UPDATE: Letter to Chancellor of DC Public Schools Antwan Wilson from DC Council member David Grosso, Chair of the Committee on Education
We offer a BIG thank you to Chair of the Education Committee, Councilmember David Grosso, for taking leadership on helping DCPS become more transparent in its plans to make changes to policies of the DC Child Find agency, Early Stages. As we are still in celebration of the victory of the D.L. case, there is still the possibility of an appeal by the District’s Attorney General Karl Racine‘s office that could go to the U.S. Supreme Court. We hope this doesn’t happen and our Coalition fully stands behind the legal team of Terris Pravilk and Millian in their courageous and protracted legal fight to ensure protection of DC’s preschool children transitioning from Part C to Part B of the IDEA.
Outside of the courts, our city legislators at DC Council, particularly the Committee on Education, also have the opportunity to take leadership and provide the necessary oversight over the proposed policy changes to Early Stages. We are proud to say that Councilmember Grosso has stepped up to the plate and want our members and supports to join us in thanking him. Click here to sign the Thank You Letter.
In the letter dated August 8, 2017, the Councilmember states that, “…I still remain concerned that this major change [to Early Stages’ role with Child Find] will hinder the significant progress that Early Stages has made over the year, dilute the trust that has been built with the community, and affect the timeline goals for assessment that has been established by the Enhanced Special Education Services Amendment Act of 2014, which you have been committed to upholding.” Councilmember Grosso goes to on request that his office be provided with a detailed update to include the following information:
- Timing of rolling out the changes;
- Resources for staff at DCPS to adapt to these changes; and
- How this plan will help DCPS reduce the time between referral and evaluation
We look forward to the formal and public response offered by our Chancellor! Click Here to read the entire letter by Councilmember David Grosso.
Please sign our Thank You note to Councilmember David Gross!
Victory in D.L. vs. District of Columbia
In a 3-0 ruling, a federal appeals court ruled in favor of the plaintiff’s in the D.L. vs. District of Columbia case. This law suit started in 2005 and was instrumental in the founding of Early Stages (est. 2009) to resolve previously dismal Child Find practices. While we’ve come a long way as a city in making significant improvements to the DC Child Find process, there are many more steps to go. Stay tuned from more action from our Coalition to help the District of Columbia Public Schools and Early Stages Get Child Find Right.
The Injuction (DL US Ct of Appeals Opinion 6.23.17) issued in November 2015 stated that “the Court finds that the District demonstrated bad faith and gross misjudgment with regard to its Child Find and FAPE obligations; its obligation to provide timely initial evaluations for special education and related services; its obligation to provide timely initial evaluations for special education and related services; its obligation to provide timely initial evaluations for special education and related services; its obligation to provide smooth transitions from Part C to Part B services.” (pg. 2)
This Injunction outlines the reporting requirements to correct, “further violations of the IDEA’s requirements to identify, locate, and evaluate preschool-age children; perform a timely eligibility determination with 120 days of referral; and ensure children receive a smooth and effective transition from Part C to Part B. The Court directs the following corrective actions.”:
Subclass 1: District of Columbia “failed to ensure that preschool-age children with disabilities in [DC] are identified, located, and evaluated for the purposes of offering special education and related services….” (pg. 1)
- The District shall ensure that at least 8.5% of children between the ages of three to five years old [or ‘preschool children”], who reside in or are wards of the District, are enrolled in special education related services under Part B or extended Part C services.”
- “Until 8.5% is reached, DC shall increase the percentage of preschool children in the District enrolled in Part B or extended Part C services by 0.5% in the first full year…”
- “A child is considered ‘enrolled’ on the date that he or she began receiving all of the special education and related services identified in his or her IEP, or if receiving extended Part C services, all of the services identified in his or her IFSP, including the required educational component. The District shall record and track when children first receive each service (including special education and related services) [according] to an IEP or extended IFSP.”
- “District enrollment percentage shall be calculated by diving the number of preschool children enrolled by the number of preschool children in the District, as reported in the most recent annual census estimate prepared by the U.S. Census Bureau’s Population Estimates Program, except in the years for which the decennial census results are issued, in which case the enrollment percentage should be calculated by dividing the number of preschool children enrolled by decennial census results.” (pg. 3)
Subclass 3: District of Columbia “failed to ensure that preschool-aged children with disabilities in [DC] receive eligibility within 120 days of referral]
- “The District shall ensure that at least 95% of all preschool children referred for Part B shall receive a timely eligibility determination.”
- “Until 95% is reached, the District shall increase the percentage of preschool children referred for Part B services who receive a timely eligibility determination by 10% in the first full year…and an additional 5% in each subsequent year.”
