Summary
finding claim of breach of settlement agreement by school district "must first be presented to the appropriate administrative body."
Summary of this case from K. v. Indiana Department of EducationOpinion
CV 00-835-AS
March 1, 2001
Diane Wiscarson, Portland, Oregon, for Plaintiffs.
Andrea L. Hungerford, Richard G. Cohn-Lee, West Linn, Oregon, for Defendants.
FINDINGS AND RECOMMENDATION
The matter before the court is the reconsideration and clarification of this court's findings and recommendation entered on November 1, 2000 (doc. 19).
Procedural Background
On November 1, 2000, this court entered its findings and recommendation with respect to defendant's partial motion to dismiss plaintiffs' amended appeal and complaint. The findings and recommendation concluded that plaintiffs' first, second and third claims for relief should be dismissed without prejudice, and that plaintiffs' appeal of the dismissal of their request for a due process hearing should remain before the court. No objections to the findings and recommendation were filed.
On December 28, 2000, Judge Anna Brown entered an order (doc. 21) adopting the portion of the findings and recommendation that recommended dismissal of plaintiffs' first claim for relief for failure to exhaust administrative remedies, and remanding to this court for reconsideration and clarification the portion of the findings and recommendation that recommended dismissal of plaintiffs' second and third claims for relief for breach of contract for failure to exhaust administrative remedies.
With respect to plaintiffs' second and third claims for relief, Judge Brown thought that plaintiff's claims may be properly before this court because the hearings officer advised them to "seek relief in another forum," and Judge Brown also disagreed with this court's characterization of the hearing officer's decision to have been that a state complaint process, not a due process hearing, was the proper vehicle for plaintiffs to seek resolution of their IDEA issues.
Judge Brown requested this court to reconsider and clarify its conclusions that (1) plaintiffs must exhaust administrative remedies before seeking judicial enforcement of a mediated IDEA settlement agreement; and (2) a hearing officer has authority to enforce such an agreement in either a due process hearing or a state complaint proceeding.
Factual Background
The factual background is set out more fully in this court's original findings and recommendation.
It is undisputed that on May 7, 1998, plaintiffs entered into a settlement agreement with defendant regarding the educational needs of plaintiffs' child Morgan, and that plaintiffs' claims in their second and third claims for relief are that defendant breached that agreement. The agreement has not been provided to the court for its review, but the record in this case indicates that the agreement provided in relevant part that (1) defendant would provide Morgan with Assistive Technology (AT) services for a three-year period; (2) Morgan's parents would unilaterally place Morgan in home school placement for a three-year period, with defendant not responsible for payments for any services other than the AT services; and (3) because Morgan was to be home-schooled, defendant would not be required to re-evaluate Morgan or hold any Individual Education Plan (IEP) meetings to reconsider the IEP or placement during the three-year period, except that defendant would do an assessment and IEP covering Morgan's AT needs.
Plaintiffs allege that after the agreement was entered into, defendant refused to provide an IEP, instead offering a service plan that constituted a reduction in services and a deviation from the terms of the settlement agreement.
Plaintiffs thereafter requested a due process hearing from the Hearing Officer Panel for the Department of Human Services at the Oregon Department of Education (ODE). The hearing officer dismissed the request, finding that plaintiffs lacked standing to request a due process hearing because they unilaterally placed their son in a private school, and that disputes relating to enforcement of settlement agreements with respect to students in private schools are outside the jurisdiction of the hearing officer. The hearing officer notified plaintiffs of their right to bring a civil action in federal court challenging the hearing officer's order dismissing the request for a due process hearing.
Legal Standards
A "complaint" under the IDEA and its regulations must first be presented to the appropriate administrative body. 20 U.S.C. § 1415(b); 34 C.F.R. § 300.457. In order to exhaust administrative remedies under the IDEA, a plaintiff must either request a due process hearing or use state complaint procedures, depending upon the factual circumstances of the complaint. 34 C.F.R. § 300.457. 34 C.F.R. § 300.457 applies to determine when due process procedures or state complaint procedures are appropriate for resolving IDEA disputes:
(a) Due process inapplicable. The procedures in §§ 300.504-300.515 [procedural safeguards including a due process hearing] do not apply to complaints that an LEA has failed to meet the requirements of §§ 300.452-300.462 [provision of services to private school children], including the provision of services indicated on the child's service plan.
