Opinion
00-Civ.-5270 (WGB)
June 25, 2002
George M. Holland, Esq., LENTZ GENGARO, West Orange, New Jersey, Attorneys for Plaintiffs.
Robert M. Tosti, Esq., ALGEIER, TOSTI WOODRUFF, P.C., Morristown, N.J., Attorneys for Defendant.
MEMORANDUM OPINION
This matter arises under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA"). By way of Motion for Summary Judgment, minor child K.R. and her parents D.R. and C.R. (collectively "Plaintiffs") seek expert witness fees, attorneys' fees and costs as prevailing parties pursuant to 20 U.S.C. § 1415(i)(3)(B). Because a material question of fact exists as to whether Plaintiffs are entitled to recover fees, for the reasons set forth below, the Court denies Plaintiffs' Motion for Summary Judgment.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331.
I. BACKGROUND A. Facts
K.R. is a six-year-old student enrolled in the school district operated by the Defendant Jefferson Township Board of Education ("Defendant" or "Board"). When K.R. was 18 months old, she was diagnosed as having moderate speech and language delays and attention difficulties. K.R. was subsequently diagnosed as being Autistic and Pervasively Developmentally Disabled ("PDD"). It is undisputed that these conditions make K.R. eligible for special education and related services in accordance with state and federal law.
By virtue of being a Jefferson Township resident, K.R. is eligible to receive free educational services through Defendant. Because of her disability, Defendant has attempted to tailor the manner in which education is provided to K.R., so as to account for her needs. During the 1999-2000 school year, K.R.'s education was structured to her particular needs via an Individualized Education Program ("IEP") that consisted of approximately five half days in Defendant's generic preschool disabled program at the Milton School, and three half days in a local, private preschool program at the Jefferson Education Center.
This combination of placements has been referred to as a "hybrid" approach by the parties.
On or about March 21, 2000, an Annual Review of K.R.'s IEP for the 2000-2001 school year was conducted during a meeting with Defendant's Child Study Team ("CST"). At this meeting, Plaintiffs claim to have advised Defendant's CST that they did not believe K.R. was progressing in her current hybrid educational program. According to Plaintiffs, Defendant did not act on Plaintiffs' concerns, and instead forwarded Plaintiffs a proposed IEP for 2000-2001 that offered K.R. a continuation of the same hybrid program. Given their concerns, Plaintiffs did not execute the proposed IEP.
After receiving the unsatisfactory proposed IEP, Plaintiffs unilaterally retained the services of Dr. Jan Handleman, Ed.D., an expert in the field of educating children with PDD. Dr. Handleman was retained to perform an evaluation of both K.R. and her educational program. Contemporaneous with their retention of Dr. Handleman, in April, 2000 Plaintiffs also retained their present attorney, Mr. Holland. On June 14, 2000 Mr. Holland sent a letter to Defendant indicating that he represented Plaintiffs, and indicating that Plaintiffs were not in agreement with Defendant's proposal to continue the existing IEP for another school year.
There is no evidence that Plaintiffs informed the Board of their intentions to retain an independent expert. Similarly, there is no evidence that the Board was consulted by Plaintiffs with regard to obtaining an independent evaluation of either K.R. or her educational program.
On or about June 1, 2000, Dr. Handleman evaluated both K.R. and her hybrid educational placement. On June 5, 2000 Dr. Handleman prepared a detailed report containing recommendations about how K.R.'s IEP could be modified to better provide for her disability. Dr. Handleman supplemented his report by letter on June 20, 2000. Dr. Handleman's fee for these services was $2,000.
On July 7, 2000 Mr. Holland again advised Defendant that Plaintiffs were not in agreement with the proposed IEP. Mr. Holland also provided Defendant with a copy of Dr. Handleman's report and June 20, 2000 follow-up letter. Shortly thereafter, "from in or around the beginning of July until in or around the beginning of August, 2000, in an effort to informally resolve the matter without having to resort to costly litigation, [Plaintiffs] met with Defendant's CST, without Mr. Holland, to discuss how Dr. Handleman's . . . recommendations could be implemented and a time frame for doing same." (Affidavit of Plaintiffs D.R. and C.R., ¶ 11.) It is undisputed that as part of the effort to settle the matter informally, the parties met on July 20, 2000 and again on July 27, 2000. (Suppl. Aff. of D.R. and C.R., ¶ 11.)
