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DL v. District of Columbia

United States District Court, District of Columbia

May 18, 2016

DL, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants.

          MEMORANDUM OPINION & FINDINGS OF FACT AND CONCLUSIONS OF LAW

          ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION AND BACKGROUND

         The named plaintiffs in this lawsuit-former preschool-age children in the District with various disabilities-allege that defendants have systemically failed to provide, or failed to timely 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), and District of Columbia law. The plaintiffs have been divided into four subclasses and bring claims that correspond to distinct requirements of the IDEA. More specifically, plaintiffs’ claims relate to the District’s alleged failures to: (1) identify substantial numbers of children who are in need of special education and related services, (2) timely evaluate children for special education and related services, (3) timely issue eligibility determinations for special education and related services, and (4) provide smooth and effective transitions for children from Part C to Part B services.

         Given that this lawsuit was initiated in 2005, the Court has had ample opportunity to acknowledge the importance of the early intervention programs at stake in this litigation. Indeed, when executed properly, the early intervention mandated by the IDEA and at the core of plaintiffs’ complaint “can work a miracle,” allowing an estimated 75–80% of disabled children to enter “kindergarten alongside every other ordinary five-year-old-without needing further supplemental special education.” DL v. District of Columbia, 845 F. Supp. 2d 1, 5 (D.D.C. 2011). These positive outcomes substantially advance the IDEA’s primary goal: “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 and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A).

         In order to achieve its aim, the IDEA provides federal funding to states, including the District of Columbia, on the condition that they “establish policies and procedures to ensure . . . that free appropriate public education [FAPE] . . . is available to disabled children.” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (internal quotations omitted); see also 20 U.S.C. § 1412(a)(1)(A). More specifically, the IDEA imposes an affirmative obligation on school systems to “ensure that all children with disabilities residing in the State . . . regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated.” Reid, 401 F.3d at 519–20 (internal quotations omitted); 20 U.S.C. § 1412(a)(3)(A). The District’s laws implementing the IDEA require that once a potential candidate for special education services is identified, the District must conduct an initial evaluation and make an eligibility determination within 120 days. D.C. Code § 38-2561.02(a)(1). The duties to identify, locate, and evaluate disabled children are collectively known as the “Child Find” obligation. 20 U.S.C. § 1412(a)(3)(A).

         Children under three years of age who are identified, evaluated, and determined eligible may receive early intervention services under Part C of the IDEA. For these children, the Act requires a “smooth and effective” transition from Part C’s early intervention services to Part B’s preschool special education programs. 20 U.S.C. § 1412(a)(9). A smooth and effective transition is one that (1) begins no less than 90 days prior to the child’s third birthday; (2) does not include a disruption in services between Part C and Part B services; and (3) involves Part B personnel. See D.L. v. District of Columbia, 302 F.R.D. 1, 7 (D.D.C. 2013); 34 C.F.R. § 303.209. The transition process must include a conference between the child’s family and school officials to determine eligibility for Part B services and to develop a transition plan and an Individualized Education Program (“IEP”). The goal is “a seamless transition between services” under Parts C and B of the Act. 34 C.F.R. § 303.209(a)(3)(ii).

         Dating back to 2005, the procedural history of this case is long and somewhat complex, centering in large part on issues relating to class certification. First, in August 2006 this Court certified a plaintiff class pursuant to Federal Rule of Civil Procedure 23(b)(2), defining it 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.

DL v. District of Columbia, 237 F.R.D. 319, 324 (D.D.C. 2006); see also Mem. Order 3–4, ECF No. 389.

         With this group of children serving as the original plaintiff class, in 2010, the Court found that the District’s policies were inadequate to meet its obligations under the IDEA and that they violated section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability in programs receiving federal funding. See Mem. Op. 4–5, ECF No. 389 (citing DL v. District of Columbia, 845 F. Supp. 2d 1, 10–17 (D.D.C. 2011)). First, on August 10, 2010, the Court partially ruled for plaintiffs on summary judgment and found that, at least through 2007, the District violated the IDEA and District law by denying a FAPE to numerous preschool-age children with disabilities. DL v. District of Columbia, 730 F. Supp. 2d 84, 95 (D.D.C. 2010). The Court in 2010 also found that, at least through 2007, the District violated the Rehabilitation Act by demonstrating “bad faith or gross misjudgment” in failing to bring itself into compliance with the IDEA, even though it “knew that [its] actions were legally insufficient.” See Mem. Op. 4–5, ECF No. 389.

         Following this summary judgment ruling, the Court held a two-day bench trial on the 6th and 7th of April 2011 regarding the District’s liability and plaintiffs’ remaining claims for declaratory and injunctive relief for the period from January 1, 2008, through the trial. After hearing the evidence at trial, the Court found that the District’s prior liability extended to April 6, 2011. To remedy these violations, the Court then issued a structural injunction, which included programmatic requirements and numerical goals that would remain in effect until the District demonstrated sustained compliance. Mem. Op. & Findings of Fact and Conclusions of Law ¶¶ 138–76.

         After the trial but before this Court issued its final decision, the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), which clarified the proper interpretation of the commonality requirement for class certification under Federal Rule of Civil Procedure 23(a)(2) (“FRCP 23(a)(2)”). Wal-Mart essentially found that to establish commonality under FRCP 23(a)(2), a class must present a common question that is “capable of classwide resolution- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at 2551.

         Immediately following Wal-Mart, the defendants in this case sought to decertify the consolidated plaintiff class, arguing that it was too broadly defined to satisfy FRCP 23(a)(2)’s commonality requirement. Essentially, the defendants argued that the single and undivided class could not satisfy FRCP 23(a)(2) because it “bundled together multiple different allegations of a variety of different provisions of the IDEA, the Rehabilitation Act, and local District of Columbia law” and “amalgamat[ed] . . . a variety of provisions of a single statutory scheme.” DL v. District of Columbia, 277 F.R.D. 38, 42 (D.D.C. 2011). This Court rejected that argument, ruling that the plaintiff class satisfied FRCP 23’s commonality requirement because it presented the common question of whether or not each class member received a FAPE. The Court then ruled that the class members’ “differing allegations only represent the differing ways in which defendants have caused class members’ common injury,” that is, the “denial of their statutory right to a free appropriate public education.” Id. at 45.

         After the Court denied defendants’ motion to decertify the class, the District filed an appeal to the D.C. Circuit and ultimately prevailed. The D.C. Circuit vacated the Court’s original order on class certification grounds-which as a result effectively and entirely vacated the Court’s various findings of liability. The Circuit remanded the case for further proceedings, holding:

After Wal-Mart it is clear that defining the class by reference to the District’s pattern and practice of failing to provide FAPEs speaks too broadly because it constitutes only an allegation that the class members “have all suffered a violation of the same provision of law,” which the Supreme Court has now instructed is insufficient to establish commonality given that the same provision of law “can be violated in many different ways.” Wal-Mart, 131 S. Ct. at 2551. In the absence of identification of a policy or practice that affects all members of the class in the manner Wal-Mart requires, the district court's analysis is not faithful to the Court’s interpretation of Rule 23(a) commonality.

DL v. District of Columbia, 713 F.3d 120, 126 (D.C. Cir. 2013).

         On remand from the D.C. Circuit, this Court was to reconsider whether a “class, classes, or subclasses may be certified,” id. at 129, and ultimately did so, certifying the following four plaintiff subclasses in 2013:

SUBCLASS 1: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and were not or will not be identified and/or located for the purposes of offering special education and related services;
SUBCLASS 2: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and did not or will not receive a timely initial evaluation for the purposes of offering special education and related services;
SUBCLASS 3: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and did not or will not receive a timely determination of eligibility for special education and related services; and
SUBCLASS 4: All children with disabilities, as defined by the IDEA, who lived in or will live in, or are or will be wards of, the District of Columbia, and who participated or will participate in early intervention programs under Part C of IDEA, and who participated or will participate in preschool programs under Part B, and who did not or will not have a “smooth and effective” transition from Part C to Part B by the child’s third birthday.

Mem. Op. 9, ECF No. 389.

         After these subclasses were certified, plaintiffs submitted a second amended complaint, alleging violations of the IDEA, Rehabilitation Act, and DC law specific to each subclass. Following another round of discovery, the parties filed cross-motions for summary judgment in 2014. The Court partially granted plaintiffs’ motion for summary judgment, finding that the District was liable for violating the IDEA and District law for the period up to April 6, 2011. Specifically, these claims corresponded to the four subclasses and related to the District’s failure to (1) identify substantial numbers of children who are in need of special education and related services, (2) timely to evaluate children for special education and related services, (3) timely to issue eligibility determinations for special education and related services, and (4) provide smooth and effective transitions for children from Part C to Part B services. Mem. Op. 9–14, 16–20, ECF No. 444. The Court did not grant plaintiffs summary judgment on their Rehabilitation Act claims for that same period, concluding that based on the record, it could not determine “whether the District’s actions reached ‘bad faith or gross misjudgment’ as to each subclass.” Id. at 15, 20.

