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November 23, 1993

D.R., by his parents and guardians, M.R. and B.R., Plaintiffs,

The opinion of the court was delivered by: ALFRED M. WOLIN

 WOLIN, District Judge


 The parties contend that there are no material facts in dispute. D.R. is an eighteen-year old multiply handicapped student who has been classified by defendant as in need of special education. Administrative Law Judge ("ALJ") 12/14/92 Opinion, p. 3. D.R. attended the Middlesex County Cerebral Palsey Center-Lakeview School for the 1989-90 and 1990-91 school years. Believing that he was not making progress, during the 1991-92 school year D.R.'s parents requested a change in placement to an out of state residential school, the Benedictine School located in Ridgely, Maryland. When the Board disputed the need for residential placement, D.R.'s parents unilaterally placed him at Benedictine in early January, 1992 and simultaneously instituted an action pursuant to the Individuals with Disabilities Act ("IDEA" or "the Act"). 20 U.S.C.A. § 1401 et seq. At a mediation conference held on February 3, 1992, the parties entered into a settlement agreement ("Agreement"). The Agreement provides in relevant part:

At the mediation conferencee held in the above-cited matter the parties agreed to the following:
The following adjournment will be considered an agreement when the East Brunswick Board of Education approves it:
It is agreed by and between D.R. by his parents M.R. and B.R., and the East Brunswick Board of Education that:
1) The East Brunswick Board of Education will compensate placement costs at the Benedictine School for D.R. at an annual rate of $ 27,500 prorated for the balance of the 1991-2 school year including summer of 1992 and beginning January 1, 1992;
2) For the 1992-93 school year the Board will contribute 90% of any increase over the 1991-92 rate.
3) The Board will be absolved of any other or further costs based upon this placement, related services, or transportation in connection therewith.

 By entering into this agreement, the Board was responsible for paying $ 27,500 prorated toward the $ 30,000 annual cost for 1991-92. *fn1" Several months after the Agreement was signed, the Board received an estimated 1992-93 Benedictine School program cost for D.R. The costs totaled $ 62,487 and included a provision for the services of a one-to-one aide for D.R. during his waking hours. The Board refused to pay any portion of the cost associated with the aide and D.R., by his parents, requested a hearing pursuant to N.J.A.C. 6:28-2.

 In that action, D.R. asserted that (i) since being placed at Benedictine, the staff there determined that D.R. required the services of a one-to-one aide in order to benefit from the program, and that unless the aide is provided D.R. could not continue in the program; and (ii) D.R. is in need of both a residential program and a one-to-one aide in order to prevent serious regression. As the Board had refused to pay for the aide, D.R. sought an order finding inter alia that he was in need of residential placement and a one-to-one aide, that the current placement along with the provisions of the aide were appropriate and that the Board was required to pay for the cost of an aide.

 The outcome of the first stage of the proceeding is outlined in a letter from the ALJ dated November 5, 1992. The November 5th letter advising the parties of the outcome of the hearing, only lists two conclusions -- that the Agreement was a legally enforceable contract between the parties and that pursuant to the Agreement the Board's obligations for the 1992-93 school year were limited to 90% of the increase over the 1991-92 rate for education and basic related services, related residential services, room and board, including physical therapy, occupational therapy, and speech. This letter advised

A written opinion discussing these conclusions will be issued either forthwith or following additional evidence on the merits of the I.E.P., *fn2" placement, and residential costs, depending upon how you decide to proceed. If the parents determine not to pay the additional costs for 1992-93 or they cannot pay the additional costs which apparently Benedictine requires for continued enrollment for 1992-93, I will need something in writing from them so stating. They will then be in breach of the agreement and the agreement becomes a nullity, and the Board is relieved of further performance (and may be entitled to reimbursement). In that event, the case can continue . . . with the Board moving forward on all issues. If you wish to appeal my rulings on the settlement agreement before proceeding further, I will issue a decision now, dismissing the petition and articulating my reasons.

