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NORTH v. DISTRICT OF COLUMBIA BD. OF EDUC.

April 10, 1979

Ty Wesley NORTH et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA BOARD OF EDUCATION et al., Defendants



The opinion of the court was delivered by: GREENE

MEMORANDUM AND ORDER

Plaintiff Ty Wesley North *fn1" is a multiply handicapped sixteen-year old boy who is diagnosed as being epileptic with grand mal, petit mal, and drop seizures, emotionally disturbed, and learning disabled. On November 30, 1977, an evaluation and assessment of the plaintiff for purposes of determining an appropriate educational placement for him was conducted pursuant to federal and District of Columbia law by a placement committee of the Sharpe Health School functioning under the auspices of the defendants. At that time the committee recommended that the appropriate placement would be a residential treatment facility which would provide medical supervision, special education, and psychological support. *fn2" However, defendants took no steps to arrange such a placement for plaintiff until ordered to do so three months later, on February 23, 1978, by a hearing officer, sitting pursuant to the requirements of Mills v. Board of Education of D.C., 348 F. Supp. 866 (D.D.C.1972). Ruling that the plaintiff was being denied an appropriate educational placement because of the failure of defendants to act, the hearing officer ordered them to provide a placement that was consistent with their own recommendations and reports. In April, 1978, plaintiff began school at the Elwyn Institute in Pennsylvania, a private residential treatment facility which contracts with defendants to provide special education to District of Columbia children sent there.

 Problems with this placement began to develop in June of that year. Ty North was not cooperating with the staff or the students and, additionally, he was experiencing difficulties with taking his necessary medication. Early in December, his parents were notified by the Elwyn Institute that he was to be discharged because the school could no longer deal with his emotional and other problems. Counsel for plaintiffs thereupon requested that defendants provide Ty with an emergency residential placement because his parents, too, were unable to cope with his medical and emotional problems. However, defendants, for various reasons, effected no alternate placement. *fn3"

 On December 21, officials of Elwyn attempted to leave Ty with his parents, but when the Norths refused to accept him, he was returned to Elwyn. A second attempt to deliver Ty to his parents was initiated on January 8, 1979. This time, after yet another refusal by his parents, Ty was left at an office of the Department of Human Resources from where he was taken to the Area C Mental Health Unit at D.C. General Hospital.

 On January 11, plaintiff and his parents initiated this action seeking declaratory and injunctive relief under the Education For All Handicapped Children Act, 20 U.S.C. § 1401 et seq.; the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.; the decision of Judge Waddy in Mills supra ; the Rules of the D.C. Board of Education, D.C. Register, Oct. 7, 1977, § 457, p. 2815-17; and the Fifth Amendment to the U.S. Constitution. Plaintiffs' request for a temporary restraining order was denied on January 15, 1979, on account of their failure to demonstrate irreparable injury. Plaintiff had by that time been moved to the Dominion Psychiatric Treatment Center in Falls Church, Virginia, a residential treatment facility offering therapy and education as well as attention to plaintiff's medical problems, and he was therefore not in immediate jeopardy. By order of Judge Joseph M. F. Ryan, Jr., of the D.C. Superior Court, sitting in the Juvenile Branch, plaintiff will remain at Dominion pending the outcome of a neglect action initiated by the Corporation Counsel in that Branch after the action here had been filed. The neglect proceeding has been postponed several times, apparently by agreement of the parties, to await the outcome of this suit, and it is presently set to be heard late in April.

 I

 The issue in this Court is whether plaintiff needs to be placed in a residential facility and, if so, whether the D.C. Board of Education is responsible for providing that placement. None of the evidence in this case indicates, and indeed none of the parties asserts, that plaintiff does not need a residential placement. All of his psychological evaluations, as well as the determination made by the Board's hearing examiner, demonstrate that plaintiff has severe emotional and educational problems which can appropriately be dealt with only by intensive treatment in a residential setting.

 The defendants contend, however, that while plaintiff's Emotional difficulties demand this residential treatment, his Educational needs can be met by attendance at the Powell Annex, a special education day program. They argue further that plaintiff's emotional well-being is the responsibility of the D.C. Department of Human Resources and that they, the Board of Education, can adequately discharge their duty to provide for his education by a less restrictive placement, *fn4" that is, by a day program. Therefore, defendants suggest, the appropriate procedure to meet plaintiff's admitted need for residential care is to pursue the neglect action initiated by the Corporation Counsel in the Superior Court, adjudicate his parents as neglectful, and place Ty in the custody of the Department of Human Resources.

 It is clear that under federal law defendants bear the responsibility for providing plaintiff with residential placement where such placement is appropriate. The Education for All Handicapped Children Act, specifically 20 U.S.C. § 1412(6), vests them with responsibility for administering all educational programs for handicapped children within their jurisdiction, and the regulations, 45 C.F.R. 121a.302, specify that when residential care is required, it must be at no cost to the parents. Defendants' obligations in that regard are also codified in the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the regulations promulgated thereunder, 45 C.F.R. 84 et seq., which provide many of the same substantive and procedural rights as are found in the Education for All Handicapped Children Act. Once again, defendants' responsibility for providing residential placement is clear, for section 84.33(c)(3) of 45 C.F.R. provides that

 
If placement in a public or private residential program is necessary to provide a free and appropriate public education to a handicapped person because of his or her handicap, the program, including non-medical care and room and board, shall be provided at no cost to the person or his or her parents or guardian.

 See also, and especially the comment to 45 C.F.R. 121a.600, the regulation which implements section 1412(6), which states

 
This provision is included specifically to assure a single line of responsibility with regard to the education of handicapped children, and to assure that in the implementation of all provisions of this Act and in carrying out the right to education for handicapped children, the State educational agency shall be the responsible agency * * *
 
Without this requirement, there is an abdication of responsibility for the education of handicapped children. Presently, in many States, responsibility is divided, depending upon the age of the handicapped child, sources of funding, and type of services delivered. While the Committee understands that different agencies may, in fact, deliver services, the responsibility must remain in a central agency overseeing the education of handicapped children, so that failure to deliver services or the violation of the rights of handicapped children is squarely the responsibility of one agency.

 These statutory and regulatory provisions, coupled with Judge Waddy's order to the D.C. Board of Education in Mills that no child shall be excluded from a regular public school assignment unless such child is provided "adequate alternative educational services suited to the child's needs, which may include special education or tuition grants," 348 F. Supp. at 878, clearly place responsibility for providing residential ...


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