Dl v. District of Columbia

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________________

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DL, et al., )

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Plaintiffs, )

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v. ) Civil Case No. 05-1437 (RCL)

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DISTRICT OF COLUMBIA, et al., )

)

Defendants. )

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______________________________________ )

CORRECTED MEMORANDUM OPINION &

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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.

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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).

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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

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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—

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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.

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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

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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-

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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.

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The Court cites the redacted version of Dr. Dunst’s testimony, which was filed publicly. In all cases in

which a document was both filed publicly with protected information redacted pursuant to the Court’s

Protective Order, see ECF No. 407, and under seal without redactions (as with Dr. Dunst’s written direct

testimony), the Court cites to the public version, but relied on the sealed information as necessary.

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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

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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

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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

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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.

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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

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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, 11 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

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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

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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.

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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.

31(a). Peter Marshall is a manager with Public Consulting Group, Inc. (PCG). His

division of PCG—PCG Education—is a provider of comprehensive, web-based student case

management solutions for special education. Direct Examination of Peter Marshall ¶ 1, Oct. 22,

2015, ECF No. 477-10. The District’s Special Education Data System (SEDS) is a customized

version of one such product, EasyIEP. Id. at ¶¶ 1–2.

31(b). At the time of trial, Jeff Noel was the Assistant Superintendent of Data,

Accountability, and Research for OSSE. Direct Examination of Jeff Noel ¶ 1, Oct. 22, 2015,

ECF No. 477-11. Prior to serving in this position, he was OSSE’s Data Management Director

for four years, and he has been involved in the design and maintenance of education data systems

since 1997. Id.

31(c). Anupama Proddutur is a Data Analyst for OSSE. Direct Examination of Anupama

Proddutur ¶ 1, Oct. 22, 2015, ECF No. 477-12. She is assigned to the Specialized Education

Data Team, where she is responsible for special education data collection and reporting,

including federal reporting to the OSEP. Id. at ¶¶ 1–2.

31(d). Chenise Purvis is the mother of a child who went through the Early Stages

Process, and she provided testimony regarding her experience with and impressions of Early

17

Stages and its staff. Direct Examination of Chenise Purvis ¶¶ 1–5, Oct. 22, 2015, ECF No. 477-

13.

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.

18

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.

19

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:

20

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

2

The Court granted the District’s motion for reconsideration of this statement insofar as “the appropriate

standard for implementation of an IEP shall be determined post-trial.” Order, ECF No. 480.

21

(“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

22

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.

23

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

24

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.

25

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

26

“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,

27

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

28

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

29

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,

30

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

31

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-

32

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.

33

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.

34

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.

35

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

36

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:

37

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.

38

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

3

During discovery, the parties agreed that plaintiffs would have access to three random 100-child

samples (100 children whom the District identified as enrolled, 100 children whom the District

identified as having timely received eligibility determinations, and 100 children whom the District

identified as being smoothly and effectively transitioned from Part C to Part B services) and that

the 100-child samples are sufficiently large so that errors in the District’s categorization of children

within each sample would apply to the entire population from which the sample was chosen. E-mails

among counsel regarding sampling methodologies. Pls.’ Ex. 130, 135.

39

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

40

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.

41

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.

42

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.

43

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.

44

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. Background

99. 34 C.F.R. § 300.301(c)(1) states that an initial evaluation “[m]ust be conducted

within 60 days of receiving parental consent for the evaluation” or within a state-established

timeframe. District law provides 120 days after a child is referred to issue a determination as to

whether the child is eligible for special education and related services. See infra para. 255.

100. The District’s 120-day timeframe still appears to be the longest period of time in

the country. 2015 Dunst Direct ¶ 89. In only five states does the timeframe exceed 60 days. Id.

101. In 2017, the time period may be shortened to 60 days, with an additional 30 days

to obtain parental consent for the evaluation. The District recently amended its code as follows:

Beginning July 1, 2017, or upon funding, whichever occurs later, an LEA shall

assess or evaluate a student who may have a disability and who may require special

education services within 60 days from the date that the student’s parent or guardian

provides consent for the evaluation or assessment. The LEA shall make reasonable

efforts to obtain parental consent within 30 days from the date the student is referred

for an assessment or evaluation.

D.C. Code § 38-2561.02(a)(2)(A).

102. Historically, the District has exceeded the 120-day limit for a substantial number

of children. See 2015 Dunst Direct ¶¶ 110–14; infra paras. 200–02, 205–07; see also Mem. Op.

¶¶ 33–40, ECF No. 294. Because early intervention is critical in the development of a child with

45

early signs of educational disabilities, the District’s persistent delays beyond the 120-day limit

presents a critical problem. See supra p. 2.

103. Based upon evidence presented at the 2011 trial, the Court concluded that the

District shall “ensure that at least 95 percent of all preschool children referred for Part B services

receive a timely eligibility determination.” Mem. Op. ¶ 149, ECF No. 294. Presumably with that

benchmark in mind, the District contends that over 97% of preschool-age children receive timely

eligibility determinations. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 109.

However, calculated appropriately, the number falls substantially. See infra para. 116. Dr.

Cupingood’s calculations show that approximately 20 percent of preschool-age children are not

receiving timely eligibility determinations. Id.

2. The District Is Not Starting the 120-day Period at the Time That a Child

Is Referred by a Non-parent

104. The District does not start the 120-day period at the time that a child is referred by

a non-parent—it only starts the clock when a child is referred by a parent. Trial Tr., Compagnucci

Test., Nov. 13, 2015, 36:7–37:14. Mr. Compagnucci explained that Early Stages treats a referral

from a parent as a referral for special education (and therefore it starts the 120-day clock), but

treats a referral from a non-parent as a referral to Early Stages (and therefore it does not start the

120-day clock). See Compagnucci Dep. 111:9–18, June 3, 2014, Pls.’ Ex. 16 (“[Q] What’s the

difference between a referral to special education and a referral to your program? [A]: A referral

to special education is defined under OSSE policy in DCMR. A referral to Early Stages is defined

by us. And what we mean when we say a referral to Early Stages is that somebody who is not the

parent has reached out to us to express a concern about a child.”); id. at 116:10–117:12 (“[W]e

don’t believe that a pediatrician sending over in whatever form they might send it, that this is a

child about whom they have concern is a referral to special education.”). By instituting this policy,

46

the District is effectively giving itself even more than the 120 days to complete the eligibility

determination when the referral comes from a non-parent, such as a pediatrician.

