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[Many inidividuals familiar with the work of the Special Committee believe that Councilmember Chavous himself caused most of the Committee's problems, however. Initially buoyed by the press coverage, Chavous quickly lost interest in the work of the Committee and did not provide direction or appoint a staff for nearly four months. Chavous apparently disapproved of the role that DC attorney Mark Tuohey had provided as counsel to two other special Council committees — one on the MPD and the other on problems in the District’s group homes. Chavous believed that Tuohey had been too prominent, had received too much publicity and credit, and that he had overshadowed the Councilmembers on the committees. As a result, he choose a long-time friend, DC attorney Ronald Jessamy, to act as counsel, and directed him to take a low-key, back-seat role in the work of the Committee. Chavous then failed to devote the necessary time to the work of the Committee himself.

[This is a draft of the Committee’s report, and it has not been made publicly available by the Committee. Reportedly, Councilmember Chavous “is not happy” with this draft and finds it “totally unacceptable,” and the administrators of the public school system and its special education program are unhappy with the criticisms of the DCPS and of special education that remain in it. — Dorothy Brizill, January 11, 2001]

SPECIAL COUNCIL COMMITTEE ON SPECIAL EDUCATION
COUNCIL OF THE DISTRICT OF COLUMBIA
WASHINGTON, DC 20001

Report of the Special Council Committee on Special Education

Co-chairs:
Councilmember Kevin P. Chavous
Councilmember Vincent B. Orange, Sr.

December 2000

TABLE OF CONTENTS

Introduction
Chapter 1: Executive Summary of Findings and Major Recommendations
Chapter 2: Assessment and placement
Chapter 3: Transportation
Chapter 4: DC Public Charter Schools
Chapter 5: The State Education Office
Statutory Changes
Further Council Inquiry
APPENDIX A Investigative Methodology [not available on-line]
APPENDIX B Special Education Multi-year Plan - Transportation and Special Education [not available on-line]
APPENDIX C Audit of the District of Columbia Public Schools Special Education Program, Inspector General
APPENDIX D Report of the Special Master [not available on-line]
APPENDIX E Petties Case Exit Plan [not available on-line]
APPENDIX F State Education Office Legislation [not available on-line]
Footnotes

Introduction

The Council of the District of Columbia, concerned about children with special needs and frustrated with the high costs of educating them, created the Special Council Committee on Special Education in 1999. At that time, evidence indicated that District children were not receiving the special education services they needed even though District taxpayers were paying as much as $167 million annually for these services. The Special Education Division of the District of Columbia Public Schools (DCPS) spent more than $50 million each year to place students in private facilities, including many located outside the District where officials could not adequately monitor them. More than 2,000 children awaited assessment, placement, or due-process hearings. DCPS also was spending more than $9,000 for each child transported, yet bus drivers left some children outside unattended in their wheel chairs (at times in the rain) and sometimes carried others to the wrong addresses. Children too often arrived late to school.

The Council launched an immediate legislative investigation to identify and correct problems in special education service delivery resulting from systemic flaws, including erratic spending patterns, allegations of mismanagement, administrative inadequacies and lengthy delays in assessing and placing students.

Council members Kevin P. Chavous and Vincent B. Orange, Sr. jointly chair the Special Committee, which comprises the full Council. The Special Committee appointed Ronald Jessamy of Jordan Keys and Jessamy, LLP, as counsel and Susan Falkenhan as special education adviser in August 1999. Bonnie J. Cain was appointed in August 2000 to compile an interim report on the status of transportation services and to aid in the preparation of a final report that would map the entire special education system and summarize the Committee's recommendation for policy changes. Public Resolution 13-515 extended the life of the Special Committee to September 30, 2000. As part of an agreement and as specified in PR# 13-143, the District of Columbia Office of the Inspector General launched an audit in February 1999 and concluded it November 22, 2000.

The Special Committee included the DC public charter schools in its investigation. They operate with public monies, serve public school students, and follow the same regulations as DCPS does for providing appropriate services to their special needs students. Moreover, the Council has oversight authority over these schools.

The Special Committee has worked with the US Department of Education (DOE), which has closely monitored the Division for numerous years. The Committee has benefited from DOE's data and analysis and has served as a participant in the DCPS Continuous Improvement Monitoring Self-Assessment. The Committee has also cooperated with the special masters, judges, and lawyers from state and federal courts that have played an important role in securing our children's rights.