- “An eligibility determination shall be considered timely if it is completed within the period then-prescribed by federal and local law…”
- “‘Date of referral’ is defined as the date on which the District receives a written or oral request for assessment of a preschool child. That referral may be made by a parent or non-parent such as a pediatrician or an LEA employee.“
- “The District shall revise its parental delay 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…The revised rules shall account for both delays by the LEA attempting to contact the parent and in parental responsiveness, all of which should be documented.” (pg 40)
Subclass 4: District of Columbia “failed to have in effect policies and procedures to ensure that children receive a smooth and effective transition from Part C to Part B services
- “The District shall ensure that at least 95% of all Part C graduates that are found eligible for Part B receive a smooth and effective transition by their third birthdays.”
- Until 95% is reached, the District shall increase the percentage of smooth and effective transitions by 10% in the first full year…and an additional 5% in each subsequent year.”
- “A transition shall be considered ‘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 the services are to be provided and both the type of placement and a specific location for services by the child’s third birthday; (3) there is no disruption in services between Part C and Part B services (that is, all special education and related services in the child’s IEP must commence by the child’s third birthday); and (4) Part B personnel are involved in the transition process.”
- “The District may report that there was no disruption in services as long as (1) all of the child’s special education services begin on the child’s third birthday or, if that is a weekend or holiday, on the first school day after the child’s third birthday (which, in the case of a child whose birthday falls during the summer and qualifies for Extended School Year (“ESY”) services, will be ESY services), and (2) all related services should begin within 14 days of the child’s third birthday (unless that period is within the summer and child does not qualify for related services as part of his or her ESY services, in which case within in 14 days of the first day of school after the summer). The District shall record and track when the child first receives each service (including special education related services) required [according] to an IEP.”
- “The District shall revise its parental delay policy as described in paragraphs…” (pg. 4-6)
- “The District shall maintain and regularly update a list of primary referral sources, including physicians, hospitals, and other health providers; day care centers, child care centers, and early childhood programs; District departments and agencies; community and civic organizations; and advocacy organizations. The District shall also develop a system to track frequency of contacts with the referral sources to ensure that outreach occurs on a regular basis.”
- “The District shall develop and publish printed materials targeted to parents and guardians that inform them of the preschool special education and related services available from District of Columbia Public Schools (DCPS), the benefits and cost-free nature of these services, and how to obtain the services. These materials shall be written at an appropriate reading level and be translated into the primary languages spoken in the District. These materials shall be distributed to all primary referral sources (e.g. medical professionals and child care staff), public and public charter schools, public libraries, Income Maintenance Administration Services Centers, public recreation facilities, and other locations designed to reach as many parents or guardians of preschool children who may be eligible for special education and related services as possible.”
- “The District shall develop, publish, and distribute printed materials at primary referral sources to inform them of the preschool special education and related services available from DCPS, the benefits and cost-free nature of these services, and how to make a referral. These materials shall be used in conjunction with regular contacts with primary referral sources to increase the usefulness of the materials.”
- “The District shall ensure that Early Stages outreach staff (e.g. the Child Find Field Coordinators) contact primary referral sources or a staff member in the primary referral source’s office who are instrumentatl in making referrals at least once a month until a referral source’s office who are instrumental in making referrals at least once a month until a referral relationship is established and then every three months thereafter. The initial meeting shall be face-to-face whenever possible when pursuing referrals from new referral sources and then less frequently thereafter, using the method of contact preferred by the referral sources (e.g., e-mail, texting, or telephone calls).”
- “The District shall accept both oral and written referrals at the start of the eligibility determination process, make multiple attempts using different forms of communication (e.g. telephone, postal mail, and e-mail) to contact the parent or guardian of a referred child, and, upon obtaining consent of the parent or guardian, providing feedback to the referral source regarding the outcome of the referral in an timely manner.”
- “The District shall assign each family served by Early Stages a single staff member to act as a ‘case manager’ throughout the screening, evaluation, eligibility determination, and IEP process to ensure that families have the necessary information to understand the purposes and functions of all aspects of the Early Stages process and procedures.”
- “The District shall maintain a central location: accepts formal and informal referrals; conducts initial meetings, screenings, assessments, eligibility determinations, IEP development, and offers of placement, and permits parents to register their child with DCPS.”
- “The District shall regularly assess the need for, and as necessary, open additional satellite sites to perform the same functions in other wards or use a mobile evaluation unit that is able to perform these functions at multiple locations through the District as more children are located who may be in need of preschool special education.”
- “The District shall conduct regular screenings of preschool-age children in each ward of the District, and especially in wards which children experience multiple risk factors.”
- “The District shall use existing data (e.g. medical records and reporting of prior assessments) at the time of referrals to the extent possible, especially for children from Part C to Part B services, to eliminate unnecessary and duplicative screenings and assessments for eligibility determination purposes.”
- “The District shall accept all children exiting Part C who have identified disabilities or significant development 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 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…In all cases, including where the existing data are sufficient and where the Part B IEP Team determines that additional data are needed, defendants shall ensure that the Part B eligibility determination is completed prior to the child’s third birthday, so that children eligible for Part B special education and related services experience no disruption in the receipt of services.