105. The District explained that the clock should not start at the time of a non-parent

referral because parents “were upset that a special ed referral had been initiated without their

knowledge or awareness” and “it seemed inappropriate to initiate that referral without the parents’

awareness.” Defs.’ Proposed Findings of Fact and Conclusions of Law 36 n.5; Compagnucci

Direct ¶¶ 23, 25; Compagnucci Test., Trial Tr., Nov. 13, 2015, 37:2-11. Of course, the District

should keep parents informed and protect parents and children’s privacy, but it is hard to

understand how this concern should cause the District to wait to start the clock on the 120-day

period. In fact, the District explicitly states, in a guide to families, that the special education

process starts upon referral from a pediatrician. DCPS Office of Specialized Instruction, Programs

& Resources Guide for Families, 2014-2015, Pls.’ Ex. 78, at DL2015 471 (“The special education

process starts once a teacher, parent, psychologist, other school staff member or third party (such

as a day care center or physician) submits a referral for a student.”). Moreover, the actual start of

the clock would not negatively affect parents. If anything, it helps ensure that the child timely

receives services. The only advantage the Court sees of not starting the clock is to give the District

additional time for an eligibility determination. As the Court points out, if there is any delay in the

responsiveness by the parent, it can be addressed by the parental delay policy. See infra paras.

157–61.

106. The District contends that requiring it to start the 120-day clock upon the date of

the initial referral by a non-parent amounts to changing the rules mid-game. Trial Tr., Nov. 16,

2015, 71:1–8. The Court disagrees. This issue was previously litigated in this case. In 2010, the

47

District strongly disputed plaintiffs’ allegation that the District was not starting the 120-day clock

at the time of referral by a non-parent:

Just as egregious is Plaintiffs’ complete disregard of voluminous evidence

concerning the District’s current performance of its Child Find and FAPE

obligations under the IDEA, in order to assert as “undisputed facts” practices that

Plaintiffs well know were abandoned long ago. . . . Plaintiffs assert that ‘[t]he

percentage of preschool-age children receiving an untimely eligibility

determination (i.e., more than 120 days after referral) would be greater if defendants

used the date that a primary referral source[] makes a referral as the ‘referral date.’’

. . . Yet, as Plaintiffs are aware, as a matter of current practice ‘[t]he Early Stages

Center considers a referral to be the first time any information is received about a

child’—that is, the date on which a referral is received from a primary referral

source is in fact treated as the referral date.

Defs.’ Mem. in Opp’n to Pls.’ Partial Mot. for Summ. J. 10, ECF No. 180.

107. Moreover, in 2011, in response to a question from the District’s counsel, Dr.

Maisterra testified that the District started the 120-day clock at the time of a written referral by

anyone. Maisterra Dep. 153:9–11, Feb. 28, 2011, Pls.’ Ex. 11 (“[Q] Just to clarify, so a written

referral from anyone starts the 120 days? [A] Yes.”). Therefore, plaintiffs’ argument is not new.

It comports with the District’s representations as to its policy prior to the last trial.

108. Plaintiffs’ argument is also consistent with the Court’s decision after the last trial,

which defined “[d]ate of referral” as “the date on which defendants receive a written or oral request

for assessment of a preschool child including the child’s name and age, the parent’s or guardian’s

name, mailing address or telephone number, and the basis for referral.” Mem. Op. ¶ 149(b), ECF

No. 294. This definition is not restricted to referrals by parents. Among other things, the decision

required the District to attempt “to contact the parent or guardian of a referred child, and, upon

obtaining consent of the parent or guardian, provide feedback to the referral source regarding the

outcome of the referral in a timely manner.” Id. at ¶ 155.

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109. The flaw in the District’s calculation is also not remedied by the District’s policy

that Early Stages staff must attempt to contact the parent within 48 hours of a referral by a

nonparent. See Compagnucci Dep. 65:15–22, June 2, 2014, Pls.’ Ex. 15. Approximately one third

of the time, the District fails to comply with that policy. 2015 Cupingood Direct ¶ 76. The District

explained its apparent failure to comply with that policy by stating that it may be due to failure to

document properly attempts at communication or “variation in staff performance in reaching out

to families in a timely manner.” E-mail from District’s Counsel to Plaintiffs’ Counsel, May 27,

2014, Pls.’ Ex. 136, attachment p. 2.

110. The flaw in the District’s calculation is also not remedied by its contention that

screenings are completed within 7 days of a referral 85% of the time. Compagnucci Direct ¶ 24.

Regardless of the dates of screenings, as described below, see infra para. 115, the District is failing

to provide timely eligibility determinations to anywhere near to 95% of children and there are

substantial delays in even scheduling evaluations.

3. The District Is Failing to Provide Timely Eligibility Determination to

Large Numbers of Children

111. The District does not keep its data in a format that allows for easy correction of the

errors described above. Some of the data are in the Early Stages database, some are in the SEDS

database, and it is not always possible to reconcile the databases. See 2015 Cupingood Direct ¶¶

31–32. However, as described below, plaintiffs’ statistical expert, Dr. Cupingood, presented

reliable evidence to show that the timeliness of the District’s eligibility determinations falls

substantially from the 97% that the District claims. See Defs.’ Proposed Findings of Fact and

Conclusions of Law ¶ 109 (arguing that the District achieved 97.06% from December 1, 2012 to

November 30, 2013); see also infra paras. 112–16 (detailing the analysis that underpins the

District’s more accurate rate of approximately 80%). When the 120-day clock begins at the time

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of referral by a parent or non-parent, and other appropriate corrections are made to the District’s

data, the percentage of timely eligibility determinations falls substantially, to a rate closer to

80%.4

112. Dr. Cupingood started with the children who the District reported were referred

for special education and related services. SEDS tracks the date of referral by a parent, not the

date of referral by a non-parent. E-mail from District’s Counsel to Plaintiffs’ Counsel, Apr. 29,

2014, Pls.’ Ex. 133, at 5. The date of referral by a non-parent is tracked in the Early Stages

database. Id. at 4. In order to determine which children were referred by a non-parent prior to

the parental referral, Dr. Cupingood had to match the children in the two databases. 2015

Cupingood Direct ¶¶ 31, 50. However, the version of the Early Stages database that the District

produced lacked identification numbers for many children which were necessary to match them.

Dr. Cupingood excluded those children who could not be matched. See id. at ¶ 50.

113. Dr. Cupingood also excluded the children who were transitioning from Part C

services, for whom the relevant deadline is the child’s third birthday. Id. at ¶¶ 32, 39, 52; see

infra para. 120.

114. Dr. Cupingood also excluded the children who received a parent consent denial or

referral discontinuation prior to the 120-day deadline, and therefore did not receive a timely or

untimely determination. 2015 Cupingood Direct ¶ 55. The District also subsequently revised its

calculation methods to do the same. OSSE IDEA Part B Special Conditions Progress Report #2,

Nov. 3, 2014, revised Nov. 26, 2014, Pls.’ Ex. 296, at 4.

4

Dr. Cupingood’s calculation relates to the period from December 1, 2012, to November 30, 2013. 2015

Cupingood Direct ¶ 38. The parties agreed that such statistics should essentially be treated as current

for purposes of the Court’s decision. Parties’ Data Agreement, Pls.’ Ex. 294.

