35th Annual Education Law Conference
Special Education Law
The IDEA Today: The Latest and Greatest
Friday, May 11, 2007 at Lehigh University’s Mountaintop Campus
Caryl Andrea Oberman, Esq.
The Law Offices of Caryl Andrea Oberman
Andria B. Saia, Esq.
Levin Legal Group, P.C.
Waivers in Special Education:
Legal Issues and Practical Implications
I. WHAT IS A “WAIVER”?
A waiver is an agreement to give up a right or privilege a person or party would otherwise have under law. To be effective and enforceable, a waiver must be knowing and voluntary. Therefore, there can be no effective waiver unless there has been sufficient notice of the right itself and sufficient information about it to allow the formation of a reasonable decision to waive it.
The IDEA requires such notice, often in written form, at many stages of the education process. Most notably, it requires prior written notice before an LEA changes or refuses to change an element of FAPE. 34 C.F.R. Sections 300.9, 300.300.
II. WHAT CAN BE WAIVED?
Theoretically, almost any right can be waived. However, the IDEA regulations prohibit the waiver by LEAs of certain mandatory duties, such as evaluation. See, e.g., 34 C.F.R. Section 300.301.
III. WHO CAN WAIVE RIGHTS?
Some rights can be waived by either party. Some rights can only be waived by agreement of both parties. (See below).
There is a lingering and unanswered question about the effectiveness of waivers by parents that deprive their minor children of educational opportunity. The authors differ on the answer to that question.
IV. PROCEDURAL WAIVERS
A. Initial Evaluations
By refusing an initial evaluation, a parent can waive the LEA’s child find responsibility to perform one. The LEA is not required to pursue a due process hearing to overcome the parent’s refusal. 34 C.F.R. Section 300.300(a)(1)(iii).
B. Reevaluations
Reevaluations can be waived by mutual consent. 20 U.S.C. Sections 1414(a)(2)(B)(i) and (ii); 34 C.F.R. Section 300.303(b)(2).
Under 34 C.F.R. Section 300.305(d), the parties can waive the requirement for additional data by mutual consent:
(1) If the IEP Team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability, and to determine the child’s educational needs, the public agency must notify the child’s parents of—
That determination and the reasons for the determination; and
(ii) The right of the parents to request an assessment to determine whether the child continues to be a child with a disability, and to determine the child’s education needs.
However, the obtaining of additional data cannot be waived if the LEA plans to exit the student from special education. 34 C.F.R. Section 300.305(e)(1).
Pros and Cons
-Making the determination of continued disability without using additional data saves time and will ensure uninterrupted services
-Progress – or lack thereof – may not be accurately tracked
-New issues regarding educational needs they could be inadvertently overlooked
Procedural Action Items
-Do not even think of waiving a re-evaluation unless you have the data to back up the decision that you do not need additional testing
-Do not waive a re-evaluation if some new issue has cropped up (e.g. new or different behavioral or academic difficulties)
-Obtain parent’s written agreement with plan not to reevaluate
C. IEPs
1. Waiving the presence of people at meetings by mutual consent
34 C.F.R. Section 300.321 (e)(2), (IEP Team Attendance) states: A member of the IEP Team described in paragraph (e)(1) of this section may be excused from attending an IEP meeting, in whole or in part, when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services, if—
i) The parent, in writing, and the public agency consent to the excusal; and
ii) The member submits, in writing, to the parent and the IEP team, input in to the development of the IEP prior to the meeting.
20 U.S.C. Section 1414(d)(1)(B) and (C).
Pros and Cons
-Waiving the presence of a member of the IEP team can expedite the process
-This preserves the timeline and ensures the prompt provision of services
-There may be unanswered questions regarding that team member’s input
Procedural Action Items
-The parent’s agreement with the excusal must be in writing
-The parent’s agreement with the excusal must be received prior to the meeting
-The missing members must submit their input in writing and it must be shared with the parent prior to the meeting
2. Waiving meetings to make IEP changes by mutual consent
34 C.F.R. Section 300.324(a)(4) provides:
(i) In making changes to the child’s IEP after the annual IEP Team meeting for a school year, the parent of a child with a disability and the public agency may agree not to convene an IEP Team meeting for the purposes of making those changes, and instead may develop a written document to amend or modify the child’s current IEP.
(ii) If changes are made to the child’s IEP in accordance with paragraph(a)(4)(i) of this section, the public agency must ensure that the child’s IEP team is informed of those changes.
20 U.S.C. Section 1414(a)(2)(B)(i) and(ii).
Pros and Cons
-Changes can be implemented more quickly without scheduling a meeting with the entire team
-Parents may not understand the changes without sitting down and having them explained
-Neither may some of the team members who have to implement them
Procedural Action Items
-Get agreement to change IEP without a meeting in writing
-Make sure parents and all team members get a copy with the changes conspicuously marked
V. DUE PROCESS WAIVERS
A. Waiving Pre-hearing Conferences
A prehearing conference may be waived by either party. Mutual consent is not necessary. The proposed new Chapter 14 regulations do away with prehearing conferences altogether. At present, however, 22 Pa. Code Section 14.161(3) provides: a parent or the school district or early intervention agency in the case of a young child may waive the right to a pre-hearing conference and immediately request an impartial due process hearing under section 14.162.
Pros and Cons
-Since the purpose of holding the pre-hearing conference is to reach an amicable agreement in the best interest of the student or young child, waiving it may take the possibility of an agreement off the table.
-If it is apparent that an amicable agreement will not be reached, a pre-hearing conference would just delay the process
-With the IDEA 2004 procedure requiring resolution meetings before due process hearings, prehearing conferences may be a duplicative waste of time.
Procedural Action Items
-Memorialize any pre-hearing conference with a written account of the meeting
-Indicate issues, agreements and disagreements clearly
-Have everyone present sign in
-Make sure everyone necessary to implement any agreement reached is given a copy
B. Waiving Resolution Meetings
Resolution meetings prior to do process hearings are mandatory unless both parties agree to waive them. 34 C.F.R. Section 300.510 provides:
(a)(3) Resolution Meeting: The meeting described in paragraph (a)(1) and (2) of this section need not be held if-
(i) The parent and the LEA agree in writing to waive the meeting.
20 U.S.C. Section 1414(f)(1)(B)(i)(IV)
Pros and cons
-Mandatory (if not waived by both parties) resolution sessions are intended to encourage settlement of issues
-Waiving the resolution meeting can be beneficial if it is obvious that the two sides will not reach an agreement
Procedural Action Items
-Memorialize any resolution session with a written account of the meeting (legally mandated)
-Indicate issues, agreements and disagreements clearly
-Have everyone present sign in
-Make sure everyone necessary to implement any agreement reached is given a copy
C. Waiving Mediation
Mediation is voluntary and, like prehearing conferences, can be waived by either party. 20 U.S.C. Section 1414(e)(2)(A)(i)
D. Waiving Due Process Claims
Under IDEA 2004, the failure of a party to raise a particular due process claim in a hearing does not waive that party’s right to raise it in a future hearing. 20 U.S.C. Section 1415(o).
E. Waiving Pendency (“Stay-Put”)
A student’s pendent status can be waived or modified by mutual consent. 20 U.S.C. Section 1414(j).
VI. RELEASE AND SETTLEMENT AGREEMENTS: WAIVERS OF RIGHTS UNDER IDEA AND BEYOND?
A. What Can Be Waived?
Theoretically:
-FAPE (but see In Re: the Educational Assignment of P.J., Sp. Ed. Opinion #1271),
-The development of IEPs and evaluations
-Services
-Placements
-LRE (but see 34 C.F.R. Sections 300.114(a)(2) and 300.116)
-The right to a hearing
-The right to future or further legal proceedings or claims (e.g. going to federal court for damages)
B. What Cannot Be Waived?
-The future right to attend school and receive services (e.g. “In exchange for X, student will never return to District . . .”)
C. Critical Concept: Knowing and Voluntary Waiver
Elements of “Knowing and Voluntary”
-Agreement is in writing
-Claims waived are spelled out with specificity
-There is sufficient consideration
-Any statutory requirements are followed (e.g. age discrimination claims require time be given to consider the agreement)
-Parents are given time to consider the agreement
-Parents are represented by counsel or at least encouraged to seek counsel to discuss ramifications of agreement
Pros and Cons
-Settlement allows for pragmatic resolution without going through the time, money and man hours involved in a hearing
-Settlement allows for more creative placements than a FAPE may allow
-Settlement may be the answer when parties have burned the bridge
D. Important Waiver of Rights Cases
1. W.B. v. Matula, 67 F.3d 484, 496 -499(3d Cir. 1995)
In Matula, an earlier settlement agreement had been reached. In Federal Court, the efficacy and scope of the settlement agreement reached by the parties was at issue. The District argued that the April 1993 settlement agreement prohibited plaintiffs from bringing the Federal action.
The stipulation of settlement begins:
The parties to these consolidated proceedings have voluntarily resolved all disputed matters and enter into this Stipulation of Settlement which fully disposes of all issues in controversy between the parties.
It goes on to state: Both parties are represented by counsel, have reviewed this Stipulation of Settlement[,] … have conferred extensively with their respective counsels[,] … and represent that they fully understood the meaning of said documents … and enter into this settlement agreement knowingly and voluntarily. Both parties expressly represent that they enter into this agreement freely and without fraud, undue influence, or duress … and that prior to entering into this agreement they fully discussed with their counsels the remedies available to the parties. E.J.’s IEP, which was incorporated by reference in the settlement, provided that “neither party waives its legal and factual contentions … regarding classification.” In approving the agreement, the ALJ (hearing officer) made a finding that “[t]he settlement fully disposes of all issues in controversy and is consistent with the law.”
The U.S. Court of Appeals for the Third Circuit recognized that a heightened standard of review governs the review of cases in which a person allegedly waives civil rights claims, and that in such cases, the Court must inquire into the totality of the circumstances surrounding execution of the agreement, to determine whether or not its execution was knowing and voluntary.
Factors considered were: whether or not (1) the language of the agreement was clear and specific; (2) the consideration given in exchange for the waiver exceeded the relief to which the signer was already entitled by law; (3) the signer was represented by counsel; (4) the signer received an adequate explanation of the document; (5) the signer had time to reflect upon it; and (6) the signer understood its nature and scope. Evidence of fraud or undue influence, or whether enforcement of the agreement would be against the public interest may also be relevant.
The Court concluded that material issues of fact remain in dispute regarding whether the alleged agreement by W.B. not to file civil actions against those persons who denied services to her child was voluntary and knowing, based on the following:
First, there is at least a dispute of fact whether the agreement is clear and specific as to a waiver of any damage claims. There is no specific mention of damages, and the language indicates that the agreement merely resolved all issues raised in the due process petitions.
Second, there is a dispute of fact as to whether the Board gave any consideration for the alleged waiver; the school appears simply to have consented, at long last, to the evaluation and classification to which E.J. was statutorily entitled.
Third, there is a factual dispute as to whether W.B. understood that the settlement agreement was of the nature and scope that defendants contend. W.B. submitted a certification to the district court in which she stated: “When I entered into the April 1993 settlement agreement … I never intended nor did any one advise me that I would be giving up my right to file this civil rights action.”
Fourth, the Board attorney who questioned W.B. at the April 1993 settlement hearing never raised the topic of damages or a potential civil action. In fact, the questions suggest that W.B. and the Board both understood paragraph 4 of the agreement to limit any other remedies W.B. might have in an administrative proceeding only.
E.P. v. Union County Regional High School Dist. No. 1, 741 F.Supp. 1144, 1149-50 (D.N.J.1989) (parent not collaterally estopped in IDEA attorney’s fees action by previous settlement of petition, where agreement silent as to fees).
2. Andrew P. v. Bucks County Intermediate Unit, 2001 WL 1716993, 3 -4 (E.D.Pa.,2001)
Similar to Matula, in fact relying on it, the Court held that, in consideration of the totality of the circumstances, a settlement agreement did not constitute a knowing and voluntary waiver the Plaintiffs’ rights to pursue future civil rights claims for damages in federal court. For that reason, Plaintiffs are not precluded from bringing a claim for damages for the time-period covered by the agreement.
The determining factors were similar to those in Matula; namely:
-The reference to the transcript of hearing where the settlement was negotiated does not reveal any clear statement that Plaintiffs intended to give up their right to pursue damages through civil rights claims. Rather, the testimony indicates that the agreement settled all “compensatory education demands and claims made by the parents in these proceedings,” and that it settled “all claims in this hearing.” The Court found that the language of the agreement is not clear and specific in waiving Plaintiffs’ rights to pursue the present claim, especially because a claim for monetary damages could not have been brought in the administrative proceeding at which the agreement was reached.
-As part of the settlement agreement, the Plaintiffs were given a comprehensive award of compensatory education that went beyond the minimum requirements imposed by the IDEA. The consideration for this agreement went beyond the bare minimum required by the IDEA, thus, the second factor favors Defendants.
-Plaintiffs were not represented by counsel at the time they entered into the agreement. Even though the transcript reveals that Plaintiffs received an adequate explanation of the document, and Plaintiffs had two months from the date of the hearing to the date the agreement was finalized to reflect upon it, it cannot be said that the Plaintiffs clearly understood the waiver to be as expansive as Defendants assert.
3. Lauren W. ex rel. James W. and Jean W. v. DeFlaminis, 2005 WL 1353643, *2 -3 (E.D.Pa., 2005)
The settlement agreement in Lauren W. withstood the scrutiny of the Court. The administrative hearing process was discontinued when the parties executed a Settlement Agreement (“the Agreement”). Under the Agreement, which was limited to the 1999-2000 school year, the District agreed to fund Lauren’s placement at Hill Top for that school year and Lauren’s parents agreed to a comprehensive waiver of any federal and state law claims that had arisen prior to the execution of the Agreement. Specifically, the Agreement stated that:
“The Parents acknowledge and agree that by accepting the aforesaid payment they are waiving rights that they may otherwise have under the Individuals with Disabilities Education Act, 20 U.S.C. sections 1400- 1485 (IDEA ) and its implementing regulation, 34 C.F.R. Part 300; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794, and its implementing regulation, 34 C.F.R. Part 104; the Americans with Disabilities Act of 1990, 42 U.S.C. Sections 12101-12213; Sections 1983 and 1988 of the Civil Rights Act, 42 U.S.C. Section 1983, 1988; Chapters 14 and 15 of the regulations of the State Board of Education, 22 Pa. Chapts. 14 and 15; Chapter 342; and any other state or federal law, and all complaints or enforcement actions brought by Student or Parents under any of these laws or regulations, concerning the educational evaluation, independent evaluations, program, placement, related services, supplemental and/or private tutoring and summer programming of Student through the 1999-2000 school year, and consistent with the provisions herein.
The Parents, on their own behalf and on behalf of the Student, release and forever discharge the District and its officers, directors, employees, agents, attorneys, and insurers from any claim or demand of any kind, administrative or judicial, concerning the education of the Student through the end of the 1999-2000 school year, including claims or demands for tuition reimbursement, compensatory education, attorneys fees and costs, damages and equitable relief, provided however, that nothing in this agreement shall preclude claims or demands directly related to the implementation of this agreement.”
The Agreement also contained a provision requiring the District to pay attorneys’ fees.
4. In Re: the Educational Assignment of P.J., Special Education Opinion # 1271
In this case, parents and the District agreed to delay the provision of FAPE to the student while the parents tried to work out some private school issues. The agreement was apparently initially proposed by the parents. Nevertheless, the Appellate Panel held:
…[W]e reject the notion that a district’s duty to provide FAPE can be “waived.” The District’s duties under IDEA to evaluate Student and to have an IEP in place for him by the start of the…school year could not be more clear, and the panel cannot accept that those duties are negotiable. It makes no difference…that the Parents initiated the offer of delaying the provision of FAPE…A “waiver” of the duty to provide FAPE is no remedy to the District’s failure to perform a timely evaluation, prepare and appropriate IEP and recommend an appropriate placement (or to seek due process when necessary to validate the proper execution of its duties.)
(emphasis supplied).
See also: D.R. by M.R. v. East Brunswick Bd. of Educ., 109 F. 3d 896 (3rd Cir. 1997)(upholding agreement); Somoza v. New York City Department of Educ., 06 CV 5025 (VM) (February 21, 2007), 47 IDELR 127 (S.D.N.Y, 2007)(holding settlement agreement does not constitute knowing and voluntary waiver by pro se parent).