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July 20, 1995

NIKITA PETTIES, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants.

The opinion of the court was delivered by: FRIEDMAN

 This case is before the Court on plaintiffs' motion to modify class certification and preliminary injunction. The Court concludes that plaintiffs' motion should be granted.


 On March 17, 1995, the Court certified a class defined as follows:

all [District of Columbia Public Schools ("DCPS")] students currently placed in private special education schools or receiving special education and/or related services from a private third party provider, all [DCPS] students placed in public schools who currently are receiving related services from private providers, and all [DCPS] students who have been determined by an administrative decision or by agreement with the DCPS to be eligible to receive services from private providers (including private placements).

 On May 12, 1995, the Court denied plaintiffs' motion to hold defendants in contempt for their failure to pay in a timely fashion the private school placements or related services of those DCPS students who are to be funded by the Department of Human Services ("DHS"). The Court concluded that it never intended by its March 17 Order to cover DHS-funded students or that such students were included in plaintiffs' certified class. The Court stated that

there was insufficient evidence before the Court on which it could have reached the DHS issue when it issued its Preliminary Injunction. For example, counsel for the District of Columbia represented that many of the students funded by DHS have been placed not as the result of an administrative hearing under the IDEA, but rather by judges of the Superior Court of the District of Columbia in the context of neglect, child abuse or delinquency cases. Other students have been referred to DHS by the DCPS because the DCPS has concluded that such students may require residential placements. Counsel for plaintiffs acknowledged that these references may occur either before or after an administrative determination has been made under the procedures set forth in the IDEA and that there may or may not be an IEP in place for these students.
The Court's Opinion and Order were premised on the fact that all students in the class covered by the Preliminary Injunction were students who had been placed or entitled to be placed under the IDEA after an administrative decision. The injunction did not cover DHS-funded students, and defendants therefore are not in contempt of the Court's Order.

 Petties v. District of Columbia, 888 F. Supp. 165, 1995 U.S. Dist. LEXIS 7012, at *20, (D.D.C. 1995).

 The Court stated that the plaintiffs could file a motion to amend their complaint or modify the injunction to include DHS-funded students and that such a motion must be supported by evidence that the IDEA applies to the DHS-funded students and that the defendants are violating the statute with respect to these students. The plaintiffs have now filed a motion to expand the class and the preliminary injunction, supported by legal argument and numerous additional affidavits.


 A. The IDEA's Applicability To District of Columbia Agencies

 The DCPS, the District of Columbia's State Educational Agency as defined in the IDEA, is ultimately responsible for ensuring that all children with disabilities in the District of Columbia receive a free, appropriate education in accordance with the IDEA. 20 U.S.C.§ 1412(6); 34 C.F.R. § 300.600. The IDEA expressly applies "to all subdivisions of the State that are involved in the education of children with disabilities [including] [o]ther State agencies . . . (such as Department of Mental Health and Welfare . . .) . . . ." 34 C.F.R. § 300.2; see also 20 U.S.C. §§ 1412(1)(6), 1413(a). The regulations implementing the IDEA require the DCPS to ensure that an Individual Education Program ("IEP") is developed and implemented for each child placed in or referred to a private school or facility by any public agency, such as the DHS; they also require it to monitor the provision of special education and related services to all such children. 34 C.F.R. §§ 300.341, 300.401, 300.402. The regulations also require the DCPS to develop and implement interagency agreements with other state and local agencies that provide or pay for services required by the IDEA for children with disabilities. 34 C.F.R. § 300.152.

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