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Report of Elise T. Baach,
Special Master for Special Education, on
Issues in Special Education, to
US District Court Judge Friedman
September 27, 2000




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Mikeisha Blackman, et al., Plaintiffs, v. District of Columbia, et al., Defendants.

Civil Action No. 97-1629 (PLF)



This report provides a summary of the issues affecting class members in Blackman, et al., v. District of Columbia, et al., as reflected in motions for injunctive relief referred to the Special Master.1 The purpose of the report is to apprise the Court and the parties of some of the obstacles faced by students who have sought relief, and presumably, by other students in the District of Columbia.

The methodology of the review is described in the second section. The third section describes the specific problems presented. The fourth and last section describes other concerns that, while not easily classified, continue to hamper DCPS' ability to implement hearing officer determinations and settlement agreements.

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Since the date of the Order of Reference, the Court has referred thirty-seven (37) motions for preliminary injunctions or emergency relief, on behalf of 114 students. The motions for relief are based on DCPS' failure: 1) to implement the provisions of a hearing officer determination (HOD); or 2) to implement provisions in an agreement negotiated with a student's parent(s) or advocate; or 3) to provide an impartial due process hearing in a timely fashion.2 In some cases filed in 1999, the motions based jurisdiction on two, three or even more failures to comply with the provisions outlined above. In recent months, the motions have all alleged failures to comply with settlements or HODs.

Of the 114 students for whom relief was sought, the claims of 32 were settled without assistance from the Special Master and four were withdrawn after a preliminary meeting. Of the remaining 78 students, the Special Master has filed reports in 73 cases and five cases are still pending.

In the preparation of this report, forty-five of the cases referred to the Special Master between February 1999 and August 2000 were selected for a comprehensive review. The students in the sample ranged in age from four to twenty-one, and were representative of the overall age distribution of the cases referred. Special Master Attachment 1 depicts the grade levels of the students included in the sample.

The review of each case relied on an examination of the following material:

  • motions filed by both plaintiffs and the defendants,

  • records supplied by DCPS and plaintiffs;

  • meeting and log notes maintained by the Special Master's Office;

  • reports submitted to the Court by the Special Master; and

  • Orders issued by the Court.

The cases in the sample were reviewed for the purpose of identifying the most common issues raised during the proceedings.3 Most of the issues raised involved noncompliance with one or more of the four bases of a free appropriate public education:

  • evaluation and identification;

  • Individual Education Program (IEP) development;

  • educational placement and IEP implementation; and

  • procedural safeguards.

Consequently, the content of the report tracks those four elements.

It is important to note at the outset that the Special Master is aware of some of DCPS' initiatives to resolve long-standing problems in the delivery of appropriate special education services. Except as otherwise noted, this review did not include an examination of the status of those plans and activities.

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A. Evaluation and Identification Process

The assessment, or evaluation, of a student is the key to identifying whether that student needs special education and, if so, the specific type of service needed. Assessment is the first step in developing an Individual Education Program (IEP), and identifying an appropriate educational placement. Under IDEA, school districts are also required to conduct Evaluations for students receiving special education services on at least a triennial basis. The following specific issues with regard to the assessment process were identified during the course of this review:

  • timeliness of assessments

  • adequacy of assessments

  • follow-up when assessments are inconclusive

  • "functional behavioral assessments"

Among the 45 cases reviewed, the lack of a timely initial evaluation or re-evaluation appeared as an issue in 40 cases. Delays experienced by students ranged from one month to three years. The average time it took for assessments to be completed was approximately one year, although cases filed after January 2000 show some improvement. The delay in assessments would be even worse but for the fact that many HODs and settlement agreements contain a provision expressly permitting a parent to obtain an independent evaluation at public expense if DCPS has not performed the necessary assessments by a particular date. In more than seventy-five percent of the cases where this provision appeared, DCPS failed to assess by the date listed and parents then had independent evaluations conducted at public expense.4

In addition to the timeliness of assessments, another issue that surfaced was the failure of DCPS to conduct follow-up assessments when evaluation results were inconclusive. For seven students, completed assessments indicated that more extensive testing, or testing in additional areas, was necessary in order to confirm suspected disabilities. For example, in two instances, students who were suspected of having emotional disabilities and/or Attention Deficit and Hyperactivity Disorder (ADHD) were to have been referred to psychiatrists for further evaluation, but these referrals were not made. Other follow-up evaluations that should have been conducted -- but were not -- included a recommended eye examination, an evaluation to determine the presence of Tourette syndrome, and a hearing assessment.

