        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

West Chester Area School District,         :
                       Petitioner          :
                                           :
              v.                           :   No. 383 M.D. 2016
                                           :   Submitted: February 10, 2017
A. M. and K. M., individually and          :
as parents and natural guardians           :   SEALED CASE
of C. M. and Charles Jelley,               :
Hearing Officer, Pennsylvania              :
Office of Dispute Resolution,              :
                          Respondents      :

BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION
BY JUDGE SIMPSON                           FILED: June 19, 2017

              In this appeal/declaratory judgment action, the West Chester Area
School District (District) appeals from a final order of Hearing Officer Charles
Jelley (Hearing Officer) of the Pennsylvania Office of Dispute Resolution (ODR)
denying the District’s motion to enforce a waiver agreement and release (Waiver
Agreement).


              In our appellate jurisdiction, the District asserts Hearing Officer erred
in determining he lacked the authority to enforce a settlement agreement at a due
process hearing.    In addition, the District filed a declaratory judgment action
seeking a declaration that A.M. and K.M. (Parents), parents and natural guardians
of C.M. (Student), waived their rights to file any further due process claims for the
2015-16 school year. Upon review, we affirm Hearing Officer’s order, and we
remand the declaratory judgment action for failure to exhaust administrative
remedies.


                                        I. Background
               Student, a resident of the District, suffers from Asperger’s Syndrome,
a type of autism. As such, he is eligible for special education services under the
Individuals with Disabilities Education Act (IDEA).1 Based on our review of the
limited record in this matter, it appears the present controversy began in early
November of the 2015-16 school year. A dispute arose at a November 5, 2015 IEP
(individualized educational plan) team meeting between Parents and the District as
to what courses Student should be taking his junior year of high school.
Principally, Parents requested that Student remain in an all honors curriculum.
However, Student’s teachers and Special Education Supervisor P.J. Dakes
(Supervisor Dakes) believed the honors courses covered too much material, which
overwhelmed Student, who began to struggle in some of his classes. As such, the
IEP team recommended Student take academic level classes, which are also


       1
          20 U.S.C. §§1400-1482. Under the IDEA, as implemented by the Pennsylvania
Department of Education’s regulations, a school district must provide a child with a disability a
free appropriate public education (FAPE) based on his unique needs.                      20 U.S.C.
§§1400(d)(1)(A), 1412(a)(1); 22 Pa. Code §14.102; Big Beaver Falls Area Sch. Dist. v. Jackson,
615 A.2d 910 (Pa. Cmwlth. 1992). To satisfy this obligation, a school district is required to
develop an individualized educational plan (IEP) to address and meet a disabled child’s
educational needs that result from his disabilities. 20 U.S.C. §§1401(9), (14), 1414(d); 34 C.F.R.
§§300.320-300.324; 22 Pa. Code §14.102; Jackson, 615 A.2d at 911-12. If a parent disagrees
with his child’s IEP, the parent may file a due process complaint and request an impartial due
process hearing. 20 U.S.C. §1415(f); 22 Pa. Code §14.162(c). Prior to the due process hearing,
the parties must participate in a resolution session, or waive or agree to end a resolution session.
20 U.S.C. §1415(f)(1)(B)(i); 22 Pa. Code §14.162(q). The parties may also agree to participate
in a mediation process. 20 U.S.C. §1415(e), (f).



                                                 2
college preparatory, in order for him to graduate at the same time as his
nondisabled peers. Parents, however, assert Student will be exposed to certain
classmates in the lower level classes who bullied him since elementary school.


            However, the merits of Parents’ due process challenge under the
IDEA are not the central issue in this case. On November 13, 2015, approximately
a week after the November 2015 IEP meeting, Parents entered into the Waiver
Agreement with the District. Essentially, the District would allow Student to
remain in the honors classes, some of which he was failing, in exchange for
Parents’ agreement not to file any due process claims based on the decision to
allow Student to remain in the honors classes. The Waiver Agreement states in
pertinent part (with emphasis added):

            1. Parents acknowledge that the District has made an
            offer of a free and appropriate public education (FAPE)
            as described in the IEP with a revision date of November
            5, 2015. Included in the IEP are proposed courses to be
            taken.

            2. Parents have requested that the IEP with a revision
            date of November 5, 2015 not be implemented and that
            the Student remain in the following courses: English 11
            Honors, Algebra II Honors, American History Honors,
            Earth/Space Honors, German 3 Honors, Concert
            Band/Choir and Physical Education.              Parents
            acknowledge that Student may fail any and all classes
            and may be required to repeat 11th grade if he does not
            pass a sufficient number of required classes.