The Special Committee examined contracts and statistics from the 1996-1997 to the 19981999 school years; held public hearings; deposed the transportation contractor; and requested an audit. Upon completing its interim report, the Committee explored its findings and discussed policies with officials from DCPS and public charter schools authorities. The officials have endorsed many of the Special Committee policy recommendations and findings:

• DCPS appointed a director to the Special Education Division after the Committee noted that the position had been vacant for nearly three years.
• Faced with the finding that records did not exist or were poorly kept during the three years under investigation, DCPS installed a computerized student information and tracking systems.
• Responding to the Inspector General's audit requested by the Special Committee, DCPS corrected and clarified its student data, increased its oversight of private facilities, developed processes for monitoring payments to private facilities, and conferred with the managers of these facilities.
• In response to the Committee's recommendations, both public charter schools authorities revised application materials to focus on the applicant's requirements for serving students with special needs.

Since 1999, Special Education Division officials have built their administrative capacity over what was then a skeleton operation. DCPS has made considerable progress in the past two years and should be applauded for gains made.

At the same time, the Special Committee finds that DCPS has not solved its underlying problem: the District does not have adequate special education programs in its local schools. The Special Committee joins with local and federal agencies and organizations in urging DCPS to serve our students with special needs in their own communities, in their own schools.

The Special Committee would like to acknowledge the valuable contributions of many persons without whose assistance the investigation and this report could not have been possible.

Back to top of page

Chapter 1: Executive Summary of Findings and Major Recommendations

The Special Council Committee on Special Education (Special Committee) conducted its oversight investigation of special education services in the DC Public Schools (DCPS) and the DC public charter schools from August 1999 to November 2000. The Special Committee identified the types of misconduct and mismanagement that allegedly affected the ability of DC public schools to provide special needs students free appropriate public education in the least restrictive environment,¹ as required by federal law. The Special Committee investigated the nature and extent of problems and assessed what changes in laws, procedures, and practices could correct these problems. The Special Committee held eight public hearings (See Appendix A) to explore and assess the District's problems.

The investigation has focused on:

• Special education services in District schools;
• Institutional commitment to deliver special education services;
• Assessment and placement;
• Transportation;
• Charter schools;
• Uniform compliance with federal law: State Education Office

Findings

1. Special Education services must be provided in District schools.

DCPS must provide programs and services for students with special needs in District of Columbia schools and facilities. If it does not do so, it will be unable to:

• Reduce the enormous costs of placing students in private day and residential schools;
• Reduce the complexity and excessive cost of transporting students into the suburbs, hours away from their communities;
• Provide a free appropriate public education in the least restrictive environment to students with special needs near their homes, in their communities, and preferably in their local schools.

The Special Committee finds that past DCPS administrators allowed the proliferation of managerial and programmatic problems in the Special Education and Transportation Divisions. some that continue today. However, even as these problems are being resolved, DCPS must rapidly build effective programs and services in District schools and facilities within the District to offer special needs services that comply with federal laws. The need for these improvements could not be more critical:

• Failure to operate appropriate special education services in District schools prevents DCPS from meeting timeline requirements of assessment, placement, and due-process proceedings;
• Failure to serve students within their communities forces DCPS to operate an overly complicated and excessively expensive transportation program that ineffectively uses time and labor;
• Failure to provide District programs has driven up special education costs and frequently has prompted the courts to place students in expensive programs that may not provide the services indicated by the student's Individual Education Plan (IEP);
• Failure to provide services in the District has denied students a free appropriate public education (FAPE) in the least restrictive environment (LRE), as required by federal law. In short, District students with special needs rarely attend school in their own neighborhood and often travel hours to attend schools outside the District. These children are denied time with their families and friends and time for after-school activities. They must relinquish their connection with their immediate world.

The Special Committee finds that during the school years 1996-1997, 1997-1998, and 19981999, District special education services and programs were unpredictable and often unavailable.

The Special Committee finds that DCPS has only vague plans for building special education programs within its schools and has failed to demonstrate that the system has made local school programming a priority. In its MultiYear Plan for Special Education (See Appendix B), DCPS mentions its determination to increase offerings in local schools, yet provides no explanation of the barriers to such programming or description of DCPS procedural, planning and budgeting changes needed to overcome the barriers.

In contrast to DCPS, the DC public charter schools have boosted special education offerings and services in the District. All charter schools are required to provide special education services in their schools unless the severity of the student's needs require a placement in a separate program or school. Both charter school authorities ensure that each individual charter schools comply with federal and local special education requirements. Six charter schools place specific emphasis on educating children with special needs.

The Special Committee finds that DCPS and DC public charter schools are struggling with unrealistically low funding for services, however. The uniform per pupil funding formula generates inadequate financial support for special education programs.