A final issue with regard to assessments involves the difficulty in obtaining "functional behavioral assessments." Although this issue affected a relatively small number of students in the sample, it is an issue worth mentioning due to the impact that it has on those students as well as others. In order to adequately address the challenging behaviors of some students, a behavior plan needs to be developed and implemented. A critical step in this process is the completion of a "functional behavioral assessment," a term included in the 1997 amendments to the IDEA. For students with this need, the failure to receive such an assessment, and subsequent behavior plan, can make it difficult to benefit from education. There does not appear to be a process for obtaining a functional behavior assessment when needed although it is unclear whether there is a shortage of staff within DCPS to complete such assessments or if the staff is not trained in the development of behavior assessments and plans.

B. IEP Development

The IEP development is the next step in the process of securing special education services. After initial assessments are completed, and on an annual basis thereafter, an IEP needs to be developed that describes the abilities of the individual student, sets forth a description of both the special education services and related services to be provided and the goals/objectives to be achieved during the period covered by the IEP. The services identified by the IEP are intended to guide placement decisions.

The following issues were found to exist with regard to IEP development for the students included in the sample:

  • timeliness of IEP development

  • attendance of necessary personnel

  • adequacy of IEP

  • alteration of IEPs without parental consent

It is a common practice for HODs and settlement agreements to set forth a specific timeline in which the assessment, IEP development and placements must occur. Thus, when assessments are untimely, the IEP is likely to be delayed. However, for 30 out of 45 students in the sample IEPs were not developed in a timely manner even though assessments -- whether timely or delayed -- were completed. For example, even when private evaluations were obtained, a student had less than a 50/50 chance of obtaining an IEP by the date set forth in the HOD or settlement. It appears that delays in this particular area result from the absence of a clear internal procedure for handling assessments to ensure that the IEP meeting is held promptly. If a parent or attorney forwards the evaluations to DCPS, the process often stalls as the evaluations circulate among the Office of General Counsel, Division of Special Education and local school. The prompt scheduling of an IEP meeting once private evaluations are received has been an ongoing problem; unlike some other areas discussed in this review, no improvement has been seen in recent months.

The adequacy of the IEP was an issue that was observed for a quarter of the students in the sample. In at least two instances, DCPS evaluators failed to take into consideration other evaluations that had been completed. The problems noted with regard to the quality of IEPs included the lack of individualized goals and objectives, failure to include measurable objectives in IEPs, refusal to include recommendations made by parents or their consultants, limiting related services to those services available at a school (as opposed to those needed by a particular student), and failure to consider the input of a teenage student who was the subject of the plan.

The failure to include transition services on an IEP is one issue that is worth mentioning in further detail. Although only eight of the students in the sample were high school aged, for at least four, or 50 percent of the high school sample, transition planning and services were a significant issue. All of these students require specialized vocational training as well as training with regard to self-advocacy and, to a certain degree, life skills. Eventually, these students will need to be linked to services in the adult system to ensure that they continue to receive the supports they need after they age-out of the school system. However, none of these students had IEPs that adequately addressed these issues and none were receiving adequate transition services when the motions for injunctive relief were filed.

Contributing in some measure to the problems with IEP development has been DCPS' failure to have the necessary personnel in attendance at IEP meetings. This issue affected eleven students in the sample. In five of the cases, no qualified evaluator was present to interpret data obtained from assessments. In the other cases, the IEP teams refused to agree to -- or in one case, even discuss -- a request from a parent far compensatory education because the necessary personnel from the central office were not present. When an IEP team met to change a student's placement, the "receiving school" was rarely represented. This has obviously contributed to the "misunderstandings" discussed below in the section regarding special education and local school cooperation.

Finally, of enormous concern is the practice, albeit affecting only a small number of students in the sample, of altering IEP documents and assessments without the approval of the IEP team, particularly without the approval of the parent or representative. For six of the students in the sample, documents had been altered. For three students, the alterations related to their eligibility for related services. In another case, an IEP was "completed" by DCPS after the parent and advocate had left the meeting, believing the meeting to have been adjourned until a later date.