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115. For the remaining children, Dr. Cupingood compared the date of the initial referral

from the parent or non-parent, with the eligibility date, to determine the percentage of children

who received an eligibility determination within 120 days. 2015 Cupingood Direct ¶¶ 56–61.

However, where the information in the Early Stages database suggested that the child’s case

was closed and then the child was referred again, Dr. Cupingood conservatively used the later

referral date in SEDS as the measure for the start of the 120-day period. Id. at ¶ 56. Where the

information in the Early Stages database identified a date of first case opening after the referral

date in SEDS (which referral date the District uses), Dr. Cupingood used the referral date in

SEDS. Id. at ¶ 57.

116. In conducting this analysis, Dr. Cupingood found that approximately 20% of

children did not receive a timely eligibility determination within the 120-day timeline. Id. at ¶ 61.

That is well above the District’s 3% untimely calculation and four times as many untimely

eligibility determinations as are permitted under the Court’s prior decision. See supra para. 103.

117. Moreover, during the 2011 trial, Dr. Beers testified that the District was working

toward reducing the time for eligibility determinations to 60 days, rather than 120 days. 2011

Beers Direct ¶ 47, Pls.’ Ex. 1 (“The 60 day period is a standard that is higher than what is

required by OSSE, but we determined that we have the desire to have that more aggressive

timeline as our internal standard.”); Beers Dep. 48:22–49:11, Mar. 1, 2011, Pls.’ Ex. 12

(“Young children need to get into services as efficiently and effectively as possible, so the

shorter time period that we can utilize, the better, and so I’m having staff feel as though there is

some pressure to move forward effectively with families is important for us to have them reach

towards.”). The Early Stages’ Strategic Plan in 2009 called for an “increase [in] the percentage

of evaluations completed within the 60-day period to 95% by September 2012.” Pls.’ Ex. 66, at

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DL2 1967. Dr. Maisterra also testified in 2011 that 120 days was too long for a child to wait for

an eligibility determination. See Maisterra Dep. 158:7–15, Feb. 28, 2011, Pls.’ Ex. 11 (“Q. Does

OSSE believe that 120 days is an appropriate amount of time for a preschool-age-child to wait for

an eligibility determination? A. I would say no. Q. Why not? A. I think that, generally speaking,

we feel that 120 days is a long time and, as I said earlier and we’ve discussed before, we’re looking

at that as an area of review and consideration.”).

118. The District has revised its code to reduce, as of July 1, 2017 or upon funding,

whichever occurs later, the time period in which an LEA must complete an initial evaluation to

60 days from parental consent. See supra para. 101. The District’s Chief Financial Officer

determined that Early Stages would need 22 new staff members to comply with that new

timeframe once it takes effect. Office of the Chief Financial Officer, Fiscal Impact Statement—

Enhanced Special Education Services Act of 2014, Sept. 15, 2014, Pls.’ Ex. 272, at 5.

119. As described above, the District is not meeting the 120-day deadline for many

children. See supra para. 165. Since 60 days is the timeline the District is striving for, see supra

para. 117, and the timeline that 45 states already employ, see Dunst Direct ¶ 89, the District should

at least be able to reliably offer eligibility determinations in twice that time. But it is failing to do

so.

F. TRANSITION FROM PART C TO PART B SERVICES

120. The District is required to provide children who receive Part C services with a

“smooth and effective” transition to Part B services by that child’s third birthday. See infra

paras. 265–66. A transition is smooth and effective if (1) the transition begins no less than 90

days prior to the child’s third birthday; (2) the child is provided with an IEP listing both the type

of placement and the specific location for services by the child’s third birthday; (3) there is no

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disruption in services between Part C and Part B services; and (4) Part B personnel are involved

in the transition process. See Mem. Op. 25, ECF No. 389; 2015 Dunst Direct ¶ 18.

121. Historically, the District has failed to provide a smooth and effective transition to

large numbers of children. See 2015 Dunst Direct ¶¶ 124–28; Mem. Op. 12–13, ECF No. 444;

Mem. Op. ¶¶ 41–45, ECF No. 294; infra paras. 208–15.

122. Based upon evidence presented at the 2011 trial, the Court concluded that the

District shall “ensure that at least 95 percent of all Part C graduates that are found eligible for

Part B receive a smooth and effective transition by their third birthdays.” Mem. Op. ¶ 150, ECF

No. 294. The District claims that it is exceeding that benchmark. See Defs.’ Proposed Findings

of Fact and Conclusions of Law ¶ 119 (presenting a rate of 96% in 2012-2013 and 98.71% in 2013-

2014). However, the District’s statistics are inaccurate, in large part because it is not actually

assessing when children start receiving their special education and related services. See infra

paras. 123–36. When corrected, the data show that almost 30 percent of children are not receiving

smooth and effective transitions. See infra para. 140.

1. The District Is Incorrectly Counting Children as Receiving a Smooth and

Effective Transition Even If They Do Not Receive Services by Their Third

Birthday and They Therefore Experience a Disruption in Services

a. All services must commence by the child’s third birthday

123. The purpose of the smooth and effective transition requirement is to ensure that

children do not experience a disruption in services. 2015 Dunst Direct ¶ 17; see also Mem. Op.

¶ 162, ECF No. 294 (“Defendants shall accept all children exiting Part C who have identified

disabilities or significant developmental delays as presumptively eligible for Part B in order to

ensure that they do not experience a disruption in services.”).

124. Accordingly, services must commence by the child’s third birthday. See 20

U.S.C. § 1412(a)(9) (“By the third birthday of such a [transitioning] child, an individualized

53

education program or . . . an individualized family service plan, has been developed and is

being implemented for the child.”); 34 C.F.R. § 300.101(b) (“(1) Each State must ensure that—

(i) The obligation to make FAPE available to each eligible child residing in the State begins

no later than the child’s third birthday; and (ii) An IEP or an IFSP is in effect for the child by

that date, in accordance with § 300.323(b).”); 2015 Dunst Direct ¶ 18; see also Mem. Op. 39,

ECF No. 444 (“All services must commence for a transition to be smooth and effective.”

(emphasis in original)).

125. The District’s representatives have testified to this requirement, and it is pervasive

in the District’s documents. Maisterra Dep. 56:20-57:1, June 2, 2014, Pls.’ Ex. 14 (“Q. Does

that mean that services are supposed to begin by the third birthday? A. Yes, for children

transitioning from Part C to Part B.”); id. at 170:10–16 (“Q. If the parent hasn’t agreed to a

delay in implementation of the IEP, then the services have to be provided as early as the third

birthday; right? A. Right. Q. I should have said that they have to be provided by the third

birthday; right? A. Yes, by or on. . . .”); Maisterra Dep. 26:19–27:3, Feb. 28, 2011, Pls.’ Ex.