2. DCPS must commit adequate staff to deliver appropriate special education services and ensure competent oversight and administration of costs. Institutional commitment to deliver special education services

The Special Committee finds that during the 1996-1997, 1997-1998, and 1998-1999 school years, DCPS failed to adequately staff and manage the Special Education Division and, thus. failed to ensure programmatic adequacy or financial and managerial competence. The Division Director position remained vacant for nearly three years, which left the Division without leadership and oversight. DCPS finally filled the position in July 1999.

• Management of the Special Education Division ( See Appendix C)

The Office of the DC Inspector General, in an audit requested by the Special Committee, finds that, while DCPS has taken strides to improve the administration of the Special Education Program, much work remains. The audit cites continuing deficiencies: "1) inaccurate database of special education students; 2) inadequate review of special education tuition payments; and 3) insufficient monitoring of nonpublic day schools and residential schools." The auditors state, "as a result of insufficient monitoring, we found that students were attending schools that did not have special education programs or that did not meet the requirements for providing special education. We were able to confirm that DCPS paid S 175,645 for tuition costs to schools that did not meet the standards for providing special education programs."

3. The Special Committee finds that DCPS must improve its administration, review, and accounting of special education programs and more carefully select private programs for placing District students.

• Oversight of payments to private providers (See Appendix C)

The DC Inspector General found that DCPS had failed to properly oversee payments to private special-education providers. DCPS did not 1) maintain accurate special needs student enrollment data; 2) establish clear policies regarding allowable costs for the special education program; 3) provide adequate staff to review tuition invoices; or 4) sufficiently monitor special education programs and facilities. As a result, DCPS financed facilities that may have fallen short of special education requirements. Further, the absence of accurate information has impeded management's ability to effectively and efficiently administer the Special Education Program.

The Special Committee finds that the DCPS failure to maintain adequate staff has limited its ability to control costs, negotiate contracts with private providers, track reimbursable Medicaid costs, and visit and evaluate placements in private day and residential schools.

4. DCPS must increase its capacity to manage assessment and placement and significantly increase the number of students placed through IEP team recommendations.

During the 1996-1997, 1997-1998, and 1998-1999 school years, institutional inattention; poor record keeping; and sizable backlogs in assessments, reassessments and placements hampered the progress of the Special Education Division. Numerous parents filed lawsuits charging that, in violation of the Individuals with Disabilities Education Act (IDEA), DCPS had failed to assess and place students in a timely manner. Court reports, reports from the Inspector General-released June 30, 1999 and November 22, 2000-and fact-finding by the Special Committee highlighted the problems: 1) limited managerial oversight of the Division 2) shortage of appropriate placements in District schools and 3) inadequate record keeping. During these years, DCPS lost an overwhelming majority of its due-process cases because it lacked appropriate placements.

The Special Committee finds that, while the backlog of students waiting for assessment, reassessment, placements, and due-process hearings has receded, the number of students placed as a result of Hearing Officer Determination (HOD) or Settlement Agreement (SA) remains unacceptably high. DCPS reports that "during the 1999-2000 school year, 245 students were placed as result of a hearing decision or settlement agreement" (See Appendix B) and 828 were placed as a result of an IEP process directed by DCPS personnel or its contractors.

Special Master Elise Baach, Esquire, reported in the September 27, 2000 Status Report of the Special Master (See Appendix D) that since February 12, 1999, "the court has referred 37 motions for preliminary injunctions or emergency relief on behalf of 114 students." The motions for relief are based on the DCPS failure to: 1) implement the provisions of a HOD; 2) implement provisions in an agreement negotiated with a student's parent(s) or advocate; or 3) convene an impartial due- process hearing in a timely fashion. In some cases filed in 1999, the plaintiffs based claims on two or more failures to comply with legal provisions. In recent months, the motions have all alleged DCPS failures to comply with settlements or HODs.

Ms. Baach concluded that "perhaps of most 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 14 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."

• Attorney fee cap

The Special Committee finds that the attorney fee cap established by Congress in 1998 has discouraged lawyers from accepting clients. As a result, parents and students have often had to proceed without the benefit of attorneys and have not been adequately represented in cases alleging due-process violations. The inability to obtain adequate legal representation can be a significant barrier to obtaining an appropriate education for a student with special needs.

5. DCPS must better manage transportation costs and provide a more dependable service.

DCPS provides transportation only for students whose Individual Education Plan (IEP) specifies they need assistance to travel to and from school. As of August 30, 2000, DCPS reported that it would transport 3,393 students beginning in September 2000, at a cost close to $10,000 per student or a total of $33,930,000 for the entire District.