C. Educational placements and IEP Implementation

The third element of providing students with the special education services to which they are entitled is ensuring that the IEPs developed for students are implemented in an appropriate educational placement, i.e., a classroom, program or separate school with sufficient resources to implement the IEP. Each IEP identities the number of hours that a student is to participate in special education versus regular education classes, the related services and adaptive equipment, and the setting or level/intensity." Problems were identified in each of the following areas:

  • providing level/intensity listed on IEP

  • providing required hours of special education, related services and adaptive equipment

  • availability of placements

  • timeliness of notice of placement

  • parent participation in placement decisions

  • lack of placement entirely

At least four students in the sample had been placed at schools, which, on their face, did not comply with the settings listed on the IEPs. In all, one quarter of the students in the sample were placed in educational programs that could not -- for one reason or another -- meet the requirements of the IEP. In some cases, it appears that students were simply placed in programs that could not provide the hours of special education and/or related services specified in the IEP. For other students, staff with the required level of expertise was not present at the programs in which they were enrolled. In other cases, related services were scheduled for a particular program, but in reality were not available due to issues such as staff shortages or the deployment of staff to other tasks. In a few cases, related service providers were pulled from delivering direct services to assessing students.

As noted above under the area of IEP development, some students' IEPs were modified to fit what was available at the school. Changing an IEP to fit program availability has apparently been viewed by some DCPS Staff as a solution to the system's critical shortages in special education placements. Indeed, the unavailability of appropriate placements has consistently contributed to DCPS failure to implement a HOD or settlement. In some cases, services for students exist, but they were full to capacity when referrals were made. In other instances, age was an issue. For example, a private school might exist that serves students with a particular set of disabilities, However, the student who was the subject of the preliminary injunction was too old or too young to attend the program.

DCPS has continuing problems providing appropriate educational services for certain categories of students. Frequently, it seems that these are students who have more than one disability, requiring a combination of specialized educational services. Although this should not be considered an exhaustive list, it may be useful to note that DCPS had particular difficulty in placing students with the following of disabilities and/or need for specialized services:

  • Students with mental retardation and concurrent emotional disabilities;

  • Very young children with emotional disabilities;

  • Students who have medical conditions requiring regular interventions by nursing staff;

  • Students who are hearing impaired and have emotional disabilities or learning disabilities

  • Students who have sustained a traumatic brain injury; and

  • Older students with mental retardation, brain injury and/or severe learning disabilities who require transition services.

In some instances, DCPS attempted to cope with "difficult to place" cases by developing the staffing capacity within the existing school, by placing additional resources at the school and/or providing training to incumbent staff.5 In some instances, counsel for the students were able to secure tutoring therapy, at DCPS expense, for students awaiting appropriate placements. In many cases, however; students just waited until appropriate placements became available.

Whether confronted with a "difficult to place" case or a student with a clear option, DCPS often appeared unable to the issue a NOP in a timely manner. As indicated above, the delay was often the result of the failure of DCPS to conduct assessments in a timely fashion, and/or develop an IEP on time. However, even where assessments and the IEP had been timely -- or relatively timely -- DCPS often failed to finish the process by looking for an appropriate program and issuing a NOP. In early cases, DCPS staff could supply only scarce anecdotal evidence that attempts had been made to secure placements for students. More recently, however, DCPS has been able to provide written records of placement efforts in some cases. Despite the implementation of a comprehensive database, finding openings in local schools still seems to rely on "calling around" to see if a particular class has space for a student.

Another problem throughout the course of the referrals was DCPS' inability to construe the requirement for parental participation in a consistent manner. This issue generally does not arise when a placement decision can be made at the IEP meeting with the parent or attorney in attendance. However, if it becomes necessary to "look" for a placement, the role of the parent varies greatly. In the past, DCPS has allowed parents to "accept" or "reject" placement options even though this process was not mandated by the IDEA. In 1997, the IDEA was amended to include the following obligation with respect to placement:6

f) Educational placements
Each local educational agency or State educational agency shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.

DCPS has been unable to consistently incorporate this provision, short of reverting to the earlier practice. In eight cases parents were not consulted at all before DCPS issued an NOP. In two other cases, however, DCPS seemed completely paralyzed when attorneys for the parent "rejected" the placement discussed at a meeting.

Finally, and perhaps of most serious concern, were the seven students included in the sample who were without any placement at all at the time injunctive relief was sought. The ages of these students ranged from five to fourteen and the amount of school time the students had missed ranged from a couple of months to an entire school year. In all of these cases, the students were awaiting assessments or reassessments.

In sum, of the cases in the sample, all 45 students had had some problem with respect to placement and/or IEP implementation.

D. Procedural Safeguards

One issue that does appear to have improved over time is the ability to schedule and conduct due process hearings in a timely manner. The failure to hold a timely due process hearing formed the basis of class membership for 20% of the students who filed cases prior to September 1999. However, this issue has been raised only once since January 2000.