11 (“Q. And that child would be treated as a transition child, not as a Child Find child for that

LEA? A. Yes. Q. So the timeline for ensuring that services are in place by age three would

apply to that child? A. Yes.”); Compagnucci Dep. 77:4–12, June 2, 2014, Pls.’ Ex. 15 (“A. The

child has a right to services implemented on their third birthday. . . . Q. You and I will agree

that that’s true. Certainly we will, as the plaintiffs, will agree that that is true. [District’s

counsel]: The defendants will agree to that too.”); OSSE Early Child Transition Policy, Mar.

2, 2010, Pls.’ Ex. 42, at 7 (“Implementation of the IEP. The obligation to make a free appropriate

public education (FAPE) available to each eligible child begins no later than the child’s third

birthday; and an IEP must be in effect for the child by that date.”); id. at 8–9 (“Each LEA must

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collect and report to the OSSE accurate, reliable and timely data [including] . . . [n]umber of

days after age three that services begin and/or the reasons for delay, including parental

refusal.”); OSSE Early Childhood Transition Guidelines, Feb. 2011, Pls.’ Ex. 46, at DL2014

109 (“If your child is eligible for services, the LEA is responsible for developing an IEP

(Individualized Education Program) with your input by your child’s 3rd birthday and for

implementing services upon enrollment in school at age three.”); id. at DL2014 120 (“If eligible,

services shall begin on the child’s 3rd birthday.”); OSSE Division of Specialized Education,

Office of Quality Assurance & Monitoring, Glossary, Pls.’ Ex. 51, at 1 (“Early Childhood

Transition: All children exiting Part C who received timely transition planning to support

the child’s transition to preschool and other appropriate community and receive services

by their third birthday.”); Early Stages Transition Handout, Oct. 19, 2012 Pls.’ Ex. 74

(describing what must occur “[b]y the child’s 3rd birthday: . . . If your child is eligible for

special education and you choose DCPS, your child must be receiving DCPS services”);

Early Stages Transition Training, Pls.’ Ex. 59, at DL2014 1492 (“Eligibility and Location of

Service offer needed prior to 3rd birthday. Child has legal right to get services on their 3rd

birthday.”).

b. The District’s practice is to ensure that a child receives an IEP and

location assignment by the third birthday

126. Despite these representations, the District defines transition, for the purposes of

its statistical reporting, as merely having an IEP and a classroom assignment by the third

birthday, not as having services begin by the third birthday. Maisterra Dep. 173:18–21, 182:9–

19, June 2, 2014, Pls.’ Ex. 14 (“Q. In those instances, however, where it doesn’t work quite like

that, and that although by the third birthday there’s an assignment to a school and a particular

kind of services, but there’s some delay in the services, those children are still counted as having

55

been timely by their third birthday; right? . . . A. They are timely based on the current calculation,

correct.”); Proddutur Dep. 197:7–16, July 2, 2014, Pls.’ Ex. 18. Therefore, in purporting to

provide statistics regarding “smooth and effective transitions,” the District does not consider

whether there is a disruption in services. Id. at 232:2–14. Therefore, it is not surprising that, as

described below, many children experience disruptions in services.

c. The District does not track whether services begin by the child’s

third birthday

127. OSSE’s Early Childhood Transition Policy requires that “[e]ach LEA . . . collect

and report to the OSSE accurate, reliable and timely data [including] . . . [the] [n]umber of days

after age three that services begin and/or the reasons for delay, including parental refusal.”

Pls.’ Ex. 42, at 8–9. Despite this policy, OSSE does not require LEAs to maintain records

of when special education services (as opposed to related services) begin, and therefore cannot

and does not report delays in the start of those special education services. Johnson Dep. 17:5–

20:6, 22:4–17, July 2, 2014, Pls.’ Ex. 18. Individual SEDS files include quarterly progress reports

may show that special education services were provided over a particular quarter, but these

reports do not reliably state when those services began. See, e.g., Pls.’ Ex. 112, at 1. Also,

individual SEDS files are supposed to include records (service trackers/reports) related to days

when related services are provided, but those records do not compare the documented sessions

to the date on which the services were supposed to begin and therefore do not track delays in the

start of services or the reasons for such delays. See, e.g., Pls.’ Ex. 303 (providing examples of

service reports); Report of the Monitor for the 2011-2012 School Year, Dec. 10, 2012, Pls.’

Ex. 264, at 46˗47 (“The Service Trackers did not seem to be providing a good system for

monitoring delivery of services or missed services. The Service Trackers seem intended

primarily as a way to document delivery of services for billing purposes. The Trackers do not

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state the frequency or details of the service required in the IEP. . . . Time periods covered for

the trackers vary . . . , and there are many with overlapping dates, gaps, etc.”).

d. The District argues that only special education services and not

related services need to begin by the child’s third birthday

128. The District moved for reconsideration of the Court’s decision that “All services

must commence for a transition to be smooth and effective.” Defs.’ Mot. for Recons. 1, ECF No.

468 (citing Mem. Op. 39, ECF No. 444) (emphasis in original). In that motion, the District argues

that related services do not need to be provided by the third birthday, but rather, “as soon as

possible” after the third birthday. Mem. of Points and Authorities in Supp. of Defs.’ Mot. for

Recons. 7˗8, ECF No. 468; Reply in Further Supp. of Defs.’ Mot. for Recons. 4˗5. ECF No. 473;

id. at 3 n.1 (stating that District’s request is “appropriately viewed as one for providing related

services to transitioning children with appropriate flexibility to best serve the child’s individual

needs”). As stated, the Court granted the District’s motion and ruled that “the appropriate standard

for implementation of an IEP shall be determined post˗trial.” Order 1, ECF No. 480. Plaintiffs’

opposition to the District’s motion [470] addresses the flaws in the District’s argument. Indeed,

the “as soon as possible” language comes from a regulation which is inapplicable in this context

because it is subject to the more specific requirement that the IEP be implemented by the third

birthday. See Opp’n to Defs.’ Mot. for Recons. 10–12, ECF No. 470; Reply in Further Supp. of

Defs.’ Mot. for Recons. 4, ECF No. 473.

129. No evidence was presented at trial that causes this Court to deviate from its

conclusion that all services must begin by the third birthday of a child transitioning from Part C

to Part B services.

130. The District suggested at trial and argued in post-trial filings that if an IEP provides

for a related service to occur once a month, the service can occur any time over that month, and

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therefore the related service need not start by the child’s third birthday. Defs.’ Proposed Findings

of Fact and Conclusions of Law ¶ 123 (arguing that a definition of “smooth and effective” that

requires all services to be delivered by the child’s third birthday is “unworkable and thus

inappropriate”); Trial Tr., Nov. 12, 2015, 99:5–12 (District’s counsel: “In a number of those cases

the child’s IEP date—let’s say it takes effect on May 1st, and it contains an educational piece and

then a related service. The related service is provided once—it’s provided, according to the IEP,

it’s supposed to happen once a month. Does it violate the IDEA if that related service occurs on

the 16th of that month?”); Trial Tr., Nov. 16, 2015, 74:17–20 (District’s counsel: “[P]laintiffs’

arbitrary rules . . . exist almost exclusively around when a related service is to be provided once

a month . . . .”). That argument fails for numerous reasons, as detailed below.