(b) Due process applicable. The procedures in §§ 300.504-300.515 do apply to complaints that an LEA has failed to meet the requirements of §§ 300.451 [location and evaluation of private school children], including the requirements of §§ 300.530-300.543 [evaluation procedures].
(c) State complaints. Complaints that an SEA or LEA has failed to meet the requirements of §§ 300.451-300.462 [provision of services to private school children] may be filed under the procedures in §§ 300.660-300.662 [requirements for adoption of state complaint procedures].
34 C.F.R. § 300.457.
Comments to the draft of the above regulations noted:
While there may be legitimate issues regarding the provision fo services to a particular parentally-placed private school child with disabilities an LEA has agreed to serve, due process should not apply, as there is no individual right to these services under the IDEA. Disputes that arise out these services are properly subject to the State complaint procedures, which are available to address noncompliance with any requirement of Part B.64 Fed. Reg. 12605 (March 12, 1999).
In summary, 34 C.F.R. § 300.457 provides that due process procedures do not apply to complaints that an LEA has failed to provide services to private school children, including the provision of services indicated on the child's services plan. Further, complaints regarding services to private school children must be resolved through the state complaint procedures and not the due process hearing procedures.
After the hearings officer issues a written decision, or state complaint procedures are completed, a court has jurisdiction to entertain a civil action under the IDEA. 20 U.S.C. § 1415(e)(2).
The Oregon state complaint procedures, required to be adopted by 34 C.F.R. § 300.660-300.662, are set forth in Oregon Administrative Rule 581-015-0054. The procedures provide for submission of a written complaint to the State Superintendent of Public Instruction, and the Superintendent's issuance of a written decision as to each allegation in the complaint within 60 days after receipt of the complaint. Or. Admin. R. 581-015-0054(1) (9). Thereafter, the parties may seek judicial review of the final order with the Marion County Circuit Court or with the Circuit Court for the county where the party resides. Or. Admin. R. 581-015-0054(11).
Discussion
In this case, plaintiffs seek remand of the case to the hearing officer, requesting that the court overturn the hearing officer's conclusions that plaintiffs lack standing because they unilaterally placed their son in a private school and that the hearing officer does not have jurisdiction to hear the dispute between the parties regarding defendant's compliance with the settlement agreement.
Plaintiffs' complaint also contains three claims for relief that are characterized by plaintiffs to be alternative claims: a substantive claim for violation of the IDEA and two claims for breach of the settlement agreement. Plaintiffs specifically allege and argue that all of their claims relate to the settlement agreement and involve the same parties. If plaintiffs' requested remand were to be granted, the result would be that the hearing officer would be required to resolve plaintiffs' substantive claims for violation of the IDEA and breach of contract.
This court has treated plaintiffs' claims as alternative claims, recommending that the issue of whether remand to the hearing officer is appropriate go forward in this court, but recommending dismissal of plaintiffs' other three claims on the ground that they have not been administratively exhausted.
In her order, Judge Brown asked this court for clarification of whether plaintiffs' claims are properly before this court because the hearings officer advised them to "seek relief in another forum." The hearing officer's written decision says that "[t]o the extent that the parents are seeking a due process hearing to enforce the terms of the mediation agreement, the hearing officer has no jurisdiction to decide their claims. See 34 C.F.R. § 300.507 . They must seek relief in another forum." The hearing officer's decision also provided notice to the parties that "[i]f you are dissatisfied with this Order [dismissing the request for a due process hearing] you may . . . commence a nonjury civil action in any state court . . . or in the United States District Court." This court reads those provisions to mean that the hearing officer directed plaintiffs that they must seek relief on their substantive claims in another forum (in this case, defendant contends the other forum is the State Superintendent of Public Schools under the state complaint procedures), and that they could appeal, in federal court, the hearing officer's determination that they must seek relief in another forum. This court does not read the decision to mean that plaintiffs have leave to bring their substantive issues before the federal court without first exhausting the administrative remedies.
34 C.F.R. § 300.507(a)(1) provides that a due process hearing before a hearing officer may be initiated with respect to the identification, evaluation, or educational placement of a child with a disability, or the provision of a free appropriate public education.