         In addition to partially ruling for plaintiffs, the Court also partially ruled for defendants on summary judgment. Specifically, the Court ruled for defendants on (1) plaintiffs’ IDEA and District law claims related to the failure timely to evaluate children for special education and related services for the period from April 6, 2011 to the present, and (2) all of plaintiffs’ Rehabilitation Act claims for the period from March 22, 2010 to the present. Id. at 36–37, 39–42; see also Order, ECF No. 491.

         The remainder of plaintiffs’ claims went to trial. These claims fell into two categories and relate to two distinct time periods. First, plaintiffs allege that the District has violated the IDEA and District law from April 6, 2011 through the present by failing to adequately identify preschool-age disabled children for the purpose of offering them special education and related services (subclass 1); failing to timely issue eligibility determinations for special education and related services for preschool-age children (subclass 3); and failing to provide a smooth and effective transition from the early intervention program under Part C of the IDEA to preschool special education and related services under Part B by the child’s third birthday (subclass 4).

         Second, plaintiffs claim that the District violated the Rehabilitation Act for the period up to March 22, 2010 by failing adequately to identify preschool-age disabled children for the purposes of offering them special education and related services (subclass 1); failing timely to evaluate preschool-age children for special education and related services (subclass 2); failing timely to issue eligibility determinations for special education and related services for preschool- age children (subclass 3); and failing to provide a smooth and effective transition from the early intervention program under Part C of the IDEA to preschool special education and related services under Part B by the child’s third birthday (subclass 4); and that the District acted in bad faith or gross misjudgment as to each subclass.

         Trial was held on the 12th, 13th, and 16th of November 2015. Based on all of the evidence and argument presented, the Court makes the following findings of fact and conclusions of law, and will, consistent with these findings, enter judgment in favor of plaintiffs. In short, the District has improved, but started at such a low base when this litigation began, that it is still failing to comply with federal and District law.

         II. FINDINGS OF FACT

         A. CREDIBILITY OF PLAINTIFFS’ WITNESSES

         1. Dr. Carl J. Dunst

         1. Plaintiffs retained Dr. Carl Dunst as an expert to study and assess the District’s compliance with its Child Find-related obligations. Direct Test. of Dr. Carl J. Dunst ¶ 7, Oct. 22, 2015, ECF No. 475-1 (“2015 Dunst Direct”).[1]

         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 a Part B preschool special education program, and has taught numerous courses on infant and preschool development, assessment, and intervention practices. Id. at ¶ 2.

         4. From 2003 to 2010, Dr. Dunst was the Principal Investigator at a research and training center 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 ¶ 4. 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, 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 of other OSEP-funded research and training projects that focus on early childhood intervention practices. Id. at ¶ 5.

         5. Dr. Dunst is currently a Research Scientist and Director at the Orelena Hawks Puckett Institute in Asheville and Morganton, North Carolina, where he conducts research, evaluation, intervention, and training in Part C, Part B, early Head Start, Even Start, childcare and preschool practices, family-centered help-giving practices, and Child Find, referral, and outreach practices. Id. at ¶ 3.

         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 ¶ 6; see also E-mail from Jerri Johnston-Stewart, OSSE, to Alison Whyte, May 27, 2010, Pls.’ Ex. 125, at 1 (“Dr. Carl Dunst is one of the leading authorities in [the] United States on early childhood/early childhood special education and is highly regarded among OSEP and its technical assistance providers.”).

         7. Dr. Dunst has received a number of awards from professional organizations for his research and practice. Id. ¶ 6. He has an extensive list of publications about Child Find-related policies and practices. Curriculum Vitae of Carl J. Dunst, Pls.’ Ex. 268, at 22–100.

         8. During trial and in post-trial filings, the District attacked the credibility of Dr. Dunst on the basis that he had never logged into or received relevant training on the District’s database, called Special Education Database System, or “SEDS.” See Trial Tr., Nov. 12, 2015, 102:20–25, 108:7–13; Defs.’ Proposed Findings of Fact & Conclusions of Law ¶ 12, ECF No. 513. The Court has previously considered and rejected this argument, finding that Dr. Dunst is qualified to analyze the District’s Child Find-related obligations and assess its compliance. See Mem. Op. 26 n.1, ECF No. 444 (“[I]t is not clear why Dr. Dunst needed to understand how the database operates in order to analyze the data pulled from it.”).

         9. For these reasons, following the previous trial, the Court found that Dr. Dunst is a qualified expert in analyzing the District’s Child Find-related obligations for preschool-age children. Mem. Op. & Findings of Fact and Conclusions of Law ¶ 8, ECF No. 294. The Court also found 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.” Id. at ¶ 9. Based on the paragraphs above, the Court makes the same findings for the current period.

         2. Dr. Leonard Cupingood

         10. Plaintiffs retained Dr. Leonard Cupingood as an expert to study and provide statistical analysis of the District’s data related to its compliance with IDEA requirements related to special education services. 2015 Cupingood Direct Test. ¶ 22, Oct. 22, 2015, ECF No. 475-2 (“2015 Cupingood Direct”).

         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. Dr. Cupingood is currently a Director of BLDS, LLC, a position in which he develops and applies statistical models and analyses for a wide variety of settings and industries. Id. at ¶ 2. He has extensive experience conducting statistical analysis in a variety of litigation matters, including employment discrimination cases and audits of insurance companies regarding claims processing. Id. at ¶¶ 2–3. He has provided deposition and trial testimony as a database expert and as a statistician. Id. at ¶¶ 9–10.

         13. Dr. Cupingood is a member of the American Statistical Association and has published several statistics-based articles. Id. at ¶ 8. Curriculum Vitae of Leonard A. Cupingood, Pls.’ Ex. 269, at 3.

         14. For these reasons, following the previous trial, the Court found that Dr. Cupingood is a qualified expert in statistics. Mem. Op. & Findings of Fact and Conclusions of Law ¶ 14, ECF No. 294. The Court also found that Dr. Cupingood provided credible and compelling testimony during trial regarding the District’s Child Find-related obligations, including the timeliness of the District in determining the eligibility for special education and related services of children ages three through five, and the number of preschool-age children who were referred each year for special education services Id. at ¶¶ 14–15.

         15. In addition to statistics, Dr. Cupingood is an expert in computer programming and databases. 2015 Cupingood Direct ¶ 5. He started working as a computer programmer in 1968 for Leeds and Northrup Company. Id. There, he developed computer programs to monitor power systems and was the lead programmer responsible for developing a system to monitor power to Disney World’s monorail that ran to its rides before the amusement park opened in 1971. Id. In 1972, he began working for Ketron, Inc., a consulting firm that obtained government contracts to analyze the effectiveness of social programs. Id. at ¶ 6. On that project, he developed computer programs to analyze survey and census data, constructed databases to organize the data, cleaned the data for inconsistencies, and then analyzed the cleaned data. Id.

         16. Later, Dr. Cupingood began working on litigation-related data analysis. Id. at ¶ 7. For example, in employment cases, he reviewed employer databases for inconsistencies (e.g., multiple Social Security Numbers or dates of birth corresponding with a single name), cleaned the data, and then analyzed the cleaned data. Id. Each employer had its own database with different data organization techniques and variables. Id. In some cases, if the employer did not use an electronic database, he had to build a database from the company’s paper records before he could analyze the data. Id. Over the course of 40 years, he worked as a database manager-requiring computer programming, database construction, and cleaning skills-on approximately 300 cases. Id.

         17. Since he obtained his doctorate in 1985, he has offered testimony as a statistical expert in approximately 40 cases. Id. at ¶ 9. Although the primary focus of his testimony in those cases has been statistical analysis, he would not have been able to perform that analysis if he had not initially performed the programming and required data cleaning. Id. He does not recall a single case in which he provided testimony as a statistical expert in which he did not also perform or supervise all of the necessary programming and data cleaning. Id. Moreover, in a small number of cases, Dr. Cupingood has testified as a database expert only. Id. at ¶ 10.

         18. In the 1980’s, Dr. Cupingood was appointed by a Special Master in the United States District Court of the Eastern District of Pennsylvania as an automation consultant. Id. at ¶ 11. His responsibility was to supervise computer programmers to ensure that the data system, which they created to monitor the referral and dispatching process of a union operating under the court’s supervision, collected the necessary data and produced the required output. Id. Thus, over 20 years ago, Dr. Cupingood was recognized as an expert in the field of computer programming and databases.

         19. Dr. Cupingood has substantial additional experience in computer programming and statistics. Cupingood Supplemental Direct Test., Nov. 2, 2015, ECF No. 489-1. Similar to Dr. Dunst, at trial and in post-trial filings, the District attacked Dr. Cupingood’s credibility because he had never logged into SEDS or received training on the database. Trial Tr., Nov. 12, 2015, 30:20– 31:9, 44:25–45:3; Defs.’ Proposed Findings of Fact & Conclusions of Law ¶ 4, ECF No. 513. The Court previously rejected these arguments and will do the same today. Mem. Op. 30, ECF No. 444 (“Dr. Cupingood does not need to have any particular understanding of special education policies or databases to assess the data provided to him. Furthermore, it is entirely unclear to the Court why Dr. Cupingood needed to access the database himself rather than rely on the data provided by the District.”).

