DANIEL ASBURY, et al.,
SPECIAL SCHOOL DISTRICT OF
ST. LOUIS COUNTY, et al.,
SETTLEMENT AND RELEASE AGREEMENT BETWEEN PETITIONERS
RESPONDENT SPECIAL SCHOOL DISTRICT OF ST. LOUIS COUNTY
The parties to this agreement are Petitioners Michael
Asbury and Kathryn Asbury, parents of Daniel Asbury, a minor (hereafter
referred to as the Asburys) and the Special School District
of St. Louis County (hereafter referred to as the SSD).
Daniel Asbury is a student receiving services from the
SSD. He is a child with a disability under the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. §§1400 et seq., Section
504 of the Rehabilitation Act, 29 U.S.C. §794, and Missouri special
education laws, Chapter 162 of the Revised Statutes of Missouri.
The Asburys filed a Complaint and Request for Due Process Hearing
against the SSD, the Maplewood-Richmond Heights School District (hereafter
referred to as MRH), and the Missouri Department of Elementary and
Secondary Education. This agreement is intended to resolve all of
the Asburys' existing complaints against the SSD.
2. ABA/DTT/Lovaas Educational Program
a. The Asburys and the SSD agree
that Daniel will continue to receive the ABA/DTT/Lovaas educational
program that the Asburys have been providing for him in their home,
at their expense. The Asburys will continue to have control over and
financial responsibility for that program. As part of that program,
the SSD agrees that its personnel working with Daniel, including teachers,
occupational therapists, and speech/language pathologists, will consult
with the Center for Autism and Related Disorders (CARD) or a similar
organization retained by the Asburys, for the purpose of implementing
Danielís ABA/DTT/Lovaas program across environments.
b. Starting with the beginning
of the 1998-1999 school year, and for as long as the Asburys and their
consultants deem it beneficial for Daniel, including throughout the
1998-1999 school year, the Asburys will provide an aide (or shadow)
at school for Daniel. The aide will be an individual who has been
trained in the ABA/DTT/Lovaas method of instruction and who may also
work as a trainer with Daniel at home. The aide will be selected and
paid by the Asburys and will be allowed to work with Daniel and his
teachers all of the time that Daniel is in school as part of his educational
program (including on the school bus, on field trips, and on other
school activities), subject to the provisions of subparagraph e, below.
c. Danielís IEP for the 1998-1999
school year shall include the following statement under Present Levels
of Performance, Current interventions: "Parents are providing Daniel
with ABA/DTT/Lovaas training at home, with consultations from CARD
and an ABA/DTT/Lovaas trained aide (shadow) at school, at their own
d. SSD personnel will cooperate
with the Asburys and the aide in all reasonable respects so that the
aide can fulfill Danielís need for an ABA/DTT/Lovaas trained 1-1 integration
aide to provide continuity between Daniel'sí home program and his
time at school and to facilitate Danielís integration with his peers
in the regular school setting.
e. The provisions of the Settlement
and Release Agreement Between Petitioners and Respondent MRH with
respect to the terms and conditions for conduct of the aide will be
followed by the Asburys and the SSD as part of this agreement.
3. Payments to the Asburys
a. The SSD shall pay to the
Asburys the sum of $60,000.00, within 30 days of the signing of this
agreement. Of that payment, $50,000.00 is for the compromise of the
claims made by the Asburys for the personal injuries alleged by the
Asburys to have been suffered by Daniel to date and $10,000.00 is
reimbursement to the Asburys for the ABA/DTT/Lovaas educational program
previously obtained by the Asburys for Daniel.
b. The District shall pay to
the Asburys the sum of $20,000.00 in January 1999 and an additional
$20,000.00 in May 1999. With respect to each of these payments, $15,000.00
is for the compromise of the claims made by the Asburys for Danielís
future personal injuries as alleged by the Asburys and $5,000.00 is
for the Asburys to use for the ABA/DTT/Lovaas educational program
for Daniel in the future, as described in paragraph 2, above, including
the consultations and the aide.
c. The SSD specifically denies
that Daniel suffered any personal injury. However, the parties to
this agreement agree that the personal injuries alleged that Daniel
is to have suffered are physical in nature as they relate to Daniel's
physiologic and neurologic impairment. The SSD shall not issue a 1099
form relating to any of these payments.
4. Payment for Attorneys' Fees
The SSD shall pay to the Asburys Ďattorneys, Mary Jane
White and Kenneth M. Chackes, for the attorneys' fees and expenses
reasonably incurred in their representation of the Asburys in this
matter, in a sum not to exceed $33,000.00, within 30 days of the presentation
of evidence of the amount of time spent and expenses incurred. SSD
shall pay the attorneys' fees and expenses directly to said attorneys
and it shall issue 1099 forms, if any, reflecting payment only to
said attorneys. The Asburys expressly acknowledge that the SSD shall
not reimburse the Asburys, either directly or indirectly to their
attorneys, for any attorneys' fees and/or expenses for which they
have previously received reimbursement from MRH.
5. Mutual Release.
The Asburys jointly and severally release and waive
any and all claims against the SSD, its Board of Education, its administration
and employees, under the IDEA, Section 504 of the Rehabilitation Act,
the Americans with Disabilities Act, and Missouri state special education
statutes, with respect to the provision of a free appropriate public
education for Daniel and for any and all claims for personal injuries,
including but not limited to physical injuries, allegedly suffered
by Daniel, up to and including the date of this agreement. The District,
including its agents and employees, release the Asburys, Including
their agents, representatives, and heirs, from any and all claims
they have or may have against them arising out of any facts or events
relating to the IDEA, Section 504 of the Rehabilitation Act, the Americans
with Disabilities Act, and Missouri state special education statutes
that occurred up to and including the date of this agreement.
Upon execution of this agreement the Asburys will promptly
notify the Due Process Hearing Panel that the Asburys are limiting
their claims against the SSD with prejudice.
7. Denial of Wrongdoing.
The SSD denies any and all alleged wrongdoing in this
DATE - 5/22/98
|SPECIAL SCHOOL DISTRICT
OF ST LOUIS COUNTY