Student v. Ipswich Public Schools – BSEA # 11-7213

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

Student v. Ipswich Public Schools

BSEA # 11-7213

Ruling on Parent’s Motion for Summary Judgment, Ipswich Public Schools’ Motion for Summary Judgment and Ipswich Public Schools’ Motion to Dismiss

PROCEDURAL HISTORY

Parent filed a request for expedited hearing on April 15, 2011. The case was granted expedited status and the hearing was scheduled to proceed on May 2, 2011. There was a hearing officer initiated telephone conference call on April 27, 2011. During the telephone conference call the Parent stated that she intended to file a motion for summary judgment. The hearing officer cautioned that there appeared to be a factual issue that would require a hearing, namely the issue of whether Student’s current presentation was the result of a pre-existing condition or was the result of something that would trigger the “Catastrophic Change of Circumstances” clause of the settlement agreement executed by the Parties. The hearing officer also informed Mother that she would be required to present live testimony from a medical professional that would be subject to cross examination to support such a claim at hearing. Mother chose to proceed with a summary judgment motion instead of an expedited evidentiary hearing on the merits. The hearing officer heard oral argument on the Parties’ cross motions for summary judgment and Ipswich Public Schools’ (hereinafter, “Ipswich”) Motion to Dismiss on May 2, 2011, the date originally designated as the expedited hearing date. The district was represented by counsel, and Mother, an attorney licensed in Massachusetts and Hawaii¹ , represented the Student.

JURISDICTION

There has been disagreement among hearing officers regarding the issue of whether the BSEA has jurisdiction over private settlement agreements. See In Re: Peabody Public Schools, BSEA # 09-6505; In Re: Longmeadow Public Schools, BSEA #07-2866. There has been no judicial determination with respect to this issue in Massachusetts. In the instant case both parties assert that the BSEA has such jurisdiction. Therefore, for the limited purpose of resolving the instant motions, I assume that the BSEA has jurisdiction over the settlement agreement that forms the basis of the Parties’ dispute.

FACTS

Student is seventeen years old and has a long history of mental illness, “mood struggles, and trauma.” (See P-4) Her 2009-2010 IEP includes diagnoses including Post Traumatic Stress Disorder (PTSD), Generalized Anxiety Disorder, Social Anxiety Disorder, Major Depressive Disorder and Obsessive Compulsive Disorder. (S-1, 10) The IEP also documents Student’s ongoing difficulties with perseveration, social anxiety, lack of social awareness, poor self-confidence, emotional meltdowns, and emotional fragility in peer situations. (S-1) Ipswich placed Student at the New England Academy for most of her tenth grade year (2008-2009). During a June 3, 2009 “placement meeting” Student requested that she be allowed to return to Ipswich High School in September 2009 and the Team determined that Student would return. (S-1, pg. 2 of 16) In March 2010, the Student was admitted to the Salem Hospital Partial Hospitalization Program by her parent due to anxiety, PTSD, depression, and self-injurious behaviors. (S-3) Upon leaving the hospital, Parent withdrew Student from Ipswich High School and placed her at the Clark School, a non-approved, non-special education, private day school in Danvers, Massachusetts. (S-2, S-3)

On June 28, 2010, Parent filed a Request for Hearing with the Bureau of Special Education Appeals requesting reimbursement for her unilateral placement of the Student at the Clark School (since March 2010) and prospective placement at the Clark School for the 2010-2011 school year. (S-2) In support of her request, Parent stated that Student had been diagnosed with PTSD, Recurrent Depressive Disorder, Anxiety, Social Phobia, Obsessive Compulsive Disorder and a history of Major Depressive Disorder. (S-2) Parent’s Request for Hearing further stated that when Student “becomes emotionally dysregulated, she has a tendency to retreat into avoidance behavior (such as school refusal), deliberately self harm or make suicidal gestures which leave her susceptible to repeated hospitalizations. (S-2, P-6) In her request for relief, Parent reported that any necessary services in addition to a private day school placement would be provided and funded by the Parent and the Department of Mental Health. (S-2) Along with her Request for Hearing, Parent submitted letters dated in June 2010 from Student’s outside therapists describing Student’s significant mental health needs, history of self-injury, suicidal ideation, need for intensive treatment and susceptibility to repeated hospitalization. (P-6, P-7, and P-8) On July 15, 2010, Ipswich filed its response to Parent’s request for hearing, in which it acknowledged Student’s mental health diagnoses and asserted that its proposed placement of Student at Ipswich High School with appropriate supports was appropriate to meet Student’s needs. Ipswich asserted that Parent was not entitled to reimbursement or prospective placement of Student at the Clark School. Additionally, Ipswich agreed to Parent’s alternative claim for relief (placement for Student in an approved special education day school placement which would address Student’s social/emotional needs) if the parties were unable to reach an informal resolution on other terms. (S-3)