         20. Based on findings paragraphs 11–19, the Court again finds that Dr. Cupingood is a qualified expert in statistics, and also finds that he is an expert in computer programming and databases. The Court also finds that Dr. Cupingood provided credible and compelling testimony during trial regarding the District’s data related to the number of preschool-age children who are enrolled, the number of preschool-age children who timely received an initial eligibility determination for special education and related services, the number of children who received a smooth and effective transition from Part C to Part B services, and the District’s special education databases.

         3. Lauren Seffel

         21. Plaintiffs moved for the admission under Rule 1006 of the Federal Rules of Evidence of a summary of facts related to individual children in the District who were referred for special education services, which was compiled by plaintiffs’ counsel. Plaintiffs’ Factual Summary, Pls.’ Ex. 270, ECF No. 456-1 (sealed). Over defendants’ objection, the Court granted that motion, see generally Mem. Op., ECF No. 478, and required the attorney that compiled the summary to appear for a deposition by the District’s counsel and to introduce the summary at trial and be subject to cross-examination. Id. at 16. Lauren Seffel, an attorney for plaintiffs, did so. Ms. Seffel provided credible testimony regarding the creation of plaintiffs’ Factual Summary.

         B. CREDIBILITY OF DEFENDANTS’ WITNESSES

         22. The District offered the testimony of 13 fact witnesses, 12 of whom are District of Columbia’s Office of the State Superintendent of Education (“OSSE”) or District of Columbia Public Schools (“DCPS”) employees. Those witnesses testified regarding positive improvements in the District’s policies, procedures, and practices. These witnesses did not directly rebut or discuss the statistical conclusions of plaintiffs’ expert witnesses regarding the effectiveness of the District’s policies, procedures, and practices, nor did any of the District’s witnesses challenge the findings of plaintiffs’ Factual Summary.

         23. Dr. Amy Maisterra is the Assistant Superintendent of Elementary, Secondary, and Specialized Education at OSSE. Direct Examination of Dr. Amy Maisterra ¶ 1, Oct. 22, 2015, ECF No. 477-1. She holds a doctorate in educational leadership from the University of Pennsylvania and a master’s degree in clinical social work from the Smith College School for Social Work. Her background includes professional experience in both educational and behavioral health. Id.

         24. Kerda DeHaan is a Special Assistant for IDEA Part C at OSSE; she has spent approximately six years with the agency, and her work focuses on the District’s Part C program, also known at the Strong Start DC Early Intervention Program (“DC EIP”). Direct Examination of Kerda DeHaan ¶ 1, Oct. 20, 2015, ECF No 477-2.

         25. Dr. Nathaniel Beers is the Chief Operating Officer (“COO”) for DCPS. Direct Examination of Dr. Nathaniel Beers ¶ 1, Oct. 21, 2015, ECF No. 477-3. He is also a developmental and behavioral pediatrician, and his background includes serving as the Chief of DCPS’s Office of Specialized Instruction, Executive Director of the Early Stages Center, and Deputy Director for Community Health Administration with the District’s Department of Health. Id. Dr. Beers was previously employed by Children’s National Medical Center in a variety of capacities, where, among other tasks, he oversaw the largest primary care clinic in the District. Id. He is a past president of the District of Columbia Chapter of the American Academy of Pediatrics and a current member of the Council of School Health for the National American Academy of Pediatrics. Id.

         26. Dr. Travis Wright is the Deputy Chief for Early Childhood Education at DCPS. He holds a doctorate degree in human development and psychology from Harvard University. Direct Examination of Dr. Travis Wright ¶ 1, Oct. 21, 2015, ECF No. 477-4. His areas of expertise focus on teaching in highly stressed communities, teaching children who have experienced trauma, and early childhood education. Id. Dr. Wright has been a faculty member in education at George Washington University and the University of Wisconsin-Madison. Id. Dr. Wright has served as the Research in Review Editor for Young Children, a journal published by the National Association for the Education of Young Children, and he was a Board Member of the Early Childhood Education Special Interest Group of the American Educational Research Association. Id.

         27. Donna Anthony is the Assistant Superintendent for Health and Wellness at OSSE. Direct Examination of Donna Anthony ¶ 1, Oct. 22, 2015, ECF No. 477-5. Through October 16, 2015, she worked at DCPS, primarily serving as Chief of Staff and Interim Chief of the Office of Specialized Instruction. Id. She holds a master’s degree in public health from George Washington University. Id.

         28. Brian Massey is the Child Find Field Coordinator for Ward 6, at the Early Stages Center. Direct Examination of Brian Massey ¶ 1, Oct. 22, 2015, ECF No. 477-6. Previously, Mr. Massey served as the Child Find Field Coordinator for Medical Constituency Outreach at Early Stages, and he has worked as a classroom educator at the Capital City Public Charter School in Washington, D.C. Id.

         29. Sean Compagnucci is the Executive Director of the Early Stages Center. Direct Examination of Sean Compagnucci ¶ 1, Oct. 22, 2015, ECF No. 477-7 (“Compagnucci Direct”). Mr. Compagnucci joined Early Stages as a Child Find Field Coordinator shortly after the organization was created in 2009; he has also held the positions of Child Find Program Manager and Deputy Director. Id.

         30. Carla Watson is the Deputy Chief of Compliance and Policy for the Office of the Chief Operating Officer at DCPS. Direct Examination of Carla Watson ¶ 1, Oct. 21, 2015, ECF No. 477-8. She has worked as a child advocate, providing legal services in New York, and as a guardian ad litem and education advocate for students in foster care in the District. Id. Ms. Watson joined DCPS in February 2008, as a Senior Policy Associate on the Special Education Reform Team and has subsequently worked on and overseen compliance and policy. Id.

         31. Jessica Roche is the Director of the Policy and Legal Strategy Team within the Compliance and Policy Division at DCPS. Direct Examination of Jessica Roche ¶ 1, Oct. 22, 2015, ECF No. 477-9. She began working for DCPS as a Program Coordinator on the Least Restrictive Environment Support and Policy Team in August 2011, and has been promoted several times to her current position. Id. Ms. Roche holds a B.S.Ed. in Inclusive Elementary and Special Education and is licensed to practice law in both New Hampshire and Massachusetts. Id. She works under Ms. Watson, and her work focuses primarily on Early Stages compliance and monitoring. Id.

         32. Dr. Maxine Freund is the Associate Dean for Research and External Relations at the George Washington University’s Graduate School of Education and Human Development. Direct Examination of Dr. Maxine Freund ¶ 1, Oct. 22, 2015, ECF No. 477-14 (“2015 Freund Direct”). Dr. Freund is also a tenured professor in the University’s Department of Special Education and Disabilities Studies and a resident of the District. Id.

         33. During her thirty-year career as a professor, Dr. Freund has designed and implemented doctoral leadership programs and master’s degree programs that, among other things, prepared infant and early childhood specialists for early intervention work with atypical infants, toddlers, and preschoolers. Id. Many of these programs were funded by the United States Department of Education through competitive grant programs and by national and local foundations interested special education for at-risk and special-needs populations. Id.

         34. Dr. Freund has authored extensive publications and presentations in the special education and early childhood education fields. Defs.’ Ex. 55, at 5–12. As an Associate Dean of the George Washington University, she also directs doctoral candidates’ dissertations on special education and early childhood education and has developed a specific focus on the special education eligibility determination process for preschool-age children. Id.

         35. Based on paragraphs 32–34, the Court concludes that Dr. Freund is qualified as an expert to analyze the District’s Child Find obligations as they relate to preschool children. The Court also finds that Dr. Freund testified credibly, demonstrated specific knowledge of the relevant literature, and explained clearly how her conclusions were based on her research, personal experience in the field, and in depth examination of the District’s preschool Child Find system.

         36. Like the District’s fact witnesses, however, Dr. Freund was largely silent as to the statistical conclusions of plaintiffs’ expert witness, which plaintiffs offered to highlight the ineffectiveness of the District’s policies, procedures, and practices.

         C. BACKGROUND

         37. Part B of IDEA concerns special education and related services for three-to-five-year-old children. 20 U.S.C. §§ 1411–1419 (“Assistance for Education of All Children with Disabilities”); § 1412(a)(1)(a) (requiring states to have “in effect policies and procedures to ensure that . . . [a] free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive”).

         38. Early Stages is a DCPS center, which is the primary facility for providing Part B special education screenings, evaluations, and eligibility determinations for three-to-five-year-old children in the District. See Compagnucci Direct ¶ 2; see generally Expert Report of Dr. Maxine Freund, Sept. 14, 2009, ECF No. 172-2 (“2009 Freund Report”). Early Stages is also responsible for outreach to find children in need of special education and related services. Compagnucci Direct ¶ 5.

