What are you seeing out there ?
How’s the weather ?
How is the turnout ?
How was lunch ?
What are you seeing out there ?
How’s the weather ?
How is the turnout ?
How was lunch ?
There are many ways for state and local governments to run hidden deficits,
one of which is deferred maintenance. But it turns out there is a way to
measure the extent to which local governments kick the maintenance can down
— Read on www.strongtowns.org/journal/2018/10/29/local-governments-alarming-capital-spending-ratios
What happened in Pittsburgh was horrific and senseless. My prayers go out to all the victims and their families. We must work to eradicate hate in our society.
America’s newspapers are vanishing, with Illinois losing more than most
Of toilets and contractors: Is Pritzker up to the job of renovating Illinois? – Chicago Tribune
— Read on www.chicagotribune.com/news/opinion/editorials/ct-edit-pritzker-toilet-unions-mansion-20181015-story,amp.html
As the Harvard admissions lawsuit placing a microscope on the practice of affirmative action in higher education goes to trial, Northwestern officials say the outcome shouldn’t affect University admissions. The lawsuit charging Harvard University with systematic discrimination against Asian-Americans will begin its trial Monday in Boston. Plaintiffs contend the Ivy League school imposes a quota…
— Read on dailynorthwestern.com/2018/10/14/top-stories/as-harvards-admissions-trial-begins-university-officials-say-lawsuit-wont-affect-northwestern/
If you use synthetic air fresheners in your car and/or living space and or associated with your clothes, you should know that you’re likely increasing risk of developing a variety of health problems. Headaches, earaches, depression, an irregular heart beat, and diarrhea in babies are just a few of many health challenges that have been linked to regular use of synthetic air fresheners.
Febreze is classified as an air freshner, created by Proctor & Gamble.
P & G reports that it works by “trapping” odor molecules in a donut-shaped chemical.
And now produced by Proctor & Gamble, Febreze as a household odor eliminator and freshener.
It was introduced to the North American market in 1988.
Developed in England, it is now sold in Asia, New Zealand, Asia and Australia. Since its introduction, several forms of the famous brand have been added to the line, including scented candles and plug-in oils.
For Starters READ the WARNING LABEL
The warning label advises against inhaling because it could be fatal. It also advises that in the event of contact with the eye to rinse immediately.
It warns that hard surfaces could become slippery, so avoid slipping on the chemical and falling. It also says not to expose the chemical to fire or heat.
Other than these basic warning, Proctor & Gamble has assured the public that its product is safe to use in the household.
Yet a quick review of the Product Safety Data Sheet leads to a quick conclusion that you do not want to use the product on clothing that will have contact with someone’s skin since the warnings include: Causes serious eye irritation; Causes skin irritation; May cause an allergic skin reaction
Go to this link to read the Product Safety Data Sheet that P & G has to provide for Febreze pursuant to OSHA requirements and draw your own conclusions : https://www.pgproductsafety.com/productsafety/msds/SDS_2015/FEBREZE_NOTICEABLES_AIR_FRESHENER_-_TIDE_ORIGINAL_SCENT.pdf
The first thing that is really important to understand: the product does not remove odor molecules and it doesn’t clean the item it comes into contact with.
The odor molecules are still there. Your nose just can’t perceive them because you smell the chemical product instead.
That alone should be your first warning. We know inhalation of any chemicals is dangerous, and several of its ingredients listed below are known to irritate the lungs…but this is a chemical whose entire purpose is to be inhaled!
You’ve probably seen the commercial: A mom walks into a teenager’s room, takes a sniff and tells him no “nice” girl would ever want him because his room smells like (shocker!) teenage boy. She tells him it’s time to “wash” his room and hands him a bottle of Febreze, which he proceeds to spritz on every stinking surface in the room, from his pillow to his bed. In the next scene a girl walks in, sniffs around, and decides the boy is all right. There’s so much wrong with this commercial, I could go on for hours… but I want to focus on the one that is going to have a long-term effect on health: air fresheners. They can be quite harmful to your health.
I always gag when I walk into a Febreze-sprayed room. The worst is when the cleaning crew uses it like crazy in actors’ trailers, and then we have to sit in there all day.
Air fresheners come in many different forms, from air and fabric sprays to plug in “burners” to solids. While they can perfume the air of your home, they don’t actually neutralize smells and they can wreak havoc on your home’s air quality.
What’s in Air Freshener ?
According to the EPA1, air freshener contains four basic ingredients: formaldehyde, petroleum distillates, aerosol propellants, and p-dichlorobenzene.