Findings of the Inspector General audit:

• Management of transportation costs

The DC Inspector General found that DCPS had failed to enforce adequate management controls to ensure proper procurement, documentation, and payment for transportation services. Specifically, DCPS exercised no management responsibility for procurement and contract administration. DCPS officials stated that the school system lacked infrastructure and staff either to perform required reviews of invoices or to ensure adherence to contract terms. As a result, DCPS violated procurement regulations, making it susceptible to demands for improper fees.

• Management of routes (See Appendix C)

The Inspector General Audit finds that:

• DCPS will transport approximately 4,200 students in FY 2001;
• DCPS employs an inadequate number of drivers for transporting special education students enrolled during fiscal year FY 2001;
• DCPS may violate current court orders requiring timely transport of students because it has too few drivers;
• DCPS has not fully implemented measures that could reduce transportation costs by as much as $2.4 million, such as 1) devising paired/shared bus routes 2) implementing staggered bell times 3) establishing neighborhood school special education programs and 4) designing efficient bus routes;
• Twenty-two special education routes had a solo rider, at a cost of $94,783 to operate each route for a 40-week period during the 2000-2001 school year.

Surveys of the Inspector General indicate that:

• Parents believe drivers and attendants need to be trained to be "courteous and patient with the students;"
• Principals have reported late buses on from one to four days each week;
• Drivers and attendants are satisfied about their jobs, but want changes in training, equipment and routing;
• DCPS uses an inefficient routing process.
  

• Management of procurement (See Appendix C)

The Inspector General audit finds that:

• DCPS did not have adequate management controls in place to ensure that transportation services were adequately procured, documented and paid for.
• DCPS acquired approximately $270,000 in bus maintenance services without valid written contracts.
• DCPS failed to record the expenditures in the proper period and recorded a portion of the transportation expenditures in the wrong account. As a result, DCPS staff violated procurement regulations, risked exceeding the transportation budget, and created unrecorded liabilities.
• DCPS paid invoices without reviewing adequate documentation.
• DCPS did not timely claim liquidated contract damages in the amount of $261,260 allowed under its contract for transportation services. As a result, DCPS lost the potential for interest revenues on these monies and may jeopardize the recovery of the entire amount.
  

• Additional findings of the Special Committee

The Special Committee finds that the Transportation Division is taking steps to control and improve its services. DCPS reports that the shortage of drivers and attendants resulting from the region's tight labor market and the relative unattractiveness of the positions causes setbacks in program improvement.

The Special Committee finds Transportation Division costs excessive and finds that DCPS must adopt strategies for reducing these costs and providing better transportation services.

6. DC Public Charter Schools should standardize special education procedures.

Since 1996, 36 DC public charter schools have opened in the District. All of these charter schools, unlike the public schools operated by the DCPS, are required to provide on-campus services to special needs students unless the student's needs require a distinct program or school. Six charter schools have a specific focus on special education. The DC public charter schools enrolled more than 800 students in the fall of 2000 with IEPs specifying the need for special education services.

The Special Committee finds that the charter schools have made a significant contribution to the pool of services in the District for students with special needs.

The Special Committee finds:

• The chartering authorities could more effectively inform charter school applicants of requirements for schools to deliver special education services.
• Charter schools and DCPS lack uniform materials for informing parents and guardians of the policies and procedures to follow in seeking special education services. The District (through the State Education Office) must develop for dissemination by DCPS and the Public charter schools standardized information packages that clearly inform parents and guardians of their substantive and procedural rights to obtain fair and timely assessments and placements under federal and District laws. The lack of uniformity and consistency with respect to the information provided to parents and guardians can adversely affect their ability to access needed services.
• The Special Committee notes that DCPS loses a vast majority of cases brought against the school District and charter schools for alleged due-process violations. This results in sizeable resources being unnecessarily directed away from service delivery. Attention must be given to delivering the services rather than mounting expensive court defenses of alleged violations.
• No central DCPS authority monitors chatter-school timeliness in assessment, placement, reassessment, and due-process compliance.

The Special Committee finds that little progress has been made in determining the real cost of special education services in charter and regular schools. The DC public charter schools (as are DCPS local schools) are inadequately funded to provide the services needed by students with special needs. This under-funding appears to constitute a barrier for organizations that have explored using charter schools to provide special education services within the District.

7. The State Education Office should effectively oversee the provision of special education services.

Before the District authorized charter schools, it had only one Local Education Agency (LEA) with 146 schools, the District of Columbia Public Schools. Today, the District has 33 LEAs operating 182 schools. Adding to the complexity, some charter schools have chosen, only for questions of special education, to claim the DCPS as its LEA. States monitor their multiple LEAs through a State Education Agency (SEA). There is no one SEA model and the control and direction offered by the SEA varies from state to state. All SEAS deal with application for federal monies and compliance with federal laws. Most oversee programs that an LEA cannot self-monitor because of conflicts of interest.

