must be placed and funded by DCPS at Ivymount.
The EHA entitles eligible handicapped children to receive a "free appropriate public education." 20 U.S.C. § 1412. A free appropriate public education is defined as "educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child 'to benefit' from the instruction." Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 188-89, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982). Although the EHA does not prescribe the level of education to be provided to the handicapped child and the state need not provide the "best possible" appropriate education, the education must nonetheless be appropriate for the child and conform to the child's IEP.
20 U.S.C. § 1401(18).
After carefully reviewing the parties' extensive briefs, the evidence presented at the three and one-half day trial, including testimony from both parties' expert witnesses, and the parties' supplemental arguments, and giving "due weight" to the administrative record and expertise of the school officials responsible for Sarah's education, Rowley, 458 U.S. at 206, the Court concludes that it is beyond doubt and fully substantiated by far more than the preponderance of evidence
that Lafayette was not an appropriate placement for Sarah Kattan for the 1987-88 school year because DCPS did not provide the minor plaintiff with an integrated OT program at Lafayette, which was necessary to conform to her IEP and to permit Sarah to benefit from her special education program.
For similar reasons, it continues to be an inappropriate placement for this child for the imminent school year, 1988-89.
The crucial contested issue regarding the appropriateness of Lafayette for Sarah is whether that program could fulfill the OT requirements of her IEP. Defendants claim that although DCPS did not offer an appropriate integrated program at Lafayette for the 1987-88 school year, DCPS could have and would have established such a program had Sarah enrolled at Lafayette in December 1987 or in February 1988 after the administrative hearing.
In essence, defendants argue that DCPS had the necessary OT equipment, available occupational therapists, and an adequate teacher at Lafayette to fulfill Sarah's IEP requirements.
Defendants presented the testimony of Nancy Milner, former Director of Itinerant Occupational/Physical Therapy Services for the District of Columbia Department of Human Services ("DHS") to support DCPS's contention that OT equipment was available in the Fall of 1987 to administer classroom OT to Sarah at Lafayette.
Defendants also assert that occupational therapists were available to treat Sarah in December 1987. Joy Wills, Acting Coordinator for the Physical and Occupational Therapy Section of Handicapped Children's Services of DHS, testified that as of October 6, 1987, only three personal service contractors provided OT to all eligible students enrolled in DCPS schools outside the Sharpe Health School ("Sharpe") and that six to seven private providers administered OT to DCPS students during the 1987-88 school term.
Further, DCPS claims that Milner offered a contract to Valerie Dejean, Sarah's current occupational therapist, to furnish OT to Sarah in February 1988. Finally, defendants argue that Sarah's proposed Lafayette teacher, Angela Chestnut, was capable of integrating OT into Sarah's classroom program even though she lacked sensory integration training.
The Court finds defendants' assertions of their ability to provide Sarah OT unsupported by the evidence. Plaintiffs have successfully demonstrated by a preponderance of the evidence that despite its claimed intentions, DCPS could not and would not have provided the minor plaintiff with an appropriate integrated program at Lafayette for the 1987-88 school year. Because DCPS has delegated to DHS its statutory responsibility to provide and pay for OT for DCPS students whose IEPs require OT, DCPS is completely incapable of providing OT to Sarah at Lafayette.
Contrary to defendants' claim, DHS was also unprepared to provide the appropriate OT for Sarah at Lafayette during the 1987-88 school year. DHS's severe financial constraints in the early fall of 1987 created significant contracting problems for their personal service contractors and private providers of OT from October 1987 to February 1988.
Additionally, and due to liability insurance considerations, DHS consistently maintained a policy of prohibiting private providers from administering OT to DCPS pre-school students at DCPS schools, even though the IEPs of many students like Sarah required integrated OT services.
Despite Milner's and Pinkett's expectations and efforts to establish an integrated OT program at Lafayette, Milner testified that neither DCPS nor DHS has ever realized such a program, either before, during the relevant time of October 1987 to February 1988, or at present.
Indeed, Milner further testified that she was not certain that this type of program would have been established for Sarah Kattan had she in fact enrolled at Lafayette.
Even if DCPS had successfully set up an integrated program, the existence of lengthy waitlists of DCPS students needing and not receiving OT,
the complete lack of funding for this service,
and the fact that DHS had only authorized an OT "evaluation" for the minor plaintiff and not the therapy itself,
convinces the Court that only sheer speculation would produce a belief that Sarah would have received such a program at Lafayette during the 1987-88 school year. Furthermore, plaintiffs' expert witness, Patricia Lemer, an educational diagnostician, testified that the teacher at Lafayette lacked the appropriate training in sensory integration dysfunction, Sarah's primary handicapping condition, necessary to integrate Sarah's OT into the classroom at Lafayette.
Finally, contrary to defendants' suggestion, the record clearly demonstrates that DCPS did not have a concrete agreement with Dejean. Both Milner and Dejean testified that a contract was never reached on Dejean's employment by DHS to provide OT to Sarah at Lafayette.