Formaldehyde can cause a number of health effects including:
Burning eye, nose, throat and other mucous membranes
Petroleum distillates come from petrochemical manufacturing, which contribute to air, soil, and groundwater pollution. The effects on human health include:
Aerosol propellants can harm earth’s ozone layer. Likewise, they can damage human health including:
Increased cancer risk
Development of chronic health issues
Paradichlorobenzene (p-DCB) is often found in mothballs and may cause:
Loss of appetite
Changes to the blood
Unfortunately there is not much data being shared on Febreze and their many products, but the Environmental Working Group (EWG) did conduct a test for the ingredients of one of their products, Febreze Air Effects.
Below you’ll find a list of just some of the 87 chemicals found by the EWG in Febreze Air Effects, listed in order of their toxicity to humans:
BHT – Known as a neurotoxin, endocrine disruptor, immunotoxicity, non-reproductive organ system toxicity, skin eye and lung irritator
Acetaldehyde – Known to cause cancer, toxic to reproduction and development, immunotoxin, non-reproductive organ system toxin, skin, eye and lung irritator
“Fragrance” – One of the three ingredients actually disclosed, it’s a neurotoxin, immunotoxin and allergen
Propylene Glycol – Causes cancer, allergies, toxic to immune system, accumulates in the system, non-reproductive organ system toxin, is classified with “enhanced skin absorption” and irritates the skin, eye and lung
1,3-Dichloro-2-propanol – Carcinogenic (causes cancer)
Limonene – Allergen, immunotoxin and skin, eyes and lung irritator
Methyl pyrrolidone – Toxin to reproduction and development, allergen and immunotoxin, non-reproductive organ system toxin and skin, eyes and lung irritator
Alcohol denatured – Also disclosed in the ingredients of Febreze, it’s linked to cancer, developmental/reproductive toxicity, organ system toxicity and skin, eyes and lung irritator
Butylphenyl methylpropion al – allergen, immunotoxin and and skin, eyes and lung irritator
Ethyl acetate – linked to developmental/reproductive toxicity, neurotoxicity, organic system toxicity and and skin, eyes and lung irritator
Geraniol – Linked to allergies, immunotoxicity, organi system toxicity and and skin, eyes and lung irritation
Linalool – allergen, immunotoxin, and and skin, eyes and lung irritator
Benzaldehyde – neurotoxin, and skin, eyes and lung irritator
Diethylene glycol monoethyl ether – non-reproductive organ system toxicity
Ethylhezanol – developmental and reproductive toxin and skin, eyes and lung irritator
Hexyl cinnamal – allergen, immunotoxin and skin, eyes and lung irritator
And way too many more….
Environmental Working Group (EWG) has independently tested Febreze. Its toxicology report as noted above claims that Febreze contains several chemicals that can be extemely harmful not only to the environment but also to your health. According to EWG, Febreze contains 89 air contaminants, including acetaldehyde, propylene glycol, limonene and methyl pyrrolidone ethylacetate, which is toxic to the the brain and nervous system. These contaminants are linked to cancer, are toxic to the reproductive system and cause allergies
NRDC Found Similar Results in 2007———Interestingly enough, the National Resources Defense Council (NRDC) also tested 14 different air fresheners in 2007, including Febreze, and found they contained phthalates, which are hormone-disrupting chemicals and have been linked with childhood asthma. Again, none of the products disclosed these ingredients.
“Consumers have a right to know what is put into their air fresheners and other everyday products they bring into their homes,” said Dr. Gina Solomon, NRDC senior scientist. “There are too many products on the shelves that we assume are safe, but have never even been tested.”
In the report that was released in September of 2007 by the Natural Resources Defense Council the found that 12 of 14 brands of common household air fresheners contained phthalates. Phthalates are chemicals that are used to prolong the length of time that scented products maintain their fragrance. Regular exposure to phthalates can increase your risk of experiencing endocrine, reproductive, and developmental problems. Amazingly, some of the brands that tested positive for phthalates did not include phthalates on their lists of ingredients; some of these brands were even labeled as being “all-natural” and “unscented.”
Is it time for you to change your methods of freshening our homes, schools, places of business and in some cases clothing ?
Here are seven reasons why we should think about not using Febreze.
Of course, the list goes on. The tagline for Febreze is “We’re out to make the world breathe happy.” When I inhale Febreze or read the ingredient list and their toxic effects, I’m not breathing happy and I doubt you are either.
It’s quite ironic, really, that something designed to “improve” indoor air quality by making it smell better actually winds up making your home more toxic. Studies show that use of air fresheners in the home can trigger asthma and allergies, along with other breathing problems. Because your home is a relatively closed space, adding elements that diminish air quality can harm your family and contribute to the toxic brew of chemicals that wind up trapped in your system. Air fresheners can also harm pets, which have a faster metabolism. They may also be especially dangerous for people with pulmonary conditions such as asthma, allergies, or COPD.
