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MCKENZIE v. JEFFERSON

April 11, 1983

Floretta McKENZIE, Plaintiff,
v.
Alexandra JEFFERSON, et al., Defendants



The opinion of the court was delivered by: PENN

 The plaintiff, *fn1" in this action filed pursuant to the Education for All Handicapped Children Act (EAHCA), 20 U.S.C. § 1401 et seq., seeks to vacate and set aside a Determination of a Hearing Officer entered on July 18, 1982, finding that the District of Columbia Public Schools (DCPS) placement at the Lodge School, the on-grounds day school at Chestnut Lodge, a private psychiatric hospital in Rockville, Maryland, was inappropriate.

 The sole issue is whether DCPS was and is required to fund only the day program for Alexandra Jefferson at Chestnut Lodge, or whether DCPS is required to fund both the educational program at the Lodge School and Alexandra's hospitalization at Chestnut Lodge. Defendants contend that DCPS must fund both, while plaintiff contends that DCPS is not responsible for the residential placement at Chestnut Lodge.

 This case was filed on July 23, 1982. A related case, Intrator v. District of Columbia Board of Education, Civil No. 82-1204, was filed on April 30, 1982. Although the defendants were not originally party plaintiffs in that case, the Intrator plaintiffs moved to amend their complaint on May 13, 1982 to include the Jeffersons. That motion was granted on May 27, 1982. See Intrator Memorandum Order filed May 27, 1982. While that case is not consolidated with this case, by agreement of counsel, the trial in each was heard on the same day. *fn2"

 I

 The facts relating to Alexandra Jefferson are as follows: She was born in Washington, D.C. on April 5, 1967, the third and youngest child in the Jefferson family. She and her family lived in Washington until 1978 when her father accepted a three-year assignment in Rome, Italy. Up to this time she had been well adjusted, sociable and an excellent student. However, in mid-1979, shortly after the family's arrival in Rome, she had feelings of grandiosity, depersonalization, and hallucinations of being Jesus. The symptoms subsided without intervention, but in the fall of 1979, she began to experience severe nightmares. At this time she was seen by her pediatrician for severe pain with no organic basis. In September 1981 she became severely depressed and withdrawn and at times believed she was the devil and at other times believed she was Jesus. Since she was evidencing psychotic behavior, she was hospitalized in Naples, Italy. She was thereafter transferred from the hospital in Naples by Medivac plane and placed in the Psychiatric Institute in Washington, D.C. Shortly thereafter, the family, feeling that she required a different type of setting, placed her at Chestnut Lodge in Rockville on October 8, 1981, where she remained as a full time resident until October 1, 1982. Jenny Jefferson Affidavit para. 4.

 Mrs. Jefferson went to Francis Junior High School on October 15, 1981 and re-enrolled Alexandra in DCPS. She filled out a Form 205, requesting a special education placement, and specifically requested that Alexandra be placed at Chestnut Lodge. Approximately four months later, she was requested to attend an Individualized Education Program (IEP) meeting at the Logan Child Center in the District of Columbia. During this time, Alexandra was neither seen nor evaluated by DCPS representatives. The IEP meeting was held on February 2, 1982. Mrs. Jefferson did not have another opportunity to meet with DCPS representatives until March 24, 1982. When no further action was taken by DCPS, the Jeffersons requested a due process hearing which was held on April 28, 1982.

 On May 11, 1982, the Hearing Officer submitted his Determination in which he found that Alexandra is a seriously emotionally disturbed child whose request for a special education program and placement submitted in October 1981 had not been acted on by DCPS. The Hearing Officer found that there had been a denial of placement and directed DCPS to make a placement recommendation no later than May 4, 1982. On May 4, the Residential Review Committee decided to place Alexandra at St. Elizabeth's Hospital. See Clark Letter dated May 4, 1982. Her parents were to present her on May 7, 1982, but the letter failed to state any reasons for the proposed placement. It appears that no one at DCPS had bothered to check with officials at St. Elizabeth's Hospital to determine whether this would be an appropriate placement for the child, and, in fact, when a committee representative finally contacted the hospital, she was advised that there was no program for Alexandra.