Even if such a contract did in fact exist, DCPS offered Sarah only one and one-half hours of OT a week (in 45-minute sessions two times a week), while her IEP requires two hours of OT a week (in 30-minute sessions four times a week).
In light of the above factors, the Court concludes that DCPS's response to Sarah's IEP requirements was inadequate and that DCPS's proposed placement at Lafayette for the 1987-88 school year was inappropriate.
The record demonstrates that DCPS was incapable not only in December 1987 but also through February 1988 of providing an appropriate integrated OT program for Sarah at Lafayette.
Finding that Lafayette is not an appropriate educational placement for Sarah, the Court next considers evidence concerning alternative placement for this minor for the 1988-89 school year. It is evident that DCPS continues to be unprepared to provide Sarah with the type of integrated OT mandated by her IEP. DCPS's failure to provide OT services to Sarah, as well as other handicapped children in the District of Columbia who have required such services, is systemic and the result of apparently irreconcilable bureaucratic disarray, continuing contractual disputes, inability to attract occupational therapists, and total failure of funding. As noted above, defendants' argument that they would somehow have provided these necessary services to Sarah, making her, on the eve of the hearing, a singular exception to established policy, is entirely unpersuasive. Such potential relief was at best speculative, contrary to DCPS's own policy, and, most importantly, completely inadequate.
As an alternative to the placement proposed by DCPS, plaintiffs presented evidence reflecting that Ivymount, a private special education school in Rockville, Maryland, would be an appropriate placement for Sarah for the 1988-89 school year.
The testimony of plaintiffs' expert witness Patricia Lemer, familiar with Sarah's needs and the Ivymount program, and Lillian Davis, Assistant Director of Ivymount since 1973, strongly support the conclusion that the program would be appropriate for this child.
Ivymount specializes in children with severe sensory integration deficits and offers not only an integrated OT program but a classroom schedule that addresses the "specific needs that Sarah has, such as developing her oral motor skills, developing her gross motor skills. And the OT is present in the classroom with the classroom teacher so that it can be clearly a transdisciplinary approach."
This testimony was not refuted by defendants, nor was the evidence rebutted that DCPS's hearing officers have in the past ordered handicapped children who challenged DCPS's proposed public school placement to be placed at Ivymount with appropriate funding at the expense of the District of Columbia.
Currently, twenty-eight DCPS children attend Ivymount; of the seven children newly enrolled during the 1987-88 school year, six were placed there as the result of a DCPS hearing officer's determination.
In the usual case, this matter would be remanded for an administrative hearing on the appropriateness of Ivymount because the parents had not proffered Ivymount as their unilateral choice at the time of the administrative process. This is not, however, the usual case. Only scant weeks (three or four) remain before the commencement of the school year for Sarah, a place has been reserved for her at Ivymount pending this Court's decision, and DCPS has failed to propose and produce any appropriate placement for her for the upcoming school year. The District of Columbia has been afforded opportunity to present its witnesses to challenge Ivymount or, by cross-examination, to cast doubt upon its appropriateness. It has not done so. In addition, DCPS's continued insistence that Lafayette could provide the services required by Sarah's IEP is unsupportable. In consideration of the unchallenged evidence at the hearing demonstrating the appropriateness of Ivymount, it would not only be futile, but manifestly unjust, to create another substantial delay in this young child's education by remanding this matter to the administrative hearing process for a determination regarding a new placement for Sarah for the imminent school term. See, e.g., Doe v. Maher, 793 F.2d 1470, 1490-91 (9th Cir. 1986) (exhaustion not required where administrative relief would be futile or inadequate), aff'd on other grounds sub nom. Honig v. Doe, 479 U.S. 1083, 107 S. Ct. 1284, 94 L. Ed. 2d 141 (1987); Monahan v. State of Nebraska, 645 F.2d 592, 599 (8th Cir. 1981) (exhaustion of administrative remedies not required where present school year was far advanced and second hearing would only cause additional expense and delay), cert. denied sub nom. Rose v. Nebraska, 460 U.S. 1012, 75 L. Ed. 2d 481, 103 S. Ct. 1252 (1983); Parks v. Pavkovic, 536 F. Supp. 296, 302 (N.D. Ill. 1982) (exhaustion of administrative remedies not required when their pursuit would be futile or meaningless as a practical matter). Moreover, in this case, plaintiffs exhausted their administrative remedies before seeking relief. See Holmes v. District of Columbia, 680 F. Supp. 40, 43 (D.D.C. 1988) ("[plaintiffs] cannot be required to initiate a new administrative process for each school year, when they are actually in the middle of an ongoing proceeding"). In such exceptional circumstances, it is appropriate, without further hearing, to direct that the DCPS fund Sarah at Ivymount for the 1988-89 school year.
