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United States District Court, D. Columbia

November 7, 2005.

NIKITA PETTIES, et al., Plaintiff,
THE DISTRICT OF COLUMBIA, et al., Defendant.

The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge

Provider Just-A-Mite, Inc., ("JAM") is a private organization that delivers residential, special education and related services to students in the District of Columbia. On July 11, 2005, JAM filed a request for an invoice dispute proceeding. That request involved a dispute regarding invoices that had been submitted in May 2005 to the District of Columbia Public Schools ("DCPS") for two students, E.W. and T.J. The July 2005 hearing request also included a dispute regarding JAM's rate increase that DCPS had denied.

The administration of the JAM dispute was delegated to the designee of the Special Master, Steven M. Schneebaum, Esq., a shareholder in the Washington, D.C. office of Greenberg Traurig LLP.*fn1 Mr. Schneebaum's submission, attached hereto, is entitled Report and Recommendation of the Special Master in the Mater of the Just-A-Hearing (First Part) Held on September 7, 2005 ("Report and Recommendation"). As noted in the Report and Recommendation, only the matters involving charges for E.W. and T.J. have been adjudicated. The dispute regarding the rates of JAM will be the subject of a hearing later in November 2005.

  A proposed Order covering the matters addressed in the Report and Recommendation is also attached. REPORT AND RECOMMENDATIONS OF THE SPECIAL MASTER IN THE MATTER OF THE JUST-A-MITE HEARING (FIRST PART) HELD ON SEPTEMBER 7, 2005


  This Report and Recommendations are filed pursuant to the Order in this case dated October 11, 2002, modifying and supplementing the August 25, 1997 Order Regarding Payment System for third-party providers of special education and related services. Provider, Just-A-Mite ("JAM"), filed a request for a proceeding before the Special Master, in accordance with the October 11 Order, on July 11, 2005, to resolve a dispute over two unpaid invoices totaling $2,900.00.*fn2 The Special Master, through her undersigned designee acting as Hearing Officer, held a hearing with representatives from the District of Columbia Public Schools ("DCPS"), JAM, and University Legal Services (counsel for the Plaintiff class), on Wednesday, September 7, 2005. I. Findings of Fact

  JAM is a provider of special education services. Eric Weaver and Tavon Johnson were special education students receiving services from JAM.

  On December 6, 2004, judge Johnson of the D.C. Superior Court ordered that Eric Weaver be examined by the Child Guidance Clinic and the Mental Health Administration ("the Weaver Order"), in connection with a delinquency hearing to take place on January 7, 2005. On March 31, 2005, Dr. Willie T. Hamlin, a psychiatrist, evaluated Eric Weaver based upon a referral from JAM, and prepared a report.

  On March 9, 2005, Dr. Hamlin wrote to Tavon Johnson's grandmother and advised her that Tavon was in need of a psychiatric evaluation. He noted that Tavon had missed his appointment set for that day, as well as an earlier one, on February 16, 2005. On March 18, 2005, DCPS Hearing Officer Banks entered an interim order ("the Johnson Order") ordering that Tavon Johnson "obtain an independent psychiatric evaluation in accordance with 5 D.C.M.R. Section 3027.5." The Johnson Order was silent about who was to perform the evaluation. Although the Order authorized Tavon to receive wrap-around services from JAM, including counseling, it did not authorize JAM to conduct the "independent psychiatric evaluation."

  On May 11, 2005, JAM submitted its Invoice # 112.DCPS ("the May Invoice") to DCPS. The May Invoice included the two charges for "psychiatric sessions" at issue here: a $1,500 charge for Tavon Johnson for February 2005 ("the Johnson Invoice"), and a $1,400 charge for Eric Weaver for March 2003 ("the Weaver Invoice").

  In the first half of 2005, JAM and DCPS had a number of disputes about fees, billings, and payments. On May 23, 2005, the parties entered into a settlement, effective May 16, 2005, "to resolve outstanding disputes for October 2004, February 2005, and March 2005." Among other things, this settlement recited that: "DCPS will not pay, nor shall Just-A-Mite invoice DCPS, for services or amounts of services that are not authorized specifically for payment by DCPS by [IEPs, HODs, Court Orders or Settlement Agreements] or are in excess of amounts set forth in these documents." With respect to time periods other than October 2004, February 2005, and March 2005, the parties agreed that "payments will be made based on current IEPs, HODs, Court Orders, or Settlement Agreements."

  On June 6, 2005, DCPS submitted a billing dispute regarding eight charges on the May Invoice, including the two at issue here.*fn3 DCPS refused to pay the two disputed charges, indicating as its reason the legend, "No authorization for `Psychiatric Session." JAM responded on June 23, 2005, contending that a psychiatric session for Tavon Johnson was authorized the Johnson Order; and that Eric Weaver's psychiatric session was authorized by the Weaver Order.

  On July 8, 2005, DCPS issued its Final Administrative Decision with respect to the May Invoice disputes. In addition to the lack of authorization, DCPS denied payment for the Johnson Invoice on the grounds that "JAM did not submit the evaluation report." JAM then requested this proceeding with respect to the remaining May Invoice issues.