            3. In consideration of [Parents’] request, the District
            agrees to implement the specially designed instruction
            listed in the IEP with a revision date of November 5,
            2015.



                                        3
4. In consideration of [Parents’] request, the Student shall
have a check-in period with a special education teacher 3
days per 5 day cycle.

5. The Parties agree that [Parents] may terminate this
Waiver Agreement by providing written notice to the
Supervisor of Special Education. Termination of the
waiver shall result in the immediate full implementation
of the IEP with a revision date of November 5, 2015,
including adjusted class assignments. Upon receipt of a
written request to terminate this Agreement, the District
shall convene an IEP meeting. The Parents agree that in
the event of a dispute for any reason, the pendent
program and placement shall be the fully implemented
IEP with a revision date of November 5, 2015.

6. [Parents] acknowledge and affirm that by agreeing to
accept the consideration defined in this Agreement, they
are waiving rights, whether known or unknown, that they
and the Student may otherwise have to claims arising and
relating to the future to fully implement the IEP with a
revision date of November 5, 2015 under the [IDEA and
its implementing regulations ….] Waivers as described
herein shall be applicable from the execution of this
Waiver Agreement through the start of the 2016-2017
school year or until such time as Parents make a written
request to the Supervisor of Special Education to
terminate this Waiver. Termination of the waiver shall
have no impact on the validity or enforceability for any
time period in which the waiver was in effect.

7. [Parents] warrant (a) that they have received written
notification of their rights under state and federal law as
the parents of a child with disabilities; (b) that they are
fully aware of these rights and of the extent to which they
are waiving them in this Agreement; (c) that they are
fully aware that they are waiving rights on behalf of the
Student; (d) that they have had the opportunity to consult
with counsel if they so desired, concerning their rights
and this Agreement; (e) that they are satisfied with the
representation and advice that they have received from
their counsel, if any, including that they have received an
adequate explanation of the terms and obligations

                             4
             described by this Agreement; (f) that they understand the
             nature and scope of this Agreement, and are signing this
             Agreement, including this waiver of important rights,
             knowingly and voluntarily.

District’s Pet. for Review, Ex. B.


             Despite the Waiver Agreement, Parents brought a special education
due process complaint seeking relief, in part, for alleged claims which arose during
the period of November 13, 2015 through the start of the 2016-2017 school year.
Based on the Waiver Agreement, the District filed a motion to limit or dismiss
Parents’ due process complaint. See R.R. at 8a-11a.


             On May 16 and June 3, 2016, Hearing Officer conducted telephonic
hearings addressing the District’s motion and the Waiver Agreement. At the
hearings, Parents asserted the Waiver Agreement should not be enforced because
they signed it under duress. However, Hearing Officer did not find that Parents’
concerns constituted adequate proof of duress. Notes of Testimony (N.T.), 6/3/16,
at 55-56; R.R. at 67a.       Nonetheless, Hearing Officer determined that the
enforceability of the Waiver Agreement is an issue for the courts, not the ODR.
N.T. at 56; R.R. at 67a. To that end, Hearing Officer stated:

                    While I understand and appreciate [Parents’]
             concerns, those concerns do not rise to the level of
             actually establishing duress [in] executing or completing
             the document. That said, the document speaks for itself.

                    Now back to the dilemma that I originally had
             when I first contacted the District. And said, well, there
             is a case out there that says I can’t do anything with this.
             There can be arguments on it, but it’s for a judge to
             decide. And I’m somewhat crippled in my position to be


                                          5
             able to take and act on the agreement. But as far as
             duress in terms of not having the agreement, I do not find
             there is adequate proof as to duress at this time. Maybe
             able to appeal that ruling when this is concluded.

 Id. (emphasis added).


             On June 22, 2016, Hearing Officer entered what he labeled a “final
order” denying the District’s motion to enforce the Waiver Agreement, but
granting the District’s oral motion to file an action in the courts to enforce the
Waiver Agreement. R.R. at 75a. The order specified that the District must file its
court action within 45 days. Id. In addition, Hearing Officer scheduled a July 22,
2016 hearing on Parents’ consolidated claims, including their claim for a denial of
FAPE relief for the 2016-17 school year. Id.


             On July 1, 2016, the District filed a petition for review in this Court
appealing Hearing Officer’s “final order.”      In addition, the District’s petition
includes a one-count complaint seeking declaratory judgment. Specifically, the
District requests an order: (a) enjoining Hearing Officer from considering any
claim for the period of November 13, 2015 through the start of the 2016-2017
school year; (b) declaring Parents waived their right to seek any claims or remedies
for the period of November 13, 2015 through the start of the 2016-2017 school
year; and, (c) declaring that Hearing Officer, at the scheduled July 2016 hearing, is
not to consider any claim or remedy brought by Parents for the period of
November 13, 2015 through the start of the 2016-2017 school year.