- The District shall maintain a reliable data-sharing system between Part C and Part B to ensure that Early States receives an ongoing monthly report of all childen who will be aging out of Part C within the following six months in order to ensure timely transition meetings.
- The District shall maintain a reliable database system for tracking children throug the Child Find process: from referral to eligibility determination and, if eligibile, IEP development, placement, and provision of identification services.”
- “The District shall maintain a reliable system for tracking the number and type of placements available for preschool special education and related services throughout the year and expanding the number and types of placement as needed.”
- “The District shall develop and apply consistent operational definition for each of the numeric benchmarks.”
- “The District shall understand and ensure that its staff understand the purpose of the benchmarks and the IDEA requirements so that it can comply with them.“
- “The District shall improve its data collection policies so that reporting can be accurate.”
- “The District shall collect the necessary data to indicate when all services begin, including special education and related services.” (pg. 6-9)
Here are some of the quotes taken from the Opinion of the Court of Appeals, dated June 23, 2017:
- “IDEA expressly requires states to ensure that an IEP ‘has been developed and is being implemented’ by ‘the third birthday’ of all toddlers transitioning from early intervention to preschool. 20 U.S.C. § 1412(a)(9). Ignoring this statutory text, the District points to a Department of Education regulation requiring services to be delivered “as soon as possible” after development of a child’s IEP. 34 C.F.R. § 300.323(c). The statute, of course, is our guide, and it requires IEPs to be implemented by the child’s third birthday. Moreover, the regulation the District invokes, which concerns the provision of special education services to students aged three to twenty one, has nothing to do with the transition to preschool for children already identified as disabled. And if all this were not enough, the regulation governing the ‘smooth transition’ condition requires—in language identical to the statute—that an IEP ‘has been developed and is being implemented” by age three, id. § 300.124(b), and a separate regulation obliges states to make a FAPE available ‘no later than the child’s third birthday,’ id. § 300.101(b)(1)(i).'”(p. 23)
- “The district court determined that at least 8.5 percent of preschoolers should be enrolled in special education and related services, but that just over 6 percent were. The court based the 8.5 percent benchmark on expert testimony “related to risk factors in the District, comparisons to other jurisdictions, and incidence of developmental delays nationwide.” D.L., 194″ (p. 23-24)
- “As to enrollment rates, the court relied on the fact that the District itself treats enrollment as a proxy for identification when tracking and reporting its IDEA compliance. Adopting the District’s own methods hardly amounts to an abuse of discretion; quite to the contrary, it makes perfect sense. Nor, in our view, was it unreasonable for the court to define“enrollment” as provision of all services outlined in a child’s IEP. After all, IDEA obliges states not only to find children with disabilities, but also to give them services. See 20 U.S.C.§ 1412(a)(1)(A) (requiring a FAPE to be made “available to all children with disabilities”); (a)(2) (setting a goal of “full educational opportunity”); (a)(3) (requiring states to develop and implement effective Child Find policies). As the district court put it, “the entire point of the Child Find requirement is to provide services to children with disabilities,” a duty the District is violating by offering children only some of the services to which they are entitled. D.L., 194 F. Supp. 3d at 91.” (p. 25)
- “Moreover, the District’s violation was clearly substantive. Although it is true that ‘this court has at times required parents to demonstrate that the student’s education was affected by any procedural violations the school district might have committed,’ we have done so ‘only where the violation was not obviously substantive.’ Leggett v. District of Columbia,793 F.3d 59, 67 (D.C. Cir. 2015) (quoting Lesesne ex rel. B.F.v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006))(alterations and internal quotation marks omitted). The District asserts that its failure to locate disabled children is a“procedural” rather than substantive harm. Appellants’ Br. 57.But twice in recent months the Supreme Court has confirmed that access to a FAPE is a “substantive right.” Endrew F., 137S. Ct. at 993; see also Fry v. Napoleon Community Schools,137 S. Ct. 743, 749 (2017) (‘An eligible child . . . acquires a substantive right to [a FAPE] once the state accepts the IDEA’s financial assistance.’ (citation and internal quotation marks omitted)). Disabled children are quite obviously denied a FAPE when the District fails to find them at all.” (p. 27)
- “Yet the District, which has enthusiastically accepted millions of dollars in IDEA funding, now proposes to shift that burden (to identify locate and evaluate all preschoolers with disabilities) back to the parents. In the District’s view it would be up to each and every parent, many of whom are poor, homeless and perhaps disabled themselves, to somehow determine whether their children are eligible for special education services and then to retain counsel to sue the District to obtain the services to which they are entitled. Given the purpose of the IDEA we cannot imagine a more preposterous argument.” (p. 29)
- “Having considered each of the District’s challenges, we are convinced the district court made no mistake. So long as the District of Columbia accepts federal funding, it is bound to its pledge to identify, evaluate and serve all children with disabilities.The district court neither erred nor abused its discretion in holding the District to its word. We affirm in all respects.” (p 30)