         39. If a parent, teacher, or any other person with knowledge of a child in the District has a concern that a child requires special education services, they can contact Early Stages. See Compagnucci Dep. 6:19–7:13, June 2, 2014, Pls.’ Ex. 15 (“Compagnucci Dep.”); Early Stages Family Care Manual, Feb. 8, 2011, Pls.’ Ex. 72, at DL2014 177 (“Family Care Manual”). Early Stages is required to screen the children, which it does through a questionnaire. See Compagnucci Direct ¶ 24; Compagnucci Dep. 8:11–9:9. Early Stages then assesses the child to determine the child’s needs. Compagnucci Direct ¶ 27.

         40. Once those assessments are performed (together referred to as the evaluation), see Compagnucci Dep. 26:10–13, Early Stages determines whether the child is eligible for special education and related services. See Compagnucci Direct ¶ 29. The District must complete the evaluation and provide an eligibility determination within 120 days of the child’s referral. See infra paras. 254–57, 262. If the child is eligible, then Early Stages must prepare an Individualized Education Plan (“IEP”) and identify a location (i.e., a school) where the services will be provided. Compagnucci Direct ¶ 29; Compagnucci Dep. 13:7–14:4.

         41. Services include (1) special education and (2) related services. Special education is “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability.” 20 U.S.C. § 1401(29). Related services are “transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education . . . .” 20 U.S.C. § 1401(26).

         42. At the time of the last trial, Dr. Nathaniel Beers was the Executive Director of Early Stages. Test. of Nathaniel Beers ¶ 1, Mar. 16, 2011, ECF No. 210-1 (“2011 Beers Direct”). Sean Compagnucci is now the Executive Director. Compagnucci Direct ¶ 1.

         43. Part C refers to the part of IDEA that relates to special education services for children younger than three years old. 20 U.S.C. §§ 1431–1444 (“Infants and Toddlers with Disabilities”); § 1432(5) (defining “infant or toddler with a disability”). Children in Part C receive an Individual Family Service Plan (“IFSP”), rather than an IEP. See Family Care Manual, Pls.’ Ex. 72, at DL2014 194. Part C services are the responsibility of a District program called Strong Start, not Early Stages. Direct Examination of Kerda Dehaan ¶ 1.

         44. The District has summarized the main differences between Part B and Part C services:

Early intervention [Part C] services are provided within a natural environment for the child [e.g., the home] and services are family centered. They can include nursing and medical care in some cases. . . .
Special education [Part B] services are usually provided in a public school, Head Start center, or inclusive community early care and education center. [Part B] [o]nly provides nursing or medical care services [i.e., related services] that are considered necessary for the child to access educational programs.

         Family Care Manual, Pls.’ Ex. 72, at DL2014 194.

         45. Pursuant to the IDEA, children must receive a “smooth and effective” transition from Part C to Part B services by the child’s third birthday. 20 U.S.C. § 1412(a)(9). That requires Part B special education and related services to be provided to transitioning children by their third birthdays. Id. (“By the third birthday of such a child, an individualized education program . . . has been developed and is being implemented for the child”); Mem. Op. 39, ECF No. 444 (“All services must commence for a transition to be smooth and effective.” (emphasis in original)).[2]

         46. On April 15, 2014, the District issued Policies and Procedures for the Extended IFSP Option for Children age three to four. See Pls.’ Ex. 52. This policy permits parents to choose to have their child receive their Part C services, with an educational component, until the beginning of the school year after he or she turns four years old. Id. at 2.

         47. The District Office of the State Superintendent of Education (“OSSE”) is the State Education Agency (“SEA”) for the District “serves as the lead and local agency for Part C,” and “fulfills state-level obligations for Part B and Part C of IDEA.” Direct Test. of Amy Maisterra ¶ 3, Mar. 16, 2011, ECF No. 210-3 (“2011 Maisterra Direct”). “OSSE is responsible for monitoring the performance of the District’s Local Education Agencies (‘LEAs’), of which [DCPS] is the largest.” Id; see also Direct Examination of Amy Maisterra ¶ 5, Oct. 22, 2015, ECF No. 477-1 (“2015 Maisterra Direct”). OSSE assumed these roles from DCPS after OSSE was created in 2007. 2009 Freund Report 4.

         48. OSSE obtains federal IDEA Part B funds from OSEP and allocates those funds among District LEAs. 2011 Maisterra Direct ¶¶ 8, 21. Accordingly, OSEP monitors OSSE’s compliance-and OSSE monitors LEAs compliance-with IDEA Part B requirements. Id.

         49. Dr. Amy Maisterra is OSSE’s Assistant Superintendent of Elementary, Secondary, and Specialized Education. 2015 Maisterra Direct ¶ 1. She was previously OSSE’s Assistant Superintendent for the Division of Specialized Education. Maisterra Dep. 6:11–14, June 2, 2014, Pls.’ Ex. 14. OSSE’s Division of Specialized Education “is responsible for overseeing the development and promulgation of state policy governing special education; monitoring LEAs for compliance with IDEA as well as other federal and local regulations and court-ordered consent decrees; allocation and administration of IDEA grant funds to LEAs and other public agencies; provision of training and technical assistance to LEAs; and investigation and resolution of state complaints relating to special education.” OSSE website, Pls.’ Ex. 58.

         50. DCPS keeps documents and data related to children who receive referrals to Early Stages in the Early Stages database, part of which is then uploaded into a different database, called the SEDS. Compagnucci Dep. 20:14–21:2, 21:17–22:11, 32:13–33:2, 43:3–6, 43:15–44:16, 45:9– 48:10, Aug. 12, 2014, Pls.’ Ex. 21. OSSE requires documents and data related to children who receive referrals to be uploaded into SEDS. 2011 Maisterra Direct ¶ 7; Maisterra Dep. 336:18– 337:3, July 2, 2014, Pls.’ Ex. 18.

         51. OSSE uses SEDS to prepare statistics for this case and for reporting to OSEP. Direct Examination of Anupama Proddutur ¶ 2, ECF No. 477-12 (“Proddutur Direct”); Proddutur Dep., July 2, 2014, Pls.’ Ex. 18; Maisterra Dep. 336:18–337:3, July 2, 2014, Pls.’ Ex. 18. These statistics include data such as the number of children who have IEPs at a given point in time, the percentage of children who receive an eligibility determination within 120 days over a given period of time, and the percentage of children who receive a smooth and effective transition from Part C to Part B services over a given period of time. See Proddutur Direct ¶ 2. To calculate the percentage of children who receive a smooth and effective transition from Part C to Part B services, in addition to SEDS, OSSE uses data from the Early Stages database and the Part C database (a separate database that tracks data related to children receiving Part C services). See Proddutur Dep. 164:17–165:11, July 2, 2014, Pls.’ Ex. 18; Trial Tr., DeHaan Test., Nov. 13, 2015, 17:21–18:8.

         52. Plaintiffs contend that the District’s policies, procedures, and practices are deficient, as evidenced in large part by the District’s own data. Essentially, they allege that the District’s statistics-which on their face help to demonstrate the District’s compliance-are prepared in a way that makes it appear that the District’s policies, procedures, and practices are more effective than they actually are. Indeed, the bulk of the plaintiffs’ evidence examines the data that underpins the District’s contention that it is and has been serving over 8.5% of the preschool-age population, performing timely eligibility determinations for over 95% of referred children, and smoothly and effectively transitioning over 95% of children into Part B. The plaintiffs argue that these numbers are inflated because the District applies incorrect assumptions and in some cases misreports outcomes. The District counters plaintiffs’ arguments primarily by focusing on the enactment and design of its policies and arguing that its reporting practices were “developed around the federal Department’s guidance.” Defs.’ Proposed Findings of Facts and Conclusions of Law ¶ 65, and produce accurate and valid results “across staff and across reports.” Id. at 64.

         In other words, the District fails to challenge plaintiffs’ evidence on its own terms. As the defendants point out, the plaintiffs litigation strategy has shifted from the 2011 trial to the more recent trial conducted in November 2015. See, e.g., Trail Tr., Nov. 12, 2015, 19:8–10 (District’s counsel: “[T]he statistics that plaintiffs offer today are not the statistics that the Court credited in 2011. It’s not apples to apples.”). Indeed, the plaintiffs’ arguments and evidence have evolved to focus on the outcomes and effectiveness of the District’s policies and the accuracy of its statistical conclusions in addition to the design of the polices themselves. See, e.g., id. at 20:6–8 (District’s counsel: “This time, unlike in 2011, plaintiffs will not critique any major or substantive aspect of the District’s preschool Part B program.”).

         But as plaintiffs’ arguments have developed, the defendants for the most part presented evidence as though plaintiffs’ litigation strategy has remained constant since 2011. The District claims its statistics show its policies are effective and are implemented a way that complies with the IDEA’s requirements. In presenting this evidence, however, the District does very little to counter the plaintiffs’ core theory and substantial testimony that the District’s self-reported data significantly inflate the District’s actual rates of compliance. Even assuming the District “has always been clear with OSEP on how the District selects data points, collects data, and calculates statistics,” Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 65 (quoting 2015 Maisterra Direct ¶ 15), it does not follow that the District’s assumptions are well founded and that its reporting is accurate.