                                         6
             On July 11, 2016, the District filed an application for special relief in
the nature of a preliminary injunction.       The District sought to enjoin Hearing
Officer from considering any claim for the period of November 13, 2015 through
the start of the 2016-2017 school year until resolution of this case.


             On July 14, 2016, this Court entered an order temporarily enjoining
the scheduled ODR hearing on Parents’ claims and scheduling a hearing on the
District’s application for a preliminary injunction. Following a hearing on the
application two weeks later, Senior Judge Bonnie B. Leadbetter filed a
memorandum opinion and order staying the ODR proceedings pending the
disposition of the District’s petition for review. Senior Judge Leadbetter also
directed that in the absence of any dispositive motions this matter be scheduled for
trial at the close of the pleadings “and upon praecipe of either party.” See West
Chester Area School District v. A.M. and K.M., individually as parents and natural
guardians of C.M. and Charles Jelley, Hearing Officer, Pennsylvania Office of
Dispute Resolution (Pa. Cmwlth., No. 383 M.D. 2016, filed July 28, 2016), Slip
Op. at 2.


             Thereafter, Parents, representing themselves, filed an answer and new
matter to the District’s petition for review. Parents denied the material allegations
of the District’s petition. In particular, Parents averred the District used undue
influence in insisting they sign the Waiver Agreement. Therefore, Parents sought a
declaration that the Waiver Agreement was unenforceable, and that Hearing
Officer may consider their claims and requested remedies for the period of
November 13, 2015 through the start of the 2016-2017 school year.



                                          7
             Hearing Officer also filed an answer to the District’s petition.
Hearing Officer averred that he should not be party to the appeal because ODR
assigned him to conduct a due process hearing, make rulings and issue decisions in
a quasi-judicial capacity in a special education dispute between Parents and the
District.   Although Hearing Officer noted his determination at the hearing that he
lacked the legal authority to enforce the Waiver Agreement, he indicated he is
obligated to implement this Court’s decision regarding the enforceability or non-
enforceability of the Waiver Agreement.


             Despite the Court’s order regarding the scheduling of a trial, neither
party filed a praecipe to schedule a trial on the District’s original jurisdiction
declaratory judgment action. On November 21, 2016, Senior Judge Leadbetter
filed a memorandum opinion and order recognizing that the District filed a brief
addressing the appellate aspect of the case.       Judge Leadbetter noted that our
appellate review is conducted on the record made before the government unit.
West Chester Area School District v. A.M. and K.M., individually as parents and
natural guardians of C.M. and Charles Jelley, Hearing Officer, Pennsylvania Office
of Dispute Resolution (Pa. Cmwlth., No. 383 M.D. 2016, filed November 21,
2016), Slip Op. at 2. Ultimately, in early 2017 the Court directed that the District’s
petition for review be submitted on briefs without oral argument.


                                      II. Issues
             The District contends Parents entered into a legally binding contract
waiving their right to seek any claims or remedies for the period of November 13,
2015 through August 30, 2016, the start of the 2016-2017 school year. To that



                                          8
end, the District asserts Hearing Officer found that Parents were not subject to
duress in entering into the Waiver Agreement.        The District also challenges
Hearing Officer’s determination that he lacked the legal authority to enforce the
Waiver Agreement.


                                  III. Discussion
                 A. Duress in Execution of Waiver Agreement
                                   1. Argument
             The District first contends the parties legally entered into the Waiver
Agreement, which must be considered a binding contract. Parents acknowledge
they were represented by counsel during the period up to and after the November
2015 IEP meeting and Waiver Agreement. However, after receiving the benefit of
the bargain for five months, Parents raised the issue of duress to avoid acceptance
of the Waiver Agreement in an attempt to raise due process claims for the period
covered by the Agreement.


             Here, the District asserts, it forwarded the Waiver Agreement to
Parents on November 6, 2015, and Parents executed it and returned it a week later
on November 13, 2015. The District further asserts Parents were represented by an
attorney during the time period leading up to their signing of the Waiver
Agreement.


             Nonetheless, Parents filed a series of amended complaints alleging the
District denied Student a FAPE.      As noted, Hearing Officer held a May 2016
hearing on the District’s motion to limit or dismiss Parents’ claims based on the



                                         9
Waiver Agreement. See N.T., 5/16/16, at 1-49; R.R. at 47a-59a. At this hearing,
Parents argued the District coerced them into signing the Waiver Agreement. At
the close of the hearing, Hearing Officer scheduled a second hearing on the Waiver
Agreement for June 3, 2016.