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IV. Other Concerns of the Special Master

In addition to the specific issues regarding compliance with IDEA listed above, two other persistent issues are of concern. Those areas are: 1) the failure of DCPS to notify attorneys as required by a HOD or settlement agreement; and 2) the failure of local schools to assume responsibility for students attending, or attempting to enroll.

A. Notification to counsel

Many HODs and settlement agreements contain notification provisions that require DCPS to furnish plaintiff's counsel with information regarding dates for assessments, IEP meetings and to mail counsel copies of NOPs and other pertinent information. The reason for this provision varies from case to case: in some instances counsel is better able to arrange transportation for the parent to a meeting or testing site, in some cases, the student is in foster care and living arrangements may change frequently.7 Whatever the reason may be, compliance with the provision is an integral part of the HOD or settlement agreement. At the outset it should be noted that counsel for DCPS understand the need to comply with these notification provisions. In fact, in the past year there has been improvement in the notification process used by defendants' counsel. Outside the DCPS Office of General Counsel, however, compliance with notification provisions has not improved. Indeed, there have been six instances since May 2000 where an assessment or IEP was scheduled without the required notice to counsel, or a NOP was issued without furnishing a copy to counsel. These oversights ranged in severity from the failure to apprise counsel of a date for the assessment of a student's fine motor skills to the failure to apprise counsel that a hospitalized student was being sent to a residential placement in 1,000 miles away. Clearly, the system used to track compliance with substantive aspects of a HOD or settlement agreement must also include the capacity to track appropriate notification.

B. Relationship between the Special Education Division and local schools

From the case studies presented in the sample, one of the most disturbing observations is the tenuous relationship between special education and schools. The failure to work cooperatively was observed in a number of cases but the most disturbing instances involved students who attempted to enroll at regular neighborhood schools but who were turned away. Two high school students, for instance, had NOPs issued by DCPS or settlement agreements directing them to enroll at particular high schools. Even with this documentation, staff at the local schools refused to enroll the students. Two other students, ages five and seven, were just beginning their school experiences. With regard to these students, their families attempted to enroll them in neighborhood schools but were literally turned away because the students had obvious disabilities. In none of these cases did the local schools take any action to see that the students received the assistance required by law.

Finally, in several other cases, parents reported that upon arrival at a school at which their children had been placed, school officials told them that the school was not appropriate for their child. Without further information, it is not possible to tell whether: 1) the school was attempting to create a more homogenous student body than permitted, or 2) the individuals responsible for placement decisions at the Central Office were so desperate to find a school for the student that an inappropriate placement was issued, or 3) both of the above. In either event, it is not surprising that in all of these cases, the parent, school or both were seeking a new placement for the student in less than a year.

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The conclusions reached based on the sample of 45 cases are wholly consistent with the perceptions acquired during the meetings held for 81 students over the past eighteen months. Above all, there is an increasing awareness on the part of the Special Master of the need for DCPS to focus on earlier assessments and earlier services. As the chart in Special Master Attachment 2 shows, half of the 114 students who have filed requests for injunctive relief were between the ages of ten and fourteen at the time relief was sought.8 Despite the unique character of each child and the circumstances of his/her case, a clear pattern has emerged: in case after case, the student had problems in an early grade and the family or advocate attempted to have the student assessed and served. In many cases, the family moved the child to a different school in the hopes their son, daughter or grandchild would receive the attention he/she needed. After struggling with the regular education and special education systems for several years, the child was finally identified as a student in need of special education. Only instead of a child with, for example, an auditory processing problem, the student was now a young adolescent who was between three and four years behind academically with challenging behaviors, perhaps because school had become so frustrating, and still had the underlying disability. When finally assessed, or reassessed, the student was identified as a student with emotional disabilities and, perhaps, learning disabilities. The student now needed both academic services and counseling, and the local school was generally unwilling or unable to provide the needed accommodations and support.

Placement options for these students exist but the programs fill quickly and a student often waits for months -- either at home, or at a school no longer able to teach him/her, or eventually on the street, But for the persistence of their counsel, many of the students whose cases have been presented to the Special Master would have never moved beyond that waiting. Regrettably, the experience of the students here suggests that other young children may follow the same pattern and end up waiting for placements that, under different circumstances, might have been unnecessary.

