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Quinn v. District of Columbia

September 27, 2010

ANDREW QUINN AND JILL COLGAN, PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This case arises under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. Plaintiffs, Andrew Quinn and Jill Colgan, are parents of D.Q., a minor child born approximately fourteen weeks premature in May of 2006. They bring the instant suit against Defendant District of Columbia ("the District"), alleging that the District violated its obligations to provide D.Q. with early intervention services under Part C of the IDEA ("Part C"), 20 U.S.C. §§ 1431-45, and seeking reimbursement of $71,430.01 in costs expended on night nursing services provided to D.Q. from October 25, 2006, through July 2007. The District does not dispute that it violated its statutory obligations under Part C, but maintains that Plaintiffs are not legally entitled to reimbursement as they have failed to demonstrate that they are eligible for financial assistance under the District's regulations governing payments for Part C early intervention services. The parties have filed Cross-Motions for Summary Judgment, which are presently pending before the Court. Upon consideration of those motions, the parties' respective briefing, the administrative record, applicable case law, statutory, and regulator authority, as well as the record of this case as a whole, the Court shall DENY Plaintiffs' [12] Motion for Summary Judgment and shall GRANT Defendant's [13] Cross-Motion for Summary Judgment, for the reasons set forth below.

I. BACKGROUND

A. Statutory Background

The IDEA's purpose is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs...." 20 U.S.C. § 1400(d)(1)(A). To further this purpose, the IDEA's subchapter III("Part C") provides "financial assistance to States to develop and implement a statewide... system that provides early intervention services for infants and toddlers with disabilities and their families." Id. § 1431(b)(1). Part C is intended to, inter alia, "enhance the development of infants and toddlers with disabilities, to minimize the potential for developmental delay, and to recognize the significant brain development that occurs during a child's first 3 years of life." Id. § 1431(a)(1).

To be eligible to receive federal funds under Part C, the District is required to adopt "a policy that appropriate early intervention services are available to all infants and toddlers with disabilities in the State and their families...." Id. § 1434(1). Included in this policy must be a "comprehensive child find system" that endeavors to locate children in need of early intervention services. Id. at § 1435(a)(3). Specifically, a Part C recipient state must (1) "[e]nsure that referrals [of the child to the appropriate public agency] are made no more than two working days after the child has been identified," 34 C.F.R. § 303.321(d)(2)(ii); and (2) require that within forty-five days of a referral an evaluation and assessment of the child are made, and an Individualized Family Service Plan ("IFSP") meeting is convened, id.§ 303.321(e)(2)(I)-(ii).

An IFSP meeting requires the attendance of, inter alia, the child's parents, the public agency employee responsible for implementing the IFSP, and the person evaluating and assessing the child. See id. § 303.343(a)(I), (iv)-(v). The meeting's purpose is to create an IFSP for the child, which is a written document that includes "a statement of specific early intervention services... necessary to meet the unique needs of the infant or toddler and the family, including the frequency, intensity, and method of delivery services." 20 U.S.C. § 1436(d)(4). Early intervention services are services performed by "qualified personnel, including... (viii) nurses," id. § 1432(4)(F), "to meet the developmental needs of an infant or toddler with a disability," id. § 1432(4)(D), including occupational therapy, id. § 1432(4)(E)(iv), physical therapy, id. § 1432(4)(E)(v), and "health services necessary to enable the infant or toddler to benefit from the other early intervention services," id. § 1432(4)(E)(x). Furthermore, public agencies must provide "[w]ritten prior notice... to the parents of a child eligible under this part within a reasonable time before a public agency or services provider proposes, or refuses, to initiate or change... the provision of appropriate early intervention services to the child and the child's family." 34 C.F.R. § 303.403(a); see also 20 U.S.C. § 1439(a)(6) (requiring written notice).

As is of particular relevance to the present litigation, early intervention services "are provided at no cost except where Federal or State law provides for a system of payments by families, including a schedule of sliding fees." 20 U.S.C. § 1432(4)(B) (emphasis added). The District is a recipient of Part C federal funds and, pursuant to section 1432(4)(B), has enacted a sliding fee scale governing payments for certain early intervention services covered under Part C of the IDEA.*fn1 Under these regulations, "[a] family of an eligible child with an income of two hundred percent (200%) or greater of the federal poverty guidelines... shall be required to pay the cost or a percentage of the cost for early intervention services" in accordance with the sliding fee scale set forth in D.C. MUN. REGS. tit. 22-B, § 3028.7. Specifically, a family with an annual income of less than $28,701 pays 0% of the cost of early intervention services, with increasing responsibility for the percentage of the cost as the level of the family's income compared to the number of family members increases, until annual family income reaches $72,981, at which point the family becomes ineligible for financial assistance from the District and is responsible for 100% of the cost of early intervention services. Id. at§ 3028.1. Accordingly, in approving an application for early intervention services under Part C, the Infant and Toddlers with Disabilities Division ("ITDD"), which is responsible for administering the District's Part C program, must determine what, if any, percentage of costs are assigned to the family under the District's sliding fee scale. Id. §§ 3028.3-4.