The Council established a State Education Council (D.C. Act 13-387) on July 26, 2000, to establish a State Education Office (SEO). The SEO must:

• Verify annual fall enrollment counts for all public and private charter schools;
• Promulgate rules for the verification of District residency for public and public charter school students;
• Make recommendations to the Mayor and Council for regular revisions of the uniform per student funding formula and provide data related to such revisions, including appraisals of the cost of education in the District of Columbia, consideration of performance incentives created by the formula in practice, and research in education and education finance; and
• Conduct a study to be submitted to the Mayor and Council recommending additional functions to be assumed by the SEO.

The Special Committee finds that SEO is the appropriate body to:

• Ensure that DCPS and the charter schools use standardized materials to inform parents of specific processes required by District and federal law; and
• Ensure that DCPS and the charter schools are meeting their timeline requirements.

Major Recommendations

1. The Council should lead a working group dedicated to removing all barriers to establishing special education programs in District schools and other District facilities.

The Special Committee recommends the Council join with the Board-of Education, the two chartering authorities and the State Education Office to identify ways DCPS and the public charter schools can more aggressively establish and maintain quality special education programs in the District. The Special Committee recommends the working group consider strategies used successfully in other jurisdictions, such as:

• Establishing public/private partnerships through which private providers would bring their services into the District;
• Moving aggressively to modernize facilities to permit co-location of specialized programs in District schools;
• Identifying special education programs DCPS needs in the District and in local schools and notifying the chartering authorities and other potential providers that DCPS welcomes programs targeted to these needs;
• Developing incentives for local school administrators and LSRTs (local school governing bodies) to develop special education programs and services in their schools;
• Ensuring that adequate money for special education programs is placed in the local school, both through the uniform per pupil funding formula and the weighted student formula (the funding distribution method used by the DCPS) for special education students; and
• Removing any legal barriers to charter schools that serve District students with special needs.
• Establishing a stronger liaison between the DCPS and Council and working to develop budgets that support special education programs in local schools.

2. The Council should oversee the DCPS Transportation Division as it reduces costs and improves service.

The Special Committee recommends that the Council monitor the DCPS response to recommendations from the Inspector General and the Special Committee.

• Recommendations of the Inspector General audit:

Management of routes

The Inspector General recommends the Superintendent:

• Implement policies such as staggered bell times and paired bus routes to reduce costs; and
• Establish training programs and career paths for drivers and attendants.

Management of procurement

The Inspector General recommends the Superintendent ensure: Adherence to procurement regulations; adequate documentation of all expenditures; and accurate review of invoices and certification of charges allowed by contract.

• Recommendations of the Special Committee:

The Special Committee recommends that the Superintendent

• Conduct a performance audit to determine the number and qualifications of personnel needed to ensure transportation services are properly procured, documented and paid for;
• Expand the number of innovations DCPS adopts to provide better services at lower costs. Possible initiatives include:
  • Contracting with private providers with strong incentives to supply reliable and efficient transportation services for their own students. Those providers who all ready operate transportation services could furnish trained workers that enjoy a relationship with families because they work with special needs students from six to eight hours a day.
  • Establishing a training and maintenance center where drivers and attendants develop their job skills and recommend service improvements.
  • Decreasing the number of students using DCPS transportation services. Options such as students walking or taking public transportation should be encouraged when possible; and
  • More special education programs and services should be established in the District.
• Reduce the number of routes operated by the DCPS and increase the routes served by a single driver/attendant team
  • When a route serves a solo rider, other less expensive options-for transporting the student should be found;
  • An automated routing program should be quickly implemented.
• Enhance the jobs of driver and attendant to make them attractive to career-oriented personnel; and
• Move rapidly to resolve the Petties case.

3. The Council should review DCPS staffing patterns during the FY 2002 subsequent budget processes for verification that staff levels are adequate to deliver competent financial and programmatic oversight.

4. The Council should ask the SEO to make recommendations for the adjustment of the special education weights in the uniform per pupil formula for the FY 2002 budget process.

The Special Committee recommends the SEO review and recommend adjustments in the special education weights for the FY 2002 education budget to ensure that:

• DCPS local schools and DC public charter schools are adequately funded to provide special education services;
• DCPS accurately monitor the costs of special education services.