 Plaintiff decided to file a motion for reconsideration concerning the Agreement and a formal opinion was issued on December 14, 1992. The opinion states that the ALJ decided that a "final decision" granting the Board's motion "should be issued before any further proceedings with respect to the merits of the issues." 12/16/92 ALJ opinion, p. 2.

 By way of a letter dated November 16, 1992 (sic), D.R.'s attorney filed a second action alleging that D.R. "is in need of . . . the 1 to 1 aide," and contending that the first action "did not examine [D.R.'s] educational needs" but "dealt only with the [settlement] agreement." See Office of Administrative Law Decision, EDS 10062-92, Dkt. No. 93-5095 ("1/19/93 ALJ Opinion"). The Board moved to dismiss D.R.'s second claim as barred by operation of the doctrine of res judicata. In an opinion dated January 19, 1993, the Board's motion was granted. This opinion concluded that D.R.'s claim was the same as that decided in December, 1992 and that because it was already correctly decided that the Agreement was valid and enforceable, and that that claim was governed by and barred by the Agreement, the current petition was barred by res judicata. Id.


 The motion for summary judgment is intertwined with the decision of the ALJ, pursuant to 20 U.S.C. § 1415(e)(2). In order for the Court to have subject matter jurisdiction in an IDEA matter, a final decision must be rendered in an administrative process. 20 U.S.C. §§ 1415(e)(1), (2). The ALJ decision of December 14, 1992, upholding the Agreement, clearly states that it is final pursuant to 20 U.S.C. § 1415(e)(1) and appealable to this Court.

  This Court is called upon to make an independent determination of the issues before it, giving due weight to the administrative proceedings. Geis v. Board of Education, 774 F.2d 575, 583 (3d Cir. 1985). Such a review, however, is not an invitation for this Court to substitute its own notions of sound education policy for those of state and local school officials. Board of Education v. Rowley, 458 U.S. 176, 206-07, 102 S. Ct. 3034, 3051, 73 L. Ed. 2d 690 (1982). As set forth in 20 U.S.C. § 1415(e)(2), the starting point of review is this Court's receipt of the record of the administrative proceedings, followed by the hearing of additional evidence at the request of a party. Thereafter, applying a preponderance of the evidence standard, this Court shall grant such relief as it determines is appropriate. Wexler v. Westfield Bd. of Ed., 784 F.2d 176, 180 (3d Cir.), cert. denied, 479 U.S. 825, 107 S. Ct. 99, 93 L. Ed. 2d 49 (1986).

 With respect to the motions sub judice, summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. p. 56(c); see Hersh v. Allen Products Co., 789 F.2d 230, 232 (3d Cir. 1986). In making this determination, a court must draw all reasonable inferences in favor of the non-movant. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091, 104 S. Ct. 2144, 79 L. Ed. 2d 910 (1984). Whether a fact is "material" is determined by the substantive law defining the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); United States v. 225 Cartons, 871 F.2d 409, 419 (3d Cir. 1989).

 "At the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S. Ct. at 2511. Summary judgment must be granted if no reasonable trier of fact could find for the non-moving party. Id.

 1. To Be Binding or Not to Be Binding?

 At issue is the Agreement of February 3, 1992 with respect to the placement of D.R., a special education student. D.R. submits that the decision of the administrative agency which held that pursuant to the Agreement the Board is responsible for only 90% of the increase in costs over the 1991-92 school year was erroneous. D.R. asserts that the agreement either (1) requires the Board to pay $ 27,500 plus 90% of the increase in costs for the 1991-92 school year, including the cost of an aide, or, alternatively, (2) is not binding with respect to the 1992-93 school year given IDEA. On the other hand, the Board argues that the Agreement is legally binding settlement agreement which D.R.'s parents subsequently wish to abrogate because they no longer want to be bound to its economic terms.

 A. Settlement and Mediation

 It is well settled that settlement agreements to a lawsuit form a contract between parties. Nolan v. Lee Ho, 120 N.J. 465, 472, 577 A.2d 143 (1990). Plaintiff asserts that because the Agreement was reached during mediation it is not a binding resolution of a lawsuit. The Court concurs with the Administrative Law Judge that such an assertion is not backed by either case ...

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