It is also undisputed that on August 7, 2000 Plaintiffs instructed Mr. Holland to file a Petition for Due Process with the New Jersey Department of Education, seeking to have Dr. Handleman's recommendations implemented. It is similarly uncontested that by virtue of the Due Process Petition having been filed, a Mediation Conference was convened on August 23, 2000 by the New Jersey Department of Education. Defendant does not dispute that at the Mediation Conference (in which Mr. Holland participated), a settlement agreement was signed by the parties that implemented a number of Dr. Handleman's recommendations.
After the settlement agreement was signed, Mr. Holland began a diligent effort to recoup his fees and costs from Defendant. (See Holland Letters dated Sept. 12, 2000, Sept. 29, 2000, Oct. 6, 2000, attached to Holland Aff. As Exs. E, G, H.) Defendant consistently rejected Plaintiffs' request for fees, on the grounds that they were not "prevailing parties" within the meaning of 20 U.S.C. § 1415, because the relief Plaintiffs obtained via mediation was no different than the relief they had been offered by the Board prior to the commencement of the due process proceeding. (See, e.g., Sept. 25, 2000 Tosti Let., Holland Aff. Ex. F.)
Given Defendant's repeated refusals to pay for Plaintiffs' legal fees, Plaintiffs commenced this action for attorneys' fees on October 24, 2000. Plaintiffs hope to recoup all of their legal expenses incurred to date (approximately $11,542.32 at last report), as well as Dr. Handleman's "expert witness fee" of $2,000.
Defendant argues that Plaintiffs are not entitled to recover any attorneys' fees, and are not entitled to recover Dr. Handleman's fee. Critical to Plaintiffs' motion for summary judgment (and in fact to this entire attorneys' fees action), are the events that occurred between July 7, 2000 (the date Defendants were sent Dr. Handleman's recommendations) and August 7, 2000 (the date Plaintiffs filed their Due Process Petition). According to Plaintiffs, during that period their efforts to informally resolve the matter failed, as evidenced by the fact that Defendant never made a written offer to settle the case, and never provided Plaintiffs with a revised IEP for the 2000-2001 school year.
Defendant paints a different picture. Mr. Tosti, Defendant's attorney, has represented to the Court that he spoke with Mr. Holland prior to the filing of the Petition for Due Process. (Tosti Aff. ¶ 4.) According to Mr. Tosti, he told Mr. Holland that Defendant intended to implement the programmatic changes set forth in the Dr. Handleman's report. (Id.) Specifically, Mr. Tosti "advised Mr. Holland that the Board, through its Child Study Team, was willing to implement the programmatic changes suggested by the parents' expert, Dr. Handleman, because the Team felt comfortable with these changes from an education standpoint, and wished to avoid having this dispute escalate into costly litigation." (Tosti Aff. ¶ 7.)
Defendant originally submitted its opposition to Plaintiffs' motion for summary judgment by way of a pair of certifications. (see Certification of Robert M. Tosti in Opposition to Plaintiffs' Motion for Summary Judgment; Certification of Lisa M. Atunes in Opposition to Plaintiffs' Motion for Summary Judgment.) Because neither certification complied with the requirements of F.R.C.P. 56(e) or 28 U.S.C.A. § 1746, Plaintiffs objected to any consideration of the certifications by the Court. See United States v. Branella, 972 F. Supp. 294, 300 (D.N.J. 1997) (defective certifications should not be considered in opposition to a motion for summary judgment).
In the interests of fairness, the Court gave Defendant leave to re-submit its Certifications in conformance with the Rules. Accordingly, Defendant has submitted a pair of Affidavits that are identical in substance to Defendant's original certifications.
Plaintiffs have formally opposed the Court's decision to grant Defendant leave to correct the defective submissions, and argue that the Court should not consider the Affidavits' contents. Plaintiffs argue that Defendant had a substantial period of time within which to correct the problems on its own, and that permitting the late submissions would make the Court's motion practice rules irrelevant. The Court disagrees. The new Affidavits are identical in substance to the original defective certifications. Of central importance, at the time this motion was originally briefed Plaintiffs submitted a Supplemental Affidavit of D.R. and C.R. that was directly responsive to the contents of Defendant's defective certifications. Given that fact, Plaintiffs will not be prejudiced if Defendants are allowed to cure a purely technical pleading error. If anything, Defendant would have been prejudiced if the Court had excluded their defense on the basis of a technical mistake made by their counsel.
