1. Settlement Agreements
Current Practice Issues for Pennsylvania Parent Attorneys
Ilene Young, Esq. © 2018

2. ED Pa: J.K v Council Rock SD (2011);
Consensus Rules:
Although a Hearing Officer does not have the authority to enforce the terms of a settlement agreement between a District and Parents, a Hearing Officer does have the authority to:
determine the existence of a valid agreement, and
determine the impact of that agreement on a claim of denial of FAPE.
ED Pa: J.K v Council Rock SD (2011);
Cmmw. Ct: West Chester ASD v A.M (2017).
J.K. v. Council Rock Sch. Dist., 833 F. Supp. 2d 436, 449 (E.D. Pa. 2011);adopted by the Commonwealth Court in W. Chester Area Sch. Dist. v. A.M., 164 A.3d 620, (Pa. Commw. Ct. 2017)

3. Forums: State & Administrative
Procedural avenues in event of breach and Enforcement Claim:
State Enforcement or Due Process
Parents disputing special education “can enforce the terms of the Agreement through a state law breach of contract action [or] proceed to a due process hearing based on [the other party’s] alleged failure to [comply with its FAPE obligations], notwithstanding the waiver of rights in the Agreement.”
Forums: State & Administrative
T.L. v. Pennsylvania Leadership Charter School
,2016 U.S. Dist. LEXIS , at *31-32 (E.D. Pa. Dec. 12, 2016).

4. Forums: Federal Question & Simple Breach
Miksis v. Evanston Twp. High Sch. Dist. # 202, 235 F. Supp. 3d 960 (N.D. Ill. 2017)
Where the District breached a settlement agreement which was not the result of mediation or resolution, and parents brought an action for breach in ED ND Ill federal court, the Court found it had supplemental jurisdiction over the state breach claim due to the invocation of federal rights:
“(I)f Plaintiffs had decided not to invoke their federal rights, their claims would belong in state court. But it appears that Plaintiffs are proceeding with both state and federal claims (notwithstanding that Plaintiffs have on occasion argued inconsistently that this case presents only a simple breach of contract claim). Accordingly, the Court finds  that it has federal question jurisdiction over Plaintiffs' IDEA claims, and supplemental jurisdiction over Plaintiffs' state law claims for breach of the Settlement Agreement.

5. Exhaustion Where denial of FAPE is raised, exhaustion is required:
“("[H]earing officers 'may acknowledge the existence of [settlement] agreements and consider them in determining whether a child has received a free and appropriate public education.'") Thus, a hearing officer could decide that in light of all the circumstances, including the Waiver Agreement, the education provided to Student during the school year met the requirements of the IDEA. Conversely, a hearing officer could decide that despite the Waiver [*633] Agreement, other arrangements for Student were required by the law. Once a hearing officer has resolved all outstanding issues, an aggrieved party may appeal to this Court. As part of an appeal, a party [**30] may seek enforcement from this Court.” W. Chester Area Sch. Dist. v. A.M., 164 A.3d 620, (Pa. Commw. Ct )
Exhaustion

6. Exhaustion May not be Required for Damages for Breach claim:
“There simply is no need to revisit John's IEP in order to conclude that Defendant failed to abide by the terms of the Settlement Agreement. For this reason, as well as the reasons previously discussed, the [**51]  Court concludes that Plaintiffs are not required to exhaust their administrative remedies before bringing suit to recover for breach of the Settlement Agreement.” Miksis v. Evanston Twp. High Sch. Dist. # 202, 235 F. Supp. 3d 960, 990 (N.D. Ill. 2017)
Exhaustion

7. Reliable rules so far
Parties must exhaust before bringing FAPE claim to higher tribunal.
Parents may pursue due process claim for denial of FAPE via due process despite waiver.
Hearing Officers must make factual record and resolve all outstanding FAPE issues for the administrative review court.
Hearing Officers must determine the impact of an agreement on denial of FAPE claim.
Hearing Officers may not enforce settlement agreements.
Hearing Officers may determine if a settlement agreement exists.

8. Scenario: The District claimed to have mooted Parents’ claims by agreeing to an ATA and FBA.
Held: (UNPUBLISHED CMWLTH) Absent a written agreement, or written formal amendment to the IEP, the Hearing Officer correctly denied the District’s MTD, even though acknowledging an incohate agreement.
"Under the circumstances in which Parents' counsel expressly represented that the District agreed to an ATA and an FBA, and the ATA was "underway," but there was no written settlement agreement and the assessments had not been completed, we hold that the Hearing Officer did not err by denying District's motion to dismiss... R.R. at 14a. [*18]  N. Hills Sch. Dist. v. M.B., 2015 Pa. Commw. Unpub. LEXIS 241, at *17-18 (Commw. Ct. Apr. 7, 2015)
What is an Agreement?
May a District Moot a Complaint via Unilateral “Agreement” to Parent’s Proposed Resolution?

