Student v. Wachusett Regional Schools District – BSEA # 09-2526



<br /> Student v. Wachusett Regional Schools District – BSEA # 09-2526(2)<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Student v. Wachusett Regional School District

BSEA# 09-2526

RULING ON MOTION TO DISMISS APPEAL

BACKGROUND

1. On October 9, 2008 Parents’ attorney requested an expedited hearing before the BSEA. Expedited status was initially granted.

2. On October 10, 2008 the attorney for the Wachusett Regional School District (WRSD) filed an objection to the expedited hearing status.

3. On October 14, 2008 the assigned Hearing Officer scheduled a motion session for October 15, 2008 to determine the appropriate hearing status.

4. Also on October 14, 2008 WRSD’s attorney filed WRSD’s Response to Parents’ Hearing Request and WRSD’s Motion To Dismiss Parents’ Request for Hearing with accompanying argument/memorandum.

5. At the motion session on October 15, 2008 the Hearing Officer granted WRSD’s motion to remove this case from the expedited track; returned the case to the regular hearing track; and gave Parents seven days to respond to WRSD’s motion to dismiss this appeal.

6. On October 23, 2008 WRSD filed a motion to dismiss because Parents had failed to file any response or opposition to WRSD’s original motion to dismiss this appeal.

7. On October 24, 2008 Parents’ attorney formally objected to WRSD’s original motion to dismiss but noted that she would not prepare any memorandum of law supporting her clients’ opposition because WRSD’s motion to dismiss was insufficient as it failed to lay out or argue the legal standards associated with a motion to dismiss.

8. Also on October 24, 2008 the Hearing Officer wrote to the attorneys inquiring if either side wished to present oral argument.

9. Lastly on October 24, 2008, Parents’ attorney requested oral argument. WRSD’s attorney did not require oral argument but agreed to participate in same.

10. On October 28, 2008 the Hearing Officer scheduled a telephonic motion session for October 30, 2008 at 4:00 p.m.

11. On October 28, 2008, just after 3:00 p.m., Parents’ attorney withdrew her request for oral argument and, given that WRSD declined oral argument, requested cancellation of the motion session. Therefore, WRSD’s motion to dismiss will be considered based upon the parties’ written submissions.

SCHOOL’S POSITON

WRSD moves that the Hearing Officer grant its Motion to Dismiss Parents’ Hearing Request because on May 2, 2008 Parents and WRSD knowingly and voluntarily entered into an enforceable, contractual settlement agreement which provided for WRSD’s funding a private day school placement for Student at the Devereux School (Devereux) for the remainder of the 2007-2008 school year and all of the 2008-2009 school year. Pursuant to that agreement, WRSD’s obligations to Student for the remainder of the 2007-2008 and all of the 2008-2009 school years was/is limited to the funding of the approved public rate for a day school placement at Devereux for the time period of the agreement. Except in the event that Student’s enrollment at Devereux is terminated, WRSD would have no obligation to conduct additional evaluations and meetings regarding Student, or otherwise incur any expense except for daily transportation of the Student to and from Devereux.

WRSD states that when Student was temporarily hospitalized at Metro West Hospital and then stepped down to residing at the Italian Home for Children (IHFC), Student was not terminated from Devereux. Rather, in accordance with the terms of his settlement agreement with Parents, WRSD continued to fund Student’s placement at Devereux to preserve his day placement there.

WRSD contends that enforcement of the settlement agreement pursuant to its terms precludes Parents’ prosecution of their claims before the BSEA in the instant proceeding for WRSD’s funding of additional services at Devereux (residential placement funded by WRSD) for the 2008-2009 school year. WRSD contends that given the plain language of the terms of Parents’ executed and enforceable settlement agreement with WRSD, Parents’ request for hearing before the BSEA seeking Student’s residential placement at Devereux for the 2008-2009 school year must be dismissed with prejudice.

PARENTS’ POSITION

Parents oppose WRSD’s motion to dismiss. Parents acknowledge their settlement agreement with WRSD and that Student’s “current IEP placement is at a day program at the Devereux School”. However, Parents contend that Student’s hospitalization at Metro West Hospital followed by his “step down” residential status at IHFC terminated his Devereux placement. Therefore, Parents contend that they are entitled to pursue this appeal before the BSEA.

Parents also contend that WRSD’s motion to dismiss their appeal is insufficient because it fails to lay out or argue the legal standards for a motion to dismiss.

