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Dl, et al v. District of Columbia

November 16, 2011

DL, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION & FINDINGS OF FACT AND CONCLUSIONS OF LAW

I.INTRODUCTION

This case concerns the District of Columbia's obligations, under both federal and local law, to provide special education to some of our most vulnerable citizens at a very early and critical stage in their lives. In the first few years of a child's life, there exists a narrow window of opportunity in which special education, tailored to the child's particular needs, can work a miracle. "[S]omewhere in the neighborhood of 75 to 80 percent" of the disabled children who are found in the community and served by quality early intervention programs will go on to kindergarten alongside every other ordinary five-year-old-without needing further supplemental special education. Trial Transcript, Dunst Testimony, 115:4--116:15, Apr. 6, 2011. So that's what's at stake here.

The named plaintiffs in this lawsuit-former preschool-age children in the District with various disabilities-filed suit in July 2005, alleging that defendants had engaged in a pattern and practice of failing to provide special education and related services to them and other children, in violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), implementing regulations, the Due Process Clause of the Fifth Amendment, and District of Columbia law. Am. Compl. [61] ¶1--2. Plaintiffs sought declaratory and injunctive relief, reimbursement for funds expended by them to obtain education services denied them by defendants' legal violations, and "compensatory education." Id. at 33--35.

In August 2006, the Court certified a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. Order [58] 1, Aug. 25, 2006. The plaintiff class is defined as:

All children who are or may be eligible for special education and related services, who live in, or are wards of, the District of Columbia, and (1) whom defendants did not identify, locate, evaluate or offer special education and related services to when the child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages of three and five years old, inclusive.

Id.

Toward the end of discovery, the parties filed cross-motions for summary judgment. In August 2010, the Court ruled upon those motions and concluded, among other things, that defendants "denied a [free appropriate public education ("FAPE")] to a large number of children aged 3 to 5 years old, in violation of § 1412(a)(1)(A) of the IDEA." DL v. District of Columbia, 730 F. Supp. 2d 84, 95 (D.D.C.2010). However, this ruling applied only for the period 2007 and earlier, which were the only years for which data was available. Id.

The Court scheduled a bench trial for April 2011 solely on the issue of defendants' liability for the period 2008 to the trial date, while also ordering the parties, within 30 days after issuance of the Court's decision on the merits presented at trial, to propose a procedure for addressing class members' claims for individual relief. Order [201] 2, Sept. 22, 2010.

The parties appeared before this Court for a bench trial on April 6--7, 2011. The parties presented several witnesses and a number of exhibits. At the Court's direction, each party submitted Proposed Findings of Fact & Conclusions of Law [254, 256] on June 3, 2011.

Based on all of the evidence presented, the Court makes the following findings of fact and conclusions of law and will, consistent with them, enter judgment in favor of plaintiffs and against defendants.

II.FINDINGS OF FACT

A.Credibility of Plaintiffs' Experts

1. Plaintiffs retained Dr. Carl J. Dunst as an expert to study and provide statistical analysis of the District of Columbia's Child Find-related obligations as they relate to preschool children, ages three through five. Direct Testimony of Dr. Carl J. Dunst [209-1] 3, Mar. 16, 2011.

2. Dr. Dunst holds a Bachelor's degree in Education from Temple University, a Master's degree in Early Childhood Special Education from the George Washington University, and a Doctorate in Developmental Psychology from the George Peabody College at Vanderbilt University. Id. at 1.

3. Dr. Dunst has worked as an early intervention practitioner, has directed an IDEA Part C early intervention and an IDEA Part B preschool special education program, and has taught numerous courses on infant and preschool development, assessment, and intervention practices. Id.

4. Dr. Dunst was the Principal Investigator of a seven-year study funded by the U.S. Department of Education, Office of Special Education Programs ("OSEP") called the Tracking, Referral and Assessment Center for Excellence ("TRACE"). Id. at 2. TRACE investigated Child Find-related practices in IDEA Part C early intervention and IDEA Part B preschool special education programs in all 50 states, the District of Columbia, and other jurisdictions, and researched and developed evidence-based practices for improving Child Find-related activities. Id. He has also been the Principal Investigator or Co-Principal Investigator at two other OSEP-funded research and training centers that focus on early childhood intervention practices. Id.