            At the June 3 hearing, Hearing Officer made the determination that
Parents’ evidence did not establish duress on the part of the District. N.T., 6/3/16
at 55-56; R.R. at 67a. Under Pennsylvania law, where a contracting party is free to
come and go and consult with counsel, there can be no duress without threats of
bodily harm. Three Rivers Motor Co. v. Ford Motor Co., 522 F.2d 885 (3d Cir.
1975) (citing Carrier v. William Penn Broad. Co., 233 A.2d 519 (Pa. 1967)).


            Citing Hearing Officer’s rationale, the District requests that this Court
uphold Hearing officer’s determination that Parents were not subject to distress
while executing the Waiver Agreement.


            In response, Parents contend the District harassed and coerced them
into signing the Waiver Agreement by threatening to change Student’s honor level
classes to lower level courses where he would be bullied based on his disability
unless they agreed to sign the waiver. In particular, Parents assert Supervisor
Dakes threated to significantly revise Student’s schedule the following Monday if
they did not sign the Waiver Agreement by November 13, 2015. As such, Parents
argue the record supports a claim of harassment, coercion and duress against the
District in threatening to remove Student from a school environment to which he
adjusted if they did not sign the Waiver Agreement.



                                        10
                                     2. Analysis
             To begin our analysis, we note that our appellate standard of review is
limited to whether the agency’s necessary findings were supported by substantial
evidence, whether the agency erred as a matter of law or violated a party’s
constitutional rights. E.N. v. M. Sch. Dist., 928 A.2d 453 (Pa. Cmwlth. 2007).
Substantial evidence is such relevant evidence that a reasonable mind might accept
as adequate to support a conclusion. Id.


             In the present case, Hearing Officer reasoned that duress is not
established in Pennsylvania by merely showing a promise under pressure. Hearing
Officer observed that where the contracting party is free to come and go and
consult with an attorney, there can be no duress absent a threat of physical force or
harm. N.T., 6/3/16 at 55; R.R. at 65a. We agree. Duress is defined as that degree
of restraint or danger, either actually inflicted or impending, which is sufficient in
severity or apprehension to overcome the mind of an individual of ordinary
firmness. Bata v. Central-Penn Nat’l Bank of Phila., 224 A.2d 174 (Pa. 1966);
Hamilton v. Hamilton, 591 A.2d 720 (Pa. Super. 1991).


             Student’s mother (Mother) testified at the May 2016 hearing that the
District coerced her and her husband, Student’s father, to sign the Waiver
Agreement because the District threatened them with emails indicating that if they
did not sign the Agreement by November 15, 2016, Student would be placed in
different classes the next Monday. See N.T., 5/16/16 at 14-15; R.R. at 51a. In
short, Mother testified that she and her husband signed the Waiver Agreement to




                                           11
prevent Student’s current schedule, which involved mostly honors classes, from
being disrupted. N.T., 5/16/16 at 15; R.R. at 51a.


             Based on our review of the record before the ODR, we discern no
error in Hearing Officer’s determination that Parents did not present sufficient
evidence of duress. Rather, the District agreed to consent to Parents’ demands that
Student remain in honors courses based on Parents’ agreement to waive any claims
against the District based on the results of their request.            Given these
circumstances, we reject Parents’ argument that they signed the Waiver Agreement
under duress. As Mother testified, she and her husband “thought it was best” to
continue with Student’s current roster, “and that’s why we signed it.”         N.T.,
5/16/16 at 20; R.R. at 52a.


             In addition, the parties do not dispute that Parents were represented by
counsel at the time they signed the Waiver Agreement. Although Parents may
have signed the Waiver Agreement reluctantly, Hearing Officer properly
determined Parents failed to establish they did so under duress. Carrier; Bata;
Hamilton.


                   B. Authority to Enforce Waiver Agreement
                                    1. Argument
             The District’s primary contention in this matter is that Hearing Officer
should have the authority under Pennsylvania law to enforce settlement agreements
at special education due process hearings. The District asserts Pennsylvania case
law continues to sidestep this crucial issue.



                                          12
            The District’s argument is as follows. Hearing officers are vested
with statutory authority under the IDEA and its regulations to determine if a school
district failed to provide a student with a FAPE. 20 U.S.C. §1415(f)(3)(E)(i). A
FAPE involves the identification, evaluation, and placement of a handicapped
student. See 20 U.S.C. §1415(b)(3); 300 C.F.R. §300.503(a)(1),(2).