         Indeed, plaintiffs have offered ample evidence that speaks to the substance of the District’s statistics, while the District has responded primarily with conclusory assertions that its statistics are “accurate[e] and valid[] across staff and across reports,” id. at ¶ 64, and with evidence showing it has made noticeable improvements since 2011. In the Court’s view, however, substantial progress and good faith efforts are insufficient to satisfy the IDEA’s affirmative duties. For the District to comply with the IDEA and District law, its policies and procedures must produce the proper results-something that plaintiffs’ evidence demonstrates they are currently failing to do.

         53. While the District’s policies, procedures, and practices are important, the outcomes of those policies, procedures, and practices are even more critical. The Court made this clear when it adjudicated the motions for summary judgment. Mem. Op. 18–19, ECF No. 444 (“The question . . . is whether the District’s policies were successfully implemented, thus ensuring that the District met the required conditions.”); id. at 27 (“Indeed, evidence that the District is failing to identify, evaluate, determine eligibility for, and transition large numbers of students may necessarily reflect a failure in policies and procedures.”); id. at 34 (“While the District thoroughly details the policies it has enacted since 2010, the Court must also consider the effectiveness of these policies in achieving compliance with IDEA and D.C. law.”); id. at 38 (“[P]laintiffs’ statistics tend to show that the District’s policies-whatever they may be-have failed to ensure that eligibility determinations are timely.”) (emphases in original).

         54. The Court also previously found, see Mem. Op. ¶¶ 60–63, ECF No. 294, and finds again, that the District has improved, and that its improvement, including reforms to the District’s Child Find-related policies, procedures, and practices, and the organization of the Early Stages Center, occurred during and because of this lawsuit. See accompanying Mem. Op. issued on this date, at 15–18.

         55. Despite the District’s extensive testimony about the strengths of its program, see, e.g., Trial Tr., Maisterra Test., Nov. 13, 2015, 15:9–10, its deficiencies have continued, although to a lesser degree. The plaintiffs have provided evidence that corresponds specifically to the alleged harms suffered by each subclass, evidence which the District has not successfully rebutted. This evidence tends to demonstrate that despite the District’s efforts, it is failing to identify preschool-age disabled children for the purposes of offering them special education and related services, failing to timely determine the eligibility of preschool-age children for special education and related services, and failing to provide a smooth and effective transition from the early intervention program under Part C of the IDEA to preschool special education and related services under Part B by the child’s third birthday.

         D. CHILDREN RECEIVING SPECIAL EDUCATION SERVICES

         56. As described below, the District should be providing special education and related services to at least 8.5% of its preschool-age population. See infra paras. 59–82. The District contends that it served between 8.40% and 9.89% of that population monthly since January 2013, when it began producing monthly data. See District of Columbia Monthly Enrollment Reports, Defs.’ Ex. 53, at 5–6 (displaying a high in Mar. 2013 of 9.89%), 45–46 (displaying a low in Nov. 2014 of 8.40%); see also Pls.’ Ex. 285, at 1; Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 101. These numbers, however, are not accurate, in large part because they are calculated using an outdated census figure. See infra paras. 86–95.

         57. When calculating its data appropriately (e.g., using an annual population estimate rather than the 2010 census figure), the District served a high of 8.04% of its preschool-age population in March 2013, a figure which fell nearly monthly to a low of 6.27% in November 2014. See infra para. 84. In other words, the District failed to provide special education and related services to between 98 and 515 children, varying monthly, since 2013. Id. The District contends that it is screening over half of its preschool-age population. See Trial Tr., Beers Test., Nov. 13, 2015, 21:13–18; see also Defs.’ Proposed Findings of Fact and Conclusions of Law ¶¶ 77–78 (describing the safeguards and procedures the city has in place to ensure that families are able to “receive developmental screenings”). Despite these efforts, at any given time, hundreds of children are still not receiving needed special education and related services.

         58. Moreover, the District reported to OSEP that it provided special education and related services to 1,429 three-to-five-year-old children for 2014-2015, which amounts to only 6.19% of the District’s preschool population. See infra para. 96. That is a decline of approximately 19% since 2011 and is essentially equal to the average percentage of children served nationwide. See supra paras. 97–98. Based on its risk factors, the District should be serving substantially more children than the national average. The District is far from meeting the 8.5% benchmark.

         1. The District Should Be Serving at Least 8.5% of Its Preschool-age Population with Special Education and Related Services

         59. OSEP tracks the percentage of children who receive special education and related services in each state and similar jurisdictions. 2015 Dunst Direct ¶ 44. The District has historically provided special education and related services to the lowest or near the lowest percentage of preschool-age children in the United States. 2015 Dunst Direct ¶¶ 45–46; see infra paras. 191–99; see also Mem. Op. ¶¶ 25–28, ECF No. 294. That is true despite the fact that, based on risk factors in the District, and the fact that it is the only entirely urban jurisdiction, it has the largest percentage of children who may be eligible for special education services. 2015 Dunst Direct ¶¶ 36–43; see also Mem. Op. ¶¶ 29–30, ECF No. 294. Otherwise said, the District has had the highest need for special education services, but has historically provided those services to the fewest children. 2015 Dunst Direct ¶ 43.

         60. In 2011, the Court found that the District violated federal and District law by failing to provide Part B services to a substantial number of three-to-five-year-old children. Mem. Op. ¶¶ 111–13, ECF No. 294. The Court also found that, “on the low end, the District should expect to be serving 8.5% of its preschool-age population with Part B services.” Id. at ¶ 30. Accordingly, the Court ordered the District to “ensure that at least 8.5 percent of children between the ages of three and five years old, inclusive . . . who reside in or are wards of the District of Columbia, are enrolled in special education and related services under Part B of IDEA.” Id. at ¶ 147.

         61. At the recent trial, Dr. Dunst again explained why the District should currently be serving at least 8.5% of its preschool-age population with Part B services, a figure that is in line with the Court’s benchmark set in 2011. 2015 Dunst Direct ¶¶ 29–40; Trial Tr., Dunst Test., Nov. 12, 2015, 117:25–119:7, 128:6–19. Dr. Dunst based this figure upon evidence related to risk factors in the District, comparisons to other jurisdictions, and incidences of developmental delays nationwide. 2015 Dunst Direct ¶¶ 29–40; Trial Tr., Dunst Test., Nov. 12, 2015, 117:25–119:7, 128:6–19. He explained that the relevant risk factors in the District are high, meaning that children in the District face higher risks of experiencing developmental disabilities than the national average. 2015 Dunst Direct ¶¶ 41–42. These greater risk factors contribute to the relatively high target 8.5% enrollment rate, which is a few percentage points above the national enrollment figure. Id. And importantly, these risk factors have not materially changed since 2011, when the Court first found that the 8.5% enrollment benchmark was appropriate. Id.; see also U.S. Census Bureau, Small Area Income and Poverty Estimate, Under Age 5 in Poverty, Pls.’ Ex. 193, at 4 (2007, 26.1% in poverty; 2013, 26.8% in poverty); see generally Data Related to Risk Factors, Pls.’ Ex. 287. Looking to the specific risk factors, as of the November 2015 trial, 55% of the number of children in the District live in single parent households, see Pls.’ Ex. 287, at 4126, 15% live in non-English speaking households, id. at 4130, 14% live in households where parents have less than a high school education, id. at 4131, 23% of households receive assistance through the Supplemental Nutrition Assistance Program (the highest in the country), id. at 4132, 33% live in concentrated poverty areas, id. at 4134, and 22% of families experience severe housing problems, id. at 4135.

         62. Dr. Dunst’s conclusion that the District should be serving 8.5% of its preschool population is also entirely consistent with the District’s documents and Dr. Beers’ testimony at the last trial, although at that time Dr. Beers suggested that the benchmark should be even higher. The Early Stages Family Care Manual states: “Given DC’s risk factors for developmental delays, including low birth weight, poverty, and HIV/AIDS infection, DC’s projected identification rate is about 12%.” See Pls.’ Ex. 72, at DL 204. When asked at his 2011 deposition about how the 12% figure was derived, Dr. Beers testified that it was an estimation based upon the identification rates of other urban jurisdictions, namely Atlanta and Detroit, which “range[d] between 10 to 12 percent, but [the District] picked 12 percent as an aggressive target that [it] wanted people to strive towards.” Beers Dep. 61:12–62:11, Mar. 1, 2011, Pls.’ Ex. 12. At the recent trial, Dr. Beers explained that he initially looked at a range of 10-12%, and then looked at a range of 8-12%:

I believe in my testimony here when we talked in 2011, we talked about a range from 10 to 12 percent. We were still at that point moving rapidly and we had gone from about 2 percent of the eligible kids to about 4 percent of eligible ki[d]s at the time we appeared in court at that time. So at that point we had also a better estimation of what we were going to get when we were screening kids and started talking about a range of 8 to 12 percent as where we thought was a reasonable place for us to get over time, recognizing that I had no data when I arrived in 2009.

Trial Tr., Nov. 13, 2015, 20:22–21:6; see also Mem. Op. ¶ 30, ECF No. 294.