9. Just because you can do it, should you do it?
Claim assessment
Cost
Risk
Efficiency

10. Hearing Officers, Settlements, and FAPE
How are Hearing Officers interpreting the grant and limitations on their jurisdiction regarding settlement agreements?

11. Fact-finding function –
Hearing officers can determine whether a valid settlement agreement exists
Hearing officers can determine the impact of a valid settlement agreement on the child’s receipt of FAPE

12. Court v H.O. Courts apply Contract law for validity and interpretation
“(T)he Court proceeds by examining the resolution agreement's terms under contract law, determining whether Plaintiffs  [*13] contracted-away their right to file a due process complaint requesting an IEE for the second time. See Plymouth Mut. Life Ins. Co. v. Illinois Mid-Continent Life Ins. Co. of Chicago, Ill., 378 F.2d 389, 391 (3d Cir. 1967) Lyons v. Lower Merrion Sch. Dist., No , 2010 U.S. Dist. LEXIS , at *12-13 (E.D. Pa. Dec. 14, 2010)
Court v H.O.
Hearing Officers apply contract law for validity but otherwise consider An agreement as a “circumstance”
“(A) hearing officer could decide that in light of all the circumstances, including the Waiver Agreement, the education provided to Student during the school year met the requirements of the IDEA.” W. Chester Area Sch. Dist. v. A.M., 164 A.3d 620, 632 (Pa. Commw. Ct. 2017)

13. H.O. decisions since West Chester
Brian Ford
Jake McElligott
Cathy Skidmore
Linda Valentini
H.O. decisions since West Chester

14. Adjudication function
If so, what is the effect of a ruling? Is it fact finding or interpretation ?
Hearing officers cannot enforce a settlement agreement
Do hearing officers find meaning in the settlement agreement?

15. Due Process Scenarios: District breach of Agreement and…
Denial of the “F” in FAPE - not paying tuition.
Denial of FAPE based on failure to modify program.
Denial of FAPE based on lack of discrete services.
Denial of FAPE based on failure to accommodate.
Due Process Scenarios: District breach of Agreement and…

16. Brian Ford ODR 17867-15-16, decided July 18, 2016.
Pro se parent brought a due process claim following a PDE determination against District. Previously, parents had waived claims via a district-drafted settlement agreement:
RE: INTERPRETATION OF WAIVER: “…the waiver in the Agreement is broad. The waiver applies to claims raised in any venue and equally applies to known and unknown claims. The Agreement means what it says. The Father and the Former Student’s mother have waived all claims against the District, including special education claims, arising prior to May 20, Above, I construed the Complaint to include disputes raised in the Complaints. Those disputes include issues going back to I will not consider, however, any claims arising on or before May 20, Those claims were waived in the Agreement.”
Claims barred, ultimately, on sol grounds so did not reach SA issue.

17. Brian Ford, Cont. Odr 14764-15-16 Pro Se Parents
Scenario: Failure to assess and modify IEP.
Re: JURISDICTION: “…I do not have authority to enforce private settlement agreements… I …read the Complaint to include a claim that the District breached its obligation to provide a free appropriate public education (FAPE) to the Student. More specifically, I determined that I could hear a claim concerning a denial of FAPE resulting from the District’s alleged failure to implement the Settlement. My jurisdiction was premised on the alleged denial of FAPE, not the alleged breach of contract.

18. Brian Ford, Cont.
Odr
RE: PROOFS “(E)vidence of breach of the Settlement is not, by itself, evidence of a denial of FAPE. Rather, the Parents bore the burden to establish that the Student required specially designed instruction (SDI) and/or related services in order to receive a meaningful educational benefit, and that such SDI and/or related services were denied as a result of the District’s breach of the Settlement. I explained all of this to the Parents countless times in many ways…”
Ruling: Parents did not prove breach resulted in denial of FAPE.

19. Jake McElligott Odr 23204 17-18 Represented Parent.
Scenario: Failure to fund discrete services.
Complaint (from synopsis):
“ The parents of a medically fragile young boy with severe multiple disabilities agreed to take responsibility for their son’s complex programming in return for funding by the District. The District then refused to fund… components of the program. This prevented services in several key areas of need, and failure to receive benefit in those areas, resulting in a two year denial of FAPE. Parents seek compensatory education for the denial of FAPE.”