5. Dr. Dunst is currently a Research Scientist and Co-Director at the Orelena Hawks Puckett Institute in Asheville, North Carolina, which conducts research, evaluation, and intervention development and training in Part C, Part B, Early Head Start, Head Start, Even Start, childcare and preschool practices. Id.

6. Due to his extensive experience, Dr. Dunst is a recognized expert in infant and early childhood assessment practices, family systems intervention practices, infant and early childhood intervention practices, family-centered help-giving practices, and Child Find, referral, and outreach practices. Id. at 3.

7. Dr. Dunst has received a number of awards from a variety of professional organizations for his research and practice. Id. He has an extensive list of publications in prominent journals, reports, and books about Child Find-related policies and practices. See Carl

J. Dunst, Recent Publications (2001--2011), Pls.' Ex. 211 at 1--5. 8. Based on Findings Nos. 1--7, this Court finds that Dr. Dunst is a qualified expert in analyzing the District of Columbia's Child Find-related obligations, as they relate to preschool children, ages three through five.

9. This Court finds that Dr. Dunst testified credibly, demonstrated specific knowledge of the relevant literature, and explained clearly how his conclusions were based on both his research and personal experience in the field.

10. Plaintiffs retained Dr. Leonard A. Cupingood as an expert to study and provide statistical analysis of the timeliness of defendants in determining the eligibility for special education and related services of children ages three through five with suspected disabilities. Direct Testimony of Dr. Leonard A. Cupingood [209-2] 2, Mar. 16, 2011.

11. Dr. Cupingood holds a Bachelor's degree in Mathematics from Rutgers University and a Master's and a Doctorate in Statistics from Temple University. Id. at 1.

12. He has extensive experience in conducting statistical analysis in a variety of litigation matters, including employment discrimination cases and audits of insurance companies regarding claims processing. Id. at 1--2. Dr. Cupingood has provided deposition and trial testimony both as a database expert and as a statistician. Id. at 1.

13. Dr. Cupingood is a member of the American Statistical Association and has published several statistics-based articles in reputable journals. Id. at 2; see also Leonard A. Cupingood, Updated CV, Pls.' Ex. 213 at 2--3.

14. Based on findings Nos. 10--13, this Court finds that Dr. Cupingood is a qualified expert in statistics and that he provided credible and compelling testimony during trial regarding defendants' Child Find-related obligations, including the timeliness of defendants in determining the eligibility for special education and related services of children ages three through five with suspected disabilities.

15. This Court also finds that Dr. Cupingood provided credible testimony regarding the number of preschool-age children who were referred each year for special education services.

16. This Court also finds that although there was an error in labeling Table 2 of Dr. Cupingood's Direct Testimony, Cupingood Direct Testimony [209-2] 10, this error was minor and had no effect on Dr. Cupingood's calculations regarding the timeliness of eligibility determinations summarized in Tables 1--6.

17. Ruth Anderson Wilcox testified concerning her three-year-old son, DW, who experienced delays in evaluation and provision of special education services from the District of Columbia, during the 2010--11 school year. Direct Testimony of Ruth Anderson Wilcox [209-3] 8, Mar. 16, 2011. Ms. Wilcox stated that in September 2010, within three weeks after her son began his first day of school at Randle Highlands Elementary School, she asked defendants to provide her son with an initial evaluation for special education services. Id. at 2. Upon receiving an oral referral for an evaluation, DCPS policy and guidelines require an LEA to assist a parent with completing a written referral. OSSE Part B Initial Evaluation/Reevaluation Policy [255-12], Pls.' Ex. 237 at 12. Defendants did not assist Ms. Wilcox with submitting a written referral for an evaluation until December 2010. Wilcox Direct Testimony [209-3] 4. Ms. Wilcox testified that defendants asked her to not date her written referral form because they "did not know when the evaluation would take place." Id. "At some point, someone other than [Ms. Wilcox] wrote December 14 on the form," as the date of the purported consent. Id. DW did not receive a psychological evaluation until February 1, 2011. Id. at 7. DW therefore did not receive an initial evaluation within 120 days from the date DW was referred for an evaluation or assessment. D.C. Code 38-2561.2(a).