            A line of fairly recent Pennsylvania federal court cases involving the
issue of whether a hearing officer has the authority to enforce a settlement
agreement began with Lyons v. Lower Merion School District, No. CIV-A 09-
5576 (E.D. Pa., filed December 14, 2010), 2010 WL 8913276. In Lyons, an
unreported case, the Eastern District, speaking through Judge Legrome D. Davis,
stated:

            Whether a [h]earing [o]fficer has jurisdiction to enforce
            resolution agreements appears to be an open question in
            this circuit. The argument against jurisdiction finds
            support in two regulatory provisions:            34 C.F.R.
            §300.506(b)(7) and §300.510(d)(2). The first provides
            that ‘[a] written, signed mediation agreement under this
            paragraph is enforceable in any State court of competent
            jurisdiction or in a district court of the United States’ [;]
            the second notes the same for resolution agreements.
            Thus, the argument goes, a hearing officer does not have
            jurisdiction to enforce resolution and mediation
            agreements because they may be enforced in state and
            federal courts, and thus must be. Notably, neither of
            these provisions precludes a hearing officer from
            reviewing a settlement agreement’s terms; at most, they
            prevent the hearing officer from enforcing the agreement.

Lyons, slip op. at ___, 2010 WL 8913276 at *3 (emphasis added). Notably, the
Lyons Court did not actually decide the issue of whether a hearing officer has the



                                         13
authority to enforce settlement agreements. Rather, the Court determined that the
resolution agreement in that case did not bar the plaintiff’s complaint.


             In a later unreported federal case, I.K. ex rel. B.K. v. School District
of Haverford Township, No. CIV-A 10-4397 (E.D. Pa., filed March 21, 2011),
2011 WL 1042311, the Eastern District, speaking through Judge Stewart Dalzell,
noted the dicta in Lyons and recognized that the issue of whether a hearing officer
has jurisdiction to enforce resolution agreements under the IDEA is still an open
issue in the Third Circuit. However, Judge Dalzell similarly decided in I.K. not to
address this issue. Nonetheless, Judge Dalzell, citing federal decisions from other
states, reasoned that it is within the jurisdiction of a hearing officer to determine
whether a settlement agreement exists.        See I.K., slip op. at ___, 2011 WL
1042311 at *5.


             Thereafter, in J.K. v. Council Rock School District, 833 F.Supp.2d
436 (E.D. Pa. 2011), Judge Dalzell finally held that a hearing officer lacks
jurisdiction under the IDEA to enforce a settlement agreement. In particular,
Judge Dalzell stated (with emphasis by underline added):

             For many of the reasons Lyons and [H.C. v. Colton-
             Pierrepont Central School District, 341 F. Appx. 687,
             689 (2d Cir. 2009)] enunciate, we agree that a hearing
             officer lacks jurisdiction to enforce a settlement
             agreement. In the first place, Congress in the statute
             created a particular procedure for enforcing settlement
             agreements arising out of mediation and resolution
             processes under the IDEA by making such agreements
             ‘enforceable in any State court of competent jurisdiction
             or in a district court of the United States.’ 20 U.S.C. §§
             1415(e)(2)(F)(iii), 1415(f)(1)(B)(iii)(II). As Judge Davis
             has noted, it is a ‘well-settled principle that “if there

                                         14
exists a special statutory review procedure, it is ordinarily
supposed that Congress intended that procedure to be the
exclusive means of obtaining judicial review in those
cases to which it applies.”’ Lyons, slip op. at 6–7
(quoting Comp. Dep't of Dist. Five v. Marshall, 667 F.2d
336, 340 (3d Cir.1981)). Secondly, regulations
implementing the IDEA permit enforcement of
settlement agreements ‘in any State court of competent
jurisdiction or in a district court of the United States, or,
by the SEA [state educational agency], if the State has
other mechanisms or procedures that permit parties to
seek enforcement of resolution agreements.’ 34 C.F.R. §
300.510(d)(2); see also § 300.537 (‘Notwithstanding §§
300.506(b)(7) and 300.510(d)(2), which provide for
judicial enforcement of a written agreement reached as a
result of mediation or a resolution meeting, there is
nothing in this part that would prevent the SEA from
using other mechanisms to seek enforcement of that
agreement.’). This authorization suggests by its terms
that in the absence of ‘other mechanisms or procedures’
implemented by a state, the exclusive means for
enforcing a settlement agreement under the IDEA is ‘in
any State court of competent jurisdiction or in a district
court of the United States.’ Neither party has suggested
that Pennsylvania has adopted or implemented any such
‘other mechanisms or procedures.’