131. First, broadly speaking, the District’s position amounts to an argument that special

education services, but not related services, must start by the child’s third birthday. However, as

already mentioned, see supra para. 125, there are numerous District documents that state that

services must begin by the third birthday, and none of them add a caveat to distinguish special

education services from related services. The District contends that “[t]his argument is a red

herring [because] [t]he quoted materials and deposition testimony do not distinguish between

educational and related services under IDEA . . . and represent nothing more than generalized

statements regarding Part C to Part B transition.” Reply in Further Supp. of Defs.’ Mot. for

Recons. 5, ECF No. 473. Contrary to this argument, Dr. Freund has testified that implementation

of an IEP means “[t]he child was placed in whatever related, if any, services were being

provided.” Freund Dep. 142:7–18, Oct. 1, 2014, Pls.’ Ex. 22. Moreover, there is nothing in the

law that says that special education services must be implemented by the third birthday, but that

related services do not. The IEP must be implemented by the third birthday and related services

58

are part of the IEP. When the District tells parents that “If eligible, services shall begin on the

child’s 3rd birthday,” see OSSE Early Childhood Transition Guidelines, Pls.’ Ex. 46, at DL2014

109, 120, there is no reason that a parent should interpret the District’s statement to apply to

special education services, but not the related services necessary to benefit from those

educational services. Indeed, related services are services “as may be required to assist a child

with a disability to benefit from special education.” 20 U.S.C. § 1401(26)(A); see also Family

Care Manual, Pls.’ Ex. 72, at DL2014 194 (stating 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”).

132. Second, the District looks to the “present continuous tense” of 20 U.S.C. §

1412(a)(0) and 34 C.F.R. § 300.124(b), which state that a transition from Part C to Part B is

smooth and effective when, by the child’s third birthday, an IEP “has been developed and is being

implemented for the child.” Defs.’ Reply in Further Supp. of Defs.’ Mot. for Recons. 3.

Defendants interpret this language to suggest that all services do not have to be provided by a

child’s third birthday, but rather, that related services are “made available” by a child’s third

birthday. Id. In the Court’s opinion, however, an IEP is only being implemented at the time that

the child is receiving the services prescribed in the IEP. See, e.g., 2015 Dunst Direct ¶¶ 64, 121–

23; see also Pls.’ Opp’n to Defs.’ Mot. for Recons. 7–9, ECF No. 470 (citing support). Indeed,

the point of the smooth and effective transition requirement is to ensure that children do not

experience a disruption in service. Id. In sum, the District has drawn a line between educational

services and related services which is not supported by the language or purpose of the statute.

133. Third, the District argues that because a child’s birthday may fall on a weekend or

summer holiday, when services are not available, or because certain events may occur that

59

prevent a child from receiving services on the third birthday (for example, if the child is sick),

the District need not provide all services by the third birthday. Reply in Further Supp. of Defs.’

Mot. for Recons. 3–4, ECF No. 473. However, the potential for those events to occur does not

mean that the District is relieved of its statutory obligations. When a child’s birthday falls on a

weekend or summer holiday, assuming that the child does not qualify for summer services, see

infra para. 153, then the services should be provided on the next school day—it is that simple.

Adopting the District’s proposed rule would in practice mean that there is no actual due date.

134. It bears noting that OSSE’s reporting practices regarding Part C services are at odds

with its argument that it need not provide all Part B services by the child’s third birthday or that

it is impractical to do so. The OSSE Part C program reports to OSEP that services have been

timely provided to a child only when all services have been provided by the Part C deadline. Trial

Tr., DeHaan Test., Nov. 13, 2015, 18:9–19:9.

135. Fourth, the District essentially argues that compliance must be assessed on a child-

by-child basis. See Defs.’ Reply in Further Supp. of Defs.’ Mot. for Recons. 6, ECF No. 473,

(“[I]t is also important to appreciate that the decision of how to implement an IEP is necessarily

child-specific.”), id. at 7 (“The IDEA is a statute that rejects bright lines and cookie cutter

approaches.”). This decision relates to the District’s obligation to have in effect policies,

procedures, and practices to ensure that, for transitioning children, the IEP is being implemented

and a FAPE is available by the child’s third birthday. The impact of any particular delay on any

particular child is not addressed herein.

136. Regardless, there is little difference between the parties in terms of the evidence

on this issue. In assessing the District’s performance, plaintiffs conservatively assessed whether

children received their services within 14 days of their third birthday or within 14 days of the start

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date for services in the IEP if the child’s birthday was over the summer. See Pls.’ Post-Trial

Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 41–56, ECF

No. 514-2. Similarly, Dr. Maisterra testified that 14 days is a reasonable period of time for related

services to begin and the District itself assessed whether related services began within 14 days in

its own audits. See Maisterra Dep. 345:12–15, July 2, 2015, Pls.’ Ex. 18.

2. The District Is Failing to Provide Smooth and Effective Transitions to

Large Numbers of Children

137. Plaintiffs reviewed 100 sample children identified by the District as receiving a

smooth and effective transition by their third birthday. First, three children did not even receive

notices of their location of services or confirmation that their IEP could be implemented at the

location preferred by their parent by their third birthdays. Pls.’ Post-Trial Proposed Findings of

Fact and Conclusions of Law Regarding Individual Children 39–41, ECF No. 514-2, ECF No.

514-2. This is explicitly contrary to the District’s own policy. See Early Stages Evaluation

Procedures: Transition, Early Stages Manual, Pls.’ Ex. 63, at DL2015 2073 (“[I]t is essential that

a Location of Service (LOS) letter is offered, dated, shared with the parent and uploaded in

SEDS all before the child’s third birthday. If this documentation is missing, OSSE will assume

that the standard was not met.”).

138. Second, 21 children in the sample did not begin receiving all special education

and related services within 14 days of the start date prescribed in their IEPs. Pls.’ Post-Trial

Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 41–56, ECF

No. 514-2.5

5

If a child did not timely receive services because the child was not promptly enrolled by the parent at

the offered site, and the District had otherwise made reasonable efforts to ensure a smooth and effective

transition, the District should not be held responsible for that delay. In preparing these data, plaintiffs

did not count a transition as untimely where the delay in the commencement of services was attributable

to a delay in the child’s enrollment in the school where services were to be provided.

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139. Third, the District applies the same parental delay standard with regard to

transitions as it does with regard to other eligibility determinations. Proddutur Dep. 225:20–

226:3, July 2, 2014, Pls.’ Ex. 18. Therefore, the District is over-counting parental delay with

transitions just as it is with other eligibility determinations. See Pls.’ Post-Trial Proposed Findings

of Fact and Conclusions of Law Regarding Individual Children 57–59, ECF No. 514-2.

140. Based on this information, Dr. Cupingood determined that almost 30% of

transitioning children did not receive smooth and effective transitions. 2015 Cupingood Direct ¶

73.