Please note that having no phthalates does not make synthetic air fresheners safe to use in your car or home.
The vast majority of synthetic air fresheners emit significant amounts of terpene, a volatile organic compound that can react with naturally occurring ozone to create formaldehyde.
Ozone, a form of oxygen, exists at some level both indoors and outdoors, so formaldehyde formation is practically inevitable wherever synthetic air fresheners are used. Indoor environments that tend to have elevated levels of ozone include those where photocopiers and ozone-generating air purifiers are used.
All of the advertisements strive to make us feel that we do not have a really nice home unless “air fresheners” are supplied in all bathrooms, kitchens, and around the house generally to assure that we and our visitors are persuaded that ours is not just a clean home, but one with requisite elegant touches. There are two kinds—the spray type, with their unrecycleable aerosol cans or plastic packages, adding to unnecessary solid waste, and the wick type, that send out their fumes continuously.
These products do not, in fact, do anything to improve the quality of the air. Instead, they add a number of pollutants—some designed to deaden your sense of smell, others serving as propellants, and others adding various kinds of toxic perfume to drown out whatever smells may offend. Many of these ingredients cause irritation of the nose and lungs—leading to serious problems for many people. Many times, pesticides are even included—for what purpose?! Spray this around and solve all your odor problems?!
A prominent constituent of many of these products is formaldehyde. That can destroy your sense of smell alright, and it is one of the worst offenders for respiratory irritation. It has also been admitted by the EPA to be a cause of cancer. Anyone with asthma, lung infections, or like ailments can be severely affected by formaldehyde.
Why should you be concerned about exposure to formaldehyde?
Formaldehyde is classified as a human carcinogen by the International Agency for Research on Cancer.
Given all of the above, it’s not surprising that a study that was published in a 2007 issue of the American Journal of Respiratory and Critical Care Medicine indicates that regular use of sprays can increase your risk of developing asthma by 30 to 50 percent.
This study was performed by the European Community Respiratory Health Survey, and collected data from 3,500 people in 10 European countries.
The residual chemicals from common cleaning and deodorizing products often result in accidental poisonings to the very people who were supposedly being protected. Some toxic chemicals accumulate in ever-increasing amounts in the human body over a period of years, so the health consequences are rarely attributed to them.
Victims sometimes suffer from a strange form of cancer, or they might have some new-age disease like chronic fatigue syndrome; and of course, there is the growing popularity of ‘genetic disorders’.
You may find the causes of your suffering health in your cleaning products, medicine cabinet, laundry products, foods, municipal water, in “healthy” products (soy, canola, margarine), and in your air fresheners. There is an endless barrage of unregulated, toxic retail products; ranging from Clorox wipes to hand sanitizers and air fresheners. The long-term health consequences of these products multiplied together invariably become much worse than any infection or other seemingly isolated ailment.
It is usually assumed that these products must go through rigorous safety testing before placement in retail stores, but this is not true. The cleaning industry is self-regulated, which translates to no regulation. Chemical companies do not need permission from any authoritative body before releasing their latest air fresheners or cleanup wipes. In fact, it took months for the F.D.A. to even warn Clarcon Biological Chemistry Laboratory Inc. that bacteria was living inside its line of supposedly anti-bacterial products. The hand sanitizer was eventually voluntarily recalled, but only after the situation became a public relations problem for both organizations. These voluntary recalls are the most common type, and the term “voluntary” indicates that the F.D.A. officially informed the guilty corporation that it would not take any action against it. The phrase “voluntary recall” seriously means this in the food and pharmaceutical industries.
Air fresheners are thought to be even further outside the jurisdiction of regulators than most products. To its credit, the State of California forces labeling of ingredients that are known to cause cancer or reproductive harm, under Proposition 65, but this is the entirety of this industry’s regulations.
The Natural Resources Defense Council studied the effects of air fresheners, discovering that they currently undergo no safety testing. The results were disturbing, because they revealed high levels of phthalates, which are known to be especially harmful to children. These chemicals were even present in sprays which were claimed to be “All-Natural” and “unscented”. Phthalates were not disclosed in the list of ingredients for any of the products.
“Phthalates are hormone-disrupting chemicals that can be particularly dangerous for young children and unborn babies. Exposure to phthalates can affect testosterone levels and lead to reproductive abnormalities, including abnormal genitalia and reduced sperm production. The State of California notes that five types of phthalates — including one that we found in air freshener products — are ‘known to cause birth defects or reproductive harm.'”