On August 12, 2010 the Parties entered into a settlement agreement (entitled, “Confidential Settlement Agreement”) to resolve the dispute forming the basis of Parent’s request for hearing. (S-4, P-15) Mother, who appeared pro se, but is an attorney licensed in both Massachusetts and Hawaii, negotiated the terms of the settlement agreement with Mary Gallant, the Director of Pupil Personnel Services for Ipswich, who is also a licensed attorney. (See Parent’s Motion for Summary Judgment, pg. 5; Ipswich’s Opposition to Parent’s Motion for Summary Judgment, pg. 4; S-4, P-15) E-mails exchanged between Mother and Ms. Gallant between August 11, 2010 and August 12, 2010 show that each party proposed a draft settlement agreement and together, they negotiated acceptable terms for the ultimate settlement agreement. Additionally, Mother stated that a specific attorney² would review the agreement once the parties agreed upon a draft.³ One of the e-mails from Ms. Gallant to Mother reads in part, “Please consult with your attorney and let me know if you can execute the draft I prepared in its present form.” (S-6) Ms. Gallant signed the settlement agreement on behalf of Ipswich and Mother signed the agreement, “individually and on behalf of her daughter” on August 12, 2010. (P-15, S-4)

Under the terms of the very detailed eight-page settlement agreement, Ipswich agreed to directly reimburse Parent in the amount of fifteen hundred dollars ($1,500.00) and to contribute fifteen thousand dollars ($15,000.00) per year toward the total cost of Student’s enrollment at the Clark School for the 2010-2011 school year, and if the Student chose to continue to attend the Clark School upon reaching the age of majority on July 29, 2011, for the 2011-2012 school year. (P-15/S-4, paragraphs 8, 10, 11, & 17.) The agreement contained a clause within paragraph 7 entitled “Cessation of Special Education Substantive and Procedural Requirements.” The clause stated that Ipswich does not recommend Student’s enrollment at Clark “due to the absence of special education programming, including, but not limited to, the lack of specialized instruction and related services to address Student’s emotional needs.” Therefore, the Parties agreed Ipswich would not prepare an IEP for Student’s placement at Clark. Additionally, the following language was included in Paragraph 7.

Except as set forth below in Paragraph 14—‘Catastrophic Circumstances’, Ipswich shall not be required, at any time during the term of this Agreement or at any time thereafter, to convene the TEAM, conduct evaluations or re-evaluations, monitor the programming and/or services delivered by Clark to [Student], prepare progress reports, provide transition services, prepare transition summaries or plans, or to otherwise participate in, or abide by, any substantive or procedural requirement(s) set forth in state and federal special education laws ad their implementing regulations.” (S-4, P-15)

Paragraph 8 of the agreement, Tuition Payment, includes the following language,

Except as school [sic] forth below in paragraph 14—“Catastrophic Circumstances”, should [Student] be unable, unwilling or unavailable, for any reason, to continue attending Clark for any period of time during the 2010-2011 school year, the Parent agrees to hold Ipswich harmless for any costs or fees, tuition, services, related services, counseling, transportation, or any costs or fees or services of any nature, kind and description whatsoever, relating to the provision of education, special education and related services to [Student] for the remainder of the 2010-2011 school year (which expires on June 30, 2011). The provision of any education, special education, related services, counseling, transportation, alternative education, on-line learning, dual enrollment programming, home schooling, GED preparation course, or any other type of educational programming or services or fees or costs whatsoever shall be the sole responsibility of the Parent for the period when [Student] is not in attendance at Clark up to and including June 30, 2011. The Parent affirmatively acknowledges that she has assumed the risk for all services, costs and fees related to [Student]’s education, special education and related services for the period from September 1, 2010 to June 30, 2011 when [Student] is not in attendance at Clark.