Plaintiffs have also objected to the substance of the certifications/affidavits, on the grounds that they primarily contain legal conclusions and statements beyond the personal knowledge of the affiants. The Court agrees with this objection, and will not consider those portions of the affidavits that could not reasonably have been based upon the personal knowledge of the affiant.
As representative for Defendant, Mr. Tosti believed that an agreement had been reached and that there was no need for the filing of a due process action in this matter. (Tosti Aff. ¶ 6.) By way of support, Defendant has introduced a memorandum agreement from the July 27, 2000 meeting between the parties. (See Atunes Aff. Ex. A.) That agreement held in its entirety:
The participants met and agreed to the following:
1. An individual aide (I.A.) Is to be assigned to [K.R.], with some background in ABA methodology. Individual aid to be used in Preschool Disabled program as well as inclusion program. This will be formalized at a later IEP meeting.
2. District will contact Dr. Handleman in obtaining possible candidates. If no candidates are available, District Can utilize Board employees who have experience with PDD/ABA.
3. Dough Berrian will be used as prospective consultant. If Mr. Berrian agrees, a meeting will be set up to individualize goals and objectives at Jefferson Day Care center with Ms. Murray and other parties.
4. Teacher at Milton to be agreed upon.
5. Contact with Dr. Handleman regards supplemental home instruction.
(Id.)
Mr. Tosti claims that in his conversations with Mr. Holland before the Due Process Petition was filed, Mr. Holland repeatedly raised the question of attorneys' fees. (Tosti Aff. ¶ 8.) Mr. Tosti claims to have informed Mr. Holland that because litigation had not yet been initiated, the law did not provide for reimbursement of fees. (Tosti Aff. ¶ 9.)
This representation is consistent with Mr. Holland's own submissions. From his first letter drafted on June 14, 2000, every letter sent to Defendant by Mr. Holland indicated that he intended to recoup costs and fees. (See, e.g., Holland Aff. Exs. A B.)
Based on the foregoing, Defendant now theorizes that Plaintiffs initiated the due process proceeding solely to recoup Mr. Holland's fees. Mr. Tosti, who was present at the Mediation Session when the final settlement agreement was signed, claims that there is nothing contained in the August 23, 2000 agreement "that was not offered to K.R.'s parents and their attorney prior to the mediation conference." (Tosti Aff. ¶ 11.) Plaintiffs disagree, and argue that they obtained additional meaningful relief at the Mediation Proceeding that had not been offered to them previously. Therefore, Plaintiffs claim that they are prevailing parties, and are entitled to recover attorneys' fees.
II. DISCUSSION A. Standard for Attorneys' Fees
The IDEA authorizes the Court to award attorneys' fees to the parents of a disabled child who is the prevailing party. It states in pertinent part:
In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party.20 U.S.C. § 1415(i)(3)(B). A "prevailing" party entitled to a fee award is one who has succeeded on "any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing the suit". Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).
In the Third Circuit, a two-part test determines whether the parents are the prevailing party. Wheeler v. Towanda Area School Dist., 950 F.2d 128, 131 (3d. Cir. 1991). First, a court must consider whether the parents achieved relief on any of their claims. Id. That inquiry involves a "commonsense comparison between the relief sought and obtained." Id. This "liberal standard" requires that the parents must have achieved "some of the benefit sought in a lawsuit, even though the plaintiff does not ultimately succeed in securing a favorable judgment."Id.
The second part of the two part test requires that there be a causal link between the litigation and the relief obtained by the parents. Id. "Litigation is causally related to the relief obtained if it was a material contributing factor in bringing about the events that resulted in obtained the desired relief." Id. at 132 (emphasis added).
Wheeler also provided for a "catalyst" theory of recovery, whereby the pressure of a lawsuit could be considered a "material contributing factor," even if litigation did not end in a favorable judgment. 950 F.2d at 132. That "catalyst" theory of causation was subsequently rejected by the Supreme Court. See Buckhannon Board and Care Home, Inc. v. West Virginia Dept. Of Health and Human Resources, et al., 532 U.S. 598, 610 (2001) (Catalyst theory rejected under analogous FHAA fees provision).