— Natural Resources Defense Council
1,4-Dichlorobenzene is a chemical that is found in the blood of 96% of Americans. It has been linked to lung damage, is a known carcinogen, and it is an E.P.A. registered pesticide. Studies found it to increase rates of asthma. It can be found in the majority of air fresheners, toilet deodorizers, and mothballs. It works by attacking the receptors in the nose, and thus eliminating the sense of smell. This is how the new generation of air fresheners actually “freshen”.
This chemical was introduced into the American market with the Febreze product from Proctor & Gamble. The new generation of air fresheners that were inspired by the success of Febreze are literally using chemical warfare to destroy their customers’ sense of smell. That lack of smell is where the illusion of freshness comes from. The user only smells these air fresheners for about a minute after they have been sprayed, and then the nose cannot smell most fragrances anymore. This is not a normal adjustment to odors, anymore than a loss of one of the other four senses. The process is the equivalent of using a chemical blinding agent to escape the unpleasantness of a bright light; when that chemical is known to be both poisonous and carcinogenic.
By design, the freshening chemical causes damage to the mucous membrane, which is claimed to be temporary. However, no long-term studies have ever been done to test the effects of chronic exposure. It is important to remember that anything inhaled is immediately absorbed into the blood through the lungs relatively unchanged.
Dichlorobenzene is, in large part, the reason why so many pet birds die directly after the use of air fresheners.
Due to hundreds of reports of bird deaths on the Internet, Procter & Gamble (Febreze manufacturer) funded its own internal study into this, and (without surprise) concluded that there are no safety issues whatsoever concerning pet birds or human beings.
Dichlorobenzene is the main ingredient used to manufacture the infamous pesticide DDT, and its cousins, DDE and DDD. Chlorine alone has a tendency to form DDT and DDT-like compounds when it reacts with many other substances. These compounds disrupt the endocrine system by destroying hormones throughout a body, in a similar manner to BPA; but in a much more powerful way. Sometimes exposure results in horrific health problems that never completely disappear.
It may help readers to put the situation into perspective by being made aware that their use of most air freshener brands is the literal practice of inhaling small amounts of DDT. Inhalation is much more dangerous than oral ingestion of the same amount.
“Problems associated with DDT, as well as many chlorinated hydrocarbons, involved their tendency to concentrate in the fat of humans, livestock, aquatic food chains, and wildlife. This latter phenomena, called bioaccumulation, has had, and continues to have, severe adverse effects on many forms of wildlife…
“Since implementation of [the DDT ban], residues of the pesticides have significantly decreased in many regions where they were formerly used. However, DDT, DDD and DDE persist in the environment for a very long time. DDT, DDD and DDE residues can still be found in most areas of the United States”… [80 years later]
— The U.S. Fish and Wildlife Service
The issues of synthetic fragrances have been around for years, and have led to many companies selling unscented options. Some fragrances cause changes in blood flow, blood pressure, mood, and trigger migraine headaches. A massive 72% of asthmatics cite these fragrances as a trigger in causing asthma attacks, and they have been implicated as a cause for the initial development of asthma. Asthma rates in the United States have doubled since 1980, and the use of air fresheners has doubled since just 2003. Most synthetic fragrances are also known respiratory irritants, which means that they cause inflammation in the lungs, leading to an increased mucous production, and a greater vulnerability to other chemicals, allergens, and infections. Ninety-five percent of synthetic fragrances are derived from petroleum. They include benzene and aldehydes; which are known to cause cancers, reproductive effects, and problems with the central nervous system. These effects on the nervous system result in increased cases of Alzheimer’s disease, multiple sclerosis, Parkinson’s disease, and more. A study from 1991 entitled, Chemical Exposures: Low Levels and High Stakes, tested the effects of fragrances among test subjects. When asthmatics were exposed to cologne for 10 minutes, their pulmonary function was impaired by 58% from a previous 18% handicap. Of the 60 asthmatics that they surveyed, 57 complained of respiratory symptoms with exposure to common scents.
Phthalates, like those found in air freshener mists, are usually used in the production of PVC plastics. All air fresheners containing phthalates lack any labeling to indicate their presence. Phthalates are also found in air fresheners that are labeled “unscented” and “all natural”. With an estimated 75% of consumers using air fresheners in their homes, we strongly recommend improving ventilation systems to dilute these chemicals as much as possible, if they cannot be eliminated altogether.
According to the Environmental Working Group, phthalates produce liver cancer, but this link has not been officially acknowledged by regulatory agencies.
The chemicals emitted from air fresheners (and other toxic products) accumulate in the fatty tissues over time, so the danger increases as they build up inside a body. The presence of toxins inside fat can make weight loss difficult. Since the human body uses fat to store certain materials that are too toxic for it to process, breaking down the fat would mean releasing those toxins again, so a body may resist fat loss for self-defense. Thus, fat retention is sometimes the result of an immune system properly responding to a danger.