141. As described below, see infra paras. 153–56, the delays are even worse for

children who are scheduled to transition over the annual summer break because they are not

receiving appropriate consideration for summer services.

142. The District also produces data to OSEP related to smooth and effective

transitions. The data are prepared in nearly the same way as the data produced for this case.

Proddutur Dep. 269:5–270:4, July 2, 2014, Pls.’ Ex. 18. Accordingly, the data produced to OSEP

are defective for all of the reasons described above.

G. THE DISTRICT’S POLICIES, PROCEDURES, AND PRACTICES ARE

FLAWED

1. Generally

143. As described above, the District’s policies, procedures, and practices have failed

to ensure that children are being identified and provided with a FAPE and that they timely receive

eligibility determinations and smooth and effective transitions. The District has used flawed

methods to calculate its statistics that purport to show otherwise.

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144. Dr. Dunst testified based on the failures he identified, “the District does not have

an adequate Child Find and related practices program to ensure that eligible children are provided

[with a] FAPE.” 2015 Dunst Direct ¶ 165. He explained: “If it were running a program as

required, available and accurate data would reflect such progress.” Id.; see also Trial Tr., Dunst

Test., Nov. 12, 2015, 92:7–13.

145. The District contends that plaintiffs’ statistics are deficient because they are not

accompanied by evidence of specific deficient policies and procedures. Trial Tr., Nov. 12, 2015,

20:4–24. However, many deficient policies and procedures are described above and below.

146. Plaintiffs concede that their evidence is less thorough than it was at prior stages in

this litigation. Although it has made progress, the District is nevertheless required to have

policies, procedures, and practices to ensure that all children who need special education and

related services are identified and receive special education and related services, timely eligibility

determinations, and smooth and effective transitions. The District’s failure to provide these

services to hundreds of children represents serious systemic problems. The District needs to

review its policies, procedures, and practices, in general, and those described herein in particular,

in order to make the improvements necessary to comply with federal and District law.

2. The District’s Policy, Procedures, and Practices Regarding Presumptive

Eligibility Are Flawed

147. Following the 2011 trial and the parties’ subsequent briefing and agreement, the

Court ordered the following regarding presumptive eligibility:

Defendants shall accept all children exiting Part C who have identified

disabilities or significant developmental delays as presumptively eligible for Part

B in order to ensure that they do not experience a disruption in services.

Presumptively eligible for preschool education means that the information

available at the time of the referral of a child— when he or she is nearly three

years old and is about to transition from Part C to Part B— shall be presumed to

be sufficient to make a decision about the child’s eligibility for Part B special

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education services, unless indicated otherwise by the Part B IEP Team. The Part

B IEP Team may find, after reviewing the information available at the time of

the referral of the child, that additional data is needed in order to make an

eligibility determination. If the Part B IEP Team finds that additional data is

needed in order to make an eligibility determination, the child may not begin

receiving Part B services prior to an evaluation to determine the child’s

eligibility for such services.

Order 1–2, ECF No. 323 (emphasis added).

148. Dr. Beers explained that presumptive eligibility “is more family-friendly because

it reduces the number of children who require assessments . . . .” 2011 Beers Direct ¶ 8, Pls.’ Ex.

1. It also reduces delay and prevents the disruption in services. 2015 Dunst Direct ¶ 147.

149. Despite the presumptive eligibility requirement and the District’s assertion that it

“treats transferring children as ‘presumptively eligible,’” Defs.’ Proposed Findings of Fact and

Conclusions of Law ¶ 79, the District reported very high and rising percentages of children

transitioning from Part C to Part B services who received additional assessments: 73.3% (Dec. 1,

2010, to Nov. 30, 2011); 82.4% (Dec. 1, 2011, to Nov. 30, 2012); 87.5% (Dec. 1, 2012, to Feb.

28, 2013); 95.6% (Mar. 1, 2013, to May 31, 2013); 92.7% (June 1, 2013, to Aug. 31, 2013); and

94.4% (Sept. 1, 2013, to Nov. 30, 2013). Defs.’ Objections and Responses to Pls.’ First Post-

Trial Requests for Produc., Pls.’ Ex. 31, at 21–22.

150. These high levels of assessments do not comport with the presumptive eligibility

requirement. 2015 Dunst Direct ¶ 150. Moreover, Part C has narrower eligibility criteria than

Part B, see DeHaan Direct ¶ 6, further suggesting that such high numbers of additional

assessments should not be necessary. 2015 Dunst Direct ¶ 150. However, this data is entirely

consistent with the Early Stages Policy Manual as of October 2010, which states that, upon

transition, “Part C children will have updated evaluations in the areas currently being addressed

on their IFSP.” Pls.’ Ex. 69, at DL4 2110. Indeed, despite the Court’s order regarding presumptive

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eligibility, which issued in 2012 following the parties’ agreement, see Mem. Op. 5–6, ECF No.

322, Mr. Compagnucci explained that the District’s presumptive eligibility policy has not

changed since 2010. Compagnucci Dep. 131:14–17, Aug. 12, 2014, Pls.’ Ex. 21.

151. Dr. Dunst explained that research findings and his experiences demonstrate that

such a large number of additional evaluations is not necessary and would not be required if the

District were appropriately treating Part C children as presumptively eligible for Part B services.

2015 Dunst Direct ¶ 150. He also explained that “[t]hese additional evaluations are most likely

resulting in additional delay and burden on both the children and their families, and the District

is also likely using resources to conduct unnecessary evaluations in cases where children would

obviously be eligible for Part B preschool special education.” Id. at 151.

152. Mr. Compagnucci testified that he did not know if there are any children whose

disabilities are so obviously unchanged since the initial Part C evaluation that it would not be

necessary to do any further assessments. Compagnucci Dep. 128:14–129:2, Aug. 12, 2014, Pls.’

Ex. 21. Dr. Dunst stated that, based on over 40 years experience in this field, he is confident

numerous children who would fall into that category. 2015 Dunst Direct ¶ 152.

3. The District’s Policy, Procedures, and Practices Regarding Extended

School Year Services Are Flawed

153. The District’s policy requires that every child with an IEP be evaluated for

Extended School Year (“ESY”) services (services offered over the summer period) in order to

provide a child with a FAPE. 2015 Maisterra Direct ¶ 8 (stating that Early Childhood Transition

Policy “mandate[es] evaluation for entitlement to [ESY] services for those children whose

birthdays fall during summer months”); OSSE Extended School Year Service Policy, Mar. 10,

2011, Pls.’ Ex. 47, at 1–2. During that ESY evaluation, “IEP Teams must use student data to

quantify, to the extent possible, the likely impact of a break in service on educational benefit,

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through a rigorous discussion of critical skill regression and recoupment.” OSSE Extended

School Year Service Policy, Pls.’ Ex. 47, at 3. In doing so, “LEAs should utilize any relevant

current data for students for whom the LEAs cannot obtain three months of progress monitoring

data from the current school year.” Id. at 3 n.6.