For purposes of a fee award, a party prevails when "actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the [non-prevailing party's] behavior in a way that directly benefits the [prevailing party]." Farrar v. Hobby, 506 U.S. 103, 111-12 (1992); see also Texas State Teachers Ass'n. v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989) (prevailing party must be able to identify "a resolution of the dispute which changes the legal relationship" between the parties).
B. Analysis 1. Attorneys' Fees
Turning to the first Wheeler element, the Court finds that Plaintiffs have met their burden of demonstrating that they obtained material relief on the merits of a number of their claims. In their dealings with the Board, Plaintiffs initially sought to have Dr. Handleman's recommendations implemented. Dr. Handleman's recommendations included:
1. That K.R. continue being provided five (5) half days of programing at the Milton School Preschool Disabled Program, using Applied Behavior Analysis methodology;
2. That K.R. be provided five (5) half days at the My School, a local, private preschool program much closer to her home, using Applied Behavioral Analysis methodology;
3. That K.R. be provided a full-time aid, trained in teaching children with PDD and using Applied Behavior Analysis methodology, for five full days at both of her educational placements;
4. That K.R. be provided two (2) hours per day of supplemental home instruction, by a teacher trained in teaching children with PDD and using Applied Behavior Analysis methodology;
5. That K.R. be provided an extended year program (summer program) that reflects a continuation of the above services being given at both of her educational placements, with a full-time aid, trained in teaching children with PDD and using Applied Behavior Analysis methodology;
6. That the school district obtain ongoing consultation services from a private agency two times per month, employing professionals trained in teaching children with PDD and using Applied Behavior Analysis methodology, to evaluate K.R.'s educational progress in both of her educational placements as well as at home;
7. That there be yearly evaluations scheduled with neuro-developmental specialist, such as a Neurologist or Pediatrician with experience treating children with PDD; and
8. That there be increased involvement with [K.R.'s parents] to ensure better communication with all persons involved with K.R.'s educational programming.
(See Holland July 7, 2000 Let.)
After Plaintiffs filed their Due Process Petition, the New Jersey Department of Education convened a Mediation Conference. As a result of the August 23, 2000 Mediation Conference, a Notice of Agreement was entered. The Notice of Agreement provided that:
1. Placement is to remain the same, (Milton School: 4,5,4,5 in pm Preschool Disabled Program; 5 1/2 days Jefferson Child Care Education Center).
2. One on one personal aide for both programs. ABA trained or will be trained.
3. ESY will be considered in May 2001 IEP.
4. District has contacted Douglas Dev. Center to arrange for Educational Consultant. The consultant will recommend the frequency of necessary contacts. Should Douglas be unable or unwilling to commit to a date specific for said services by 9-15-00, other qualified providers shall be contacted.
5. Margaret Pratt will be contacted by principal; She will be the teacher of choice.
6. District has contacted Douglas Dev Center to arrange for 6 hours training for teachers/aides to be committed to within the time frame manner in (4) above.
7. The parties agree to contact Eileen Booth to provide home based ABA/discrete trial program commencing 9-11-00 at four hours per week until further defined by the educational consultant.
8. The role of the educational consultant shall relate to the entire program and include the possibility of recommending an entirely different program including an out of district placement.
9. An IEP meeting will be held by 9-30-00 to adopt the mediation agreement signed 8-23-00.
(Holland Aff. Ex. D.) Although Plaintiffs did not obtain relief on some of their original claims (namely placement at the My School; yearly neuro-developmental evaluations; a memorialization of increased family involvement), and although Plaintiffs only obtained partial relief on other claims (namely four hours per-week of home instruction, as opposed to the requested two hours per day; extended school year to be considered in May, 2001 IEP, as opposed to being made a part of the current educational plan), they did obtain crucial benefits, namely a full-time aid and the retention of an outside educational consultant for the school district.
It is well settled that a plaintiff need not obtain everything originally sought in order to be considered a prevailing party, so long as the party obtains some of the benefits originally sought. J.O. o/b/o C.O. v. Orange Township Bd. of Ed., 287 F.3d 267 (3d Cir. 2002). Mindful of that rule, the relief obtained by Plaintiffs was a sufficient material alteration of the relationship between the parties to satisfy the firstWheeler element.