The agreement then outlines Ipswich’s obligation to pay fifteen thousand toward the costs of Student’s placement at Clark for the 2011-2012 school year or to allow Student to choose another accredited diploma-granting high school to attend for the 2011-2012 school year. Additionally, Parent agreed to waive Student’s right to receive services of any kind after June 2012 whether or not Student had received a high school diploma. (P-15, S-4)

The paragraph entitled Catastrophic Change in Circumstances reads in relevant part
(i) if there is a catastrophic change in circumstances, as defined in this paragraph, (ii) [Student]…continues to reside in Ipswich, and (iii) [Student] has not yet earned her regular high school diploma thus terminating [Student]’s entitlement to special education and/or related services, then the Parent and/or [Student] shall provide Ipswich’s Director of Pupil Personnel Services with written notice of this development. The Parent’s signature on this Agreement constitutes consent that Ipswich may then conduct those evaluations which it feels are necessary in order to propose appropriate educational programming and placement for [Student] in consultation with [Student]and/or her Parent or legal guardian. After conducting the evaluations, Ipswich shall convene a TEAM meeting and develop a new IEP. In the event that there is a dispute between the Parent and Ipswich about the proposed programming and/or placement, the programming and/or placement proposed by Ipswich shall constitute the placement pending appeal or “stay put” placement. For purposes of this Agreement, a “catastrophic change in circumstances” is defined as the occurrence of an event which causes serious and prolonged physical or emotional injury resulting in a material and substantial change in [Student]’s functioning. Further clarifying, an exacerbation of [Student]’s emotional disabilities (including, but not limited to, PTSD, OCD, depression, anxiety, and/or suicidal ideation) shall not constitute “Catastrophic Circumstances”, even if such exacerbation results in prolonged hospitalization or need for psychiatric treatment.

The Agreement contains a release and a paragraph regarding the free and voluntary nature of the execution of the agreement. The latter states that the parties have either been represented by an attorney or had the opportunity to consult with an attorney prior to entering the agreement. It states that they are not relying on any terms or conditions not expressly outlined in the agreement. It acknowledges that they are waiving specific rights which accrue to them under specific state and federal laws. Additionally, Parent agreed to withdraw with prejudice all claims pending before the BSEA and all claims which could have been raised, up to and including the date of the signed Agreement. (P-15, S-4)

After the Settlement Agreement was executed, Ipswich made a payment to Parent in the amount of fifteen hundred dollars and made the initial tuition payment to the Clark School in the amount of seventy-five hundred dollars. (S-5, S-7; S-4(paragraph 20)) On March 24, 2011, Student was hospitalized at Cambridge Hospital for nine days. (P-4) and subsequently referred to the Acute Residential Treatment Unit at McLean Hospital on April 5, 2011, where she remained as of the date of the motion hearing. On April 14, 2011, Ipswich made a second payment to Clark School in the amount of seventy five hundred dollars per the terms of the Settlement Agreement. (S-5) On April 12, 2010, Mother sent an e-mail to Ipswich’s Director or Pupil Personnel Services stating, “Unfortunately, [Student] is at McLean Hospital and I am told she requires a residential placement. Therefore, the contract I signed with you is void on its face because a parent may not sign away their child’s right to a free appropriate public education.” Parent did not claim that there had been a catastrophic event subsequent to her entering into the settlement agreement. (S-5) In an undated correspondence signed by Farilee C. Fabrett, Ph.D. and Kathyryn Jalovec, M.D., of McLean Hospital, the aforementioned stated Student was admitted to McLean “in the context of deterioration of her mood disorder and inability to function at home and at school.” They recommended that Student be placed in a “residential therapeutic program (preferably girls only) to continue the ongoing treatment of her complex presentation in an effective and safe way.” (P-1) The Department of Mental Health has offered to fund the residential portion of Student’s placement in a therapeutic residential setting. (See Affidavit of Mother, paragraph 12) Additionally, the Department of Mental Health has offered to place Student in a therapeutic group home. (S-5, paragraph 21)