20. Jake McElligott, cont. Odr 23204 17-18 District argument:
Motion to Dismiss/Reconsideration: (from synopsis) “The District asserts that any fact-intensive inquiry as to whether the District has committed a “denial of FAPE” in this matter will necessarily require this Honorable Hearing Officer to determine the validity and enforceability of a Settlement Agreement between the Family and the District, a state-law matter outside the purview of a Special Education Hearing Officer.”

21. Jake McElligott, Cont.
Rationale in finding H.O. has JURISDICTION
“(T)he questions, and consequent processes, of (a) has there been a breach of contract between the parties? and (b) has the SD met its obligations to the student to provide FAPE under the terms of IDEIA and Section 504? are separate questions/processes which are not only not mutually exclusive but can proceed on two entirely separate tracks. …(W)here there have been denial-of-FAPE and Section 504 discrimination allegations, courts are clear that special education due process (under 22 PA Code Sections 14 and 15) must speak to those allegations through fact-finding.”
“If this… special education due process order is impacted later, or even vacated and/or rendered moot, by subsequent findings and/or actions by another tribunal, events will take the course they must...”

22. Two separate tracks
Fact Finding
Required
Exhaustion Required where FAPE under IDEA or 504 brought before the Hearing Officer via due process.
Jake McElligott, Cont.
“Whether this is the most efficient use of administrative/judicial resources is not for any of us to say.” ODR # (2018)

23. Cathy Skidmore Odr 18753-16-17 Represented parent .
Scenario/Breach: Failure to accommodate transport.
JURISDICTION: “Courts that have considered the authority of a hearing officer regarding a settlement Agreement appear to concur that, to the extent the agreement relates to the provision of FAPE, the document may be reviewed and considered by a hearing officer for specific purposes. For example, hearing officers may decide if an enforceable agreement exists…However, case law is also clear that hearing officers are not permitted to enforce settlement agreements.”

24. Cathy Skidmore, Cont.
BASIS OF JURISDICTION: “This hearing officer’s jurisdiction is over Student’s special education and related services based on (The IDEA and Section 504 of the Rehabilitation Act), and not under any contractual theory.”
DENIAL OF MTD: “(T)he District is essentially asking this hearing officer to interpret, and give effect to and thus enforce, specific terms of the Agreement. That is something that the courts in this jurisdiction have agreed this hearing officer may not do. See, e.g., J.K., supra 833 F.Supp.2d at
Ruling: Failure to provide accommodations during transport violated Section 504 & IDEA

25. Linda Valentini
ODR # 18698/16-17 KE April 20, 2017 Motion for pendency (pro se proceeding)
Scenario: Denial of Pro Se Parent Stay Put Motion due to Waiver.
“I therefore conclude that an agreement existed between the parties. The document requires no interpretation – it unequivocally provides that in the event that a dispute arises regarding the Student’s proposed program and/or placement pursuant to an IEP and NOREP, the Student’s then-current placement for purposes of pendency shall be the program and placement recommended by the District’s evaluation and program planning process. “
Is Stay Put a singular issue due to the “unless otherwise agreed” language of the IDEA?

26. Linda Valentini, cont.
ODR February, 2018: Motion to dismiss (represented Parents)
Scenario: Failure to pay tuition.
“The issue of denial of FAPE is a red herring. The parties agreed to Student’s placement at the private school….The real issue…is the district’s failure to honor its agreement to fund Student’s placement(.) Pennsylvania hearing officers lack jurisdiction over enforcement of settlement agreements. The matter will be dismissed for lack of jurisdiction; the parent has fulfilled her exhaustion requirement.”

27. Linda Valentini Establishes validity of contract from its face.
No fact finding.
Declares procedural exhaustion.
Linda Valentini
No nonsense approach

28. Charles Jelley Charlie Jelley revisiting West Chester School District
ODR #17866 `5-`6, , , (decided July 30, 2018)
Pro Se Parent was presented with settlement agreements when parents would not agree to remove student from honors courses. District IEP team proposed academic level courses.
True basis of claim appears to be District insistence on SA and waiver of rights due to impasse when Parents refused change of program/placement, resulting in claimed denial of FAPE.
Finding: “Despite the multiple Agreements and students failing grades, student received FAPE.”
Charles Jelley

29. Factual Finding: “This second agreement, in pertinent part, provided as follows: the Parents agreed to waive all retrospective and prospective special education and regular education claims against the District for failing to implement and or revise the pendent program, SDIs and IEP goals.”
“The “Settlement and Release” agreement provided that the Parents could void the “Agreement,” at any time, after which the District with open arms, would allow the Student to take the college level classes along with a special education study skills class.”
Found all agreements “enforceable” agreements.
Charles Jelley, cont.