In its unsolicited sur-reply brief, Defendant has argued that because this matter was resolved by way of a mediation agreement instead of final judgment or consent decree, Plaintiffs are barred from recovering attorneys' fees. See Buckhannon, 532 U.S. at 610. The Court disagrees. As Plaintiffs rightly note in their opposition to Defendant's sur-reply, the Notice of Agreement in this case is more than a mere "catalyst" for change. It is instead a legally enforceable instrument, and one that is sufficient to trigger an award of attorneys fees under the IDEA. See Johnson v. District of Columbia, 190 F. Supp.2d 34, 45 (D.D.C. 2002) (Buckhannon does not preclude award of IDEA attorneys' fees where a formal private settlement agreement is entered.)
Even though the Notice of Agreement is sufficient on its face for Plaintiffs to prevail on the first half of the Wheeler test, the Court finds that a material question of fact exists as to the second Wheeler element, causation. In order to recover attorneys' fees after a successful litigation, a plaintiff must demonstrate that the litigation was "a material contributing factor in bringing about the events that resulted in obtained the desired relief." Wheeler, 950 F.2d at 132 (emphasis added).
In Wheeler, the parents of a deaf child sought to have the school district hire a new sign language interpreter. During the course of lengthy due process proceedings, the school district made a concerted effort to hire a new interpreter, even though no judgment favorable to the parents had been entered. Although an order was ultimately entered that required the district to find a new interpreter, and although a new interpreter was ultimately hired, the Third Circuit found that the parents had failed to show a sufficient causal connection to justify an award of fees. In the Third Circuit's estimation, because the district had already engaged in efforts to find a new interpreter, the hearing officer's decision and the education secretary's order precipitated no change at all, and fees were not warranted. See Wheeler, 950 F.2d at 132-33.
Defendant has demonstrated that a material question of fact exists as to whether similar circumstances were present here. From the contents of the July 27, 2000 informal agreement, a reasonable trier of fact could find that before litigation commenced, the Board had acceded to substantially all of the things ultimately agreed to on August 23, 2000. Such a finding can also be supported by the language of the August 23, 2000 Notice of Agreement, which indicated that the Board had already undertaken efforts to implement the parents' request. (¶¶ 4 and 6, indicating that "District has contacted Douglas Dev. Center" (emphasis added.))
Although Plaintiffs place great weight on the fact that the July 27, 2000 settlement agreement was not an enforceable settlement that caused a material alteration of the legal relationship of the parties, their argument is wide of the mark. The relevant inquiry is not whether the rights of the parties were altered prior to the commencement of the due process proceeding; the relevant inquiry is whether Defendant had acceded to Plaintiffs' requests prior to the commencement of litigation.
Plaintiffs rely heavily on Lascari v. Board of Ed. Of Ramapo Indian Hill Regional H.S. Dist., 116 N.J. 30 (1989). Lascari is inapposite, because it focuses on the appropriateness of a student's IEP. While it is true that in the appropriateness analysis a Court should look to the IEP actually implemented, as opposed to an IEP that could have been implemented, the same rule does not apply here. In determining whether fees are warranted, it is appropriate to examine a contemplated change to an IEP (that had yet to be implemented) in determining whether litigation ultimately caused that change in the IEP to come about.
As the Second Circuit has noted, the "IEP Team is a mechanism for compromise and cooperation rather than adversarial confrontation. This atmosphere would be jeopardized if we were to encourage the participation of counsel in the IEP process by awarding attorneys' fees for settlements achieved at that stage." J.C. v. Regional School Dist. 10, Board of Ed., 278 F.3d 119 124-25 (2d Cir. 2002). If Defendant did indeed agree in principle to make the changes Plaintiffs requested, a reasonable trier of fact could find that this matter would have been resolved without the need for litigation. If Plaintiffs are found to have commenced their due process action solely to keep that private settlement from happening, then Plaintiffs' litigation could be regarded as vexatious, which would justify curtailing (or even denying outright) any award of attorneys' fees.
The IDEA itself provides that attorneys' fees should be reduced if "the parent, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy." 20 U.S.C. § 1415(F)(i); See also Holmes v. Millcreek Twp. School Dist., 205 F.3d 583, 594 (3d. Cir. 2000) (curtailing an award of fees where the parents and their counsel "contributed to" and needlessly "protracted proceedings.")
Even though the August 23, 2000 mediation agreement did alter the legal relationship between the parties, a material question exists as to whether there was a causal link between the Plaintiffs' due process action and the relief obtained. While it is entirely possible that the trier of fact in this case will ultimately find that Plaintiffs prevailed as a direct result of having filed their Due Process Petition, when all of the evidence is taken in a light most favorable to Defendant that result is by no means assured. A trier of fact could also find that Defendant had agreed to implement substantially all of Plaintiffs' requests prior to Plaintiffs' commencement of the administrative proceeding. If that is the case, then Plaintiffs will not be entitled to recoup attorneys fees. For that reason, Plaintiffs' motion for summary judgment must be denied.
Because the issue may ultimately prove to be moot, the Court will leave the question of the reasonableness of Plaintiffs' fee request for another day. Without making a ruling on the issue, the Court notes that there may well be merit to Defendant's assertion that Plaintiffs' fees request is excessive to the extent it seeks to recover for work performed before the commencement of the due process proceeding.
2. Dr. Handleman's Fee
A separate issue for the Court's consideration is the question of whether Plaintiffs may recover the $2,000.00 fee they paid Dr. Handleman for his independent evaluation of K.R. and of her educational placement. In determining whether Plaintiffs are entitled to recover this expense, it is important to remember that the IDEA commits responsibility for developing education-related administrative structures to the individual states. 20 U.S.C. § 1414(a)(5); See Holmes v. Millcreek Twp. School Dist., 205 F.3d 583, 590 (3d. Cir. 2000). The states "must establish procedural safeguards for children with disabilities and for their parents." Holmes, 205 F.3d at 590. These safeguards include the ability to challenge a child's IEP through a due process hearing, or the ability to seek a private evaluation of a disabled student in the event the parents seek to challenge a school's disability classification. Id.Under New Jersey law, parents may request that independent educational evaluations be performed at school expense. N.J.A.C. 6A:14-2.5(c) specifically provides that:
A parent may request an independent evaluation if there is disagreement with the evaluation provided by a district board of education.
1. Such independent evaluation(s) shall be provided at no cost to the parent unless the district board of education initiates a due process hearing to show that its evaluation is appropriate and a final determination to that effect is made following the hearing.
The Code further directs that the Board must either provide the parents with information on how to obtain an independent evaluation, or request a due process hearing within 20 days. N.J.A.C. 6A:14-2.5(c)(1)(i-ii). It also provides guidelines for the manner in which independent evaluations purchased at public expense should be conducted. 6A:14-2.5(c)(2). This process allows "the district board of education [to] ask the parent to explain why he or she objects to the district's evaluation." 6A:14-2.5(c)(5).
Defendant has objected to Plaintiffs' recovery of Dr. Handleman's fee, on the grounds that Plaintiffs never requested an independent evaluation of K.R. from the Board. Defendant further notes that if Plaintiffs had followed the administrative procedures cited above, in all likelihood the Board could have negotiated a lower rate for Dr. Handleman's services. Accordingly, Defendant has argued that to force the taxpayers of Jefferson Township to pay for Dr. Handleman's fee would perform an end-run around the important procedural safeguards of N.J.A.C. 6A:14-2.5, and force the Board to bear the cost of an evaluation that it might have been able to obtain for a lower price.
The Court agrees with the Board. Although Plaintiffs had every right to obtain an independent evaluation of K.R., they do not have a right to force Jefferson Township to pay for that evaluation without first being consulted. Despite the fact that Plaintiffs have couched their request in terms of recoupment of "expert witness" fees, it is apparent to the Court that Plaintiffs' request is a thinly veiled attempt to shortcut the requirements of N.J.A.C. 6A:14-2.5. Mindful that all awards of fees under the IDEA are vested to the Court's discretion, the Court does not believe it to be appropriate to award them the $2,000.00 for Dr. Handleman's services.
III. CONCLUSION
For the foregoing reasons, Plaintiffs' Motion for Summary Judgment is denied.
An appropriate Order follows.