The Special Committee further recommends that the SEO ensure DCPS and DC public charter schools are uniform in explaining to parents the rights of students with special needs:

• The SEO should ensure that uniform materials be provided to parents of students in public schools using special education assessment and placement services and due-process procedures.
• The SEO should oversee a uniform timeline for students requesting assessment, placement and due-process proceedings.

5. The Special Committee recommends as the FY2002 budget process begins, that the Council requires DCPS to present a detailed account of staffing for managing special education services in FY2002.

• The Special Committee recommends DCPS move expeditiously to obtain adequate personnel or contractors to track and monitor students, and contract for, review and approve rendered services. The Council should review these efforts during the FY 2002 process.
• The Special Committee recommends DCPS move expeditiously to obtain adequate personnel or contractors to track and monitor assessment and placement, reassessment and due-process timelines. The Council should review these efforts during the FY 2002 budget process.

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Chapter 2: Assessment and placement

During the school years of 1996-1997, 1997-1998, 1998-1999, the Special Education Division was marked by institutional inattention, poor record-keeping, sizable backlogs in assessments and placements, reassessments and due process hearings. Numerous lawsuits had been or were filed against DCPS for failure to assess and place in a timely manner and for other violations of IDEA. Court reports, reports from the Inspector General released June 30, 1999 and November 2?. ?000 and fact-finding by the Special Committee highlighted following problems:

• Limited oversight of the Division
  DCPS left the position of Director of the Special Education Division vacant for almost three years prior to July 1, 1999, even though the Special Education Division consumed a quarter to a third of the DCPS operating budget during these years.
• Shortage of appropriate placements in facilities located within the District
  During these three years, plaintiffs prevailed in the overwhelming majority of DCPS due process proceedings because the District lacked appropriate schools and programs in which to place students. Hearing officers also placed students in non-public facilities, frequently in programs providing more intensive and more expensive programs than required by the student's Individual Education Plan (IEP), because DCPS could or did not recommend a placement in a local school.
• Inadequate staff to conduct assessments and due process hearings in a timely manner
  During the period investigated by the Special Committee, DCPS failed to meet due process hearing timelines, in part because of a shortage of legal and technical staff.
• Failure to offer alternatives to court placements
  DCPS frequently did not attend the related determination hearings and court proceedings. The courts made placement decisions without recommendations from the Special Education Division.
• Student record-keeping, tracking insufficient
  DCPS did not have sufficient internal controls and infrastructure to process payments and to track and maintain adequate data on all students for purposes of academic programs and transportation.
• System for verifying invoices inadequate
  DCPS has failed to maintain a system for certifying and paying invoices for transportation costs and in payment to non-public providers.
• Weak administration of contracted services delivered by nonpublic programs
  DCPS had not allocated adequate staff to monitor students in non-public programs, nor to negotiate and monitor allowable costs and tuition invoices.

Below is the DCPS summary of placements currently available in local DCPS schools.

Current and Expanded Programs for Spaces

Court Decisions and Agreements: Assessments and Placements

The courts have provided oversight to the DCPS in Special Education for more than twenty years. Special Masters, court orders, and rulings addressed the provision of appropriate services, but not necessarily address the question of appropriate costs.

• Mills (1972).

The Court ordered that DCPS complete assessments of children within 20 days of requests and propose a placement within 30 days of completion of assessment. DCPS must hold a due process hearing within 45 days of due process request and a hearing officer must issue a decision within 10 days of conclusion of the hearing. (By DC regulation, due process hearings must be held within 35 days of request.)

• Blackman (1998).

Mikesisha Blackman v. District of Columbia (Blackman, 1998). The Court held that DCPS had failed to provide timely due-process hearings and decisions and failed to implement hearing officer decisions and settlement agreements. DCPS was ordered to submit a compliance plan. It did so on February 12, 1999.

Current status of Blackman:

Special Master Elise Baach, Esquire reported in the September 27, 2000 Status Report of the Special Master (See Appendix D) that since February 12, 1999, "the court has referred 37 motions for preliminary injunctions or emergency relief on behalf of 114 students. The motions for relief are based on the 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. 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."

Ms. Baach concluded that, "finally, and perhaps of most 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 14 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."

The chart below is an attempt to summarize the nature and numbers of the cases in which relief was sought.

Plaintiff counsel has agreed to settlement and Judge Fnedman could sign a Revised settlement agreement as early as December, 2000.

Placement in and monitoring of non- public facilities

• Residential placements

DCPS places students in a residential facility when the severity of the student's disability requires placement in a program with 24-hour support. Placement in a residential program is initiated by the Youth Services Administration (YSA), the decision of an Independent Hearing Officer (IHO). as part of a settlement agreement (SA) with parents or parents' attorneys, as a placement by mental health services (MHS), or as a placement decision by the DCPS placement office.