30. Do these denial of fape claims differ or merely the result?
Failure to fund specific therapies resulting in a failure to receive benefit.
Failure to comply with agreement to evaluate and recalibrate programming.
Failure to provide necessary accommodations during transport.
Failure to pay tuition altogether.

31. Contract Practice Issues
Special education lawyers are not generalists, and not versed in contract litigation. What do you need to know?
What are the claims?
What is the evidence?
What are the defenses?
What constitutes material breach?
What do hearing officers need to know?
What type of hearing is held on the validity of the contract?
This Photo by Unknown Author is licensed under CC BY-NC

32. Hearing Officers & Contract Language
What have they said so far?
Contracts 101: Offer, acceptance, lack of evidence of fraud.
“It means what it says.”
No strict examination of waivers.
No evidence in the decisions on any nuanced interpretations.
Hearing Officers & Contract Language

33. Example 1: Can the moving party equitably enforce the agreement?
Can breaching party demand performance and enforce a contract? Can a district in breach enforce a waiver against parents? In Tuttle v Cent. Kitsap Sch. Dist, 2018 U.S. Dist. LEXIS ( WD Wash August 2018) the federal court for Washington’s western district held that the question of whether Parent’s original claims under IDEA and 504 settled via agreement can be revived because the District breached the agreement, is a factual determination to be made by a jury.

34. In PA : “Party who has materially breached a contract may not insist upon performance of the contract by the nonbreaching party.” McCausland v Wagner, 2013 PA Super 256, 78 A.3d 1093, 1101 (2013 PA)
This is sometimes called the unclean hands doctrine, based on materiality.
“Whether the parties in fact intended the release to be consideration and whether the release was forfeited by the alleged breaches are matters which this Court cannot resolve pursuant to Rule 12(b)(6) based on the Complaint and plain language of the Settlement Agreement. R.K. v. Hayward Unified Sch. Dist., No. C JSW, 2007 U.S. Dist. LEXIS 72950, at *23-24 (N.D. Cal. Sep. 21, 2007)
Equity rules for contracts are state-specific & require sophisticated analysis
This Photo by Unknown Author is licensed under CC BY-NC-ND

35. Attorney’s Fees, Firm Offer, Valuation and Stay Put
Rena C
Attorney’s Fees, Firm Offer, Valuation and Stay Put

36. Rena C and Attorneys Fees
“A school district seeking to settle a dispute in which a lawyer has been involved should acknowledge that the parent has accrued attorney’s fees and should clearly state if its offer includes the payment of attorney’s fees. A parent is substantially justified in rejecting an offer that does not include the payment of reasonable attorney’s fees when the school district cannot reasonably believe that no attorney’s fees have accrued.” slip at 23
District counsel are interpreting this to mean that Districts must always offer attorneys’ fees in their 10 day letters. Is this true? (See, Petition for Cert)

37. Rena C and Stay Put
“We now hold that by agreeing, without limitations, to pay tuition at a private school, the school district, as the local educational agency,  agrees that the private school placement is appropriate and that paying tuition there fulfills its obligation to provide a free and appropriate public education. When parents and a local educational agency agree on a placement without limitations, that placement becomes the educational setting protected by the "stay-put" provision of 20 U.S.C. 1415(j). Had Rena C. accepted Colonial's offer, A.D.'s "stay-put" rights would have attached at Delaware Valley.” Rena C. v. Colonial Sch. Dist., 890 F.3d 404, 416 (3d Cir ); Petition for Cert filed July 18, 2018, at

38. Rena C. and Valuation of Claims/Waivers
What is the value of stay put if stay put rights are created via private tuition agreement by default?
Doesn’t this vastly increase the value of the consideration Parents are providing?
You need to know and communicate the value of what is being waived before client can decide to waive it.