  DCPS submitted its Preliminary Statement on September 1, 2005. In essence, DCPS argues that it should not have to pay the Johns on Invoice because Tavon Johnson was never examined. With respect to Eric Weaver, DCPS contends that the Weaver Order did not provide a basis for any action to be taken by JAM. JAM presented no Preliminary Statement, but did submit exhibits.

  A hearing was convened on September 7, 2005. JAM offered no documentary evidence and no witnesses, Transcript of the Hearing ("Tr."), at 5. Class Counsel made no submission at all. Tr., at 8. Noting that JAM as petitioner bears the burden of proof, the Special Master's Designee suggested that Mr. Dickerson of JAM present testimony as a fact witness, and then be cross-examined by counsel DCPS. Tr., at 8. DCPS did not object, and the hearing proceeded in that manner.

  On October 5, 2005, JAM filed a post-hearing submission with additional evidence and DCPS responded on October 7, 2005. The parties agree that JAM has complied with all time requirements with respect to this dispute.

  II. Conclusions of Law

  Since the disputes at issue arose in February and March 2005, it is clear that the Johnson Invoice and Weaver Invoice must comport with the Parties' Settlement Agreement of May 23. JAM admits as much (Tr., at 4). That Agreement requires that any psychiatric session provided by or for JAM, to justify reimbursement, must be based on an IEP, HOD, Court Order, or Settlement Agreement. In this case, JAM relies on two Court Orders: the Johnson Order and the Weaver Order.

  A. The Johnson Invoice

  JAM contends that the Johnson Order authorized it be reimbursed for charges incurred for a psychiatric session for Tavon Johnson. Tr., at 4. Mr. Dickerson testified that JAM took the initiative to carry out the examination required in the Johnson Order, although nothing in the language of that Order directed or entitled JAM to perform that examination. Tr., at 11. JAM concedes, however, that the session never occurred. As Mr. Dickinson testified, "The session was not completed because Tavon Johnson was not able to be located that particular day." Tr., at 4. In other words, no examination ever took place and, therefore, no evaluation has ever been submitted to DCPS. Tr., at 11. Mr. Dickeron testified that JAM was charging for Tavon Johnson's skipped appointment. Tr. at 13-14, 16.*fn4 DCPS concedes that, when and if an evaluation actually occurs, and a proper invoice is submitted, "then that would be, paid in accordance with the applicable rules and regulations." Tr., at 7. JAM has not demonstrated an legitimate reason for why DCPS should pay for a psychiatric session that never happened. And even had JAM's regular consultant, Dr. Hamlin, performed the evaluation described under the Johnson Order, his fees would have been capped by 5 D.C.M.R. Section 3027.5, which provides for the Superintendent to set the fees for such a procedure. Since JAM has apparently chosen voluntarily to undertake the psychiatric evaluation of Tavon Johnson, once it is completed, JAM should forward the evaluation report and an invoice to DCPS, which should process the invoice in accordance with 5 D.C.M.R. Section 3027.5.*fn5

  B. The Weaver Invoice

  JAM relies on the Weaver Order for the authority to be reimbursed the costs of a psychiatric examination of Eric Weaver. Id. at 5. Mr. Dickerson testified that because there were delays associated with the session actually ordered by the Superior Court, JAM took it upon itself to refer the matter to its "consultant psychiatrist," Dr. Hamlin, Tr., at 20, 22. Mr. Dickerson admitted that JAM never specifically sought authorization to have Eric evaluated by Dr. Hamlin at DCPS's expense, as required by the parties' May 23, 2005 Settlement Agreement. Tr., at 36. Simply put, the Weaver Order did not authorize JAM (or, for that matter, DCPS itself) to have Eric Weaver evaluated, nor did it require DCPS to pay for any such evaluation. The parties' Settlement Agreement expressly required that JAM not invoice DCPS for charges incurred without authorization. Although the Hearing Officer makes no finding about whether it is JAM or Dr. Hamlin who should beat the risk of not being reimbursed for unauthorized services, it seems unlikely that either of them was ignorant of the terms of the Settlement Agreement. Whatever the proper allocation of these foregone income items should be, it is clear that DCPS is not required to bear them.

  Conclusion and Recommendations

  For all of the foregoing reasons, the undersigned Hearing Officer, as designee of the Special Master, recommends that DCPS be ordered to pay JAM nothing in respect of the dispute over the invoices for Tavon Johnson's missed appointment, and Eric Weaver's psychiatric evaluation. When and if JAM completes Tavon Johnson's psychiatric examination, and submits a report and an invoice conforming to governing regulations, JAM should be reimbursed the amounts permitted under 5 D.C.M.R. Section 3027.5.

  All remaining issues are reserved to the hearing on the Second Part of this dispute. ORDER

  Upon consideration of the Report and Recommendation of the Special Master in the matter relating to the Just-A-Mite, Inc. ("JAM"), dated November 7, 2005, and in light of the parties' opportunity to file objections pursuant to Rule 53, it is hereby

  ORDERED that JAM's request for payment for invoices submitted for E.W. is dismissed; and it is

  FURTHER ORDERED that JAM's request for payment for invoices submitted for T.J. is dismissed. When and if JAM completes T.J.'s psychiatric examination, and submits a report and an invoice conforming to governing regulations, JAM must be reimbursed the amounts permitted under 5 D.C.M.R. Section 3027.5



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