BEFORE THE THREE PERSON DUE PROCESS HEARING PANEL
EMPOWERED BY THE MISSOURI STATE BOARD OF EDUCATION

  DANIEL ASBURY, et al.,

Petitioners

vs.

SPECIAL SCHOOL DISTRICT OF
ST. LOUIS COUNTY, et al.,

Respondents

SETTLEMENT AND RELEASE AGREEMENT BETWEEN PETITIONERS AND
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).

1.    Premises

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 for Daniel

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 expense."

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 and Expenses.

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.

6.    Dismissal.

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 matter.

MICHAEL ASBURY                                                             SPECIAL SCHOOL DISTRICT OF
KATHRYN ASBURY                                                             ST LOUIS COUNTY

DATE - 5/22/98

 

NOTE: The parents were represented by Mary Jane White of Iowa (email address is mjwhite-sbtek.net) and Kenneth Chackes of St. Louis, Missouri.