18. This Court finds Ms. Wilcox's testimony credible and compelling.

B.Credibility of Defendants' Expert

19. Maxine Freund is a professor at the Graduate School of Education and Human Development at the George Washington University. She has a doctorate in education with specialization in atypicality in infancy and early childhood. Testimony of Maxine Freund [210-2] 1, Mar. 16, 2011. Defendants retained Dr. Freund as an expert to examine and testify about the District of Columbia's early childhood and early intervention special education programs. Id.

20. After analyzing the District of Columbia's past and present special education policies and practices, Dr. Freund submitted her expert report. Freund Expert Report [178-11] 3, Ex. 9 to Pls.' Mot. Partial Summ. J. [178].

21. Dr. Freund's expert report concluded that the District of Columbia's Child Find activities have been "troubled and largely unsuccessful in meeting the obligations of IDEA Parts C . . . and B . . . ." Id. at 1. This troubled history is due in part to frequent changes in leadership and long period of vacancies in key leadership positions at the Part B program. Id. at 3; Freund Direct Testimony [271-9] ¶2. Dr. Freund believed the District's policies "to be problematical, misaligned[,] and in need of improvement." E-mail from Maxine Freund to Ellen Efros, OAG, Pls.' Ex. 232 at 4, Aug. 18, 2009. In preparing the report, Dr. Freund said that she was provided "incomplete documents, drafts, unsigned MOUs, and identified practices that did not benefit the systems involved in Child Find." Id.

22. Defendants' counsel believed that prior drafts of Dr. Freund's report described an even worse situation. Ellen Efros, the chief attorney at the Equity Section of the District of Columbia's Office of the Attorney General ("OAG"), noted than an initial draft of the report "shred[ded]" the District of Columbia, was "worse [for defendants] than the Dunst Report," and would be "extraordinarily difficult to defend." Id. at 2, 3. Ms. Efros also believed that Dr. Freund's report "prove[d] Plaintiffs' case" and determined that "everything [in the District of Columbia] is dysfunctional, and that even the proposals going forward either are not to be trusted or are not sufficient." Id. at 1. Tameria Lewis, the Assistant Superintendent for Special Education, believed that if Dr. Freund's report was submitted as evidence, there would be "no point in a trial as our own witness will be providing clear evidence to proove [sic] the Plaintiffs['] case with only minimal and very qualified statements about progress we are making or committing to in the near future." Id. In contrast, Dr. Richard Nyankori, the former Deputy Chancellor for Special Education for DCPS, disagreed, and was "increasingly concerned by the OAG['s] response to [Dr. Freund's] work." Id. at 3.

C.Provision of a "FAPE"

23. Each December, OSSE and all other jurisdictions are required to provide to OSEP "child count" data, which includes the number of preschool-age children enrolled in Part B special education services. Dunst Direct Testimony [209-1] 8. OSEP collects and compares these data with the U.S. Census Bureau's annual population estimates to determine the percentage of preschool-age children enrolled in Part B services. Id.

24. Plaintiffs' expert, Dr. Dunst, provided statistical analysis of these data, which provide the means to compare the percentage of preschool-age children enrolled in Part B services in the District of Columbia with the number of children enrolled nationally and in each jurisdiction. Id.

25. In 2008, approximately 5.68% of children ages three to five nationwide received Part B special education services. "Table 1-14. Percentage of children ages 3 through 5 served . . . , Pls.' Ex. 205 at 2. Currently, about 6% of three- to five-year-old children nationwide are identified as having developmental delays that qualify them for Part B special education services. Early Stages Family Care Manual [271-21] 42, Pls.' Ex. 152.