Through this BSEA appeal Parents seek 1) a residential placement for Student at Devereux with WRSD responsible for all costs of such placement; 2) compensatory education services for the period from the beginning of the 2008-2009 school year through the time of Student’s placement in an appropriate residential educational setting; 3) “reimbursement for the losses, harm and injury that they and [Student] have suffered as a result of the violations of [Student’s] rights and entitlements as well as inadequate and/or inappropriate educational programming;” 4) “compensatory and punitive damages to the maximum extent available”; and 5) attorney’s fees.

EXECUTED SETTLEMENT AGREEMENT BETWEEN PARENTS AND WRSD

The May 2, 2008 Resolution Agreement and Release executed by Parents and WRSD resulted in Parents’ withdrawal of a previously filed BSEA appeal, BSEA# 08-5821, filed on or about April 4, 2008. This earlier appeal was withdrawn on May 7, 2008.

The May 2, 2008 Resolution Agreement and Release provides, in pertinent 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 against one another concerning the provision of special education and related services for Student………

1. Subject to the Student’s acceptance by the Devereux School (“Devereux”), the District agrees to administratively develop an IEP providing for the Student’s placement as a day student at Devereux for the remainder of the 2007-2008 school year and for the 2008-2008 school year and to fund one hundred percent (100%) of the applicable public tuition rate for said placement(s) in accordance with a payment schedule to be determined by Devereux and the District. The parties acknowledge that the Student’s program at Devereux during the term of this Agreement is a full (extended) school year program of two hundred sixteen (216) days per year. For purposes of this Agreement, the phrase “applicable public tuition rate” shall mean the amount established by the Massachusetts Operational Services Division (or its current counter-part) for the payment of tuition to Devereux by municipal entities during the period(s) described in this paragraph. The parties understand and agree that the District’s contribution of one hundred (100%) of the applicable public tuition rate for a full year (216 day) day placement at Devereux for the reminder of the 2007-2008 and 2008-2009 school years shall be for the provision of all special education and all related services for the Student, and that the District shall not be required to incur additional costs for the provision of special education, related services, or other services, fees, or activities for the Student during the time period covered by this Resolution Agreement unless the parties agree otherwise in writing.

2. It is understood and agreed upon by the parties that the District’s obligation to fund one hundred percent (100%) of the cost of tuition for Student’s day placement at Devereux for the remainder of the 2007-2008 and 2008-2009 school years shall apply only to such period(s) as Student participates in the special education program and related services provided by Devereux and otherwise remains in good standing as a student at Devereux. That is, the District shall not have any obligation to fund any portion of Student’s placement at Deverux for any period in which he is not in actual attendance, or participating in the special education program at Devereux, except for absences because of illness or otherwise in accordance with Devereux’s policy of excused absences.

3. In the event that the Student’s enrollment at Devereux is terminated for any reason prior to the end of the 2008-2009 Devereux school year, the parties agree to complete any necessary evaluations and to reconvene a Team meeting on an expedited schedule to review Student’s status, IEP and placement….

5. The District agrees to provide and fund once daily roundtrip transportation between the Student’s home and Devereux on each school day during the 2007-2008 and 2008-2009 school years…..

9. On or before April 1, 2009, the District shall convene a Team to develop an IEP and identify a placement for the school year 2009-2010 and shall provide the Parents with a copy of the proposed IEP and Team Determination of Placement developed at said meeting by no later than April 11, 2009. The Parents agree that they shall respond to said IEP within thirty (30) calendar days of receipt thereof. In the event that there is a dispute between the Parents and the District regarding the services and/or placement proposed for the 2009-2010 school year, and should either party file a Request for Hearing with the Bureau of Special Education Appeals, the parties agree to cooperate in obtaining a final resolution of any such dispute by agreement or through decision of the Bureau of Special Education Appeals by August 15, 2009. In the event that any such dispute is not resolved as of the start of the 2009-2010 school year , the Student shall have the right to “stay put” in his program at Devereux in accordance with the terms set forth in this Resolution Agreement….

11. Except as otherwise provided for in this Agreement, and except to enforce the terms of this Agreement, the Parents remise, release and forever discharge the District, its officials, employees, agents and contractors from all debts, demands, actions, causes of actions, suits, liabilities and any and all claims of any kind, nature, and description both in law and in equity which the Parents and/or Student have asserted, or might assert against the District, its officials, employees, agents and/or contractors relating in any way to the educational placement(s) and/or the services proposed for, or provided to the Student by the District from January 1, 2000 to the date of execution of this Agreement.

12. The Parents agree that they shall withdraw their Request for Hearing in the matter of [Student] v. Wachusett Regional School District within five (5) business days of execution of this Resolution Agreement….