39. Sample claim assessment:
Value of Claim. “ Tuition at APPROPRIATE ACADEMY for Student Doe’s year, which includes the summer program, is $91, The value of Student Doe’s past claim, encompassing five years of FAPE denial, is the current market value per year of appropriate programming, from through , $91,000.00, for a total of $455, The tuition reimbursement claim, for the school year, is $91,000.00, together with tutoring costs, roughly $100, in total. The value of the pendency inherent in approval of the private placement by the Hearing Officer order may be calculated out over the remaining period of Student Doe’s entitlement, if the parties remain in dispute, which extends to the year 2024, at a cost of $91, per year plus reasonable annual fee increases over 7 years, in excess of $650, These figures are not inflated but based on actual market costs…”

40. Federal Court looks at waivers: MGJ

41. Case study: MGJ v School District of Philadelphia
Counsel for Plaintiff: Joseph Montgomery
Counsel for Defendant: (Multiple) OGC, Obermayer Rebmann
Judge: Mark Kearny
Citation: 17 cv 318, 2017 U.S. Dist. LEXIS (1st mtd/sj) ED PA 2017; MJG v Sch. Dist. Of Phila., 2017 U.S. LEXIS (Nov 2, ED Phila)
Claim: Waiver in SD Philadelphia Settlement Agreement did not bar damage actions, including claims under Section 504, ADA and IDEA.
Holding: Application of contract interpretation rules found waiver to allow some claims.

42. MGJ scenario:
Parents brought, and settled, a due process action arising from the sexual assault of MGJ, a special education student, which involved a SD Phila contractor, Carson Valley. The settlement agreement included the following waiver:

43. Waiver:
1. RELEASE BY PARENT: Parent, individually and on behalf of [student] for and in consideration of the mutual promises and terms set forth in this Settlement Agreement and Specific Release and other valuable consideration, hereby unconditionally releases and forever discharges the District, its past and present officers, employees, agents, servants and attorneys, the Board of Public Education, the School Reform Commission, their heirs, executors and administrators, successors and assigns (“Releasees”) of and from the Released Claims (as defined herein).
2. CLAIMS RELEASED: It is expressly understood and mutually agreed that this Confidential Settlement Agreement and Specific Release are intended to resolve all actions, causes of action, suits, claims, losses, injuries, damages and demands whatsoever, in law or equity, known or unknown, accrued or not accrued, that Parent, individually and on behalf of [student] may have or may ever have had since the beginning of time through the date of this Agreement, including all claims for tuition reimbursement, attorney fees and costs, expert fees and/or compensatory education, in each case relating to the education of [student] or the provision (or denial) to her of a free appropriate public education, and arising under and pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq. (“IDEA”), and its implementing regulations, 34 C.F.R. Part 300; and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its implementing regulation, 34 C.F.R. Part 104; the Pennsylvania Public School Code of 1949, as amended, 24 P.S. § 951 et seq.; Chapters 14 and 15 of the Regulations of the State Board of Education, 22 Pa. Code Ch. 14 & 15 (collectively, the “Released Claims”).3

44. The District breached the agreement by failing to pay attorney’s fees.
Via same counsel, parents then brought federal suit against the District, school district employees and Carson Valley (contractor) for damages under Title IX of the Education Amendments of , claims of state- created harm under 42 U.S.C. § 1983, §1983 failure to train or supervise, intentional infliction of emotional distress, failure to accommodate under Title II of the Americans with Disabilities Act (“ADA”),40 and violations of section 504 of the Rehabilitation Act, negligence, breach of fiduciary duty and breach of contract arising from the District’s failure to pay reasonable attorney’s fees.
MGJ

45. "We read the release as though the superfluous nonrestrictive clause (beginning “including”) were omitted. The release narrowly encompasses: (a) all claims which have or could have been brought before the date of the Agreement; (b) in each case (i.e. instance) relating to MGJ’s education or free appropriate public education; and (c) arising under and pursuant to one of the identified statutes or regulations. This release is unambiguous in terms of the claims released. It does not encompass claims under Title IX, §1983, or the Americans with Disabilities Act. And it specifically carves out the MGJ’s breach of contract claim based on the nonpayment of attorney’s fees, as claims “relating to the enforcement of this Agreement” are not released.
(B)ecause the release specifically releases claims under Section 504 of the Rehabilitation Act relating to her education, we find MGJ released her claim against the District under Section 504 of the Rehabilitation. As the release encompasses both the District and its agents/employees, MGJ also released her claims against the individual District Defendants under Section 504 of the Rehabilitation Act.”
MGJ decision

46. Valuing and preserving claims:
Torts claim act
Damages
Unrelated claims
Past claims
Prospective claims
Pendency
Valuing and preserving claims: