Settlement Agreement

Page 1 of 10 FINAL SETTLEMENT AND RELEASE AGREEMENT San Diego Unified School District v. Ethan Russell OAH Case No. 2021120433 Ethan Russell v. San Diego Unified School District OAH Case No. 2022010064 February 17, 2022 This Final Settlement and Release Agreement (“Agreement”) is between Heather and Shawn Russell (“Parents”), individually and on behalf of their son, Ethan Ryan Russell (“Student,” together with Parents, “Family”), and the San Diego Unified School District (“District,” together with Family, “Parties”). NATURE AND EFFECT OF AGREEMENT 1. This Agreement consists of a compromise and settlement by Parties of Family’s claims against District and a release given by Family to District relinquishing Family’s claims against District as described in this Agreement. NATURE AND STATUS OF DISPUTE 2. Student is a sixteen-year-old who is in the tenth grade. Student qualifies for special education and related services under the primary eligibility category of other health impairment and the secondary eligibility category of orthopedic impairment. 3. On November 1, 2021, Family submitted a Uniform Complaint Procedures complaint with District. Family alleged that District violated state and federal disability rights law, including Education Code section 11135, Title II of the Americans with Disabilities Act ("ADA"), and Section 504 of the Rehabilitation Act of 1973 ("Section 504"). On January 3, 2021, the California Department of Education ("CDE") notified District that it received a complaint from Family on October 5, 2021 for direct state intervention. Family alleged that District failed to timely complete and provide its Investigation Report to Family as required by the Uniform Complaint Procedures in California law. CDE designated that matter Case No. 2021-0165. 4. Student is a declarant in an action seeking injunctive relief before the United States District Court, Northern District of California regarding the implementation of independent study pursuant to Assembly Bill ("AB") 130. On November 4, 2021, the United States District Court, Northern District of California, issued a Temporary Restraining Order in which it ordered CDE to ensure that the students involved in that matter have "access to virtual instruction that approximates the minutes and form of instruction they received during the 2020-21 school year." On November 17, 2021, District informed counsel for Student that it would implement Student's individualized education program ("IEP") through distance learning, as it had prior to the passage of AB 130. District subsequently implemented Student's IEP through distance learning, but does not believe that it constitutes a free, appropriate public education ("FAPE") in the least restrictive environment as mandated by the Individuals with Disabilities Education Act ("IDEA") and related California law. Page 2 of 10 5. On December 14, 2021, District filed a request for a due process hearing with the California Office of Administrative Hearings (“OAH”). District sought an order that it was entitled to assess Student pursuant to October 5 and October 29, 2021 assessment plans; that Student's October 11, 2021 IEP offered Student a FAPE in the least restrictive environment; and that it could implement Student's October 11, 2021 IEP in person should Parents choose to avail Student of a District placement. OAH designated the matter OAH Case No. 2021120433. 6. On January 4, 2022, Family filed a request for a due process hearing with OAH. Family alleged that District failed to appropriately assess and offer Student a FAPE in the least restrictive environment as mandated by the IDEA and related California law. Family also alleged that District violated Student's rights under the ADA and Section 504. OAH designated the matter OAH Case No. 2022010064. On January 6, 2022, OAH consolidated OAH Case No. 2021120433 and OAH Case No. 2022010064. 7. On January 10, 2022, Parties met in mediation with OAH. This Agreement arises out of that mediation. Currently, in addition to the allegations described above, Family alleges that District cannot offer or provide Student with a FAPE in the future. Family seeks District funding of a private program through the 2023-24 school year. District believes that at all times at issue it has complied with its obligations under the IDEA, related California law, and other federal and state laws as claims by Family, and that it can continue to do so in the future. However, in order to avoid the time and expense of litigating the dispute, Parties have agreed to compromise and resolve all matters through this Agreement. COMPROMISE AND RELEASE 8. Parents, individually and on behalf of Student, hereby fully release and discharge District, including, but not limited to, District’s past and present officials, employees, successors, predecessors, assigns, agents, attorneys, consultants, affiliates, and representatives, from all past, present, and future, known and unknown claims, damages, liabilities, rights, and complaints arising from or related to Student’s educational program through the date of final execution of this Agreement and through the end of the 2023-24 regular and extended school year. For purposes of this Agreement, the 2024 extended school year shall end on the day prior to the first day of the 2024-25 regular school year, pursuant to District's calendar. Parties agree that this Agreement settles any and all claims or causes of action for attorneys’ fees and costs related to CDE Case No. 2021- 0165 and OAH Case Nos. 2021120433 and 2022010064. This release and discharge applies to any action or proceeding based on any state or federal statute, regulation, case decision, tort or common law, including, but not limited to, claims under the IDEA, California Education Code §§ 56000, et seq., the ADA, and Section 504. Page 3 of 10 CONSIDERATION 9. Parties, in consideration of the promises made herein, agree as follows: a. District agrees to fund privately-obtained educational services obtained by Student during the 2021-22 regular and extended school year in an amount not to exceed $10,000 in the aggregate. Any balance remaining on and after the first day of the 2022-23 school year shall be deemed forever waived and shall not carry over to the amount allotted for the 2022-23 school year pursuant to paragraph 9.b. b. District agrees to fund privately-obtained educational services obtained by Student during the 2022-23 regular and extended school year in an amount not to exceed $28,000 in the aggregate. Any balance remaining on and after the first day of the 2023-24 school year shall be deemed forever waived and shall not carry over to the amount allotted for the 2023-24 school year pursuant to paragraph 9.c. c. District agrees to fund privately-obtained educational services obtained by Student during the 2023-24 regular and extended school year in an amount not to exceed $28,000 in the aggregate. Any balance remaining on and after the first day of the 2024-25 school year shall be deemed forever waived. d. With respect to the privately-obtained educational services described in paragraphs 9.a., 9.b., and 9.c., the following shall apply: i. Privately-obtained educational services shall consist exclusively of academic instruction, audiological services, speech and language therapy, physical therapy, occupational therapy, specialized deaf and hard of hearing services, music therapy, and/or adapted physical education. In addition, privately-obtained educational services may include the technologies, including a personal computer and/or tablet, augmentative and alternative communication devices, software and applications, adaptive equipment, sensory tools and manipulatives, books and other materials, needed for Student to participate in such services. Parents certify that such technologies shall be used exclusively for such participation. Parents shall be solely responsible for obtaining the services, including selecting the provider, scheduling the services, and providing transportation. District shall have no obligation to provide any and all components of Student's educational program. ii. Parents may elect between the following two funding models for the privately-obtained educational services: (1) Direct Funding. Parents may submit a written request that District contract directly with a specific private educational services provider or private school. The written request shall be mailed to District’s Due Process Office at 4100 Normal St., Page 4 of 10 Annex 2, San Diego, CA 92103, or e-mailed to [email protected]. Direct funding shall only be available for educational service providers or private schools that are certified by the California Department of Education as either a non-public agency ("NPA") or non-public school ("NPS), respectively. After receipt of such a request, if approved, District will notify Parents and pursue a contract in accordance with the written request and use the funds set forth herein for any such contract. Parents agree that any such contract between District and a private service provider or private school does not alter Parents’ assumption of full responsibility for securing Student’s educational program throughout the settled period. (2) Reimbursement. Parents may request reimbursement for privately-obtained educational services by submitting "required documentation." Required documentation for shall be mailed to District’s Due Process Office at 4100 Normal St. Annex 2, San Diego, CA 92103, or emailed to [email protected]. District will issue reimbursement no more than once per month and within 45 days of receipt of required documentation. In order to receive reimbursement within that timeline, it is incumbent upon Parents to ensure that required documentation complies with the terms of this Agreement before submission to District. Required documentation shall consist of (i) invoices on provider letterhead with clearly￾detailed billing descriptions, including dates of services; (ii) attendance logs; and (iii) proof of payment clearly documenting method of payment, which may include canceled checks, credit card receipts, or redacted bank statements. Required documentation must be provided within one month following each respective term identified in paragraphs 9.a., 9.b., and 9.c., and if not so provided, reimbursement for services pertaining to each respective term shall be deemed forever waived. iii. Parents represent and warrant that no costs or expenses sought from or paid by District pursuant to this Agreement will have been sought from, promised by, or paid by any other source, including, but not limited to another public agency or insurance. iv. District makes no representation regarding the appropriateness of privately-obtained educational services funded through this Agreement. In the event of a dispute for which stay put is at issue, Parties agree that the services funded through this Agreement shall not constitute all or part of Student’s stay put placement. Page 5 of 10 e. Petitioner shall hold District harmless for any liability, injury, and/or damage to person or property, and all legal claims that may result from Student’s receipt of services by any private provider or private school funded, reimbursed, or otherwise provided through this Agreement, or from acts or omissions of any officer, agent, or employee of any private provider or school. f. Parents certify that Student will be enrolled in an educational program for the 2021-22, 2022-23, and 2023-24 school years that is not operated by or affiliated in any manner with District, but satisfies California's compulsory education requirements identified in California Education Code sections 48200 et seq. i. If Parents enroll Student in a program operated by another public agency, such as a charter school, Parties agree that during the period(s) of such enrollment, Student