Peabody Public Schools – BSEA # 09-6506



<br /> Peabody Public Schools – BSEA # 09-6506<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Peabody Public Schools

BSEA # 09-6506

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.

A hearing was held on June 18, 2009 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Father

Valerie McCann Out-of-district Coordinator, Peabody Public Schools

Patricia Bullard Administrator of Special Education, Peabody Public Schools

Pamela Milman Attorney for Parent and Student

Thomas Nuttall Attorney for Peabody Public Schools

Tami Fay BSEA Intern

The official record of the hearing consists of documents submitted by the Parent1 and marked as exhibits P-1 through P-9; documents submitted by the Peabody Public Schools (Peabody) and marked as exhibits S-1 through S-4; and approximately two hours of recorded oral testimony and argument.

PROCEDURAL BACKGROUND

On April 24, 2009, Student filed a Hearing Request with the Bureau of Special Education Appeals (BSEA), seeking an order from the BSEA requiring Peabody to conduct a transition assessment, develop an IEP based on Student’s transition needs, provide compensatory services for a two year period, and award attorney fees.

Student has been attending the Devereux School on a residential basis, pursuant to an agreement between the parties. Through the Hearing Request , Student also sought to continue this placement pending resolution of the transition planning and services issues.

During a conference call with the Hearing Officer that occurred on May 27, 2009, it was agreed that an initial evidentiary hearing would be scheduled to address only the question of whether Peabody must continue to provide educational services past June 30, 2009 and, if so, for the Hearing Officer to determine the nature and extent of those services.

On June 11, 2009, this case was re-assigned to the present Hearing Officer.

On June 11, 2009, Peabody filed a Motion to Dismiss , taking the position that a previous settlement agreement foreclosed all of Student’s requested relief. On June 17, 2009, Student filed his opposition.

On June 18, 2009, there was an evidentiary hearing on the question of whether Student is entitled to services past June 30, 2009. Also on June 18, 2009, the parties made their closing arguments regarding the evidentiary hearing, as well as oral argument on Peabody’s Motion to Dismiss .

For purposes of efficiency, through this Decision, I will address the issue of Peabody’s responsibility to provide services past June 30, 2009 and will also rule on Peabody’s Motion to Dismiss .

ISSUES

The issues to be decided at this time are the following:

1. Does Peabody have responsibility to provide Student with special education or related services subsequent to June 30, 2009; and if so, what are those services?

2. Should this dispute be dismissed pursuant to Peabody’s Motion to Dismiss ?

STANDARD OF REVIEW REGARDING MOTION TO DISMISS

BSEA Rules and the Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure both provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief may be granted.2

Similarly, the federal courts have concluded that a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be allowed if the court finds “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”3

Therefore, dismissal is inappropriate unless Student can prove no set of facts in support of his claims. The Hearing Officer must consider Student’s claims based upon any theory of law and must consider the allegations in the Hearing Request to be true, as well as all reasonable inferences in Student’s favor.4

FACTS

The following facts either are not in dispute; or, where explicitly noted, the facts are taken from Student’s Hearing Request and these facts will be considered only for purposes of Peabody’s Motion to Dismiss .

Student Profile and IEP. Student, who is 20 years old, attends the 12 th grade as a residential student at the Devereux School. Testimony of Parent; exhibits P-3, P-4, S-3.

Student has been diagnosed with Pervasive Developmental Disability, Not Otherwise Specified, as well as Attention Deficit Hyperactivity Disorder. He may also have a Post Traumatic Stress Disorder. Student has average cognitive abilities. Student’s disabilities result in anxious behavior, poor social skills, verbal aggression, and impulsivity. Student also has a history of fire-setting. Testimony of Parent; exhibits P-3, S-3.

Student’s current IEP calls for residential placement at the Devereux School through June 30, 2009. In June 2009, Student received his high school diploma from Peabody. Testimony of Parent; exhibits P-3, S-3, S-4.