         63. Whether it is Dr. Dunst talking about 8.5%, or Dr. Beers talking about 10 to 12% (or 8 to 12%), both individuals were addressing the percentage of children who would be served. Dr. Dunst testified that the District “should expect to be serving 8.5 percent of its preschool-age population with Part B services.” 2015 Dunst Direct ¶ 40. Although other language in his direct examination made it appear as though he meant this to relate just to children who are found eligible for Part B services, he explained that he meant it as an estimate of “eligibility, enrollment, and provision of services.” Trial Tr., Dunst Test., Nov. 12, 2015, 130:15–16. Indeed, he provided extensive testimony comparing the number of children receiving special education and related services in the District with the 8.5% benchmark. 2015 Dunst Direct ¶¶ 43–88. Dr. Beers similarly explained, at the last trial, that the District’s “identification rate” relates to children receiving services. See Trial Tr., Apr. 6, 2011, Pls.’ Ex. 6, 175:23–176:18.

         64. The 8.5% benchmark is also consistent with portions of Dr. Freund’s previous testimony. See Freund Dep. 57:3–7, Oct. 1, 2014, Pls.’ Ex. 22 (“[I]t certainly seems to be somewhere in the 8 percent area might be the current appropriate identification of children with disabilities preschool, given the current population.”).

         65. It is also consistent with many of the District’s own documents. For example, the District’s Special Education Monitoring & Compliance Manual (IDEA Part B) from August 2014 uses 8% as the enrollment benchmark:

Child Find monitoring is a process designed to ensure that students with disabilities are being appropriately identified and served by their LEAs. Twice a year, OSSE will review the enrollment rates for students with qualifying disabilities under IDEA at each LEA. LEAs that have special education enrollment rates of less than 8% of the total student population will be reviewed to ensure that the LEA has proper special education referral and eligibility processes in place, and to ensure that LEA staff understand their obligation to provide special education and related services to students with disabilities.

Pls.’ Ex. 51, at 15 (emphasis added).

         66. In addition, the current version of the Early Stages Manual, which is maintained online and is date stamped April 29, 2015, and includes updates as of April 2015, states: “Nationally, about 6% of three-to-five year olds are identified with developmental delays, but taking into consideration the additional risk factors in DC, including low birth weight, poverty, and HIV/AIDS infection, the number of children who are expected to be eligible has been estimated to be between 8.5% and 10.5%.” Pls.’ Ex. 61, at DL2015 2304.

         67. All of this supports the conclusion that the District must show that it is serving 8.5% of its population of three-to-five-year-old children with special education and related services. The Court emphasizes that 8.5% is the minimum that the District should be achieving. 2015 Dunst Direct ¶ 40; see also Mem. Op. ¶ 30, ECF No. 294.

         68. The District offers several contrary arguments. First, Dr. Freund believes that the 8.5% benchmark is arbitrary. 2015 Freund Direct ¶ 11. The Court disagrees. The Court made a reasoned conclusion based upon the evidence presented at the last trial, see Mem. Op. ¶¶ 29–30, ECF No. 294, and the findings above, including Dr. Beers and Dr. Freund’s statements, and the District’s own documents.

         69. Second, Dr. Freund believes that the District has such a strong Child Find program that a numerical benchmark is unnecessary. 2015 Freund Direct ¶ 11. This argument, however, overlooks how critical it is for any organization to have a benchmark to avoid slippage. A benchmark is not necessary just for the Court to assess compliance; it is necessary for staff to understand what must be accomplished. As described above, Dr. Beers testified that, in 2009, he identified 12% as the goal because he “was asked to set forth an aggressive metric in order to make sure that we could get quick change.” Trial Tr., Nov. 13, 2015, 20:11–14.

         70. The results of the District’s program confirm the need for a benchmark. Around the time of the last trial, when the District had a goal of 10 to 12%, it had a rapid rise in its enrollment rate. Trial Tr., Beers Test., Nov. 13, 2015, 20:11–21:1. However, during 2013 and 2014, around which time the District did not have an enrollment benchmark, the District’s enrollment in special education and related services fell by approximately 15%. See id. at 21:24–22:4 (stating the benchmark was abandoned); Compagnucci Dep. 32:18–33:1, June 3, 2014, Pls.’ Ex. 16 (stating no enrollment benchmark was used in 2014); Maisterra Dep. 33:21–34:10, June 2, 2014, Pls.’ Ex. 14 (same); infra para. 85 (showing a fall in enrollment rate).

         71. It is not clear to the Court why the District abandoned its benchmark. Dr. Beers testified:

[W]e have seen that we’ve had a rapid rise in that percentage and started to see that stabilize. But we know that we also have a system where we have staff who believe we should continue to push. And even though we are in that 8 to 12 percent range, I don’t think that the staff are willing to sort of just rest on their laurels. So we have backed away from a special number and tried to use the target of really trying to make sure that we’re reaching more kids through our screening processes because that’s the way we start to make sure that we’re confident that we’re serving all the kids that need to be served.

Trial Tr., Nov. 13, 2015, 21:19–22:4. Indeed, the District discontinued its use of a benchmark even though there was not a rapid rise in the enrollment percentage, at least recently. In fact, as described below, there was a two-year drop. See infra para. 85. Moreover, the District is not currently in the 8 to 12% range. That conclusion is based on outdated census figures which the District does not use in other similar circumstances. See infra paras. 86–95. The remainder of Dr. Beers’ explanation, that he does not think that his staff would rest on their laurels, does not explain why the District would abandon a benchmark.

         72. Third, Dr. Freund contends that “if the Court is inclined to ascribe compliance to a number, . . . it would be better to look for the number of children served (over 1,450 children in each month for nearly two full years) and find that this large number of children served is a sufficient one to serve a numeric proxy for programmatic compliance.” 2015 Freund Direct ¶ 11; see also Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 103 (“[S]ustained delivery of special education services to more than 1,450 children . . . constitutes strong evidence of compliance with the IDEA’s Child Find mandate.”). However, again, the number of preschool-age children with IEPs in the District fell over that two-year period and then began to rise again. See infra para. 85. Based on the District’s own measurement, 264 fewer children were receiving special education and related services in November 2014 than in March 2013, id., while at the same time the population of three-to-five-year-olds in the District was rising. See infra para. 89. This apparent backslide, coupled with the fact that the District’s three-to-five-year-old population is expected to continue to rise, see infra para. 90–91, demonstrates that any benchmark should reflect the rate of enrolled students, not the absolute number of enrolled students.

         73. Relatedly, the District cites to Dr. Dunst’s 2010 testimony, where he stated the “District’s goal should be to serve between 600 and 1,100 preschool children in special education.” Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 102 (citing Trial Tr., Nov. 12, 2015, 117:2–5, 119:22–25). The District argues that this statement undercuts Dr. Dunst’s testimony and supports its argument that the current absolute number of children being served shows the District is complying with the IDEA. Id. As plaintiffs point out, this figure of 600 to 1,100 preschool children ties to Dr. Dunst’s 2009 expert report, where he wrote that “[t]he different profiles shown in Exhibit B would indicate that DCPS should be locating and serving at least 6% of the preschool population in special education, or about 1100 children.” ECF No. 358-7, at 13. At the time, six percent was that national average. Id. at 10–11.

Dr. Dunst continued in his report:
Based on the poverty and teenage pregnancy rates in the District of Columbia, as well as the number of births, one would expect that the incidence of disability among preschoolers in the District to be greater than in most other States. In a study of the influences of poverty on the incidence of disability among preschoolers, a large percentage of birth to six year olds who lived in households at or below federal low income thresholds were more likely to have a disability than those who lived in households with higher incomes.

Id. Looking to this text, plaintiffs argue that “in 2009, before Dr. Dunst calculated the appropriate benchmark based in part on the risk factors in the District, he stated that the District should be serving at least the national average, but likely more due to risk factors in the District.” Pls.’ Proposed Findings of Fact and Conclusions of Law 26 n.12. And the Court agrees, finding Dr. Dunst’s testimony in 2015 and in 2009 is consistent.

         74. Fourth, the District argues that the 8.5% is too high because that target number does not properly account for what the District called “protective factors,” that is, conditions or policies that “buffer[] children against their negative effects” of the District’s heightened risk factors, such as poverty and homeless. Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 97. For example, the District asked Dr. Dunst about how the existence of non-profits and other social organizations may reduce the number of children in need of special education and related services, see Trial Tr., Nov. 12, 2015, 123:17–124:9, 125:10–23, and Dr. Travis Wright testified on the District’s behalf that its non-profits contribute to a strong social safety net, see Trial Tr., Nov. 16, 2015, 16:24–17:14. Washington D.C.’s network of non-profits likely does indeed help to alleviate some of the negative developmental effects of risk factors like high homelessness and poverty rates, but child homelessness and poverty still exist in D.C. at staggering levels. See supra para. 61. In the Court’s view, the positive effects of such a non-profit network would materially affect the enrollment analysis if it decreased the incidence of the relevant risk factors. But to the extent that the non-profits do decrease rates of poverty and homelessness, etc., that decrease is already baked into Dr. Dunst’s analysis. In other words, the rates of the relevant risk factors are lower than they otherwise would be if D.C.’s network of non-profits did not exist. Therefore, Dr. Dunst’s analysis, which centers on risk factors, still incorporates much of the positive effects of protective factors.