14. The parties to this Agreement acknowledge that they have been represented by counsel in the negotiation of this agreement and have signed it voluntarily with full understanding of its terms. Without limiting the foregoing generality, the parents acknowledging that they are waiving specific rights which might accrue to them and/or student under M.G.L. c. 30A, 71B, the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., 42 U.S.C. §1983, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and the regulations issued pursuant to thereto, to date . It is agreed that each of the parties assumes all costs of their own legal representation and other costs associated with this action. Further, the parties have read the entire Agreement carefully and have discussed it with their attorneys, understand it accept its terms . Emphasis added.

RULING

BSEA# 09-2526 is DISMISSED WITH PREJUDICE

On May 2, 2008 Parents and WRSD entered into a formal Resolution Agreement and Release (also referred to as the Settlement Agreement). That Settlement Agreement was six pages in length, with sixteen numbered paragraphs. The Settlement Agreement was signed by both Parents and the special education director for WRSD. Each of the six pages is specifically initiated by both Parents.

I find the Settlement Agreement to be comprehensive, specific, and highly detailed. Virtually every contingency has been covered. Both parties were represented by experienced special education attorneys in negotiation and execution of the Resolution Agreement and Release which resolved BSEA# 08-5821.1 Both parties are represented in this appeal by those same two attorneys who drafted the Settlement Agreement and Release which is now at issue in BSEA# 09-2526.

Parents and WRSD voluntarily and knowingly entered into an enforceable contractual Settlement Agreement. A true quid pro quo was achieved for the benefit of both parties. Parents gained: 1) Student’s private day school placement at Devereux for the remainder of the 2007-2008 school year and an extended school year program during the 2008 summer; 2) Student’s private day school placement at Devereux for the entire 2008-2009 school year plus an extended school year program during the 2009 summer; and 3) placement pending appeal rights at Devereux into the 2009-2010 school year unless otherwise agreed by the parties or until litigated before the BSEA. Parents gained all of these benefits without the expense, time, and emotional turmoil of participating in a full evidentiary hearing before the BSEA with the possibility of not prevailing at all or only partially prevailing. WRSD saved the expense, time and emotional turmoil of having to participate in a full evidentiary hearing before the BSEA with the possibility of not prevailing at all or only partially prevailing, and no payment of any of Parents’ attorneys’ fees. WRSD was also absolved of having to perform any further evaluations of Student or holding any team meetings regarding Student until April 2009.

As stated under PARENTS’ POSITION , above, Parents contend that Student’s hospitalization at Metro West hospital and step down to the IHFC terminated his Devereux placement (see paragraph 3 of Settlement Agreement, above) so they are entitled to pursue this appeal. However, pursuant to paragraph 2 of the Settlement Agreement, above, WRSD had no obligation to fund Student’s placement while he was not attending/participating in the Devereux program except for absences because of illness or otherwise in accordance with Devereux’s policy of excused absences . Emphasis added. As the Hearing Officer found in his prior ruling removing this case from the expedited track:

Based upon the representations of WRSD, as well as the sworn affidavit of Dr. Harrington and the paid invoices from Devereux/WRSD, Student has an existing placement.

In reference to Parents’ request for an expedited hearing, Dr. Harrington’s affidavit states: 1) that Parents’ statement that Student’s enrollment at Devereux has been terminated is incorrect; 2) that although Student was hospitalized in August and subsequently transferred to a step down program at IHFC, Student’s placement at Devereux by WRSD has not been terminated; and 3) that due to WRSD’s continued funding of Student’s placement at Devereux, Student remains enrolled at Devereux and his placement remains available to him at this time.

Dr. Harrington’ affidavit goes on to state: 1) that at an October 10, 2008 meeting of Student’s IEP team at Devereux, WRSD and Devereux representatives confirmed that Student’s placement had not been terminated at Devereux as alleged by Parents in the hearing request, filed the day before the team meeting (October 9, 2008); and 2) that at that October 10, 2008 team meeting, WRSD offered Parents direct transportation between the IHFC where Student currently resides and Devereux to facilitate Student’s participation in his day school program at Devereux.

WRSD also submitted copies of paid Devereux invoices for May, June, July, August and September 2008. Dr. Harrington’s affidavit states that WRSD had not yet received an invoice from Devereux for October 2008 but would make payment to Devereux for October 2008.

Based upon the above, the Hearing Officer ruled that Student had available to him
his existing and last agreed upon placement prior to his hospitalization. Therefore, based upon the actions of WRSD, in fulfillment of paragraph 2 of the Settlement Agreement by continuing to fund Student’s placement at Devereux, Student’s placement at Devereux had not and has not been terminated. Consequently, I find Parents’ rationale for pursuing the current BSEA appeal to be incorrect and false.