Prior Dispute and Agreement. On or about April 10, 2007, Parents previously filed a Hearing Request with the BSEA, seeking an order requiring Peabody to provide a residential placement for their son (Student). At that time, Student was attending the Devereux School on a residential basis pursuant to a cost-share agreement between Peabody and the Massachusetts Department of Children and Families (hereinafter referred to by its name in 2007, which was the Massachusetts Department of Social Services or DSS). DSS was then joined to the dispute. Testimony of Parent; exhibit S-1.

In January and February 2008, Parents, Peabody, and DSS entered into an agreement (settlement agreement) for the purpose of resolving their dispute before the BSEA. The agreement, which was reached through a settlement conference conducted by the BSEA, required that Peabody write IEPs for Student’s continued residential placement at the Devereux School through June 30, 2009, with the agreement delineating the financial responsibility of Peabody and DSS for this placement. Apparently contemplating Student’s graduation from high school in the spring of 2009,5 the Agreement provides that Peabody would have no further responsibility for Student’s education as of July 1, 2009. Testimony of Parent; exhibit S-1.

Subsequent IEPs, and Transition Planning and Services. Soon after entering into the settlement agreement, the IEP Team met, and Peabody and Parents agreed to an IEP that placed Student at the Devereux School on a residential basis through February 1, 2009. Parents accepted this IEP in full on March 19, 2008. Student attended Devereux on a residential basis pursuant to this IEP. Exhibits S-2, P-4.

On February 2, 2009, the IEP Team met again, and Peabody prepared an IEP for the period February 9, 2009 through June 30, 2009 for the purpose of continuing Student’s residential placement at the Devereux School. On April 13, 2009, Parents accepted, in part, and rejected, in part, this IEP. The parts of the IEP rejected by Parents were (1) the IEP’s summary of Student’s strengths and key evaluation results, (2) Student’s IEP goals, and (3) the transition services described in the IEP. Parents accepted the remaining parts of the IEP, including Student’s continuing residential placement at the Devereux School. Student continued to attend Devereux on a residential basis pursuant to this IEP; and, as of the hearing date of June 18, 2009, Student has continued as a residential student at Devereux. Testimony of Parent; exhibits S-3, P-3.

The Transition Planning Form, included as part of the February 9, 2009 through June 30, 2009 IEP, provides an “Action Plan” that outlines how Student can develop self-determination skills and be prepared both academically and functionally to transition to post-school activities. The Action Plan provides that (1) Student will improve his overall academic skills, will continue to acquire functional living skills, will investigate various employment opportunities at Devereux; (2) Student will work within the Devereux vocational program and learn the skills required to maintain a job; and (3) Student will participate in skills groups with his clinician and in community activities through the residential program at Devereux, and will learn healthy lifestyle skills and be made aware of services that may be available to him as a young adult. Exhibits S-3, P-3.

The following facts are alleged in Student’s April 24, 2009 Hearing Request and are supported by Parent’s testimony. These facts are considered in this Decision for purposes of deciding Peabody’s Motion to Dismiss .

Over a period of years, Peabody has not appropriately or timely assessed, proposed or provided transition services for the purpose of helping Student become ready for employment, independent living, or post-secondary education after he is no longer eligible to receive special education services. Peabody first discussed Student’s transition needs with Parents when Student was 20 years old during an IEP Team meeting on February 2, 2009, which resulted in the transition plan that is part of Student’s current IEP (described above as the Transition Planning Form).

Without significant structure, Student rapidly “falls apart.” Presently, Student would not be able to manage appropriately the freedom of a college campus, nor would he be able to engage successfully in employment unless it is sufficiently structured. Student has been determined not to be eligible for services from the Massachusetts Department of Mental Retardation or the Massachusetts Department of Mental Health, although Parent is pursuing appeals regarding these determinations.

