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PETTIES v. DISTRICT OF COLUMBIA

September 11, 1995

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



The opinion of the court was delivered by: PAUL L. FRIEDMAN

 This case came before the Court on September 8, 1995, for an emergency hearing to show cause why defendants the District of Columbia, Dr. Franklin L. Smith, the Superintendent of the District of Columbia Public Schools ("DCPS"), and Dr. B. Garnett Pinkney, Director of Special Education for DCPS, should not be held in contempt for failure to comply with this Court's Orders of March 17, June 29, July 21 and August 15, 1995.

 I. BACKGROUND

 The plaintiffs in this case are minor students and their parents who represent a class certified by the Court on March 17, 1995, and 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 March 17, 1995, the Court entered a Preliminary Injunction directing defendants to comply with their statutory obligations under the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., and its implementing regulations. Petties v. District of Columbia, C.A. No. 95-0148, Preliminary Injunction at 1-2 (D.D.C. Mar. 17, 1995). On July 21, 1995, the Court modified the Preliminary Injunction and class certification specifically to include all DCPS students with disabilities whose private special education placements and/or related services are funded by the District of Columbia Department of Human Services ("DHS"). Petties v. District of Columbia, C.A. No. 95-0148, Order at 3 (D.D.C. July 21, 1995).

 As the Court noted in its Opinion of April 4, 1995, the purpose of the Individuals With Disabilities Education Act is to assure that children with disabilities have available to them a free and appropriate public education that addresses their unique needs. Petties v. District of Columbia, C.A. No. 95-0148, Opinion at 3-4 (D.D.C. Apr. 4, 1995); see 20 U.S.C. §§ 1400 et seq. To assure that this goal is met, the IDEA directs the child's parents, teachers and other professionals to develop an Individualized Education Program ("IEP") for each special education student that sets forth the required instructions and services designed to meet the particular child's unique needs. 20 U.S.C. § 1401(a)(20). Once the IEP is developed, the school system must provide an appropriate placement that meets those needs and, if an appropriate public placement is unavailable, the school system must provide an appropriate private placement or make available educational-related services provided by private organizations to supplement a public placement. 20 U.S.C. § 1401(a)(20); 34 C.F.R. §§ 300.340-300.50, 300.400-300.403.

 The statute further provides that once a placement has been made, agreed to or determined to be appropriate after an administrative hearing, a school system proposing to change the placement must provide written notice to the student's parents and an explanation of why the school system proposes to take the action. It may not change a student's placement without the parents' agreement or a determination in an administrative due process hearing that the change in placement is appropriate and permissible under the IDEA. 20 U.S.C. § 1415; 34 C.F.R. §§ 300.504, 300.505, 104.36. As the Court previously held, maintenance of the placement includes full payment for the program in which the student is placed. Petties v. District of Columbia, C.A. No. 95-0148, Opinion at 7 (D.D.C. Apr. 4, 1995).

 On May 12, 1995, the Court held defendants in contempt of this Court's Order of March 17, 1995, for their unilateral announcement to private providers that they would not pay tuition or provide related services for DCPS students after June 9, 1995. As the Court explained in its opinion:

 
Defendants' unilateral decision to cut off funding . . . is the same type of unilateral policy decision that undermines the individualized educational decision inherent in the IEP, and it violates the IDEA. . . . [By unilaterally shortening the school year for these children] the very harms that were of concern to the Court in deciding to grant the Preliminary Injunction will be exacerbated for these students, children of tender ages who are already physically or emotionally disabled and are less able than most to cope with physical or emotional stress.

 Petties v. District of Columbia, C.A. No. 95-0148, Opinion at 9-10 (D.D.C. May 12, 1995).

 On June 29, 1995, the Court entered an additional Order requiring defendants (1) to provide assurances to all private special education providers that payment would be made in full, (2) to pay all invoices in full within 30 calendar days of receipt, or if disputed, to notify providers of the dispute within 15 calendar days, and (3) to provide the Court and plaintiffs' counsel with a monthly compliance report. The Order also instructed plaintiffs' counsel to monitor defendants' progress and report to the Court, the fees and costs of which are to be paid by defendants. While many providers at that time requested earlier payment or payment in advance of services being rendered, the Court noted its view that "in reliance on the Court's Orders, private special education schools and service providers should be content to submit invoices after services have been rendered, in accordance with the DCPS cost reimbursement policy." Petties v. District of Columbia, C.A. No. 95-0148, Order at 2 (D.D.C. June 29, 1995).

 These Orders were designed to ensure that students with mental, physical and emotional disabilities in the District of Columbia receive the special educational services to which they are statutorily entitled under federal law and to assure private providers of these services that they will be paid in a reliable and timely fashion as required by statute. They were further intended to halt defendants' ad hoc and unilateral decisionmaking regarding student placement in violation of these students' rights under the IDEA.

 Defendants came before the Court on September 8, 1995, four days into the new school year, in acknowledged non-compliance with this Court's orders. The Court's Order of August 15, 1995 requires defendants to pay all outstanding bills to private providers by August 18, 1995, and to provide written assurances to all private providers that future payments will be made in compliance with this Court's orders. In many cases defendants have not done so, once again, without notice to plaintiffs or leave of the Court, ignoring their obligations under statute and Court order. Moreover, plaintiffs have identified several emergency situations in which providers are now unable or unwilling to provide services for disabled students as a result of ...


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