SUMMARY JUDGMENT

LEGAL STANDARD

Summary judgment is appropriate only when all of the pleadings and supporting
documents, viewed in a light most favorable to the non-moving party, present no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c), Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248-50 (1986). Furthermore, if a genuine factual conflict exists, a trial will be needed to resolve the disputed fact which holds the potential to alter the outcome of the case. Calero-Cerezo v. U.S. Dep’t of Justice , 355 F.3d, 6, 19 (1 st Cir. 2004).

Parent’s Motion for Summary Judgment

Mother initially argues that the Settlement Agreement should be set aside because it is unenforceable and void as Student’s circumstances have changed dramatically since it was executed. She cites to no legal support for this argument and in fact, the Settlement Agreement includes a clause specifically to deal with any “Catastrophic Change in Circumstance.” Mother has provided no evidence to show that there was any Catastrophic Change in Circumstance as defined by the Settlement Agreement. Although her affidavit states at paragraph 13 that her child was evaluated by Gordon Harper, M.D., who is quoted as stating that Student’s “’sudden onset of severe mental illness’ is unlike her previous social and emotional diagnoses” she provided no affidavit from Dr. Harper stating his opinion. Fed. R. Civ. P. 56(e) provides that affidavits submitted in the summary judgment context “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” As Mother was informed by the hearing officer during the April 27, 2011 telephone conference call, any medical opinion would have to be provided via live testimony either in person or by telephone and subject to cross-examination. However, even if I were to rely upon the hearsay statement of Dr. Harper, as reported in Mother’s affidavit for purposes of the summary judgment motion, Mother does not allege there was any “occurrence of an event which causes serious and prolonged physical or emotional injury resulting in a material and substantial change in [Student]’s functioning” as required by the Settlement Agreement. In fact, she points to no “occurrence of an event” which caused Student’s current presentation. The agreement explicitly states that an exacerbation of Student’s previously diagnosed emotional disabilities is excluded from the definition of Catastrophic Change in Circumstance “even if such exacerbation results in prolonged hospitalization or need for psychiatric treatment.” (P-15/S-4, Paragraph 14)

Additionally, Mother argues that as a matter of public policy the Settlement Agreement must be overturned, because if upheld, it prevents Student from accessing a free and appropriate public education under the IDEA. Mother’s argument is unpersuasive for several reasons. First, the agreement was entered into freely and voluntarily. The agreement includes an entire paragraph regarding this fact. (See P-15/S-4, paragraph 20, Entitled “Free and Voluntary Nature of Entry into the Agreement.) Additionally, Parent explicitly freely and voluntarily waived Student’s entitlement to special education services in the paragraph entitled “Cessation of Special Education Substantive and Procedural Requirements” among others. (See P-15/S-4) Moreover, Parent herself is a licensed attorney and she consulted with at least one (and perhaps two) attorneys who specialize in special education law before signing the agreement. Although Parent argued that her status as an attorney is a “red herring” as she at all times appeared pro se in this matter, this argument is unpersuasive. A pro se parent without any knowledge of contract law or the effect of a voluntary waiver of rights who had no opportunity to confer with legal counsel prior to entering the agreement at hand may have a reasonable argument that the agreement should be void as against public policy. However, a parent who has been an attorney for twenty years is presumed to have at least a basic understanding of contract law and the effect of waiving rights. In this case, in addition to being an attorney, Mother consulted with experts in the area of special education law. I am aware of no public policy constraints on a Parent in this posture knowingly and voluntarily waiving rights in exchange for receiving a bargained for benefit.