will be the educational responsibility of that agency. Parties agree that the funding described in this Agreement shall not be available during such enrollment, while all other terms in this Agreement shall remain in full force and effect. ii. If Parents enroll Student in a private school, which may include a private school certified by the California Department of Education as a non-public school ("NPS"), Parties agree that during the period(s) of such enrollment, Student shall be considered a parentally-placed private school child with a disability as defined in Title 34 of the Code of Federal Regulations, sections 300.130 et seq. As a parentally-placed private school child with a disability, Family acknowledges, understands, and agrees that Student will have no individual entitlement to special education and related services, including the development and implementation of an IEP related to that time period. In addition, Parties agree that District will have no obligation to assess Student, except as provided in paragraph 6.g.ii., nor shall it have the obligation to provide services through an individual services plan pursuant to Title 34 of the Code of Federal Regulations, section 300.137. However, the funding as described in this Agreement shall be available for privately-obtained educational services obtained during such enrollment. g. Parties agree that following the commencement of the 2024-25 school year, while Student is eligible for special education and related services under the IDEA, the waivers and releases contained in this Agreement, as well as Student's designation as a parentally-placed privates school child with a disability as described in paragraph 9.e.ii., shall continue, unless one of the following two circumstances occur: i. If Student is enrolled in a program operated by another public agency, such as a charter school, Parties agree that Student will be the educational responsibility of that agency during the period(s) of such enrollment. ii. If Parents or Student wish to return to a District placement, Parents or Student must provide written notification to District. Written notification Page 6 of 10 may not be provided sooner than January 31, 2024. In such an event, District will provide Parents with an assessment plan, within the statutory timeline, that will describe assessments of Student in all areas of suspected disability, as determined by District. By signing this Agreement, Parents consent to such assessments. However, in order to create a clear record, Parents agree to provide written consent to the assessment plan within the statutory timeline. (1) As part of those assessments, Parents agree that District may communicate, exchange information, and observe Student with his private assessors and providers and that if any private assessor or provider requires a written authorization for release of information in order to allow such communication, exchange of information, or observation, Parents agree, without delay, to provide such written authorization. Parents agree to allow such communication, exchange of information, or observation without imposing conditions or restrictions. (2) Parties agree to meet in an IEP meeting within the statutory timeline to review the assessments and offer Student a FAPE. The waivers and releases contained in this Agreement, as well as Student's designation as a parentally-placed private school child with a disability, shall continue until the latter of the following: (1) completion of the IEP; or (2) the end of the 2023-24 school year and extended school year. Parents reserve the right to dispute District's offer of a FAPE offered in the IEP. Parties agree that in the event of a dispute for which stay put is at issue, Student's stay put placement shall be Student's October 11, 2021 IEP, which will be implemented in-person, albeit at Student's grade level at the time of his reenrollment. h. By signing this Agreement, Family withdraws their uniform complaint described in paragraph 3. In order to create a clear record of the withdrawal of the uniform complaint, within one business day after receipt of all signatures to this Agreement, Family will send a notice of withdrawal by email addressed to Lynn Ryan, District's Uniform Complaint Compliance Officer, at [email protected]. In addition, also within one business day after receipt of all signatures to this Agreement, Family shall inform CDE that they withdraw Case Matter No. 2021- 0165. i. Within one business day after receipt of all signatures to this Agreement, District shall withdraw OAH Case No. 2021120433. j. Within one business day after receipt of all signatures to this Agreement, Family shall dismiss OAH Case No. 2022010064 with prejudice. Page 7 of 10 k. Parents, on behalf of themselves and Student, fully release and discharge District from all past, present, future, known and unknown claims, damages, liabilities, rights, and complaints arising from or related to Student’s educational program as described in paragraph 8 of this Agreement. Parents acknowledge, understand, and agree that Parents shall not file, or cause to be filed, any claim, complaint, or cause of action, of any kind, against District, including, but not limited to, claims, complaints, or causes of action filed in any court of competent jurisdiction, or with OAH, CDE, and/or the United States Department of Education Office for Civil Rights, arising or relating to Student’s educational program as described in paragraph 8 of this Agreement. UNKNOWN CLAIMS 10. Parents certify that they have read, and hereby waive the application of, the following provision of California Civil Code section 1542 to all claims: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, that if known by him or her, would have materially affected his or her settlement with the debtor or released party. Acknowledging Civil Code section 1542, Parents, on behalf of Student, agree to