Third, Congress has specifically identified the task that
hearing officers should undertake under the IDEA,
explaining that ‘[s]ubject to clause (ii) [relating to
procedural violations of the IDEA], a decision made by a
hearing officer shall be made on substantive grounds
based on a determination of whether the child received a
free appropriate public education.’ 20 U.S.C. §
1415(f)(3)(E)(i). Enforcement of a settlement agreement
may determine if parents have waived certain rights
under the IDEA, or whether an LEA [local education
agency] has contracted to provide certain benefits above
those that the IDEA requires, but it is not related to the
fundamental question of whether a ‘child received a free
appropriate public education.’ Enforcing a settlement
agreement thus appears to exceed the authority that the
IDEA confers upon a hearing officer.

                             15
            Finally, as the Second Circuit noted in [H.C.] (internal
            quotation marks, citations, and brackets omitted),
            ‘resolution of the dispute [relating to enforcement of a
            settlement agreement] will not benefit from the discretion
            and educational expertise of state and local agencies, or
            the full exploration of technical educational issues related
            to the administration of the IDEA.’ The Supreme Court
            has noted that ‘courts lack the specialized knowledge and
            experience necessary to resolve persistent and difficult
            questions of educational policy,’ [Board of Education of
            the Henrick Hudson Central School District, Westchester
            County v. Rowley, 458 U.S. 176, 208 (internal quotation
            marks and citations omitted), so accordingly we should
            defer to state proceedings regarding these questions. The
            converse would appear to be true with respect to
            questions of contract interpretation and enforcement, as
            to which courts have ‘specialized knowledge and
            experience’ and hearing officers do not institutionally
            have any particular expertise.

            Judge Davis correctly observed that ‘state educational
            agencies seem to consistently enforce settlement
            agreements in school districts' favors to preclude parents
            from bringing particular due process complaints, without
            undertaking analyses of their own jurisdiction.’ Lyons,
            slip op. at 7. The fact that these agencies enforce
            settlement agreements does not mean that the IDEA
            authorizes them to do so. The IDEA's language and the
            purposes justifying due process hearings suggest that
            hearing officers lack jurisdiction to enforce settlement
            agreements—even those produced through mediation and
            resolution meetings—though, to be sure, they may
            acknowledge the existence of such agreements and
            consider them in determining whether a child has
            received a free and appropriate public education.

            We therefore conclude that Hearing Officer Culleton did
            not err in declining to enforce the parties' settlement
            agreement.

J.K., 833 F.Supp.2d at 448-49 (footnotes omitted).


                                        16
             Nonetheless, the District asserts Judge Dalzell’s decision in J.K. is
nonbinding on this Court, which has not previously rendered a decision under
Pennsylvania law regarding a hearing officer’s authority over enforcement of a
settlement agreement.      In A.S. and R.S. v. Office for Dispute Resolution
(Quakertown Community School District), 88 A.3d 256, 263 (Pa. Cmwlth. 2014),
this Court noted that there is no provision in the IDEA, or the Pennsylvania
regulations implementing the IDEA, which directly addresses a hearing officer’s
authority to determine whether a valid settlement agreement exists between the
parties.   However, consistent with Judge Dalzell’s unreported district court
decision in I.K., this Court determined that hearing officers have the authority
under the IDEA to determine whether a valid settlement agreement exists, thereby
establishing appellate subject matter jurisdiction over that issue. In A.S. this Court
was not asked to enforce a settlement agreement. A.S., 88 A.3d at 263 n.9.


             Similar to the situation in A.S., the District asserts there is no explicit
statutory prohibition on hearing officers’ authority to enforce settlement
agreements. Therefore, given the observations and conclusions in A.S. that hearing
officers have expertise in understanding educational terms within a settlement
agreement, and that they are able to determine whether a valid settlement
agreement exists, it is logical for the Court to determine hearing officers have the
authority to not only interpret, but enforce, settlement agreements made through
the dispute resolution mechanisms of the IDEA. Consequently, the District urges
this Court to hold that Hearing Officer has the authority to enforce the Waiver
Agreement in the present case. A.S.




                                          17
                                    2. Analysis
             Initially, we recognize that we are not bound to follow the decisions
of federal district and intermediate appellate courts on issues of federal law. Minor
v. Kraynak, 155 A.3d 114 (Pa. Cmwlth. 2017); Brown v. Pa. Dep’t of Corr., 932
A.2d 316 (Pa. Cmwlth. 2007) (citing Hall v. Pa. Bd. of Prob. & Parole, 851 A.2d
859 (Pa. 2004)). However, although decisions of the federal courts lower than the
U.S. Supreme Court are not binding on Pennsylvania courts, they may be
considered as persuasive authority with regard to federal questions. Chiropractic
Nutritional Assocs., Inc. v. Empire Blue Cross & Blue Shield, 669 A.2d 975 (Pa.
Super. 1995). Thus, when possible, it is appropriate for a Pennsylvania appellate
court to follow the Third Circuit’s ruling on federal questions to which the U.S.
Supreme Court has not yet provided a definitive answer. Id.