Sooner or later, society will have to revert to old-fashioned means of cleaning, cooking, and keeping our homes smelling pleasant. This will include the removal of non-stick pans, air fresheners, and hand sanitizers. While they may make certain tasks easier, avoiding them is an essential step to ensure a long, healthy life for your family. Since children are most at risk, we hope that those reading this will dispose of their air fresheners, to minimize the exposure of those who are not able to protect themselves.
Clearly, your health is best served by minimizing exposure to synthetic air fresheners and other synthetic products that are designed to emit a prolonged artificial scent.
Obviously, the biggest issue is that these ingredients really shouldn’t be allowed in products that will be sprayed into the air, inhaled, or absorbed directly into the bloodstream through skin contact. But there are other issues like duping the public into thinking that they are somehow cleaning the air and eliminating odors. They simply mask them.
As for the toxic effects, not to worry, Proctor and Gamble also offers a wide selection of drugs that can address many of the symptoms and conditions linked to Febreze ingredients.
Can you say “conflict of interest” as fast as you can send a toxic whiff of Febreze into the air?
What’s the alternative? Simply keeping the clothing, house or office clean and well-ventilated and using an exhaust fan, if needed, solves most problems. Remove the cause of the offending smell—whether by drying and cleaning off mold, removing rotting food or other material, and emptying the trash regularly. Baking soda absorbs odors in the refrigerator and elsewhere. Growing plants can help or simmering spices briefly. Also, you can simmer 4 lemons (cut in fourths) on the stove for about 45 minutes to an hour to obtain a wonderful lemon fragrance that is nontoxic.
In a recent sad case a firm hired to vacuum the heating ducts in a house finished off with a heavy spray of “freshener” into the air ducts. The family became very ill and have had to move to another home.
In summary, I believe we need to realize that “clean” does not have a “scent”!! We have all been brainwashed to believe that “clean” means some kind of toxic fragrance—whether it be our air, clothes, or body. But “clean” really has a very “neutral” smell—non-offensive and nontoxic! If you really want to freshen the air… OPEN SOME WINDOWS!! That’s where you’ll find truly fresh air. How arrogant of we humans to think we could improve upon God’s fresh air by creating a chemical concoction in a can!
As any lawyer or hearing officer will attest, it is almost always better to settle a case than to go to hearing. There are several reasons for this. First, it avoids the delay, expense, uncertainty, and emotional strain associated with a hearing. Second, hearing officers are relatively limited with respect to the types of relief that they can order, while there is much more flexibility to craft a remedy in a settlement agreement.
However, there are few agreements that are more legally complex than a settlement agreement. While a well crafted settlement agreement can be very effective in resolving disputes and allowing the parties to move forward, a poorly crafted agreement can create new problems and sometimes give rise to even more litigation. The purpose of this article is to explain how a settlement agreement is structured, the meaning and purpose of the legal boilerplate that most settlement agreements contain, and to point out some common pitfalls to avoid.
Each specific paragraph of a type of a School District Education Settlement Agreement is also referenced and explained below:
The title identifies the nature of the agreement and identifies the case being settled.
In the introductory paragraph, the parties and the proceeding are identified and abbreviated terms are assigned. The preamble may include language about the purpose of the agreement. If you are intending to preserve certain claims while settling others, a brief statement at the beginning of the Agreement makes that intention clear. Although the preamble is not a substitute for the waiver and release provisions that appear later in the document, the scope of the release being given is generally a serious deal point, which should be addressed early on so that there are no misunderstandings.
The preamble in an Agreement provides that the settlement covers only educational claims. Thus, the preamble provides notice that the Parties do not intend to settle any non-IDEA claims, such as personal injury tort claims, or civil rights claims that may exist under Section 504 of the Rehabilitation Act, the Americans with Disability Act, Section 1983, or state civil rights statutes. If the parties intend a broader settlement that would include such claims, then the preamble language should be modified accordingly. The preamble should also specify the time period covered by the settlement. Typically, settlement agreements settle all claims through the date of the agreement, which is how the Sample Agreement is drafted. However, sometimes settlements may cover a specific school year, or even through the end of the existing school year. Special care should be taken, however, before agreeing to any settlement that extends beyond the date of the agreement into the future. For example, the student’s needs might unexpectedly change.