20 U.S.C. §1415(f)(1)(B) statutorily provides for resolution sessions in the hopes that the parties may be able to resolve parental complaints short of a due process hearing. Further 20 U.S.C. §1415 (f)(1)(B) (iii) provides:

Written settlement agreements: In the case that a resolution is reached to resolve the complaint at a meeting described in clause (i), the parties shall execute a legally binding agreement that is – (I) signed by both the parent and a representative of the agency who has the power to bind such agency; and
(II) enforceable in any State court of competent jurisdiction or in a district court of the United States.

The Settlement Agreement before me is titled Resolution Agreement and Release. Whether the parties met for a resolution session on the disputed issues or those issues were resolved without meeting for a resolution session is unclear but irrelevant. I cite the above statutory section for two reasons. First, this Resolution Agreement and Release essentially conforms to the standards of the statute. Secondly, the federal special education statute specifically contemplates and provides for the resolution of complaints wherever possible instead of proceeding to due process hearings; and that such resolution agreements or settlement agreements are legally binding and enforceable contracts.

Based upon the Settlement Agreement in its entirety and particularly the sections cited in EXECUTED SETTLEMENT AGREEMENT BETWEEN PARENTS AND WRSD , above, I find that the parties specifically designated the precise educational placement and services to be provided to Student at Devereux for the 2008-2009 school year. (see ¶ 1, 2 & 5.) Pursuant to the Settlement Agreement, I further find that Parents specifically waived their right to contest the appropriateness of Student’s day placement at Devereux during the time period covered in this Agreement (¶ 14) which includes the 2008-2009 school year.

Yet Student’s placement and services for the 2008-2009 school year is the very heart of Parents’ current appeal in BSEA# 09-2526. Parents’ BSEA Appeal is directly in contradiction to the terms of the Settlement Agreement they knowingly and voluntarily signed with assistance of counsel. The plain language of the parties’ executed Resolution Agreement and Release is clear and unambiguous. I conclude that enforcement of the Resolution Agreement and Release pursuant to its terms precludes Parents’ prosecution of their claims for WRSD to fund a residential placement/or any additional services at Devereux for the 2008-2009 school year before the BSEA. See Atlas Tack Corp. v. Crosby 41 Mass.App. Ct 429, 433; 671 N.E. 2d 954, 958 (1996); Alison H. V. Byard 163 F. 3d 2, 6 (1 st Cir. 1998) quoting Edwards v. United States 642 F. 2d 877, 881 (1 st Cir. 1981).

Because the parties’ Settlement Agreement explicitly relates to their rights and responsibilities that fall within the preview of the BSEA (which are defined within the Individuals With Disabilities Education Act as the “identification, evaluation or educational placement of the child or the provision of a free and appropriate public education to such child” pursuant to 20 U.S.C. 1415(b)(6)(A), a BSEA Hearing Officer has the authority and responsibility to consider the Settlement Agreement and determine whether and to what extent the agreement alters the rights and responsibilities of the parties with regard to Student’s special education services and related procedural protections. (See 14 MSER 249 – BSEA# 07-2866 (2008). As Hearing Officer Crane ruled in the above cited BSEA #07-2866, decided just 3 months ago:

Federal case law makes clear2 that I have the authority and responsibility to consider the parties’ settlement agreement in the instant dispute. 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 their obligations under the agreement, proceed to an evidentiary hearing before the BSEA and have the BSEA issue a decision on the merits .14 MSER 249, 250-251 (2008). Emphasis added.

This is precisely the situation in the case before me.

I conclude that the parties entered in to a binding, enforceable settlement agreement in their May 2, 2008 Resolution Agreement and Release, which precludes Parents from litigating the claims in their Hearing Request currently before the BSEA. To allow this case to proceed to hearing would be contrary to public policy, a violation of fundamental contract law, and completely inconsistent with the IDEA’s statutory provisions regarding resolution of disputes.3

ORDER

1. WRSD’s Motion to Dismiss This Appeal is GRANTED .

2. BSEA # 09-2526 is DISMISSED WITH PREJUDICE .

By the Hearing Officer

_______________________

Dated: November 12, 2008

Raymond Oliver


1

I note that Parents’ attorney represents not only Parents but at least one school district.


2

See 14 MSER 249, 250-251 footnote #9 for detailed summary of numerous cases considering settlement agreements.


3

Regarding Parents’ argument that WRSD’s Motion to Dismiss does not argue the legal standards for a motion to dismiss, I find that enforcement of the Resolution Agreement and Release removes my subject matter jurisdiction , and therefore Parents’ hearing request fails to state a claim upon which relief may be granted, this clearly meeting the standards of a Motion To Dismiss.


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