Court was based on
2:1 support not 3:1 support. For these reasons, the Court finds
the declaration of Dr. McCabe-Odri inapplicable as well as the
rates provided in Plaintiffs’ reply brief and instead concludes
that Mr. Whitman’s declaration provides the accurate rates that
would place J.N. in the same position he would have been in had
he received the appropriate accommodations during the fall 2013
semester and entire 2014-2015 school year.
As neither party disputes the relevant amount of hours is
810, this Court finds the appropriate total amount of
compensatory education that should be placed in the fund is
$26,017.20. Moreover, the District did not object to
Plaintiffs’ request for the funds to continue to be available to
J.N. if funds remain in trust when J.N. reaches the age of 21.
Therefore, this Court will accept such request.
C. Plaintiffs are Prevailing Parties Entitled to Recover
Attorney’s Fees
Plaintiffs argues they are prevailing parties because they
proved the District violated J.N.’s rights under Section 504 and
the ADA. (ECF No. 30 at 12-14.) Plaintiffs further argue “the
costs for the administrative hearing are recoverable because
they had to exhaust administrative remedies on DIEA claims in
order to be able to pursue ADA/504 claims in this Court.” (Id.
at 13.) In response, the District conceded Plaintiffs are
prevailing parties. (ECF No. 31 at 11.) However, the District
argues Plaintiffs’ status as a prevailing party is limited to
the claims raised in its appeal only. The District focuses on
the fact that the District prevailed on “a vast majority of the
underlying matter” between Plaintiffs and the District. (Id. at
11.) The District argues “[t]he 504 issue present here was, in
comparison, a tangential issue that was not the focus of the
hearing” and that Plaintiffs’ demand on the 504 issue likely
exceeds what will actually be ordered by the Court and thus
should impact the prevailing party award. (Id.) The District
requests further briefing on the issue because it believes such
briefing is necessary to determine a reasonable amount of fees.
(Id.)
Plaintiffs respond that this Court should hold that
Plaintiffs are prevailing parties and set a schedule for
submission of a fee petition and subsequent briefing on this
issue. (Id. at 4-5.) At this point it seems undisputed that
Plaintiffs are in fact “prevailing parties” for statutory
purposes. This Court agrees that Plaintiffs are “prevailing
parties” and thus may be awarded a certain amount of attorney’s
fees for succeeding on Plaintiffs’ claims in this Court.
Moreover, this Court agrees with Plaintiffs that where, as here,
a federal statute requires exhaustion, the plaintiff is entitled
to fees for administrative proceedings. Ridley v. Costco
Wholesale Corp., 217 F. App’x 130 (3d Cir. 2007); Jenkins v.
Knowledge Learning Corp., No. 10-5058, 2015 U.S. Dist. LEXIS
, at *4-5 (D.N.J. Feb. 3, 2015) (“Defendant also has argued that
attorney’s fees for administrative proceedings should not be
awarded. However, a party alleging a violation of the ADEA must
first pursue an administrative remedy prior to bringing suit.
Thus, it has been held, since a plaintiff must at least give
administrative remedies a chance before commencing an ADEA
action in federal court, a fee award under the ADEA may properly
include fees for time spent on administrative proceedings that
were a prerequisite to the suit. Because the EEOC proceeding was
a prerequisite for Plaintiff’s claims, the time spent by her
attorneys at that administrative level was ‘reasonably expended’
on the litigation.”).
The District does not argue that exhaustion was not
required for Plaintiffs’ claims and instead argues fees related
the administrative hearing should not be awarded because the
District prevailed on a the I.D.E.A. portion of the appeal and
Plaintiffs never appealed this decision. The District does not
direct this Court’s attention to any case law to support this
proposition. The Court finds persuasive the case law that
awards attorney’s fees connected to administrative proceedings
that are a prerequisite to filing suit because such hearings are
a necessary precursor to Plaintiffs’ ultimate success on their
federal claims. Plaintiffs had to exhaust administrative
remedies on the IDEA claims in order to be able to pursue their
ADA and Section 504 claims in this Court. J.A. v. Monroe Twp.
Bd. of Educ., No. 18-09580, 2019 U.S. Dist. LEXIS 67507, *11
(D.N.J. Apr. 22, 2019). As this Court has already concluded,
the claims at issue in this litigation “were only brought before
the ALJ because of the requirement to exhaust the IDEA claims.”
K.N., 379 F. Supp. 3d at 344.
Nevertheless, the Court, at this time finds merit in the
District’s argument that the amount of fees owed to Plaintiffs
should take into account the fact that supplemental briefing on
the remedies issues occurred due the Plaintiffs’ failure to
provide support for the original demand of a rate of $80/hour to
calculate compensatory education. The Court holds Plaintiffs
are “prevailing parties” and are thus owed reasonable attorney’s
fees, which includes reasonable fees incurred during the
administrative hearing, which this Court has already held was
prerequisite to the Plaintiffs filing suit in this Court.
However, it seems that the parties are in agreement that
supplemental briefing on the amount of reasonable fees
Plaintiffs are owed is still needed. Accordingly, the Court
will order the parties to meet and confer and set a schedule for
submission of a fee petition, along with supporting document,
and subsequent briefing on the issue of the amount of fees
Plaintiffs are owed. The supplemental briefing must be
consistent with the directives contained in this Court’s
Opinion.
CONCLUSION
For the foregoing reasons, the Court finds the appropriate
remedy is compensatory education in the form of a special needs
trust, to be used, at Plaintiffs’ election, for J.N.’s
reasonable educational, rehabilitative, therapeutic, or
recreational programming. The Court finds the appropriate
amount of funds to be placed into the trust is $26,017.20.
Finally, the Court finds Plaintiffs are prevailing parties, but
will grant the parties’ request to submit supplemental briefing
to determine a reasonable amount of fees.
An appropriate Order will be entered.
Date: March 24, 2021 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.