To illustrate what can go wrong, there was a case where the parents came seeking to invalidate a settlement agreement they had entered into before engaging an attorney’s services. The agreement provided that they had agreed to
resolve “all issues” with respect to the coming year in exchange for the school district’s agreement to hold an IEP meeting by a certain date and develop an IEP that would include certain specific services identified in the agreement “as a minimum.” The problem was that the IEP the school district subsequently developed included only the minimum services specified in the agreement. The school district refused to consider any of the additional services that the parents believed the student also required.
Even worse, the parties were unable to reach agreement on placement and goals, and the school district refused to convene another IEP meeting because the settlement agreement only referenced a single meeting. This left the student with an incomplete and inadequate IEP and no recourse under the settlement agreement.
The substantive obligations are the heart of any settlement agreement. It is important to keep in mind that the more clearly the obligations are defined, the less likely it will be that the parents will have to bring a lawsuit to enforce the agreement or, even worse, will end up with an agreement that looks good on paper but is functionally ineffective.
Obviously, it is possible for settlement agreements to include a variety of benefits, including, but not limited to: • Reimbursement for educationally related expenses • Compensatory educational services • Prospective educational services to be provided by either school district staff or private providers • Staff training • Books and supplies • Accommodations • Development of a new IEP Whatever the elements, the key to a successful agreement is specificity. The more specific the terms, the less likely that there will be misinterpretations and disagreements when it comes time to implement the agreement.
Frequently, settlement agreements include reimbursement for prior educational expenses that the parents have incurred. When drafting a reimbursement provision, it is important to carefully define the scope of what will be reimbursed, what documentation is necessary to support the reimbursement, and the timeline for payment.
1. Reimbursement Amount. Identifies the total amount of agreed-upon reimbursement, and the address to which payment should be transmitted.
2. Reimbursable Educational Expenses. Specifies the time period during which educational expenses must have been incurred to be reimbursable and provides the definition of the phrase “Educational Expenses.” The definition should reflect the type of educational expenses that will be reimbursed, as appropriate for your case. An alternative is to include an attachment that details the specific reimbursable items and amounts covered by the agreement.
3. Reimbursement Documentation. Specifies the documentation that must be submitted in support of the parents’ reimbursement claim, the address to which that documentation must be submitted, and the timeline for payment from the date on which the documentation is received from the school district. The language in the Sample Agreement is typically what school districts require in order to support a reimbursement request.
Compensatory education may be used to compensate the student for the school district’s failure to offer appropriate services in the IEP, or its failure to deliver services that were specified and agreed upon in the Student’s IEP. Generally, the agreement should identify the specific services, when they are to be provided, and the identity of the provider (e.g. school district staff or an outside agency).
NOTE: Any settlement that involves the payment of money has the potential for raising tax issues. It is beyond the scope of this article to provide any advice in this regard. If there is any concern about possible tax implications of a settlement, it is important to seek the advice and input of a competent tax attorney.
The Agreement provides examples of three different models for providing compensatory education services: by district staff, by a contract between the school district and an outside agency, and by parent reimbursement.
4. Compensatory Educational Services Provided by District Staff. This provision is for compensatory education services to be provided by school district staff. It is important to specify the total hours of service as well as the frequency and duration of the services to be provided. As reflected in this provision, it is not unusual for the school district to insist that if compensatory services are not used by a certain date, they are forfeited.
5. Compensatory Educational Services Provided by Certified Nonpublic Agency. Most states require that third parties providing services to special education students be certified by the state. These entities are typically referred to as certified nonpublic schools or agencies. It is best to agree on which agency will provide the services and also to agree as to what will happen if that agency is unable or unwilling to provide all the agreed-upon services.
6. Compensatory Educational Services to be Funded by District. Under this provision, the parent would pay for the compensatory services and then be reimbursed by the school district.
7. Compensatory Services are Supplemental to Current Services. This provision clarifies that the compensatory education services are in addition to, and not a substitute for, the student’s ongoing educational program.
CURRENT SERVICES AND/OR ACCOMMODATIONS
Sometimes a settlement agreement includes provisions for ongoing services that the student requires in order to receive a FAPE going forward. Because these are expected to be ongoing services, it is highly advisable that they be included in an addendum to the student’s IEP, in addition to being specified in the settlement agreement.
8. Ongoing Services Provided by District Staff. When agreeing to ongoing services to be provided by school district staff, it is important to specify not only the nature and amount of the services, but also the qualifications of the district staff that will be providing the services.
9. Ongoing Services Provided by Certified Nonpublic Agency. It is best to agree on which agency will provide the services and also to agree as to what will happen if that agency is unable or unwilling to provide all the agreed-upon services.
10. Accommodations. Settlement agreements sometimes include accommodations to be added to the IEP. Although each agreement is unique, the general principal that it is important to be as specific as possible in describing the obligations of the school district still applies. The sample provision addresses the school district’s obligation to provide the student with audio books, and attempts to address the problem of finding out at the last minute that the books are not available.