DISCUSSION

A. Legal Standards.

It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)6 and the Massachusetts special education statute.7 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”8 The Massachusetts special education statute also includes a FAPE requirement.9 FAPE must be provided in the least restrictive environment.10

Parties to a dispute before the BSEA may enter into an agreement, pursuant to which they change their obligations and responsibilities under state and federal special education law. The BSEA does not have the authority to enforce such an agreement.11 However, where the agreement relates to rights and responsibilities that fall within the purview of the Hearing Officer (and which are defined within the IDEA as the “ the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child”12 ), the federal courts have consistently concluded that the Hearing Officer may (or must) consider the agreement and determine whether and to what extent the agreement alters the rights and responsibilities of the parties with respect to a student’s special education services and related procedural protections.13

In general, the BSEA has a substantial interest in considering the legal implications of a settlement agreement that purports to resolve a dispute before the BSEA. If an agreement is binding upon the parties and settles all claims, it would undermine the integrity and efficacy of the settlement process if either party were allowed to avoid its obligations under the agreement, proceed to an evidentiary hearing before the BSEA, and have the BSEA issue a decision on the merits that was inconsistent with the parties’ agreement. This is particularly true in the instant dispute where the agreement was reached through a BSEA settlement conference.

Rights and responsibilities addressed by the settlement agreement (for example, Student’s special education placement) fall within my jurisdiction to resolve special education disputes pursuant to the IDEA. Accordingly, I will review the parties’ settlement agreement and consider its implications on Parent’s and Student’s right to proceed to a BSEA hearing on the merits of their claims regarding the appropriateness of Peabody’s most recent IEP.

B. Settlement Agreement.

As discussed above, the settlement agreement in the instant dispute was entered into by the parties in January and February 2008 for the purpose of resolving the previous dispute before the BSEA. The central issue in the previous dispute was Student’s residential placement at the Devereux School. Peabody had sought to fund only the day program at Devereux, while Parents sought a residential placement. Testimony of Parent; exhibit S-1.

The settlement agreement recites its scope and purpose as follows:

This Agreement is entered into by the parties, in full settlement of any and all claims which the parties have asserted or may assert against one another concerning the provision of special education and related services for the STUDENT for the school years 2006-07, 2007-08 and 2008-09, as well as any further entitlement for the regular or special education and related services for the STUDENT from and after July 1, 2009.

Exhibit S-1 (page 1).

The essential terms of the settlement agreement are contained within the following language in paragraph # 1:

The [Peabody School] COMMITTEE, in conjunction with the PARENTS and the Devereux School, agrees to develop an Individualized Education Program (IEP) for the STUDENT specifying a residential placement at the Devereux School commencing January 1, 2008, through the remainder of the 2007-08 school year, and thereafter, in conjunction with the PARENTS and Devereux School, agrees to develop an IEP for the STUDENT specifying a residential placement at the Devereux School commending January 1, 2008, through the remainder of the 2008-09 school year, through and including June 30, 2009.

The settlement agreement further explains that the development of an IEP for a residential placement at Devereux for the 2008-2009 school year presumes that Student continues to need residential services; and if this presumption proves to be incorrect, an IEP may be developed for a less restrictive placement. Exhibit S-1 (par. 1).

Paragraph # 2 of the settlement agreement sets out Peabody’s and DSS’s financial responsibilities relative to Student’s residential placement at the Devereux School for the 2007-2008 and 2008-2009 school years—essentially, from January 1, 2008 through June 30, 2009. Paragraph # 2 of the settlement agreement then includes the following sentence:

Other than the terms of this paragraph and paragraph seven (7) infra, the [Peabody School] COMMITTEE shall not have any obligation to fund other services of any nature for the school years stated in this paragraph, nor shall the COMMITTEE be obligated to fund regular education, special education, or related services for the STUDENT from and after July 1, 2009.

Similarly, paragraph # 6 provides, in part, as follows:

Subject to the provisions of paragraph seven (7), infra, the PARENTS acknowledge that the COMMITTEE shall have no further fiscal or programmatic responsibility for the STUDENT for the period from and after July 1, 2009.

Paragraph # 7 of the settlement agreement provides that in the event that, at any time “prior to June, 2009,” there is a “substantial or material change” in Student’s special education needs, Peabody and Parents agree to reconvene an IEP Team meeting “to discuss appropriate educational programming and to develop an IEP” for Student. This paragraph explains that a substantial and material change does not include an “exacerbation of existing disabilities.” Paragraph # 7 of the agreement then includes the following sentence:

In case of a substantial or material change, the COMMITTEE and the PARENTS retain all of the rights and obligations afforded by federal and state law and regulations pertaining to the evaluation and placement of special needs students, as applicable.