Elise Baach
Special Master

Date: Sept. 27, 2000

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Mikeisha Blackman, et al., Plaintiffs, v. District of Columbia, et al,, Defendants

Civil Action No. 97-1629 (PLF)


September 27, 2000

Attachment 1

Elementary School 28 62%
Middle School 9 20%
High School 8 18%
Totals 45 100%

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Mikeisha Blackman, et al., Plaintiffs, v. District of Columbia, et al,, Defendants

Civil Action No. 97-1629 (PLF)


September 27, 2000

Attachment 2

bar graph

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Mikeisha Blackman, et al., Plaintiffs, v. District of Columbia, et al,, Defendants

Civil Action No. 97-1629 (PLF)


September 27, 2000

Attachment 3

bar graph

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I hereby certify that a copy of the Report of the Special Master, was mailed, postage pre-paid on September 27, 2000, to the following:

Charles A. Moran, Esq. 6600 5th Street, NW Washington, DC 20012

Tammy Seltzer, Esq. Judge David L. Bazelton Center for Mental Health Law 1101 15th St., NW, Ste. 1212 Washington, DC 20005-5002

Alissa Reff, Esq. Swidler, Berlin, Shereff, & Friedman 3000 K St., NW Ste. 300 Washington, DC 20007

Karen D. Alvarez, Esq. 1442 Foxhall Rd., NW Washington, DC 20007

Paul S. Dalton, Esq. Dalton & Dalton 6303 Little River Turnpike Alexandria, VA 22312-5045

Myrna Fawcett, Esq. Bonnie Jones-Moon, Esq. Fawcett & Fawcett 1763 R St., NW Washington, DC 20009

Beth Goodman, Esq. Goodman & Johnson 1321 Pennsylvania Ave., SE Washington, DC 20003

Elizabeth Greczek, Esq. University Legal Services, Inc. 300 1 St., NE, Ste 200 Washington, DC 20002

Elizabeth Jester, Esq. Jester & Williams 206 G St., NE, Ste 100 Washington, DC 20002

Daniel A. Katz, Esq. Andalman & Flynn, P.C. 8601 Georgia Ave., Ste 604 Silver Spring, MD 20910

Donna Wulkan, Esq. Suite 410 1424 16th Street, NW Washington, DC 20036

Margaret Kohn, Esq. Kohn & Einstein 1320 19th St., NW, Ste 200 Washington, DC 20036

Ronald L. Drake, Esq. 5 P Street, SW Washington, DC 20024

William Earl, Esq. Lisa Bell, Esq. Andrew Racca, Esq Nancy Schulz, Esq. Office of Corporation Counsel 441 Fourth St., NW 6th Floor, South Washington, DC 20001

Veleter Mazyck, Esq. Thomas Wight, Esq. Katthye Hopkins, Esq. District of Columbia Public Schools 825 North Capitol Street, NE Washington, DC 20002

Paula Perelman, Esq. Anne Gay Natalia Houston Kate Walsh Division of Special Education, 6th Floor 825 N Capitol St., NE Washington, DC 20002

E1ise T Baach, Esq
Special Master
Date: Sept. 27, 2000

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1. See Order of Reference, February 12,1999

2. See the class certification under the Blackman v. District of Columbia Order of May 14, 1998.

3. The issues discussed in this report were not necessarily all raised in the initial requests for injunctive relief. For example, a motion may have been filed because DCFS failed to implement a settlement agreement that required assessments and an IEP, in monitoring compliance with the underlying obligation, DCPS may have attempted to develop an IEP without the necessary personnel present, thereby raising an issue that would have been unknown at the time of the initial filing.

4. As will be discussed below, when these independent evaluations were forwarded to DCPS, they often disappeared into a bureaucratic vacuum. Since the HOD or settlement agreement generally required that an IEP be held within two weeks of the date the evaluations were received by DCPS, misplaced paperwork often led to a failure to meet the deadline for holding the IEP meeting.

5. For example, the Special Master has observed that the principals of both Green Elementary School and Birney Elementary School have attempted to provide additional support to students placed at their schools.

6. See 20 U.S.C. §1414(f). DCPS has also recommended a proposed amendment to the Board of Education Regulations to address the issue of parent participation in the placement process.

7. Not discussed in this report, but always in the background of cases involving students in foster care, is DCPS' failure to appoint surrogate parents as required by IDEA. D C. Superior Court often appoints counsel to represent students as "educational advocates" because no surrogate parent has been appointed and social workers from the Child and Family Services Administration are prohibited from serving as educational advocates under IDEA.

8. Parenthetically, it is worthwhile to note that approximately seventy percent of the claimants were boys, although girls presented some of the most serious issues.

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