11. Development of IEP Addendum. This provisions requires that the ongoing services and accommodations be documented the student’s IEP. This is very important not only for the stay put, but also to make sure that everyone providing services to the student knows what they are supposed to be doing.
CONTINUING OBLIGATION TO PROVIDE FAPE
12. Continuing Obligation to Provide FAPE. This provision clarifies that in addition to providing the services identified in the settlement agreement, the school district has an ongoing obligation to provide the student with whatever else the student requires in terms of special education and related services, in order to constitute FAPE. This is particularly relevant when the agreement includes compensatory education services, as such services are understood to be in addition to the services that the student otherwise normally would require in order to receive FAPE, as reflected in paragraph 7, above.
13. Stay Put Placement and Services. Where the settlement agreement involves only reimbursement or compensatory education, it typically will not impact the stay put in the event of a future dispute. However, where the settlement agreement includes ongoing services or a change in placement, it is important to consider what the stay put will be if another disagreement arises. It is best to clearly define what the stay put will be in the settlement agreement itself.
14. Reimbursement of Parents’ Reasonable Attorneys Fees. Typically, payment of attorneys’ fees is addressed separately from reimbursement for other types of expenses. Instead of proof of payment, school districts typically require the attorneys’ billing statement (redacted so as to protect attorney/client and work product privileges), and payment is generally made to the attorney directly.
Sometimes school districts are unwilling to agree to reimburse parents for reasonable attorneys’ fees incurred in the due process proceeding, and suggest that such determination be decided by a court of competent jurisdiction. Although the suggestion has appeal because parents are anxious to commence the agreed-upon services for their child, and it is simple to carve out reimbursement for attorneys’ fees from the release provisions (discussed below), under the Supreme Court’s decision in Buckhannon Board & Care Home v. West Virginia Dept. of Health, 532 U.S. 598 (2001), there is a serious risk that courts may not have jurisdiction to award attorneys’ fees under the IDEA when the parties have voluntarily settled the case.
5. Claims Released by Student and Parents.
It is very important to consider exactly what claims the student and parents intend to release. As discussed in the Preamble section above, the scope of the settlement should be clearly defined. Paragraph 15 of the Sample Agreement provides for a settlement of educational claims only, as reflected in the preamble. If the release is intended to be broader, then this should be reflected both in this paragraph and in the preamble.
Careful consideration must be given before providing a release of all claims, particularly unknown claims. At the very least, parents should consider whether the overall settlement provides adequate consideration for releasing all claims.
Sometimes, agreements provide for prospective releases, i.e., a release of any potential future claims. For example, a school district that agrees to provide ongoing services may request a release to the effect that the parent will not challenge the sufficiency of the ongoing services to meet the student’s educational needs. Such a request is not entirely unreasonable, but the prospective release must be carefully drafted. For example, while a parent might be willing to agree to not challenge the appropriateness of the agreed-upon services, they should preserve their right to pursue a claim for the school district’s failure to provide the services. In general, it is best to avoid including a prospective release in a settlement agreement.
16. Claims Released by School District. Typically, school districts draft releases that only go in one direction, i.e., the parents release the school district. We strongly recommend that releases be mutual. There is no reason for the student and parents to provide a release while continuing to be exposed to any possible liability, e.g., a school district’s attempt to recover attorneys’ fees under IDEA on the grounds that the due process complaint was frivolous or presented for an improper purpose.
17. Releases Do Not Affect Enforceability. The purpose of this provision is to clarify that the waiver and release provisions in the agreement are not intended to preclude a party from being able to bring an action to enforce the terms of the agreement itself, or to release a party from any new violations that occur after the date the agreement is signed.
ENFORCING THE SETTLEMENT AGREEMENT
18. Enforcement of Settlement Agreement Reached at Resolution Session OR Settlement Agreement Reached Through Mediation. The IDEA provides that a settlement reached at a Resolution Session or through the mediation process is enforceable in federal or state court. Otherwise, a settlement agreement is only enforceable in state court as a breach of contract action.
Thus, where the settlement agreement was reached at a Resolution Session or through mediation, it is good practice to specifically note this in the agreement.
19. Attorneys’ Fees for Enforcing Agreement. This provision provides that if a party brings an action to enforce the agreement, that party is entitled to recover reasonable attorneys’ fees. Keep in mind that this is a reciprocal provision, so that if the school district brings the enforcement action and prevails, the school district can recover its reasonable attorneys’ fees form the parents. While this is an unlikely occurrence, it is conceivable, particularly where the parents have agreed to a future assessment of the student and later dispute the nature or scope of the proposed assessment, and refuse to sign the assessment plan.