Paragraph # 13 of the settlement agreement provides for a general release of all claims through the date of the execution of the agreement, except as otherwise provided in the agreement and except to enforce the terms of the agreement. Paragraph # 14 provides an acknowledgement that the parties to the agreement had the opportunity to be represented by counsel in the negotiation of the agreement and that the parties discussed the agreement with their attorneys (both parties were represented by counsel during the settlement process). Paragraph # 16 provides that the agreement is the “entire agreement” between the parties.

C. Motion to Dismiss.

The clear and unambiguous language of the settlement agreement provides that Peabody must place Student at Devereux on a residential basis through June 30, 2009, and, in return, that Parents give up any and all claims that they may have, including any rights to special education and related services subsequent to June 30, 2009. Exhibit S-1 (page 1 and pars. 1, 2, 6, 13).

The only exception is contained within paragraph # 7, which becomes relevant when there is a substantial or material change in Student’s special education needs that does not include an exacerbation of Student’s existing disabilities. Parent and Student have provided no evidentiary basis for concluding that this exception applies, they did not argue this exception in their closing argument, they did not argue this claim in their opposition to Peabody’s Motion to Dismiss , and their Hearing Request does not include this claim. Accordingly, I find that paragraph # 7 does not apply.

It is not disputed that, through its placement of Student at the Devereux School, Peabody has been fulfilling its obligations under the settlement agreement in this regard. It is not disputed that Peabody will continue to fulfill this obligation through June 30, 2009. There is no claim that the agreement requires Peabody to do anything further, nor is there any claim that Peabody has failed or will fail to comply with the settlement agreement in any respect.

Parent’s and Student’s only argument is that notwithstanding the settlement agreement, Student retains the right to an appropriate IEP, which includes appropriate transition services, and that the BSEA may therefore address this right. For purposes of deciding Peabody’s Motion to Dismiss , I assume that Parent is correct that Peabody has provided inappropriate transition planning and services; that, as a result, a number of Peabody’s IEPs did not provide FAPE; and that, as a result, Student and Parent have compensatory claims. I also assume that Parent is correct that, as a practical matter, on June 30, 2009 Student may be left in a precarious position without services or supports unless Peabody either continues to provide residential services or provides transition services that continue past June 30 th .

On its face, the release of claims language within the settlement agreement is broad, clear, and unequivocal, providing in relevant part as follows: “This Agreement is entered into by the parties, in full settlement of any and all claims which the parties have asserted or may assert ….” Exhibit S-1 (page 1). See also S-1 (par. 2) which limits Peabody’s liability. In order to find in favor of Parent, I would have to interpret this release of claims language as partial in scope. I would need to find that implicit within it is an exception allowing Parent and Student to litigate the appropriateness of Peabody’s IEPs, and in particular, the appropriateness of the IEPs regarding transition planning and services.

When determining the scope of a release of claims, Massachusetts courts look to the plain language used in the release.14 “Where, as here, the releases were absolute and unequivocal in their terms, they … must be construed according to the language that the parties have seen fit to use.”15 “As is often the case, a release may be prompted by the settlement of a specific dispute or resolution of a specific issue, but broad wording in the release operates to settle all other, unrelated matters ….”16 This rule applies even when the subject matter of the disputed release is wholly unrelated to the subject matter which initially gave rise to the release.17

Where, as in the instant dispute, “the wording of the contract is unambiguous, the contract must be enforced according to its terms.”18 Parent’s intent to agree to a more limited release is irrelevant. “If exceptions to the release were intended, they should have been stated.”19

For these reasons, I find that the settlement agreement extinguishes all of Parent’s and Student’s claims in the Hearing Request ; that, pursuant to the settlement agreement, Peabody does not have responsibility to provide Student with special education or related services subsequent to June 30, 2009; and that this dispute should be dismissed pursuant to Peabody’s Motion to Dismiss .

ORDER

Peabody has no responsibility to provide Student with special education or related services subsequent to June 30, 2009.