Judge Brown also asked for clarification of what she believed to be this court's conclusion that a hearing officer has authority to enforce a settlement agreement in either a due process hearing or under state complaint proceeding. Actually, this court's conclusion was somewhat different. In the original findings and recommendation, this court found that the only issue properly before the court at this time is whether plaintiffs have a right to administrative resolution of their complaint (1) through a due process hearing in front of a hearing officer; or (2) through state complaint procedures requiring a written complaint submitted to the State Superintendent of Public Instruction (i.e., no hearing officer participation).
The following discussion is designed to clarify the recommendation made by this court in the original findings and recommendation.
In the original findings and recommendation, this court determined that the only one of plaintiffs' four claims that is properly before the court is the request for remand to the hearing officer. Although the record before the court is not developed and the issue of application of the regulations to this case has not been briefed to this court, it appears that the resolution of which process is proper may depend upon whether Morgan is correctly classified as a unilaterally-placed private school child for purposes of the regulations. Further, because the hearing officer found that plaintiffs had no standing and that she had no jurisdiction to decide plaintiffs' substantive complaints, and thus did not decide those complaints, there has not yet been an administrative resolution of the underlying issues of whether defendant violated the IDEA and the settlement agreement.
In their claims for breach of contract, plaintiffs seek to enforce the settlement agreement and be awarded, among other things, compensatory damages for its breach. It was, and remains, this court's finding that plaintiffs' claim that the 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. 20 U.S.C. § 1415(b); 34 C.F.R. § 300.457; W.L.G. v. Houston County Board of Education, 975 F. Supp. 1317, 1328-29 (M.D.Ala. 1997) (plaintiff's claim that defendant failed to comply with settlement agreement concerning education of a disabled child was essentially a "complaint," which under IDEA first must be presented in due process hearing or to school board). This court cannot consider claims of breach of the settlement agreement until they have been presented through a due process hearing or the state complaint procedures, whichever is the proper administrative remedy. Again, the issue of which administrative process is appropriate in this case is the subject of plaintiffs' appeal of the hearing officer's decision to dismiss the request for a due process hearing.
In this case, the crux of the issue is whether defendant's refusal to provide an IEP (defendant instead offered a service plan) constituted a violation of the IDEA and a breach of the settlement agreement. These are multiple claims as to the same conduct. In other words, plaintiffs' IDEA action is synonymous with its action for breach of contract: both arise out of the same facts and conduct and involve the same parties. Thus, a conclusion that plaintiffs' claim for violation of the IDEA is not exhausted and must be dismissed (with which Judge Brown agreed) dictates a conclusion that plaintiffs' claims for breach of the settlement agreement are also not exhausted and must be dismissed.
Further, as a policy matter, plaintiffs' substantive claims are best resolved in the first instance by someone familiar with the resources available to meet the needs of the disabled and the responsibilities of the district to do so. School systems and education departments also should be afforded the opportunity to correct their own errors before interference from the courts. Tyson v. Kanawha County Board of Education of Kanawha County, 22 F. Supp.2d 535, 537 (S.D. W.V. 1997). There is no logic in allowing a case where settlement has been reached prior to administrative review to circumvent exhaustion, while requiring exhaustion in other cases. Failure to require exhaustion would encourage parties to circumvent administrative review by entering into, and then disregarding, settlement agreements in order to go directly to federal court.
As discussed in the initial findings and recommendation, this court is without an administrative record to determine what claims were settled by the settlement agreement, what the actual and specific provisions of the settlement agreement were, and what actions were taken in accordance with or in breach of the settlement agreement. No administrative body has made a finding or determination with respect to plaintiffs' substantive claims. These are issues that the exhaustion requirement is designed to have developed at the administrative level before proceeding to judicial review.
Of course, exhaustion is not required without exception. Association for Retarded Citizens of Alabama v. Teague, 830 F.2d 158, 160 (11th Cir. 1987). Plaintiffs bear the burden of demonstrating that their claims fall into one of the exceptions to the exhaustion requirement. Gardner v. School Bd. Caddo Parish, 958 F.2d 108, 110 (5th Cir. 1992). In this case, no arguments have been made that exhaustion is not required because of an exception to the requirement.
For the reasons discussed above, I reaffirm my earlier finding that issues as to breach of the settlement agreement are not exhausted and are not properly before this court. Thus, with respect to plaintiffs' second and third claims for relief, I continue to recommend they be dismissed for failure to exhaust.
SCHEDULING ORDER
The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due March 19, 2001. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date.
If objections are filed, a response to the objections is due April 2, 2001, and the review of the Findings and Recommendation will go under advisement on that date.