20. Confidentiality. It is not unusual for school districts to insist that the settlement agreement remain confidential. There are also circumstances where the parents may wish to keep the settlement agreement confidential. If the settlement agreement was reached through the mediation process, the negotiations, although not the agreement itself, are confidential as a matter of law. 20 U.S.C. § 1415(e)(2)(G). Even if the statutory confidentiality provision does not apply, the parties can still agree, as part of the settlement, that their settlement communications, including the agreement itself, are confidential.
Illinois has statutes which permit members of the public to obtain copies of documents (including settlement agreements) that are considered public records, and/or require that public agencies, including school districts, report on actions taken in closed session by their boards of directors or trustees, including approvals of settlements.
Most agreements address this issue by permitting such disclosure while maintaining the confidentiality of the names and addresses of the Student, Parents, and nonpublic schools and agencies providing services to the Student.
It is important to specify that the confidentiality provision will not preclude either party from introducing the agreement in court for purposes of enforcement, so long as it is filed under seal. It is also advisable to require that notice be given if a third party files a lawsuit to obtain a copy of the settlement agreement so that Parents may consult with counsel and determine whether to intervene in such proceeding.
21. Board Approval. It is not unusual that the school board must approve an agreement before it is final. Obviously, it is not appropriate to dismiss the case until after the school board approves the agreement. Thus, some understanding must be reached as to how and when the case will be dismissed when board approval is required. One way of dealing with this is to agree to request that the hearing office take the case off-calendar until after the expected date for board approval, with the understanding that it will be dismissed after the board approves the agreement. If the hearing office will not agree to take the case off-calendar, it may be possible to request a continuance of the hearing until a date by which it is reasonably certain that the board will have considered the agreement.
22. Representations and Warranties. The purpose of this provision is to prevent a party from attempting to repudiate the settlement on the grounds that they were under duress at the time of signing, didn’t understand the terms of the agreement, didn’t understand that the agreement was binding, etc. School districts typically insist on a provision like this. A parent should make sure that all of these statements are true before signing an agreement, as it is very difficult to overturn a settlement agreement on such grounds, even if there is no specific provision to this effect included in the agreement.
23. Full Cooperation in Consummating Agreement. This requires that the parties use their best efforts to complete the execution of the documents and to do whatever other things are required under the agreement, such as prepare an IEP addendum.
24. No Admission of Liability. School districts typically require a provision stating that they do not admit any wrongdoing. We recommend making this provision reciprocal.
25. No “Prevailing Party.” This provision makes clear that the only attorneys’ fees available are those identified in the agreement.
26. Interpretation. This is to clarify that there are no hidden or specialized meanings with respect to the language used in the agreement.
27. Not to be Construed as Drafted by One Party. This provision is typically included when there are attorneys are both sides of the agreement. Where the parent is not represented by counsel and the school district attorney drafts the agreement, the parent may not want to include this provision.
28. Entire Agreement. This provision limits the terms of the settlement to what is stated in the written agreement. It is important to make certain that every aspect of the agreement is specified in writing, as it is very difficult to try to introduce additional verbal understandings, whether or not the agreement contains this provision.
29. Modification by Writing Only. This provision makes it clear that the terms of the settlement agreement cannot be modified except in writing.
30. Authority to Enter Agreement. This provision clarifies that the parties signing the agreement are legally authorized to do so.
31. No Prior Assignment of Rights. This provision clarifies that there are no other parties who need to be included in the agreement in order for it to be binding.
32. Binding Upon Successors and Assigns. This provision makes clear that this agreement is binding upon successors in interest to one of the parties.
33. No Third Party Beneficiaries. This provision makes it clear that there is no third-party beneficiary who can claim rights under the agreement. For example, the agreement would not give a nonpublic agency identified in the agreement any rights to sue to enforce the agreement.
34. Severability of Terms. This provision allows the agreement to survive even if some portion of it is held to be invalid or unenforceable.
35. Execution in Counterparts. This provision is designed to facilitate the obtaining of signatures when parties are in diverse locations.
36. Effective Date. This provision makes clear that the agreement is effective only when signed by all of the parties. Thus, if the parties sign the agreement on different days, the date of the final signature is controlling as to the effective date of the agreement.
Often there are a number of drafts exchanged before the parties reach final agreement.
I recommend specifying the total number of pages in the final agreement. I also recommend that one signor from each side initial each page of the final agreement, in order to provide clarity as to which version of the agreement controls.
Contact Information for discussion and information : Roy F. McCampbell, Attorney at Law, Cell Phone: 708/878-7957
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