The opinion of the court was delivered by: Charles Haight, District Judge
MEMORANDUM OPINION AND ORDER
The sole remaining issue in this action commenced under the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C. § 1400 et seq., concerns the entitlement of the plaintiffs, parents of a disabled child who successfully sued the defendant school district to recover their child's tuition at a private school during certain school years, to recover costs incurred for the services of an educational consultant and transportation incurred by plaintiffs during the pertinent times. Plaintiffs rely upon the fee-shifting provisions which the Act contains for the benefit of prevailing parties in actions commenced pursuant to its terms.
Familiarity with all prior opinions of this Court and the Court of Appeals is assumed. For present purposes, it is sufficient to state that plaintiffs Pearl Murphy and Theodore Murphy, the parents of Joseph Murphy, a "child with a disability" as that term is defined by the Act, 20 U.S.C. § 1401(3)(A), and enrolled at the Arlington High School, maintained by defendant Arlington Central School District Board of Education (the "District"), decided at the end of the 1997-1998 school year that the Arlington School was no longer an appropriate educational placement for Joseph, given his condition. Plaintiffs unilaterally withdrew Joseph from the Arlington School, and enrolled him for the 1998-1999 school year at the Kildonan School, a private school. At the same time, plaintiffs pursued the administrative remedies provided, as required by IDEA, with respect to such educational placements by the applicable state statute, N.Y.Educ.Law 4404 (McKinney 1999). Those proceedings eventually resulted in a decision dated July 7, 1999 by an impartial hearing officer ("IHO"), who concluded that the District's educational plan for Joseph for the 1998-1999 school year was inadequate to meet his special needs; that Kildonan was an appropriate placement; and that plaintiffs were entitled to reimbursement for Joseph's tuition at Kildonan and the costs of a private speech pathologist.*fn1 The District lodged an administrative appeal from that decision with the state review officer ("SRO"). While that appeal was pending before the SRO, plaintiffs commenced this action, first in the Northern District of New York, and subsequently transferred to this Court.
In an opinion dated March 1, 2000, Murphy v. Arlington Central School District Board of Education, 86 F. Supp.2d 354 (S.D.N.Y. 2000), this Court held that under the provisions of the IDEA, the District was obligated to reimburse plaintiffs for Joseph's tuition covering the period beginning on September 17, 1999 to date, and to continue to fund his tuition as long as Kildonan remained Joseph's current educational placement.*fn2 The District appealed. The Second Circuit affirmed this Court's decision. 297 F.3d 195 (2d Cir. 2002).
Plaintiffs now apply for an order directing the District to pay costs they incurred during the times in question. Specifically, plaintiffs seek to recover the fees of Marilyn Arons, an educational consultant, and mileage expenses plaintiffs incurred in transporting Joseph to and from Arons's office, the offices of neurologists and speech therapists, and administrative hearings. In a Memorandum and Order reported at 2003 WL 367872 (S.D.N.Y. Feb. 19, 2003), I directed the submission of further papers in connection with that application. Those submissions have been made, and the issue is now ripe for decision.
The public policy implemented by the IDEA is to assure that all children with disabilities receive a free public education appropriately designed to meet their particular learning needs. The District seeks to achieve that purpose through the vehicle of a Committee on Special Education ("CSE"), headed by Assistant Superintendent Barbara J. Donegan. "The primary mission of the CSE is to identify, locate, and evaluate all disabled children within the District's borders and develop individualized education programs ("IEP's") that address their educational needs." Donegan Aff. at I 2. A written IEP is mandated by the Act, and is prepared at a meeting between the child's teacher, a school representative qualified in special education, and the child's parents.
An IEP is not binding on the parents. The IDEA gives them the right to "present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child," 20 U.S.C. § 1415(b)(1)(E), with the concomitant right to "an impartial due process hearing" before the state educational agency, § 1415(b)(2).*fn3 The Act gives states the freedom to design a one or a two-tier review process. As the prior decisions in the case at bar reflect, New York opted for a two-tier system. Parents dissatisfied by the final administrative decision may file suit "in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." § 1415(e)(2).
According to the first certification of Marilyn Arons submitted on the present application, Arons "was asked by Pearl Murphy to help her son receive an appropriate education in October of 1997. . . . She originally asked that I serve as an educational consultant in order to have an IEP developed in accordance with his needs." Arons's certification of services rendered in this case indicates that she holds a master's degree. A 1998 Third Circuit decision states that Arons, the mother of two handicapped children and a New Jersey resident, "[a]s a professional educator . . . specializes in curriculum development for exceptional children," and "[a]s a lay advocate, she acts on behalf of parents of handicapped children at administrative hearings" conducted by New Jersey educational authorities. Arons v. New Jersey State Board of Education, 842 F.2d 58, 60 (3d Cir. 1988). Arons has subsequently extended her consulting and advocacy practices to New York families, as is demonstrated by J.S. v. Ramapo Central School District, 165 F. Supp.2d 570 (S.D.N.Y. 2001), Connors v. Mills, 34 F. Supp.2d 795 (N.D.N.Y. 1998), and the case at bar. She has also represented a family in Delaware. See Coale v. State Department of Education, 162 F. Supp.2d 316 (Del. 2001).
As noted, during the academic year 1997/1998 Joseph Murphy attended a District school. According to Arons's summary, she rendered her first services to plaintiffs on certain dates in November and December, 1997, when she reviewed Joseph's school history and records, developed a statement of current educational status and goals for an "IEP meeting," and prepared for, attended and participated in a CSE meeting. Arons's summary then states that on January 8, 1998 she was consulting with plaintiffs "re: placement of Joe at Kildonan," and the record in the case shows that plaintiffs unilaterally enrolled their son in the Kildonan School "prior to a scheduled meeting of the CSE held on July 30, 1998." Donegan Aff. at ¶ 9.
Plaintiffs paid Joseph's tuition at the Kildonan School for the academic year 1998/1999. By letter dated September 3, 1998, plaintiffs requested an impartial hearing to determine whether the District should be required under the Act to reimburse them for the 1998/1999 Kildonan tuition and for the costs of private speech therapy. Donegan Aff. at ¶ 10. After conducting a hearing, the IHO concluded held that the District had not afforded Joseph a free and appropriate public education, held that plaintiffs had appropriately placed Joseph in the Kildonan School, ordered the District to reimburse plaintiffs for the Kildonan 1998/1999 tuition, and further ordered the District to reimburse plaintiffs for the cost of private speech therapy incurred during the 1997/1998 academic year. The District appealed to the SRO by petition dated August 17, 1999, who in a ruling dated December 14, 1999 but effective as of September 17, 1999 sustained the IHO's decision to award plaintiffs reimbursement for the Kildonan tuition for the 1998/1999 academic year, but reversed the award of reimbursement for private speech therapy during the prior year. Donegan Aff. at ¶¶ 12, 14, 25-26.
During the pendency of the District's appeal to the SRO with respect to Joseph's placement during the 1998/1999 academic year, the 1999/2000 year approached, and on September 2, 1999 the District convened a CSE to consider placement for that year. See Murphy, 86 F. Supp.2d at 356. "An IEP was proposed placing Joseph back at Arlington High School. Plaintiffs did not accept this IEP and continued to enroll Joseph at Kildonan," funding the tuition for that academic year as well. Id. As noted in Part I, supra, plaintiffs commenced this action in August 1999. The ultimate decision reached by this Court, dated February 25, 2000 and subsequently affirmed by the Second Circuit, was that Kildonan School constituted Joseph's "current educational placement," a conclusion which under the Act's statutory scheme made the District "financially responsible for Joseph's tuition beginning from the effective date of the SRO decision, September 17, 1999, and going forward." Id. at 368. The economic effect of that ruling was to require the District to reimburse plaintiffs for the major portion of the 1999/2000 tuition at Kildonan School.*fn4 This Court has not been asked to make any further rulings with respect to the plaintiffs' rights and the District's obligations under the IDEA.
Arons's certification summarizes services she rendered to plaintiffs and their son Joseph from November 1, 1997 to and including July 19, 2002. Those services are allocated among five academic years: 1997/1998 (21.5 hours); 1998/1999 (40.25 hours); 1999/2000 (17.75 hours); 2000/2001 (45.75 hours); and 2001/2002 (21.5 hours). These allocations yield a total of 146.75 hours. Arons values her time at $200 an hour, and so the claim for her services is $29,350.*fn5
Plaintiffs do not by this application seek reimbursement for payment of this or any other amount to Arons. They are not in a position to do so because they have not paid Arons anything. In her certification Arons explains why that is so. She states that "[t]he attached bill for Joseph Murphy was made in accordance with my understanding of those areas for which the Second Circuit permits me to bill for services," and goes on to say that in view of plaintiff Pearl Murphy's "financial circumstances and the issues in her son's case as she understood them," and "[b]ecause of the unusual nature of the case, as well as the fragile state of her son's development, I agreed to take the case on a contingency." Arons continues:
A verbal contract was agreed upon in which the family
agreed to seek my fees from the Arlington School
District or a court of competent jurisdiction in the
event there was litigation and the family became the
prevailing party. I have never received payment for
any services provided since 1997. I have stayed with
the case because of my concern for the social,
emotional, academic and developmental welfare of
Joseph, a child I deemed to be at significant risk
without appropriate intervention.
The principal questions on this application are whether, in the circumstances of the case, the District is obligated by the IDEA to pay for Arons's services to the plaintiffs, and if so, in what amount.
A. Fee Shifting and Representation under the IDEA
At the pertinent times the IDEA provided in 20 U.S.C. ...