Peabody’s Motion to Dismiss is ALLOWED .

By the Hearing Officer,

William Crane

Dated: June 25, 2009

APPENDIX A

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Peabody Public Schools BSEA # 09-6506

ORDER

In order to apprise the parties in a timely manner of my findings and conclusions in this case, this Order is issued in advance of a full Decision. The full Decision will be issued no later than 25 days after the close of the record, which occurred on June 18, 2009.

This Order is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.

A hearing was held on June 18, 2007 in Malden, MA before William Crane, Hearing Officer. The official record of the hearing consists of documents submitted by the Parent and marked as exhibits P-1 through P-9; documents submitted by the Peabody Public Schools (Peabody) and marked as exhibits S-1 through S-4; and approximately two hours of recorded oral testimony and argument. As agreed by the parties, oral closing arguments were made on June 18, 2009, and the record closed on that date.

I have now had an opportunity to review and consider the entire evidentiary record, as well as the arguments of both parties. On the basis of this careful review, I make the following findings and conclusions.

The parties entered into an agreement in February 2008. I find that this agreement precludes Parent’s claims for prospective relief subsequent to June 30, 2009 and precludes Parent’s claims for compensatory relief.

I therefore conclude that Peabody does not have responsibility to provide Student with special education or related services subsequent to June 30, 2009. This dispute will be dismissed pursuant to Peabody’s Motion to Dismiss .

By the Hearing Officer,

William Crane

Dated: June 22, 2009

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

On May 28, 2009, Student’s mother died. Mother had been actively involved in her son’s education. Accordingly, the term “Parent” or “Parents” will be used depending on the timeframe, with the term “Parent” referring to Student’s father. Parent is the court-appointed guardian of Student. Testimony of Father.


2

BSEA Rule 17B; 801 CMR 1.01(7)(g)3.


3

Judge v. City of Lowell , 160 F.3d 67, 72 (1st Cir. 1998) (quoting Conley v.Gibson , 355 U.S. 41, 45-46 (1957)).


4

See Caleron-Ortiz v. LaBoy-Alvarado , 300 F.3d 60 (1st Cir. 2002) (“accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the plaintiff’s favor” a motion to dismiss will be denied if recovery can be justified under any applicable legal theory). See also Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).


5

The settlement agreement indicated that Student had passed MCAS and was expected to accumulate sufficient credits to graduate from high school on or before June 30, 2009. Exhibit S-1 (pages 1-2).


6

20 USC 1400 et seq .


7

MGL c. 71B.


8

20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).


9

MGL c. 71B, ss. 1, 2, 3.


10

20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).


11

See, e.g., A.R. v. New York City Department of Education , 407 F.3d 65, n.13 (2 nd Cir. 2005) (although the terms of a special education Hearing Officer’s decision are enforceable by a court, “[Hearing Officers], as is common in administrative procedures, have no enforcement mechanism of their own”).


12

20 USC 1415(b)(6)(A) (IDEA language defining a hearing officer’s jurisdiction). The First Circuit has broadly construed this jurisdictional language. Rose et al. v. Yeaw , 214 F.3d 206 (1 st Cir. 2000) (“scope of the due process hearing is broad, encompassing ‘complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.’ Id. § 1415(b)(6)”).