             In J.K., Judge Dalzell squarely addressed the issue of whether a
hearing officer has jurisdiction to enforce settlement agreements made under the
IDEA. In concluding a hearing officer lacks jurisdiction to enforce a settlement
agreement, Judge Dalzell noted that Congress created a specific procedure for
enforcing settlement agreements arising out of mediation and resolution processes
under the IDEA by making such written agreements enforceable in “any State
court of competent jurisdiction or in a district court of the United States.” 20
U.S.C. §1415(e)(2)(F)(iii); 20 U.S.C. §1415(f)(1)(B)(iii) (emphasis by underline
added).   Where a special statutory review procedure exists, “it is ordinarily
supposed that Congress intended that procedure to be the exclusive means of
obtaining judicial review in those cases to which it applies.” J.K., 833 F.Supp.2d
at 448 (citation omitted).



                                         18
            Judge Dalzell further observed in J.K. that regulations implementing
the IDEA permit enforcement of settlement agreements by a state enforcement
agency if the state has other mechanisms or procedures that permit parties to seek
enforcement of resolution agreements.        See 34 C.F.R. §300.510(d)(2) and
§300.537. However, the Court noted Pennsylvania has not implemented such
“other mechanisms or procedures” for enforcing settlement agreements. J.K., 833
F.Supp.2d at 448.


            As an additional reason for holding a hearing officer lacks jurisdiction
to enforce a settlement agreement, Judge Dalzell noted that the IDEA tasks a
hearing officer with making substantive determinations related to whether a child
received a FAPE. See 20 U.S.C. §14215(f)(3)(i). However, the Judge reasoned,
the enforcement of settlement agreements, an area of law unrelated to the
fundamental question of whether a child received a FAPE, exceeds the authority
the IDEA confers on a hearing officer. To that end, Judge Dalzell further noted
that while hearing officers, who are not required to be attorneys, have the
specialized knowledge to resolve difficult questions of educational policy, they
may not have any particular expertise in matters of contract interpretation and
enforcement.


            Further, in our decision in A.S., wherein we held that a hearing officer
had the authority under the IDEA to determine whether a valid settlement
agreement existed, we noted: “If a resolution is reached to resolve a due process
complaint prior to the hearing, the parties are statutorily required to execute a
legally binding settlement agreement that is enforceable in any State court of



                                        19
competent jurisdiction or in a United States District Court.               20 U.S.C.
§1415(f)(1)(B)(iii).” A.S., 88 A.3d at 264 (emphasis added).


             We sympathize with the District’s public policy argument that it may
be unfair or cost prohibitive to require either families or financially distressed
school districts to go to court to enforce a contractual agreement that could be
enforced by hearing officers in an expedited fashion.         Nonetheless, we must
acknowledge that the IDEA specifically provides for the enforcement of settlement
agreements in “any State court of competent jurisdiction or in a district court of the
United States.”     20 U.S.C. §1415(e)(2)(F)(iii); 20 U.S.C. §1415(f)(1)(B)(iii)
(emphasis added).


             However, we also recognize that the IDEA’s regulations governing
state enforcement mechanisms provide:

             there is nothing in this part that would prevent the [state
             educational agency] from using other mechanisms to
             seek enforcement of a [written settlement agreement],
             provided that use of those mechanisms is not mandatory
             and does not delay or deny a party the right to seek
             enforcement of the written agreement in a State court of
             competent jurisdiction or in a district court of the United
             States.

34 C.F.R. §300.537. Unfortunately, as Judge Dalzell noted in J.K., no such other
mechanisms exist in Pennsylvania. Nevertheless, in accord with this regulation, it
appears that the Pennsylvania Board of Education may provide such mechanisms
for parties who do not wish to have their agreement enforced by state or federal
courts. Regardless, absent such alternative mechanisms, neither the IDEA nor its



                                         20
regulations authorize a hearing officer to enforce settlement agreements. J.K.
Therefore, we will not attempt to judicially alter the terms of the IDEA or its
regulations by extending the authority of the hearing officer beyond that
specifically granted by Congress.


                              IV. Further Proceedings
             For the above reasons, Hearing Officer’s order denying the District’s
motion to enforce the Waiver Agreement is affirmed.