DCPS

• has not tracked payments to residential programs and DCPS staff did not attend IEP meetings at residential facilities;
• has not implemented provisions of IDEA for those students in residential facilities, especially with regard to assessing students, developing IEPs, attending meetings and working with parents;
• provided yearly reviews of appropriateness of the educational programs; and
• has not generated information regarding costs of these programs because there was no procedure in place to do so.

DCPS reports, as of December 8, 1999, that it has 400 students enrolled in 76 residential facilities located in 18 states and the District of Columbia:

• 23% of the students were placed by Hearing Officer Decision or Settlement Agreement (HOD/SA)
• 23.5% of the students were placed by LaShawn General Receivership
• 16.5% of the students were placed by Youth Services Administration
• 13.2 % of the students were placed by Commission on Mental Health
• 8% of the students were placed by health Services for Children with special needs
• 14.5% of the students were not identified by the placing agency

Few if any of the 400 placements were made by an eligibility team that made the decision based on the IEP needs of a individual student. Rather, the decision was made by other agencies or the students were placed by frustrated parents who then came back to DCPS for payment and who eventually were awarded funding by a hearing officer.

The placement of so many students by Hearing Officer Decision (HOD) or Settlement Agreement (SA) results in placements in expensive programs, sometimes at great distances when less expensive, appropriate programs are closer. HOD or SA made without input of the IEP team frequently result in students being placed in programs that don't meet the needs of the student.

DCPS acknowledges that it does not visit programs that are at great distances, and that DCPS monitors are not involved with IEP development and reviews of these programs. DCPS also has not been able to control the continued movement of DCPS students into very expensive residential and nonpublic day programs because it has not tracked the reasons for these decisions.

DCPS has stated that it will be able to monitor only 20 residential facilities annually due to staff shortages. At this rate, it could take nearly four years to monitor and correct erroneous placements. In the meantime, DCPS will continue to pay for services it is not even sure that students receive.

DCPS acknowledges that to make improvements, the Special Education Division must direct student placements. DCPS states that "students are often placed in residential settings on an interim basis by court order. Monitors have up to a year to perform a full assessment of the student and recommend to the court an alternative placement, if appropriate. During this interim period, because of the stay-put provision of the IDEA, families may keep students in residential placements even if DCPS asserts that a public-day alternative is-acceptable . . . If no assessment is performed and no alternative placement is recommended, the residential setting becomes the student's permanent placement." (See Appendix B.)

• Non-public day placements

DCPS states that "Of the students placed in non-public day settings over the course of the 1999 2000 school year, approximately 75% were placed through some level of the due process system -students with assessment and/or due process violations generally are placed in the setting proposed by the parents or plaintiff s attorney."

• Efforts to reduce non-public placements

Non-public Placements

In its Special Education Performance Plan: FY 2001-2004 (see Appendix B), DCPS states that: "These 2,065 students carry with them a projected annual cost of over $74 million, assuming the cost per placement remains constant. To actively reduce this total cost and position ourselves to reduce dramatically the non-public population in further years, we are planning a series of cost-saving initiatives. If successful, we expect that these initiatives can reduce the cost of non-public placements to approximately $40 million by FY 2004."

Findings

Findings of the Inspector General Audit (See Appendix C)

The Inspector General Audit finds that DCPS has not properly administered the Special Education Program. "Specifically, DCPS did not: 1) maintain accurate information on students enrolled in special education programs; 2) establish clear policies regarding allowable costs for the special education program; 3) provide adequate staff to properly review tuition invoices; and 4) sufficiently monitor special education programs and facilities.

• DCPS paid tuition-related costs of about $176,000 for students who attended special education facilities that may not have met special education requirements.
• DCPS did not have an accurate, real-time database that identifies the students enrolled in special education programs and listed their related personnel data.
• DCPS did not have sufficient staff to track address changes and school placement changes that occurred frequently.
• As of May 8, 2000, the Inspector General auditors found that the Student Information System Database (SIS) continued to have errors in the home addresses and school assigned in over a half of the students in residential placements.
• DCPS is implementing the Special Education Tracking System (SETS) to overcome the errors of the SIS records. Total costs for SETS through July 27, 2000, was about $2.68 million.
• DCPS had requested additional staff to increase monitoring of non-public day and residential programs in the FY2001 budget.
• DCPS has an inadequate number of staff and, as a result, maintains overly large caseloads.
• In order to avoid potential court imposed fines, DCPS certified many vouchers in FY2000 for payment without the proper review and approval.
• Fifteen residential schools reviewed did not meet the standards for providing a special education program.
• Existing DCPS regulations do not require DCPS to monitor all special education programs or facilities.
• DCPS did not conduct site visits at all nonpublic day schools or residential facilities to monitor the programs, the conditions of facilities, and the qualifications of the instructors.