13

See T.L. ex rel. G.L. v. Palm Springs Unified School Dist. , 304 Fed.Appx. 548 (9 th Cir. 2008) (exhaustion of administrative due process required where claim is breach of settlement agreement regarding educational services under the IDEA); J.P. v. Cherokee County Bd. of Educ. , 218 Fed.Appx. 911 (11 th Cir. 2007 ) (claims regarding alleged breach of contract involving special education issues must be addressed through administrative due process remedies prior to consideration by the court); J.H. ex rel. J.H. v. Egg Harbor Tp. Bd. of Educ . , 2009 WL 1322514 ( D.N.J. 2009) ( court does not have jurisdiction over claims to enforce IDEA settlement agreements without first exhausting IDEA administrative remedies); Hayden C. ex rel. Tracy C. v. Western Placer Unified School Dist . , 2009 WL 1325945 ( E.D.Cal. 2009) (requiring exhaustion of administrative due process prior to court’s consideration of claim for enforcement of agreement settling IDEA claims); J .M.C. v. Louisiana Bd. of Elementary and Secondary Educ. , 584 F.Supp.2d 894 ( M.D.La. 2008) (exhaustion of administrative due process required where claim is brach of settlement agreement regarding educational services under the IDEA); H.C. v. Colton-Pierrepont Central School Dist . , 567 F.Supp.2d 340, 344 ( N.D.N.Y. 2008) (“ provisions in … settlement agreement were sufficiently related to plaintiff’s 2006-07 IEP such that the IHO not only had the authority to enforce the settlement agreement, but had a duty to do so”); R.K., ex rel. T.K. v. Hayward Unified School Dist. , 2007 WL 2778702 ( N.D.Cal. 2007) ( exhaustion is required for claims concerning breaches of agreements settling due process complaints, especially where the alleged breach relates to the student’s receipt of a FAPE); S.G. v. District of Columbia , 498 F.Supp.2d 304 ( D.D.C., 2007) (prior to consideration by the court, the hearing officer must first consider settlement agreement that is relevant to student’s special education rights); Traverse Bay Area Intermediate School Dist. v. Michigan Dept. of Educ. , 2007 WL 2219352 ( W.D.Mich 2007) (“Court concludes that the reasoning of the above cases requiring exhaustion of claims alleging breach of a settlement agreement, especially where such claims relate to the provision of a FAPE, is sound. Because the District’s breach of contract claims concern educational and medical evaluations of the minor as well as her educational placement, these are issues that may be addressed through the administrative process.” ); Sarah Z. v. Menlo Park City Sch. Dist., 2007 WL 1574569 (N.D.Cal. 2007) (court lacked jurisdiction to hear breach of contract claim relating to plaintiff’s special education services because claim was not exhausted before administrative law judge); Pedraza v. Alameda Unif. Sch. Dist., 2007 WL 949603, *6 (N.D.Cal. 2007) (alleged violation of settlement agreement was, in effect, an allegation of denial of FAPE; court indicated that the California Office for Administrative Hearings could have taken jurisdiction over the dispute); Chardon Local School District Board of Education v. A.D. , 2006 WL 840368 (N.D.Ohio 2006) (“this Court agrees with the IHO [impartial hearing officer] that it is wholly appropriate to treat alleged violations of the terms of the instant Mediation Agreement [which was attached to the IEP and therefore part of the educational record] within the scope of [the hearing officer’s] due process review”); Linda P. v. State of Hawaii, Dep’t of Education, 2006 WL 2167168 (D. Hawaii 2006) (“hearing officer correctly found and concluded that the claims were covered by a binding and enforceable settlement agreement”); Shawsheen Valley Regional Vocational Technical School Dist. School Committee v. Commonwealth of Mass. Bureau of Special Education Appeals , 367 F.Supp.2d 44, 55-56 ( D.Mass. 2005) (court implicitly indicated appropriateness of Massachusetts BSEA hearing officer’s consideration of whether settlement agreement had been complied with for purposes of ruling on parent’s compensatory claim) ; Board of Education of Township High School District No. 211 v. Michael R. and Diane R., 2005 WL 2008919 (N.D. Ill. 2005) (issue of whether the settlement agreement was breached was an issue to be decided by the Hearing Officer); Banks ex rel. Banks v. Modesto City Schs. Dist., 2005 WL 2233213 (E.D.Cal. 2005) (settlement agreement, entered into before a due process hearing had begun and not approved by an administrative law judge, did not constitute exhaustion); S.A.S. ex rel. W.S. v. Hibbing Pub. Schs., 2005 WL 1593011 (D.Minn. 2005) (plain language of settlement agreement prevents plaintiffs from raising any waived claims in an administrative or judicial forum); Joan R. v. Barrington Public Schools, 2004 U.S. Dist. LEXIS 22589, CA 02-282ML (D.R.I. 2004) (federal court affirmed Hearing Officer’s decision that school district must pay for part of student’s placement pursuant to an implied contract between the parties); Steward v. Hillsboro School District No. 1J , CV 00-835-AS, 2001 WL 34047100 (D.Oregon 2001) (“ settlement agreement that has been breached by the school district is a ‘complaint’ which, under the IDEA and its regulations, must first be presented to the appropriate administrative body”) ; (D.Oregon 2001); Kegel v. The Santa Fe Public Schools , CA 00-1806 JP/RLP (ACE), LoisLaw Federal District Court Opinions (D.N.M. 2001) (collecting cases) (“prevailing, and most sensible, view is that post-resolution enforcement claims must comply with IDEA’s administrative process”); Mr. J. v. Board of Education, 98 F. Supp.2d 226 (D.Conn. 2000) (“[p]ublic policy dictates that settlement agreements should be enforced” by hearing officer) ; Tyson v. Kanawha County Bd. of Ed ., 22 F.Supp.2d 535, 537 (S.D. W. V. 1997) (court dismissed claims for failure to exhaust administrative due process since “issue of whether a breach existed of any settlement between the parties is itself an entire new issue to be complained of and put through the proper administrative process”) ; W.L.G. v. Houston County Board of Education , 975 F.Supp. 1317, 1328-1329 (M.D. Ala. 1997) (“ claim that the school board has failed to comply with the settlement agreement is essentially a ‘complaint,’ which, under the IDEA, first should be presented in a due-process hearing ”). See also Alison H. v. Byard , 163 F.3d 2 (1 st Cir. 1998) (court determined that an agreement extinguished parent’s otherwise viable claim for attorney fees under the IDEA).