Plaintiffs also request that DCPS be prohibited from changing Sarah's placement for two years without her parents' consent. Despite the relief granted in this case, this specific request shall be denied because EHA requires DCPS to review annually a child's IEP.
Within the next year, DCPS may be able to responsibly and timely institute an appropriate integrated OT program for Sarah at one of its pre-school programs, or may determine that continued placement at Ivymount is appropriate under all circumstances then existing.
C. Hearing Officer Hochauser
Plaintiffs allege that the hearing officer, Lois Hochauser, violated EHA by displaying bias in favor of defendants in her conduct at the February 8, 1988 administrative hearing and in her final determination.
Plaintiffs assert that the hearing officer was "openly belligerent, prevented plaintiffs from cross-examining defendants' witnesses . . . [and] assisted defendants' witnesses in formulating their answers."
Plaintiffs' contentions, however, do not amount to the "substantial showing of personal bias" that is "required to disqualify a hearing officer or to obtain a ruling that the hearing is unfair." Roberts v. Morten, 549 F.2d 158, 164 (10th Cir. 1976), cert. denied sub nom. Roberts v. Andrus, 434 U.S. 834, 54 L. Ed. 2d 95, 98 S. Ct. 121 (1977). Although the record indicates that the hearing officer conducted at least part of the proceedings in a somewhat abrupt manner, there is no evidence of personal bias. It must be noted that some of her rulings favored the plaintiffs and an adverse ruling does not connote bias.
Plaintiffs' request to enjoin Hearing Officer Lois Hochauser from participating in any future hearings concerning Sarah Kattan is therefore denied.
D. Reimbursement for Expert Testimony, and Attorneys' Fees and Costs
Plaintiffs request that defendants reimburse them for the costs incurred in securing expert testimony at the February 8, 1988 hearing (Count IX) and the costs of bringing this action. Under EHA, a court may award reasonable attorneys' fees and costs to a prevailing party.
Finding that the hearing officer's determination concerning the appropriateness of Lafayette for the 1987-88 school year was erroneous and that Sarah should be placed at Ivymount, plaintiffs' request for reasonable attorneys' fees and costs associated with this action will be granted in an amount to be determined through subsequent filings, as necessary. The parties shall further brief, in accordance with the schedule below, whether expert witness fees are reimburseable as "costs" under the statute. The parties are strongly encouraged to resolve, without further litigation, these issues, as well as plaintiffs' recently renewed motion for sanctions. To provide a reasonable opportunity to settle these issues, further briefing shall be scheduled as ordered below. As a result, defendants' August 8, 1988 motion for enlargement of time to respond to the sanctions' motion is moot.
Accordingly, for the reasons set forth above, after full and careful consideration of the entire record, it is hereby
ORDERED that the hearing officer's determination that Lafayette was an appropriate placement for Sarah Kattan for the 1987-88 school year is reversed; it is
FURTHER ORDERED that defendants shall promptly place and thereafter fund Sarah Kattan at Ivymount School, Rockville, Maryland, for the 1988-89 school year and furnish such related services as are reasonably required, including transportation to and from Ivymount; it is
FURTHER ORDERED that defendants, within 30 days of this Order, reimburse plaintiffs the sum of $ 1,580.00 advanced to Ivymount to assure placement for the 1988-89 school year; it is
FURTHER ORDERED that defendants, within 30 days after their receipt from plaintiffs of all vouchers for these purposes, reimburse plaintiffs that sum representing the total incurred by plaintiffs for speech therapy and occupational therapy for Sarah Kattan since June 1, 1988 to date of this Order; it is
FURTHER ORDERED that plaintiffs' request that Hearing Officer Lois Hochauser be precluded from participating in any future administrative hearing concerning Sarah Kattan is denied; it is
FURTHER ORDERED that plaintiffs' request that the minor plaintiff's educational placement not be changed without express consent of her parents for a period of two years is denied; it is
FURTHER ORDERED that plaintiffs' request for reimbursement of attorneys' fees and costs related to this action is granted; save for the matter of witness fees, to be further briefed; and it is
FURTHER ORDERED that absent settlement by September 1, 1988, of attorneys' fees, costs, and witness fees, and the motion for sanctions, plaintiffs shall submit their requests for attorneys' fees, costs, and witness fees, fully documented and supported with legal citation, on or before September 20, 1988; opposition thereto shall be filed October 6, 1988; reply, if any, by October 12, 1988. Defendants' opposition to plaintiffs' motion for sanctions shall be filed no later than September 20, 1988; reply, if any, September 28, 1988.
This action stands dismissed. A separate Judgment accompanies this Memorandum Opinion.
IT IS SO ORDERED.
JUDGMENT - August 9, 1988, Filed
As set forth in the Memorandum Opinion issued this date, judgment is hereby entered in favor of plaintiffs Sarah Kattan, Susan J. Thomas and Joseph Kattan, and against defendants District of Columbia, Andrew E. Jenkins, III, Doris Woodson, and Paul Woods.