Further, as argued by school counsel, Student continues to have the ability to access the money provided to her by the terms of the Settlement Agreement. Ipswich’s counsel suggested that Mother seek to obtain the return of the second payment of $7,500.00 that was forwarded to the Clark School, given that Student did not continue to attend Clark for the entire school year. Student could then use those funds toward prospective educational services. Additionally, under the terms of the Settlement Agreement, Student will be entitled to receive another $15,000.00 on July 29, 2011. Parent explicitly (and knowingly and voluntarily) assumed responsibility for all other costs pursuant to Paragraph 8 of the Settlement Agreement. (P-15/S-4) Although Student may no longer have the full panoply of options she might have had absent the agreement, she is not now without the ability to access educational services.

I am unpersuaded by Mother’s argument that she never considered the possibility that Student would require residential placement when she signed the agreement. Even assuming that she had not considered this possibility, Parent explicitly agreed to hold Ipswich harmless for “any costs or fees, tuition, services, related services, counseling, transportation, or any other costs or fees or services of any nature, kind and description whatsoever, relating to the provision of education, special education and related services to [Student] for the remainder of the 2010-2011 school year.” (P-15/S-4, paragraph 8) Further, given Student’s complex presentation and history of multiple prior hospitalizations, residential placement should not have been completely unforeseeable.

For the above reasons, Parent’s Motion for Summary Judgment is DENIED.

Ipswich’s Motion for Summary Judgment

Ipswich argues that Parent, with the aide of counsel, knowingly, freely and voluntarily entered into an Agreement with Ipswich in which she provided broad waivers and releases in consideration of Ipswich agreeing to pay $15,000.00 in tuition toward two years of tuition at the Clark School and payment of $1,500.00 to the Parent. It argues that by the plain, unambiguous terms of the Settlement Agreement the Parent “assumed the risk for all services costs and fees related to [Student]’s education, special education, and related services for the period of September 2, 2010 through June 30, 2011, when [Student] is not in attendance at Clark.” Student is no longer in attendance at the Clark School. The Agreement specifically provides that Ipswich would not have the responsibility to provide Student a FAPE, except in the event of a “Catastrophic Change in Circumstances,” during the 2010-2011 or 2011-2012 school years, regardless of the Student’s continued attendance at the Clark School. Even when viewed in the light most favorable to Parent, she has alleged no event or occurrence which could constitute a “Catastrophic Change in Circumstances” as defined in the agreement. Finally, Ipswich argues that it has partially performed pursuant to the Settlement Agreement and Parent has provided no justification for seeking to unilaterally terminate the agreement.

I find that there are no disputed genuine issues of material fact and Parent has provided no legal basis for setting aside/voiding the Settlement Agreement. The evidence shows that Parent was an active participant in drafting the agreement. The record contains e-mail correspondence between Parent and Ms. Gallant demonstrating that Parent was proposing drafts, negotiating contract terms, and having the settlement agreement reviewed by an attorney who specializes in special education law. The terms of the Settlement Agreement are clear and unambiguous. Ipswich has performed all that it agreed to perform up to the present date. The Parent has not alleged that any event has occurred which would trigger the Catastrophic Change in Circumstance exception to the agreement. Allowing Parent to disavow an agreement which she helped to draft with the assistance of counsel after the District had performed would have a truly chilling effect upon future settlement agreements. Parties are entitled to rely upon the agreements that they enter. For these reasons, I allow Ipswich’s Motion for Summary Judgment.

Since I have ALLOWED Ipswich’s Motion for Summary Judgment, it is not necessary to rule on its Motion to Dismiss.

ORDER

Parent’s Motion for Summary Judgment is DENIED.

Ipswich’s Motion for Summary Judgment is ALLOWED.

So Ordered by the Hearing Officer

_________________________________

Catherine M. Putney-Yaceshyn

Dated: May 12, 2011

1

See Ipswich’s Opposition to Parent’s Motion for Summary Judgment and Cross Motion for Summary Judgment, page 4.

2

I take administrative notice of the fact that the attorney referenced in Mother’s e-mail is known by the hearing officer as an attorney with some expertise in the field of special education.

3

During oral argument, Mother was reluctant to answer the hearing officer when questioned as to whether an attorney with expertise in special education reviewed the document. She stated that she was not sure whether an attorney had reviewed a final draft and also stated that no attorney had entered an appearance on her behalf.