             Going forward, we consider how to resolve the outstanding request
for injunctive and declaratory relief. Technically speaking, the outstanding request
is not in this Court’s original jurisdiction; rather, enforcement actions dealing with
matters from Commonwealth agencies, like the ODR, are considered to be
ancillary to our appellate jurisdiction.         Uniontown Newspapers, Inc. v.
Pennsylvania Dep’t of Corr., 151 A.3d 1196, 1202-03 (Pa. Cmwlth. 2016); see
Dep’t of Envtl. Prot. v. Cromwell Twp., Huntingdon Cnty., 32 A.3d 639 (Pa. 2011)
(“enforcement proceedings lie in … appellate jurisdiction; they are not appealable as
of right under 42 Pa. C.S. §723(a)”); Pa. Human Relations Comm’n v. Scranton Sch.
Dist., 507 A.2d 369 (Pa. 1986). This distinction is important in determining the
availability of further appeals as of right.


             As discussed in A.S., a hearing officer under the IDEA has authority
to determine whether a valid settlement agreement exists between the parties.
A.S., 88 A.3d at 263-64.        We view the Hearing Officer’s decision here as
determining that a valid settlement agreement exists. This is because the Hearing



                                           21
Officer rejected the Parents’ only argument regarding invalidity of the Waiver
Agreement.


             As also discussed in A.S., the parties must first exhaust administrative
remedies before seeking judicial relief. This requirement allows the educational
agency, which presumably has considerably greater expertise in the field of
education than does the court, to attempt to resolve the complaint in the first
instance.   Id. at 264.   Also, it allows the family to play a role in designing
appropriate accommodations. Id. Further, and of particular significance here, it
prevents the unnecessary duplication of judicial review by allowing the
administrative agency to develop the factual record prior to review by a court. Id.
Thereafter, a party who is aggrieved by a hearing officer’s decision may appeal to
a court of competent jurisdiction. Id at 265. “To decide otherwise would result in
piecemeal litigation resulting in an undue delay in providing an eligible student
with a free appropriate public education as mandated by the IDEA.” Id. at 265
n.13.


             Unfortunately, this case illustrates the problems of piecemeal
litigation and unnecessary delay in resolving questions about a FAPE for Student
for the 2015-2016 school year. The District’s appeal/declaratory judgment action
essentially bifurcated the existing disputes. Parents’ concerns about that school
year have not been resolved, and this Court does not have a factual record about
those issues to review. Accordingly, we decline to exercise ancillary jurisdiction at
this time. Instead, we dissolve injunctions and stays, and we remand the matter to
the ODR for appointment of a hearing officer to address Parents’ complaints about



                                         22
the 2015-2016 school year, to create a record, and to decide how, if at all, the
Waiver Agreement impacts the Parents’ complaints. Id. at 263 n.9 (quoting J.K.,
833 F.Supp.2d at 449) (“[H]earing officers ‘may acknowledge the existence of
[settlement] agreements and consider them in determining whether a child has
received a free and appropriate public education.’”) Thus, a hearing officer could
decide that in light of all the circumstances, including the Waiver Agreement, the
education provided to Student during the 2015-2016 school year met the
requirements of the IDEA. Conversely, a hearing officer could decide that despite
the Waiver Agreement, other arrangements for Student were required by the law.
Once a hearing officer has resolved all outstanding issues, an aggrieved party may
appeal to this Court. As part of an appeal, a party may seek enforcement from this
Court.




                                     ROBERT SIMPSON, Judge




                                       23
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

West Chester Area School District,          :
                       Petitioner           :
                                            :
            v.                              :   No. 383 M.D. 2016
                                            :
A. M. and K. M., individually and           :
as parents and natural guardians            :   SEALED CASE
of C. M. and Charles Jelley,                :
Hearing Officer, Pennsylvania               :
Office of Dispute Resolution,               :
                          Respondents       :


                                     ORDER

            AND NOW, this 19th day of June, 2017, for the reasons stated in the
foregoing opinion, the June 22, 2016 order of Pennsylvania Office of Dispute
Resolution Hearing Officer Charles Jelley, denying Petitioner West Chester Area
School District’s Motion to Enforce the Waiver Agreement, is AFFIRMED and
the matter is REMANDED to the Pennsylvania Office of Dispute Resolution for
further proceedings consistent with the foregoing opinion. Further, Petitioner’s
declaratory judgment action is DISMISSED without prejudice; all injunctions
and stays are DISSOLVED.


            Jurisdiction is relinquished.




                                        ROBERT SIMPSON, Judge