         75. Adding to the protective factors, Dr. Wright testified that the District’s early childhood education programs (not specific to special education) were ranked best in the country. Trial Tr., Nov. 16, 2015, 16:24–17:14. This is of course a positive development, but the District did not analyze the specific impact that those or other programs may have on the percentage of children who should receive special education and related services. See Id. at 20:14–17. Regardless of the aggregate impact of the protective factors, the 8.5% enrollment benchmark is conservative given the prevalence and impact of the District’s risk factors. See, e.g., Pls.’ Ex. 287, at 4131 (showing that 23% of households in D.C. receive assistance through the Supplemental Nutrition Assistance Program-the highest in the country). Moreover, it is in line with estimates contained in internal District documents, see supra paras. 65–66, and with testimony provided by Dr. Beers in 2011. See supra para. 62. As such, the Court finds that the conservative nature of the benchmark more than accounts for any impact the protective factors may have on the analysis.

         76. Fifth, the District contends that, with a benchmark, or with the wrong benchmark, there is a risk of over-identification. Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 100; Trial Tr., Wright Test., Nov. 16, 2015, 18:5–15. Such over-identification could harm children who do not need special education services by placing a label on them that could potentially last “throughout their educational career.” Trial Tr., Beers Test., Nov. 13, 2015, 2:15–24. However, if a child is referred and does not qualify for services, the child should not receive services and the District staff should understand that they should not be finding children eligible for special education services when they do not qualify. That appears to be what Dr. Freund meant when she testified that “if it over-identifies through screening, the evaluation process, [will] take care of that.” Trial Tr., Nov. 16, 2015, 32:22-24.

         77. The District may believe that it could not possibly meet the 8.5% benchmark, using the accurate, updated census figures, see infra paras. 86-95, because there are not enough children who need special education and related services, due to its improved programs or otherwise. However, in March 2013, the District almost achieved that number by serving 8.04% of its preschool-age population, as calculated using the appropriate numerator and denominator (the number subsequently fell). See infra para. 84. Moreover, other jurisdictions serve significantly more than 8.5% of their three-to-five-year-old population. See U.S. Department of Education, 36th Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act, 2014, Pls.’ Ex. 182, at 98-99 (showing that Arkansas, Kentucky, and Puerto Rico had 2012 three-to-five-year-old Child Count percentages of 10.6%, 10.3%, and 10.2%, respectively). At the moment, based on data reported to OSEP, the District is only serving 6.19% of its population, which is almost identical to the national average. See infra paras. 96, 98. In light of the risk factors in the District, and the fact that the District is the only entirely urban jurisdiction that reports to OSEP, it should be serving well over the national average. 2015 Dunst Direct ¶¶ 43, 88.

         78. Sixth, the District argues that any benchmark should relate to children determined eligible, rather than children served, since that would comport with the identification requirement of the IDEA. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶¶ 93-94 (“[T]he number of preschool-age children for whom the District fulfilled its Child Find obligation (i.e., to identify, locate, and evaluate) necessarily exceeds enrollment in preschool Part B; conversely, enrollment does not directly approximate identification rates absent evidence to the contrary.”); id. at ¶ 95 (“Plaintiffs offered no reliable basis for determining how enrollment correlates to identification, location, or evaluation for Part B services.”). Moreover, Mr. Compagnucci testified that “enrollment is not a perfect proxy for Child Find because it fails to account for children who were identified but whose parents did not complete the IEP or enrollment processes, which can happen for a variety of reasons.” Compagnucci Direct ¶ 19. Indeed, the District has argued previously, in the context of class certification, that plaintiffs should be measuring identification data, not enrollment data. Defs.’ Mot. to Decertify Subclass 1 4–6, ECF No. 467. However, as described above, the 8.5% benchmark relates to children who should be receiving special education and related services, not just children who should be determined eligible for such services. See supra para. 63.

         79. Moreover, in the Court’s opinion on October 23, 2015, it stated:

[D]efendants overlook that the enrollment numbers are used to help gauge the effectiveness of the District’s efforts to locate and identify disabled children in connection with their IDEA obligations. The Court agrees with the plaintiffs that “[t]he District’s enrollment rate does not define the subclass, but is instead a way to measure the effectiveness of the District’s policies and practices to the identification of children potentially eligible for special education services.” Pls.’ Opp’n 5. Indeed, in a recent Order [444], the Court ruled that low enrollment numbers “would suggest that the District has in fact failed in its obligations to locate disabled children.” Mem. Op. 35. As they always have, plaintiffs continue to use the enrollment figures as one of many potential ways to approximate the District’s success in identifying and locating disabled children-not as a means to define the boundaries of subclass 1.
Although there is reason to believe plaintiffs’ suggestion that enrollment figures gauge the District’s effectiveness in identifying and locating children, the Court welcomes the District to submit evidence to diminish that argument. For example, defendants are free to offer evidence to counter plaintiffs’ theory by showing that enrollment figures actually do not reasonably approximate identification rates.

Mem. Op. 11–12, ECF No. 482.

         80. The District did not timely submit evidence to show that enrollment figures do not reasonably approximate identification rates. See Order, ECF No. 498. And importantly, the District’s own manual shows that it too uses enrollment rates to measure its Child Find compliance:

Child find monitoring is a process designed to ensure that students with disabilities are being appropriately identified and served by their LEAs. Twice a year, OSSE will review the enrollment rates for students with qualifying disabilities under IDEA at each LEA.

         Special Education Monitoring & Compliance Manual (IDEA Part B), Pls.’ Ex. 51, at 15.

         81. Other District documents demonstrate that the District uses the terms “identification” and “enrollment” interchangeably. See, e.g., Trial Tr., Compagnucci Test., Nov. 13, 2015, 33:20–36:6 (explaining that the District’s enrollment data are generally referred to as identification data); Trial Tr., Proddutur Test., Nov. 13, 2015, 45:9–46:21 (describing the “Business rule for identification,” which relates to the calculation of enrollment data); District of Columbia Monthly Enrollment Reports 53, 56, 58, 60, 62, 64, 66, 68, Pls.’ Ex. 189 (showing the District’s monthly data reports identifying children “Receiving Services Under IDEA Part B” and, from that, calculating a “Total Identification” percentage).

         82. This Court previously found that 8.5% is the appropriate benchmark. That percentage is based upon Early Stages’ own manual, the testimony of Dr. Beers, and the testimony of Dr. Dunst, and aligns with the benchmarks in the District’s own documents. It is by its very nature an estimate, and is not perfect. However, there is more than sufficient evidence supporting it. As described below, this Court will issue an injunction thereon. Like the prior injunction, it may be modified if either party subsequently proves that 8.5% does not accurately represent the percentage of 3-5-year-olds that should be receiving special education and related services. See ¶ 20, ECF No. 295.

         2. The District Is Failing to Serve Large Numbers of Children with Special Education and Related Services

         a. The District has failed to provide special education and related services to large numbers

         83. Dividing the number of three-to-five-year-old children whom the District reports have an IEP (or an extended IFSP), by the annual census estimate, yields an average enrollment of 7.57% in 2013 (when the District began producing monthly enrollment data), 6.54% in 2014, and 6.90% in 2015. See Pls.’ Ex. 285, at 1. There was a maximum enrollment of 8.21% of children, and minimum of 6.40%, since 2013. See id.

         84. Based on the parties’ sampling and data agreements,[3] the District’s enrollment totals should be reduced by 2% to account for children who are not receiving special education and related services. See Pls.’ Post-Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 5-6, ECF No. 514-2 (showing that two children identified as enrolled in the District’s 100-child sample had not actually received services). Doing so, the District reached, since 2013, a high of 8.04% ((1,742 × 0.98)/21,221, Mar. 2013) and a subsequent low of 6.27% ((1,478 × 0.98)/23,094, Nov. 2014). See Pls.’ Ex. 285, at 1. Based on the requirement of serving 8.5% of children, these figures indicate that, on a monthly basis, the District failed to serve between 98 ((21,221 × 0.085)–(21,221 × 0.0804)) and 515 ((23,094 × 0.085)–(23,094 × 0.0627)) children. See Id. As this Court previously explained, such data “would suggest that the District has in fact failed in its obligation to locate disabled children.” Mem. Op. 35, ECF No. 444.

         b. The number of children who the District reported as enrolled fell in 2013 and 2014

         85. The number of preschool-age children with IEPs, as reported by the District, declined for nearly two years and only recently began to rise again. Pls.’ Ex. 285, at 1–2. In March 2013, the District hit a high of 1,742 children with IEPs. Id. After that time, the number fell by 264 to a low of 1,478 children in November 2014. Id. That is a decline of over 15%. There is no explanation for this decline. Since that low point, the number of children reported by the District as “enrolled” in Part B services has risen by 138 children, or about 9%. Id. at 1.

         c. The district uses outdated census figures

         86. To calculate the percentage of children enrolled in special education and related services, the number of children ages three to five, inclusive, receiving special education and related services is divided by the population of three-to-five-year-old children in the District.