B. Factual Background

1. D.Q.

Plaintiffs' minor child, D.Q., was born fourteen weeks premature in May 2006. Pls.' Stmt.*fn2 ¶ 1-2; Admin. Record ("A.R.") at 5 (HOD), 125-26 (Letter from Alison Greenleaf, Nurse Practitioner, Coordinator of the High Risk/BPD/Apnea Clinic, Georgetown Univ. Hospital (Nov. 30, 2006)). Due to severe heath complications, D.Q. remained hospitalized for the first five and a half months of his life. Pls.' Stmt. ¶ 3; A.R. at 5 (HOD). D.Q. was eventually discharged from the Hospital for Sick Children ("HSC") on October 25, 2006, with a diagnosis of chronic lung disease, gastroesophageal reflux, oral motor dysfunction, and a Grade III to IV intraventricular hemorrhage with hydrocephalus. Pls.' Stmt. ¶ 10; Def.'s Stmt. ¶ 2; A.R. at 5 (HOD).

After being discharged, D.Q. continued to require nearly 24 hour care and monitoring. Pls'. Stmt. ¶ 11-14; A.R. at 125-26. To assist with D.Q.'s care, Plaintiffs hired a night nursing service immediately upon D.Q.'s discharge from the hospital on October 25, 2006; Plaintiffs continued to receive night nursing services through July 2007. Def.'s Stmt. ¶ 12; A.R. at 6 (HOD). In addition to those night nursing services, D.Q. also received occupational therapy, physical therapy, and speech therapy. Def.'s Stmt. ¶¶ 13-15.

2. Early Intervention Services

Although HSC is an authorized evaluation site for ITDD, only staff in HSC's outpatient, and not inpatient, section had received the training necessary to act as an authorized evaluator for Part C early intervention services. Pls.' Stmt. ¶¶ 18-20. Consequently, D.Q. was not referred to ITDD until October 27, 2006, shortly after his discharge from HSC. Id. ¶¶ 22-23. At that time, Plaintiffs received a letter from ITDD advising Plaintiffs that D.Q. may be eligible to receive early intervention services. Def.'s Stmt. ¶ 4; A.R. at 226. An IFSP meeting was subsequently scheduled for December 15, 2009, nearly two months after D.Q.'s release from the hospital. Pls.' Stmt.¶ 24; Def.'s Resp. Stmt. ¶ 24. However, no representative from ITDD attended the meeting, as required, and only Ms. Colgan and a representative from HSC were in attendance. Pls.' Stmt. ¶ 26; A.R. at 6 (HOD).

Shortly thereafter, ITDD sent Plaintiffs a letter dated December 19, 2006, welcoming them to ITDD and providing Plaintiffs with a financial application. Def.'s Stmt. ¶ 5; A.R. at 227 (Letter from Tammy Proctor, Child Find Coordinator, ITDD). The letter advised that "[t]he application process allows families to request and receive financial assistance and is necessary to determine the family's cost participation for early intervention services based on the District of Columbia's sliding fee scale." A.R. at 227. Plaintiffs were further advised that if they failed to provide the required financial information, ITDD would "have no way of knowing how much the Part C office should contribute toward the payment of your child's services (if anything)" and the parents would therefore "be expected to bear all costs for the services your child may need." Id.

Plaintiffs were subsequently assigned an ITDD case manager, Badiya Sharif, then-Supervisory Transition Coordinator at ITDD. Pls.' Stmt. ¶¶ 31-32; Def.'s Resp. ¶¶ 31-32. Based upon Plaintiffs' December 2006 financial application, which included their previous year's tax return, see Administrative Hearing Transcript ("Tr.") at 202, Ms. Sharif concluded that "it did not look like [P]art C would pick up any costs for therapy services." Tr. at 195. This conclusion was affirmed in the January 4, 2007 referral for early intervention services issued by Intervention Specialist Angela Herring on D.Q.'s behalf. Def.'s Stmt. ¶ 6; A.R. at 228 (Memorandum from Angela M. Herring, Intervention Specialist, ITDD (Jan. 4, 2007)). As set forth therein, Plaintiffs were noted to have private health insurance and were determined to be 100% responsible for the costs of D.Q.'s early intervention services under Part C. A.R. at 228. The referral memorandum further indicates that the family was attempting to negotiate a rate of reimbursement with their private insurance and that payment arrangements should be discussed before the start of services. Id.

Although Plaintiffs and Ms. Sharif informally engaged in several conversations during the next few months regarding D.Q.'s therapy needs, an IFSP meeting was not held until approximately three months later, on March 19, 2007. Pls.' Stmt. ¶ 36; Def.'s Stmt. ¶ 10; A.R. at 79-88 (the March 19, 2007 IFSP). During the intervening time period, Ms. Sharif assisted Plaintiffs in identifying and obtaining referrals to a physical therapist and an occupational therapist for D.Q. Tr. 139-40. Both services were being paid for at that time through Plaintiffs' insurance. See id. at 178-82. Plaintiffs also informed Ms. Sharif that they were providing night nursing services for D.Q., which services were at the time being paid directly by Plaintiffs themselves. See id. at 112, 156-57.

Upon being advised by Plaintiffs that they were paying for D.Q.'s night nursing services out-of-pocket, Ms. Sharif asked Plaintiffs to provide her with documents showing that the night nursing expenses had been paid for by Plaintiffs themselves. Id. at 196. Ms. Sharif believed that the costs associated with the night nursing services could be subtracted from Plaintiffs' annual income for purposes of determining Plaintiffs' eligibility for financial assistance under the District's sliding fee scale. Id. at 200. Ms. Sharif therefore reduced Plaintiffs' income by the amount they had expended on the night nursing services and used this adjusted income figure to determine Plaintiffs' eligibility ...


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