waive the protections of section 1542 in order to relinquish all claims described herein. Specifically, Parents understands and acknowledges the significance and consequence of this waiver of section 1542 as follows: (1) Parents and/or Student may have additional causes of action, rights, or claims and attorneys’ fees or costs, of which they are not now aware; and (2) Parents and/or Student may not make a further demand for any such claims, fees, or costs upon District or its predecessors, successors, board, employees, or agents. VOLUNTARY AGREEMENT 11. Parties represent that they have, as of the date of signing this Agreement, the legal capacity to understand, agree to, and sign this Agreement. Parties have voluntarily resolved all disputed matters and enter into this settlement, which fully disposes all of the issues in controversy between Parties. Parties are represented by counsel of their own choosing and have had a full opportunity to review this Agreement with their counsel. Parties represent that they fully understand the meaning of this document and enter into this Agreement knowingly and voluntarily. 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 counsel the remedies available to Parties. They further acknowledge and represent that, in executing this Agreement, they have not relied on any inducements, promises, or representations other than those stated in this Agreement. Page 8 of 10 RELOCATION 12. Parties agree that District shall have no obligation to provide the funding or services described in this Agreement should Student’s residency change from the jurisdictional limits of District or if Student becomes the educational responsibility of another public educational agency. If Student’s residency changes from the jurisdictional limits of District or if Student becomes the educational responsibility of another public educational agency, Parents agree to immediately notify District, in writing, of that change. In addition, if requested by District, Parents shall provide proof of residency. EXECUTION OF OTHER DOCUMENTS 13. Parties shall cooperate fully in the execution of any and all other documents and the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement. NO ADMISSION 14. This Agreement is entered into by Parties for the purpose of compromising and settling all disputed claims and issues. It does not constitute, nor should it be construed as, an admission of liability by the Parties for any purpose. The funding that District agrees to provide through this Agreement does not constitute, and shall not be construed as, an admission of what is or was a FAPE for Student. District makes no representation as to whether the services described in this Agreement constitute(s) a FAPE. In addition, no party shall be deemed the “prevailing party.” JOINT DRAFTING AND MUTUAL INTERPRETATION 15. This Agreement shall be construed and interpreted in a neutral manner. This Agreement is a negotiated document and shall be deemed to have been drafted jointly by Parties and no rule of construction or interpretation shall apply against a particular party based on the assumption or contention that the Agreement was drafted by one of the Parties. In this regard, the provisions of California Civil Code § 1654 are waived and deemed inapplicable to the interpretation of this Agreement. COSTS AND ATTORNEYS’ FEES 16. Parties agree to bear their own attorneys’ fees and costs. ENTIRE AGREEMENT 17. This Agreement is the entire agreement and understanding of Parties. There are no oral understandings, terms, or conditions, and neither party has relied upon any representation, express or implied, not contained in this Agreement. All prior understandings, terms, or conditions, written, oral, express, or implied, are superseded by this Agreement. This Agreement cannot be changed or supplemented orally and may be modified or superseded only by written agreement signed by all Parties. Page 9 of 10 GOVERNING LAW 18. This Agreement is entered into, and shall be construed and interpreted, in accordance with the laws of the State of California and the United States. Prior to a Party filing an enforcement action, the Party will notify the other Party in writing of its intent to file an enforcement action 30 days before doing so in order to give the other Party an opportunity to address and resolve any enforcement or implementation issues. SEVERABILITY 19. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that determination shall not invalidate or render unenforceable any other provision of this Agreement. INTERPRETATION 20. The language of all sections of this Agreement shall be construed as a whole, according to its fair meaning, and not strictly for or against any Party. IMPLEMENTATION AND CONFIDENTIALITY 21. By their signatures, Parties acknowledge that they will carry out the terms of this Agreement, which shall be maintained as a confidential document by all parties except as required by law. Parties agree that if Family violates this confidentiality agreement, District's obligation to provide funding as described in this Agreement shall immediately terminate, while all other terms and conditions described in this Agreement shall remain in full force and effect. However, for purposes of implementation and enforcement of the Agreement, Parties mutually consent to disclosure and admissibility of this Agreement. SIGNATURE IN COUNTERPARTS 22. This Agreement may be signed in counterparts, such that signatures appear on separate signature pages. A copy or original of this document with all signature pages appended together shall be deemed a fully executed Agreement. RECITALS 23. The Recitals described in paragraphs 1-7 of this Agreement are incorporated herein by reference. EFFECTIVE DATE 24. This Agreement shall be effective and shall be implemented upon full execution by all required signatures of Parties and their representatives on this Agreement. 02/17/2022 2/18/2022