 The issue raised at the May 1982 due process hearing, although stated to be whether placement in the day program at Chestnut Lodge was appropriate, was really whether DCPS should be required to fund Alexandra in the residential program at Chestnut Lodge. The school at Chestnut Lodge is the same, whether the placement be a day program or a residential program; the issue then is payment for the residential portion of the program. The question was and is whether, the residential placement in the hospital of Chestnut Lodge must be funded as a related service. See 20 U.S.C. § 1401(16), 34 C.F.R. § 300.13 (1982). The Hearing Officer determined that a day placement at Chestnut Lodge was inappropriate and that "a residential setting -- room and board is an essential component to her program." He did not direct that Alexandra be placed at Chestnut Lodge; rather, he directed DCPS to submit a proposed placement in 20 days and ruled that "until such time [DCPS] shall bear the financial responsibility for [Alexandra's] placement at Chestnut Lodge." June 18, 1982 Determination at 7. It is this determination which the plaintiff now appeals.

 The burden of proof in this case is on the plaintiff and DCPS, and the same holds true in the related case of Intrator. Clearly, the plaintiff, in attempting to vacate the decision of the hearing officer has the burden of establishing by a preponderance of the evidence that the Hearing Officer's determination should be set aside and that a day placement at the Lodge School was appropriate. 20 U.S.C. § 1416(e)(2). The burden is not changed in Intrator merely because the Jeffersons brought the case as plaintiffs to force DCPS to comply with the Determination of the Hearing Officer.

 II

 DCPS argues that it is only required under the EAHCA to fund Alexandra's placement at the Chestnut Lodge School, hereinafter referred to as the Lodge School. The annual cost for the school, excluding related services, amounts to approximately $13,000. DCPS notes in making this concession that Alexandra requires special education and that DCPS is required to furnish that education in a classroom, where possible, and if not possible, in a home, a hospital or an institution. See 20 U.S.C. § 1401(16). DCPS contends that when Alexandra was placed in the Chestnut Lodge Hospital due to her mental illness, its sole responsibility was to make arrangements to continue her special education. Here, the task was easy since the Lodge School is on the grounds of Chestnut Lodge, and is a special education school.

 Indeed, the Lodge School "serves those students whose primary handicap is considered 'emotionally handicapped' and those students who are considered 'learning disabled.'" See Lodge School letter dated January 25, 1982 and attachments thereto. DCPS also concedes that while Alexandra is a student at the Lodge School, it is required to furnish any necessary related services, as that term is defined in the statute and the regulations. This includes transportation and such medical services as are for diagnostic and evaluation purposes only. See 20 U.S.C. § 1401(17).

 Alexandra was enrolled in the Lodge School in October 1981 and remains in the school. There has been a change in her residential placement however, since, although she resided at the Chestnut Lodge Hospital from October 1981 until October 1982, she now resides at home with her parents while attending the Lodge School. This change was made without notification to DCPS and without its consent, and without any determination by a Hearing Officer or order from the Court. While Alexandra was residing at Chestnut Lodge, the charges amounted to $209.00 per day in addition to the cost of tuition. Although she now resides at home, she still receives treatment at the hospital component of Chestnut Lodge for which DCPS is billed $82.50 per day. DCPS argues that it should not be financially responsible for either the $209.00 per day while Alexandra was an inpatient at the hospital, or the $82.50 per day now that she is on outpatient services. The school system contends that these are not related services.

 Thus, the sole issue is whether DCPS should be required to pay the inpatient and outpatient hospitalization expenses of Alexandra. Although the Jeffersons had paid a portion of those expenses, they state that they have exhausted most of their private funds and insurance funds. If such funds are exhausted, it will become necessary to remove Alexandra from the hospital component of Chestnut Lodge and perhaps place her in a public facility. The record is unclear as to whether there is a public facility available. The attempt of DCPS to place Alexandra at St. Elizabeth's hospital was obviously not carefully considered by DCPS and it is unknown to the Court whether the hospital would be able to furnish either inpatient or outpatient treatment for Alexandra. With respect to solely outpatient treatment, the Court assumes that Alexandra can be referred to any one of several public mental health clinics in the District of Columbia, but again, this apparently has not been explored by DCPS. In fact, while DCPS complains about the unilateral decision by Alexandra's parents to remove her from Chestnut Lodge Hospital and place ...


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