154. OSSE’s Part B Student Compliance Monitoring Tool, attached to the Special

Education Monitoring and Compliance Manual, requires that each file include evidence that the

child’s eligibility for ESY was properly evaluated and that:

If no evidence can be provided, [t]he IEP Team must convene or amend the

IEP to complete the ESY criteria worksheet and determine the appropriate

amount of compensatory education if the student requires compensatory

education. OSSE must confirm that the LEA is correctly implementing the

specific regulatory requirement (achieved 100% compliance) based on a review of

updated data.

August 2014, Pls.’ Ex. 51, attachment p. 11.

155. In direct contradiction to its policies requiring evaluation using existing data, the

District has denied ESY services to the majority of transition children whose birthdays are in the

late spring or summer, either with no explanation at all or stating that there is insufficient data

upon which to make a determination. Plaintiffs’ Exhibit 111 includes the ESY Services Eligibility

Worksheets for children in the 100 child transition sample who received an ESY eligibility

determination between April and August 2013 (the period just prior to and during the summer).

Of those 35 worksheets, there are 9 children for whom the worksheet is blank, except for marking

the child as ineligible for ESY services, see Pls.’ Ex. 111, at 1, 2, 6, 22, 28, 29, 32, 34, 37; 10

children for whom the District concluded that there was not sufficient information to make a

determination as to the child’s ESY eligibility and, therefore, denied ESY services, see id. at 3,

7, 11, 12, 14, 16, 21, 26, 27, 36; and 11 children for whom it is not clear whether the District

concluded that there was not sufficient data to make a determination or that the LEA reviewed

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the data and concluded, without reference to data, that the child did not qualify for ESY services,

see id. at 5, 8, 9, 17, 20, 23, 24, 30, 33, 35, 38. For these 11 children, it appears that the LEA is

just using different phrasing to conclude that there is not enough data to make an ESY

determination. See, e.g., Pls.’ Ex. 5, at 5 (“Evaluation team does not have enough data to qualify

student.”). That totals 30 out of 35 ESY worksheets (over 80%) that demonstrate failure to

evaluate properly a child for ESY services and failure to comport with the District’s policies.

156. By projecting services to begin in the fall for children transitioning from Part C to

Part B services whose third birthdays are in the late spring or summer and simultaneously failing

to evaluate their eligibility adequately for ESY services, the District is causing those children to

experience a substantial disruption in services.

4. The District’s Policy, Procedures, and Practices Regarding Parental Delay

Are Flawed

157. The District’s parental delay policies, procedures, and practices are flawed. Of

course, the District should not be blamed for an untimely determination if the parent does not

reasonably participate in the eligibility determination process. See 34 C.F.R. § 300.301(d)(1)

(exception to the timeliness requirement if the “parent of a child repeatedly fails or refuses to

produce the child for the evaluation”).

158. However, under its current policy, if District attempts to contact a parent three

times, using more than one form of communication, at any time during the 120-day period, and

the eligibility determination is issued after the 120 days, the District concludes that there was

parental delay and omits this child’s referral from its statistics. See Proddutur Dep. 161:11–

162:12, July 2, 2014, Pls.’ Ex. 18; OSSE FFY 2012-Initial Evaluation Timeliness-Business

Rules, Pls.’ Ex. 34, at DL2014 2262.

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159. The District admits that it does not even consider whether it is fair to blame the

parent for the delay. Proddutur Dep. 176:17–21, July 2, 2014, Pls.’ Ex. 18 ( “[Q]: Did you ever

consider whether it’s fair to blame the parent for delay? [A]: No because we do not make

judgment calls here. We go by the policy, and we try to make concrete measurement.”)

160. Moreover, Plaintiffs identified numerous children for whom the District stated

the delay should be attributed to the parent but for whom most of the delay was attributable to

the District or the determination was otherwise unreasonable. See Pls.’ Post-Trial Proposed

Findings of Fact and Conclusions of Law Regarding Individual Children 21–38, ECF No. 514-2.

161. The District should revise its parental delay policy so that it uses common sense

and fairness to determine when any delay should be attributed to the LEA and when any delay

should be attributed to the parent. 2015 Dunst Direct ¶ 103. For example, the parental delay

rules should not allow attempts at parent contact that are clearly ineffective, such as repeat calls

to a disconnected telephone number, to count towards meeting the minimum number of

attempts at contact. Id. The revised rules should account for both delays by the LEA in

attempting to contact the parent and in parental responsiveness, all of which should be

documented. Id.

H. EXPERTS’ OPINIONS

162. Both parties’ special education experts agree that the District has shown

substantial improvement. 2015 Dunst Direct ¶ 21; see generally 2015 Freund Direct.

163. Nonetheless, Dr. Dunst has continued to express substantial concerns regarding

the District’s program. 2015 Dunst Direct ¶ 21. He described the District’s failures to use

appropriate criteria for determining compliance with the benchmarks and concern over the

resulting statistics. Id. at ¶¶ 22–140. He expressed concern over the District’s policies regarding

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parental delay, ESY services, and presumptive eligibility. Id. at ¶¶ 100–03, 141–53. He also

expressed concern over the District’s staff and the quality of the data in the District’s databases.

Id. at ¶¶ 154–58. He explained that:

As a result of the failure to comply with these numerical requirements, despite years

of attempts to correct its noncompliance, and because of all the discrepancies in

how enrollment, eligibility determinations, smooth and effective transitions, ESY,

presumptive eligibility, and other Child Find requirements are defined and

measured, the continued history of unreliable data collection and calculation of the

indicators for OSEP and the Court-ordered benchmarks, and the lack of a complete

understanding of the meaning of the IDEA Child Find requirements and how to

accurately measure the OSEP indicators, there is a need for oversight and

monitoring to ensure that these failures are remedied.

Id. at ¶ 164.

164. The District’s expert, Dr. Freund, is much more positive about the District’s

program. However, as discussed, she did not analyze the District’s data that were reported in this

case. Freund Dep. 87:13–15, Oct. 1, 2014, Pls.’ Ex. 22; Trial Tr., Freund Test., Nov. 16, 2015,

49:7–50:3. The District did not provide Dr. Freund with the underlying data that plaintiffs’

experts analyzed, and, therefore, she did not address the analyses performed by plaintiffs’ experts

or opine regarding the accuracy of the District’s rates of identification, timely evaluations, timely

eligibility determinations, or smooth and effective transitions, or the methods used in those

calculations. Freund Dep. 198:13–199:10, 329:3–14, Oct. 1, 2014, Pls.’ Ex. 22. Dr. Freund based

her opinion on the percentages and other information that the District presented to her and on her

conversations with District representatives. See Trial Tr., Nov. 16, 2015, 35:7–36:16, 49:7–50:3;

Freund Dep. 84:10-14, Oct. 1, 2014, Pls.’ Ex. 22.

