United States District Court, District of Columbia
MEMORANDUM OPINION & FINDINGS OF FACT AND
CONCLUSIONS OF LAW
C. LAMBERTH UNITED STATES DISTRICT JUDGE
INTRODUCTION AND BACKGROUND
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.
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).
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).
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).
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
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.
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.
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.
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.
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
DL v. District of Columbia, 713 F.3d 120, 126 (D.C.
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.
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.
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.
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).
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
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.
FINDINGS OF FACT
CREDIBILITY OF PLAINTIFFS’ WITNESSES
Dr. Carl J. Dunst
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
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
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.
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
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.
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
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.
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.”).
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.
Dr. Leonard Cupingood
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”).
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.
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.
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.
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.
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.
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.
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.
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.
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.”).
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.
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.
CREDIBILITY OF DEFENDANTS’ WITNESSES
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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”).
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.
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.
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.
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.
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.
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.
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.
Care Manual, Pls.’ Ex. 72, at DL2014 194.
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)).
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.
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.
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.
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.
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.
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,
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.
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.”).
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.
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.
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
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.
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.
CHILDREN RECEIVING SPECIAL EDUCATION SERVICES
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.
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
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
The District Should Be Serving at Least 8.5% of Its
Preschool-age Population with Special Education and Related
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.
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
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.
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.
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.
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
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).
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.
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
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
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,
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
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.
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.
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
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
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.
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
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.
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,
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.
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.
Moreover, in the Court’s opinion on October 23, 2015,
[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 , 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
Mem. Op. 11–12, ECF No. 482.
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
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.
Education Monitoring & Compliance Manual (IDEA Part B),
Pls.’ Ex. 51, at 15.
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).
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.
The District Is Failing to Serve Large Numbers of Children
with Special Education and Related Services
The District has failed to provide special education and
related services to large numbers
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.
Based on the parties’ sampling and data
agreements, 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.
The number of children who the District reported as enrolled
fell in 2013 and 2014
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.
The district uses outdated census figures
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.
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).
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
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.
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.
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.
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.
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.
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,
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
The District’s Child Count percentage is also
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.
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.
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
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.
TIMELY ELIGIBILITY DETERMINATIONS