         87. For every period from 2013 to the present, the District has calculated its enrollment percentage using, for the denominator, the population from the 2010 decennial census. Proddutur Direct ¶ 4 (“Divide that number [of children with a current eligibility determination or IEP] by the population of three-to-five year olds in the District according to the decennial census.”); District of Columbia Monthly Enrollment Reports, Pls.’ Ex. 189 (showing that the denominator each month is 17,605, the 2010 census number, from 2013 through 2015).

         88. The Census Bureau prepares annual population estimates, which adjust the Bureau’s decennial census to account for birth, death, and migration rates over the intervening year. See, e.g., District of Columbia State Data Center Fact Sheet, 2012 DC Population Estimates, Pls.’ Ex. 197, at 1. It is appropriate to use the U.S. Census Bureau’s annual estimates of the District’s population instead of using the 2010 decennial census figure to calculate the enrollment rate. 2015 Dunst Direct ¶¶ 71–73; Trial Tr., Cupingood Test., Nov. 12, 2015, 45:13–46:1 (stating the 2013 census estimate is more accurate for 2013 than the 2010 decennial census number).

         89. The District has artificially inflated its enrollment percentages by relying on the 2010 census figures because the District’s population of three-to-five-year-old children had risen substantially over the last five years: 2010, 17,605 (6,267 three-year-olds, 5,795 four-year-olds, and 5,543 five-year-olds); 2011, 18,905; 2012, 19,799; 2013, 21,221; 2014, 23,094. 2015 Dunst Direct ¶ 73; U.S. Census Bureau 2014 Population Estimates, District of Columbia, Pls.’ Ex. 196, at 1, 4, 7, 10.

         90. These numbers are likely to continue to rise. 2015 Dunst Direct ¶ 73. In the 2014 census estimate, the number of children ages zero, one, and two total 26,485, which is over 3,000 children more than the three-to-five-year-old estimate. See U.S. Census Bureau, 2014 Population Estimates, District of Columbia, Pls.’ Ex. 196, at 10; 2015 Dunst Direct ¶ 73.

         91. This substantial growth is mirrored by the District’s projections for enrollment in school, which it uses for budgetary purposes. The projected enrollment rate for children in prekindergarten 3, prekindergarten 4, and kindergarten (or, as described with regard to charter schools, pre-school, pre-kindergarten, and kindergarten) for 2012 (the budget for which issued in 2011) was 16,814 (9,524 for DCPS and 7,290 for charter schools). District of Columbia FY2012 Proposed Budget and Financial Plan, vol. 3, Pls.’ Ex. 190, at D-19, D-52. The corresponding projected enrollment rate for 2016 is 19,549 (10,142 for DCPS and 9,407 for charter schools). District of Columbia FY2016 Proposed Budget and Financial Plan, vol. 3, Pls.’ Ex. 191, at E-1, D-77.

         92. If the District were to continue to use the 2010 census figure until 2020, then due to continuously rising population, there would be a dramatic-but entirely artificial-decline in the enrollment rate in 2020. 2015 Dunst Direct ¶ 74.

         93. Therefore, is not surprising that the Census Bureau’s annual population estimates are required for purposes of grant determinations under the IDEA and are used by OSEP, OSSE, other District agencies and other states, for analysis of data related to these and other issues outside of this litigation. More specifically, the IDEA states that, “[f]or purposes of making grants, the Secretary [of Education] shall use the most recent population data, including data on children living in poverty, that are available and satisfactory to the Secretary.” 20 U.S.C. § 1411(d)(3)(A)(ii). Additionally, the annual population estimate is used by OSEP for its annual Child Count. Department of Education. See 36th Annual Report to Congress on the Implementation of the Individuals with Disabilities Act, 2014, Pls.’ Ex. 182, at 6 (“In this report [which catalogs Child Count data], annual resident population estimates for the 50 states and the District of Columbia were used to determine the percentages of the resident population served under IDEA, Part C and Part B, and to develop comparisons and conduct data analyses.”); id. at 98–99 (“Percentage for each state was calculated by dividing the number of children ages 3 through 5 served under IDEA, Part B, by the state in the year by the estimated U.S. resident population ages 3 through 5 in the state for that year, then multiplying the result by 100.”); 2015 Dunst Direct ¶ 71.

         94. The District uses the U.S. Census Bureau’s annual population estimate to report data related to the percent of children receiving Part C services. The District is required to report to OSEP the “Percent of infants and toddlers birth to 3 with IFSPs compared to national data.” FFY 2013 Part C State Performance Plan (“SPP”)/Annual Performance Report (“APR”), Pls.’ Ex. 241, at DL2015 3695. To calculate that percentage, the District used as its denominator what it referred to as the “U.S. Census Annual State Resident Population Estimates April 1, 2010 to July 1, 2013,” which it identified as 26,517 children. Id. That was the Census Bureau’s annual population estimate for children up to age 3 for 2013 as of the time of the District’s publication. See U.S. Census Bureau, 2013 Population Estimates, District of Columbia, Pls.’ Ex. 195, at 7 (totaling 9,111, 8,680, and 8,726 for zero-to-two-year-olds, inclusive).

         95. The annual estimate is also used by numerous state and federal agencies, including the District’s own agencies, for numerous policy purposes. See, e.g., District of Columbia State Data Center Fact Sheet, 2012 DC Population Estimates, Pls.’ Ex. 197, at 1 (“The U.S. Census Bureau’s Population Estimates Program (PEP) produces estimates . . . [which] are used in federal funding allocations, as survey controls, as denominators for vital rates and per capita time series, and as indicators of recent demographic changes.”).

         d. The District’s Child Count percentage is also falling

         96. Every year, the District and the states are required to provide OSEP with “Child Count” data, which is the number of children in that jurisdiction receiving special education and related services. 2015 Dunst Direct ¶ 44; 34 C.F.R. 300.641(a) (“report the number of children with disabilities receiving special education and related services”); 34 C.F.R. 300.644 (“report children with disabilities who are enrolled in a school or program . . . that-(a) Provides them with both special education and related services . . . .”); OSEP EDFacts Submission System ages 3-5, Pls.’ Ex. 183, at 6 (“Include all children with disabilities (IDEA) who are ages 3 through 5 receiving special education and related services according to an individual education program or services plan on the count date.”). Enrollment should be measured in this case too by the receipt of the prescribed special education and related services.

         OSEP compares the District’s and states’ Child Count data to the U.S. Census Bureau’s annual population estimates for each jurisdiction to determine the percentage of preschool-age children enrolled in Part B services. This Court relied upon those percentages in prior years when it concluded that the District failed to provide special education and related services to sufficient numbers of children. Mem. Op. & Findings of Fact and Conclusions of Law ¶¶ 23–32, ECF No. 294. The District’s Child Count percentages for 3-5-year-olds are 7.6% for 2011-2012, 7.9% for 2012-2013, and 6.8% for 2013-2014. OSEP Part B Data Display 2015, Pls.’ Ex. 248, at 1. OSEP has not yet produced its report that identifies the Child Count percentages for the 2014-2015 school year. 2015 Dunst Direct ¶ 61. However, for that year, the District reported to OSEP that it provided IEP’s to 1,429 children (237 3-year-olds, 511 4-year-olds, and 681 5-year-olds), which is only 6.19% of the 2014 population of 3-5-year-olds. 2014 Child Count Report, Pls. Ex. 292, at DL2015 5960; 2015 Dunst Direct ¶ 61.

         97. That is a decline of approximately 19% from 2011 to 2014. The District has claimed that these OSEP data show lower service rates than the rates produced to plaintiffs in this litigation because OSEP does not permit OSSE to include in the count children for whom the District lacks certain information, such as a description of the educational environment in which the child receives services. Maisterra Dep. 348:1–9, 349:17–20, 350:1–4, July 2, 2014, Pls.’ Ex. 18. The educational environment is where the child is receiving services. OSSE 2014 Enrollment Audit Manual Supplement: Child Count Guide, Sept. 22, 2014, Pls.’ Ex. 188, at 10; 2015 Dunst Direct, ECF No. ¶ 83. The District would not have this information if the child had not begun receiving services. However, if the child had begun receiving services and the District still lacked that or other required information, that demonstrates a significant problem with the District’s data management. Id.

         98. As described above, the Child Count rate is now 6.19%. See supra para. 96. That is essentially equal to the most recent national average for 3-5-year-olds, which is 6.2%. OSEP Data Display: District of Columbia, Identification of Children with Disabilities, 2015, Pls.’ Ex. 248, at 1; see also 2015 Dunst Direct ¶ 88. It should be much higher given the risk factors in the District. See supra para. 61. It also should be rising, not falling. This means that many children are not receiving needed special education and related services.

         E. TIMELY ELIGIBILITY DETERMINATIONS

         1. ...


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