165. In 2009, in describing what needs to be done to improve the District’s program,

Dr. Freund wrote: “It would be essential that the expected documentation of data and tracking of

children and outcomes be in place to determine the new system’s capability to effectively find,

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refer, identify, and place children from birth to age 5 who are eligible for Child Find services.”

2009 Freund Report, Pls.’ Ex. 28, at 13. When asked about that statement at her deposition, she

said: “I’m suggesting that there be on-the-ground data. OSEP requires, for the most part,

summative data. I’m suggesting that there be data with regard to not just what has to be reported

to OSEP, but what the work is and how the work is being done in the District for children who

are identified or referral [sic].” Freund Dep. 278:12–18, Nov. 23, 2009, Pls.’ Ex. 9. The Court

agrees. Review of that on-the-ground data shows that the District has inadequate policies,

procedures, or practices.

I. THE DISTRICT HAS BEEN OR SHOULD HAVE BEEN AWARE OF ITS

FAILURE TO COMPLY WITH ITS LEGAL OBLIGATIONS

1. OSEP Concluded that OSSE Fails to Comply with the IDEA

166. Since at least 1997, OSEP determined that the District failed to comply with

requirements of Part B of the IDEA and has worked with it to address its ongoing noncompliance.

See OSEP Notice of Written Findings and Decision and Compliance Agreement, 63 Fed. Reg.

41370, 41371, Aug. 3, 1998, Pls.’ Ex. 201. As described below, prior to 2011, OSEP took

substantial action toward the District to address its noncompliance with regard to timely

evaluations and smooth and effective transitions. See infra paras. 183–90; see also Mem. Op. ¶¶

52–59, ECF No. 294.

167. From 2011 through 2014, OSEP also determined that the District “needs

intervention” in implementing IDEA requirements and imposed special conditions due to the

District’s lack of compliance with the requirement to provide timely initial evaluations to 3-21-

year-olds. Letters from OSEP to OSSE, Pls.’ Ex. 226, at 1–4; Pls.’ Ex. 231, at 1, 3–5; Pls.’ Ex.

232 at 1, 4–6; Pls.’ Ex. 239, at 1, 5–7.

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168. In 2011, OSEP’s needs intervention determination was also due to noncompliance

with the requirement to provide smooth and effective transitions. Pls.’ Ex. 226, at 1–2; see also

infra para. 190. In 2014, OSEP informed the District that it had satisfied its special conditions

regarding those transitions. Letter from OSEP to OSSE, July 1, 2014, Pls.’ Ex. 240, at 2.

However, the transition data upon which OSEP relied to reach that conclusion suffer from the

data problems described above, see supra paras. 123–27, and therefore should not be relied upon.

See Proddutur Dep. 269:5–270:4, July 2, 2014, Pls.’ Ex. 18 (stating that the calculation of data

for OSEP and for this case are nearly identical). Moreover, OSEP does not review the District’s

files in the way that plaintiffs have done for the purposes of this litigation. Trial Tr., Dunst Test.,

Nov. 13, 2015, 50:23–51:1.

169. On June 30, 2015, OSEP informed OSSE that the District “needs intervention in

implementing the requirements of Part B of the IDEA” for the “ninth consecutive year” (the

longest period in the country), and imposed special conditions on the District’s FFY 2015 IDEA

grant awards due to the District’s lack of compliance with timely initial evaluations for children

ages 3 to 21. Letter from OSEP to OSSE, June 30, 2015, Pls.’ Ex. 243, at 1, 4–8; Department of

Education, 36th Annual Report to Congress on the Implementation of the Individuals with

Disabilities Act, 2014, Dec. 2014, Pls.’ Ex. 182, at 186 (stating that in 2011, the District was the

only jurisdiction that needed intervention for three or more years). OSEP stated that the District

“did not meet the Special Condition imposed on its FFY 2014 IDEA Part B grant award to ensure

timely initial evaluations and reevaluations,” an issue that “was initially identified in the 1998-

2001 Compliance Agreement between D.C. and the Department [of Education], and has been

included in the Special Conditions imposed on each IDEA Part B grant award from 2001 to the

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present.” Pls.’ Ex. 243, at 5. On July 1, 2015, OSEP again designated the District to be a “high

risk” grantee. Letter from OSEP to OSSE, July 1, 2015, Pls.’ Ex. 244, at 1–2.

170. In addition, in his report regarding the 2012-2013 school year, the Blackman-

Jones Court Monitor described the District’s repeated failure to achieve backlog reductions

related to timely evaluations required by OSEP. Report of the Monitor for the 2012-2013 School

Year, Feb. 3, 2014, Pls.’ Ex. 265, at 12–14. The District’s progress report related to the period

between October 1, 2013, and March 31, 2014, stated that it again failed to meet OSEP’s target

related to evaluation backlog reduction and identified the same reasons for delay. OSSE IDEA

Part B Special Conditions Progress Report #2, clarified June 5, 2014, Pls.’ Ex. 238, at DL 2015

315.

2. OSSE Concluded That DCPS Fails to Comply with the IDEA

171. OSSE also concluded that DCPS needs intervention. On August 21, 2014, OSSE

stated that, “based on the totality of the LEA’s data and information,” DCPS “Needs Intervention

in implementing the requirements of Part B of IDEA.” Letter from OSSE to DCPS, Re: FFY

2012 LEA Determination, Aug. 21, 2014, Pls.’ Ex. 262, at DL2014 7929. Indeed, the agency

cited the “[h]istory, nature and length of time of any reported noncompliance.” Id. Specifically,

OSSE noted the LEA’s performance was lacking with respect to timely evaluations for 3-21-

year-olds and smooth and effective transitions from Part C to Part B. See id. DCPS’s overall

rating was 42%, which results from its overall failure to comply with IDEA requirements, a part

of which are the issues relevant to this case. Id. at DL2014 7933; see also David Catania,

Reforming Special Education, Pls.’ Ex. 271, at PL POST-TRIAL 2110 (“In the most recent

performance determination for special education, as required by federal law, DCPS only received

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a 42% rating—the lowest among all public schools—barely escaping substantial intervention,

which would have required the District to withhold funding or take legal enforcement action.”).

3. Obvious Flaws in the District’s Policies, Procedures, and Practices Persist

172. Many of the flaws in the District’s data should have been obvious to its leadership.

For example, there is no justification for choosing to report enrollment data based on the 2010

census figure, despite the fact that OSEP does not do so and the District uses the annual estimated

census figure in its other reports to OSEP, see supra paras. 86–95, especially after plaintiffs

brought this issue to the District’s attention in July 2014. See Dunst Expert Report, July 25, 2014,

Pls.’ Ex. 25, at 9–11. The District claims that it reports its data according to OSEP’s requirements,

see Maisterra Dep. 61:3–19, June 2, 2014, Pls.’ Ex. 14, but then deviates from the manner in

which OSEP reports data for this metric without explanation.

173. In addition, it is a ma

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