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
REPORT AND RECOMMENDATION OF THE SPECIAL MASTER IN A MATTER
RELATING TO JUST-A-MITE
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
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
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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