26. By contrast, in 2008, the District of Columbia identified and provided Part B services to 2.72% of children ages three through five, which was the lowest rate in the country and lower than the percentage reported for the previous year (2.9%). Dunst Direct Testimony [209-1] 8--9. In 2009, defendants provided Part B services to 3.30% of children ages three through five and, in 2010, to 4.62% of preschool-age children. Id. at 9.

27. On March 9, 2011, defendants stipulated "that the District currently provides special education and related services under [the IDEA] . . . to less than 6% of its population of children aged 3 through 5 years . . . ." Defs.' Stipulation [206] 1, Mar. 9, 2011.

28. Based on the most recent estimates available at the time of trial, the District of Columbia still lags behind most other states in identifying and providing a FAPE to preschoolage children. Dunst Direct Testimony [209-1] 9.

29. In the District of Columbia, large percentages of preschool-age children experience many different risk factors associated with disabilities and significant developmental delays, including, but not limited to, poverty, teenage pregnancy, HIV/AIDS, single-parent households, economic hardship, and poor housing. Id. at 11--12. More children in the District of Columbia experience multiple risk factors than in any other state. Id. at 12. Specifically, 59% of children in the District experience three or more risk factors, while 6% experience eight or more risk factors. Trial Transcript, Dunst Cross Testimony, 76:16--23, Apr. 6, 2011.

30. In its February 8, 2011 Family Care Manual, the staff of the District's Early Stages Center acknowledged that, in light of these risk factors, the District's projected identification rate (that is, the percentage of preschool-age children that the District of Columbia is expected to identify and evaluate for Part B services) is about 12%. Family Care Manual [271-21] 42, Pls.' Ex. 152. In other words, it is likely that 12% of preschool-age children in the District have developmental or physical disabilities that qualify them for Part B services. Dunst Direct Testimony [209-1] 12; Trial Transcript, Dunst Cross Testimony, 79:13--19, Apr. 6, 2011. The 12% figure is based on a comparison between the District of Columbia and two U.S. cities (Atlanta and Detroit) with similar demographic predictors of disabilities. 30(b)(6) Beers Dep., 61--62, Mar. 1, 2011. At trial, Dr. Dunst explained that "at least 10% but more likely 12%" of preschool-age children in District are "potentially eligible" for Part B preschool education, with "85 to 90 percent of those children" actually being found eligible. Dunst Direct Testimony [209-1] 12; Dunst Cross Testimony, 79:13--82:3, Apr. 6, 2011. This suggests that, on the low end, the District should expect to be serving 8.5% of its preschool-age population with Part B services.

31. As of March 2011, the District of Columbia has failed to identify and offer a FAPE to the 8.5% of preschool-age children that are expected to be eligible for Part B services.

32. Assuming that the District of Columbia creates an effective and sustainable Child Find system, and that the necessary policy and procedural changes described in Findings Nos. 82--97 are implemented, the most statistically reasonable and defensible forecast suggests that "the District will reach 6 percent [of preschool-age children served] in 2012, 8 percent in 2013, 10 percent in 2015, and 12 percent in 2016." Dunst Direct Testimony [209-1] 30--33. However, as the pool of potentially eligible children decreases, statistically "it will not be possible [for the District] to maintain the kinds of increases in the number of children identified as have been found in the past few years." Id. at 15; Trial Transcript, Dunst Cross Testimony, 93:16--95:2, Apr. 6, 2011.

D.Initial Evaluations and Eligibility Determinations

33. As a condition of receiving federal funding under the IDEA, the District must provide an Annual Performance Report ("APR") that details the percentage of children referred for Part B services that received a timely initial evaluation and eligibility determination. Dunst Direct Testimony [209-1] 16. Beginning in November 2010, Early Stages began reporting on its "Scorecards" the percentage of preschool-age children that received timely initial evaluations. Id. at 17.

34. Plaintiffs' experts, Drs. Dunst and Cupingood, provided statistical analysis of these data. Id. at 16--17; Cupingood Direct Testimony [209-2] 3.