14

Lisciotti v. Lattanzio , 2006 WL 2848675, *5 ( Mass.Super. 2006).


15

Tupper v. Hancock, 319 Mass. 105, 108, 64 N.E.2d 441 (1946) . See also Naukeag Inn, Inc. v. Rideout , 351 Mass. 353, 356, 220 N.E.2d 916 (1966) ( “general release … is to be given effect, even if the parties did not have in mind all the wrongs which existed at the time of the release”); Chatham Pharmaceuticals, Inc. v. Angier Chemical Co. , 347 Mass. 208, 211, 196 N.E.2d 852 (1964) (absent limiting language, the expression of one (the whole) constitutes an exclusion of the others (individual types of claims)).


16

Eck v. Godbout , 444 Mass. 724, 728, 831 N.E.2d 296 (2005) (citations omitted).


17

Atlas Tack Corp. v. Crosby, 41 Mass.App.Ct. 429, 433, 671 N.E.2d 954 (1996), rev. denied, 424 Mass. 1101, 674 N.E.2d 1084 (1996).


18

Alison H. V. Byard , 163 F.3d 2, 6 (1 st Cir. 1998), quoting Edmonds v. United States, 642 F.2d 877, 881 (1 st Cir. 1981). See also Commercial Union Ins. v. Walbrook Ins. Co ., 7 F.3d 1047 (1st Cir. 1993) (where contract language itself is unambiguous, “we must give the contract terms their plain meaning”); Rogaris v. Albert , 431 Mass. 833, 835 (2000) (“not for the court . . . to suppose a meaning which the parties have not expressed”); Hakim v. Massachusetts Insurer’s Insolvency Fund , 424 Mass. 275, 281 (1997) (court must read a contract as written and is “not free to revise it”); Schwanbeck v. Federal-Mogul Corp ., 412 Mass. 703, 706 (1992) (unambiguous agreement must be enforced according to its terms); Thibbitts v. Crowley , 405 Mass. 222, 226-227 (1989) (court may not change parties’ obligations under a consent judgment that spells out the terms of settlement “except upon (i) the parties’ further agreement or (ii) litigation of newly-emergent issues”).


19

Sword & Shield Restaurant, Inc. v. Amoco Oil Co. , 11 Mass.App.Ct. 832, 833, 420 N.E.2d 32 (1981) . See also Naukeag Inn, Inc. v. Rideout , 351 Mass. 353, 356, 220 N.E.2d 916 (1966).


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