35. With respect to all children ages 3 through 21 referred for services under Part B, the District of Columbia reported that 45.2% received a timely initial evaluation in 2007--2008,

66.56% received timely initial evaluations in 2008--2009, and 75.09% received timely initial evaluations in 2009--2010. See Part B APR [FY] 2007 (2007--2008), Pls.' Ex. 156; Part B APR [FY] 2008 (2008--2009), Pls.' Ex. 157; Part B APR [FY] 2009 (2009--2010), Pls.' Ex. 158; Maisterra Direct Testimony [210-3] 6. In other words, 44.8% did not receive timely initial evaluations in 2008--2009, and 24.91% did not receive timely initial evaluations in 2009--2010.

36. The District reported that 77% of its initial evaluations for children ages three to five for Part B were timely in October 2010, 50% were timely in November 2010, and 53% were timely in December 2010. Early Stages Scorecard, Pls.' Ex. 181; Early Stages Scorecard, Pls.' Ex. 182. This decrease within a span of three months indicates that the District is unable to show consistent and stable improvements in providing timely initial evaluations to the preschool-age population. Dunst Direct Testimony [209-1] 17.

37. Unless there are significantly more resources put in place, the District of Columbia will be strained by the increased number of children identified for special education and related services, which will cause further delays in providing timely initial evaluations. Trial Transcript, Dunst Cross Testimony, 104:23--105:11, Apr. 6, 2011. Therefore, "it will be some time before the District is able to achieve 100 percent timeliness as required by the IDEA." Dunst Direct Testimony [209-1] 17.

38. From 2008 through 2010, the District provided timely eligibility determinations to 56.75% of the referred preschool-age children. Cupingood Direct Testimony [209-2] Table 3. Specifically, the District provided timely eligibility determinations to 41.44% of preschool-age children in 2008, 68.43% in 2009, and 55.23% in 2010. Id. at 8. In other words, 58.56% of preschool-age children did not receive timely eligibility determinations in 2008, 31.57% did not receive timely eligibility determinations in 2009, and 44.77% did not receive timely eligibility determinations in 2010.

39. These statistics indicate that there has been and continues to be considerable variability rather than stability in the percentage of timely eligibility determinations for preschool-age children. Dunst Direct Testimony [209-1] 18.

40. Under District of Columbia law, defendants must provide an initial evaluation to all children identified as potential candidates for special education and related services within 120 days of the date that the student was referred for an evaluation or assessment. D.C. Code 38-2561.2(a) (formerly D.C. Code 38-2501(a)). The District of Columbia is the only jurisdiction that gives itself 120 days to provide an evaluation, which is 30 days more than Delaware, Maryland, and New Jersey, and 60 days longer than other states. Dunst Direct Testimony [209-1] 16. Nevertheless, the District has never achieved 100% timely eligibility determinations within 120 days. Id. at 18.

E.Transition from Part C to Part B

41. In its Annual Performance Reports, the District provided data on the percentage of District of Columbia preschool-age children exiting Part C early intervention who were found eligible for Part B preschool special education and who received timely transitions by their third birthdays. Id.

42. The District of Columbia reported that 62% of all eligible children exiting Part C received timely transitions in 2007, 8.22% received timely transitions in 2008, and 30.25% received timely transitions in 2009. See Part B APR [FY] 2007 (2007--2008), Pls.' Ex. 156; Part B APR [FY] 2008 (2008--2009), Pls.' Ex. 157; Part B APR [FY] 2009 (2009--2010), Pls.' Ex. 158; Maisterra Direct Testimony [210-3] ¶17. In other words, 43% of all eligible children exiting Part C did not receive timely transitions in 2007, 91.78% did not receive timely transitions in 2008, and 59.75% did not receive timely transitions in 2010.

43. From January through March 2010, the District of Columbia reported that 38% of all eligible children exiting Part C received timely transitions. Early Stages Scorecard, Pls.' Ex. 179. The District also reported that 17% of eligible children received timely transitions in July 2010, 30% received timely transitions in November 2010, and 62% received timely transitions in December 2010. See Early Stages Scorecard, Pls.' Ex. 180; Early Stages Scorecard, Pls.' Ex. 181; Early Stages Scorecard, Pls.' Ex. 182.

44. From October 1, 2010, through the end of February 2011, the District of Columbia provided timely transitions to 79% of all eligible children. Trial Transcript, Beers Cross Testimony, 175:16--22, Apr. 6, 2011. Defendants have never offered 100% timely transitions to eligible preschool-age children, as required by federal and District of Columbia law.

45. The fluctuation in the percentage of timely transitions offered to eligible preschool-age children in the District of Columbia indicates that it will be some time before defendants will be able to achieve and maintain 100% compliance with the IDEA's timely transition requirement. Dunst Direct Testimony [209-1] 19.

F.Violations of Section 504-2008 to the Present

46. From 2008 to October 2009, the District of Columbia's special education policies and practices were inadequately designed, supported, and implemented. Freund Expert Report [271-10] 12. The District did not have a comprehensive Child Find system, which contributed to its failure to identify, place, and track the expected number of children for either Part C or Part B Child Find services. Id. at 2.

47. Defendants pursued the same ineffective special education practices of previous years, without achieving significant increases in the percentage of preschool-age children served, the percentage of timely initial evaluations and eligibility determinations, or the percentage of timely transitions. Dunst Direct Testimony [209-1] 27.

48. The District's public awareness and outreach efforts and professional development and training of its staff did not facilitate the identification, placement, and tracking of the expected number of children for either Part C or Part B Child Find services. Freund Expert Report [271-10] 2. Defendants engaged in several public awareness activities, including the yearly distribution of newspaper announcements, radio public service notices, and the drafting of posters and written pamphlets that described to parents and guardians the District's special education responsibilities. Dunst Direct Testimony [209-1] 21. None of these public awareness activities, by themselves, have been found nationally to be effective Child Find strategies. Id. With respect to outreach, the District continued to send "mixed messages" to potential referral sources. Id. While nearly all of the District's documents describing outreach, Child Find, and referrals explained that referrals for special education services could be made by various professionals and programs, defendants acknowledge that a referral for Part B preschool education must come from the parent or guardian of the child. Id. "This practice is likely one reason why so few 3 to 5 year olds in the District were identified or enrolled in preschool education during that period and in previous years." Id. at 22.

49. Defendants continued to rely on the same ineffective intake and screening procedures originally implemented at the Care Center in 2006. Id. The screening procedures were unreliable, informal, unstructured, and lacked the conditions necessary to identify and evaluate preschool-age children for special education services. Id. Accordingly, special education services for many preschool-age children were delayed. Id.

50. As of June 2009, the District's decision to centralize screenings and evaluations of preschool-age children at the Early Stages Center did not increase the number of timely evaluations and eligibility determinations due to the inconvenience of having to travel to the Early Stages Center. Id. at 22--23.

51. As a result, in 2007 and 2008, defendants lagged behind the average national rate for identifying and offering Part B services to preschool-age children. Id. at 9.

52. Since at least 1997, OSEP has worked with and informed the DCPS of its ongoing failure to identify, locate, and provide Part B services to eligible children ages three through five.

63 Fed. Reg. 41,370, 41,371 (Aug. 3, 1998). 53. On March 16, 1998, OSEP entered into a Compliance Agreement with DCPS mandating full compliance with Part B of the IDEA. Id. According to this agreement, DCPS was required, inter alia, to "ensure and document that no later than three years after the effective date of this agreement . . . [a]n initial evaluation that meets the requirements of sections 614(a)(1), (b), and (c) of Part B of [the] IDEA is completed for all children with disabilities [i.e., that it is conducted within the 120-day timeframe established by District of Columbia law]" and that "[a] Child-Find system is established which identifies and locates all children with disabilities . . . ." Id. at 41,374.

54. In 2001, OSEP determined that DCPS had not met these and several other requirements detailed in the Compliance Agreement. See Letter from Patricia J. Guard to Paul L. Vance, Pls.' Ex. 188. Based on this determination, OSEP designated DCPS as a "high risk" grantee and attached Special Conditions to its FY 2001 grant under Part B. Id. Among the ...


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