Additional findings by the Special Committee

DCPS must increase its capacity to manage assessment and placement and significantly increase the number of students placed through IEP team recommendations.

The Special Committee finds that DCPS acknowledges the difficulties it has had and continues to have with assessment and placement as well as its failure to monitor non-public providers. Its Special Education Performance Plan: FY 2001-2004 (see Appendix B) states that DCPS must build new special education programs in its local schools to which students currently in non-public or newly assessed students can be moved, a recommendation shared by the Special Committee. Also, DCPS stresses it must monitor students in non-public schools in order to participate in IEP meetings and support the recommendations of a change to the local school as appropriate.

The Special Committee finds DCPS has not taken steps that would enable DCPS to quickly establish special education programs. For example, DCPS, as of September 2000, did not have:

• Procedures and agreements developed for establishing public/private partnerships with non/public providers who would operate a separate classroom in a local school or a separate program in a building located within the District;
• A combined planning process with the chartering authorities that would enable DCPS to recommend a placement in a District public charter school program;
• A schedule of building renovation for quickly making local schools ADA accessible.

The Special Committee finds that DCPS lacks financial controls in place to avoid deficit spending. For example, DCPS, as of September 2000, did not have

• Forms and procedures for contracting with its non-public providers which would outline the standards required and set a price for uniform placement for DC students attending the same program and receiving the same services.

Recommendations

Recommendations of the Inspector General Audit

The Inspector General Audit recommends that the Superintendent:

1. Complete the remaining tasks to implement the databases for the Special Education Tracking System and establish controls to ensure data is accurate and complete.
2. Establish controls to strengthen the day-to-day payment processing activities and ensure that adequate staff is available to process tuition payments timely, and
3. Conduct on-site monitoring of special education student facilities and programs on a routine basis to ensure that required and quality educational services are being provided.

The Inspector General received a response from the DCPS and stated that "the actions planned and taken are responsive to the recommendation."

Additional Recommendations of the Special Committee

1. The Council should lead a working group dedicated to removing all barriers to establishing special education programs in District schools and other District facilities.

The Special Committee recommends the Council join with the Board of Education, the two chartering authorities and the State Education Office to define how DCPS and the public chatter schools can maintain quality special education programs in the District. The-Special Committee recommends the working group consider strategies used successfully in other jurisdictions, such as:

• Establishing public/private partnerships through which private providers would provide services in facilities located in the District;
• Moving aggressively to modernize facilities to permit co-location of specialized programs in District schools;
• Determining feasibility of a full-service special education center;
• Identifying special education programs DCPS needs in the District and in local schools and notifying the chartering authorities and other potential providers that DCPS welcomes programs targeted to these needs;
• Developing incentives for local school administrators and LSRTs (local school governing bodies) to develop special education programs and services in their schools;
• Ensuring that adequate money for special education programs is placed in the local school, both through the uniform per pupil funding formula and the weighted student formula (the funding distribution method used by the DCPS) for special education students;
• Removing any legal barriers to charter schools that wish to serve District students with special needs; and
• Establishing a stronger liaison between the DCPS and Council and working to develop budgets that support special education programs in local schools.

2. The Council should review DCPS staffing patterns during the FY 2002 subsequent budget processes for verification that staff levels are adequate to deliver competent financial and programmatic oversight.

The Special Committee recommends DCPS move expeditiously to obtain adequate personnel or contractors to track and monitor assessment and placement, reassessment and due-process timelines. The Council should review these efforts during the FY 2002 budget process.

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Chapter 3: Transportation

Background of the DCPS Transportation Program

The task of the DCPS Transportation Division is to provide safe, reliable transportation for the District's students with special needs that conforms with the requirements of each students' Individual Education Plan (IEP). DCPS provides transportation only for students whose IEP specifies that the student needs assistance to travel to and from school.

On August 30, 2000, DCPS reported that in the 2000-2001 school year, it would transport 3,393 students at an approximate cost of $10,820 per student. DCPS reports that the number of students riding varies, so it has budgeted $40 million for the Transportation Division for FY 2001 to cover the fluctuation in costs (See Appendix B).

During the same period, Fairfax, Montgomery, and Prince George's Counties will spend $58.1 $48.5 M, and $57.5 M for transportation services. Each county transports 104,869 (4,214 SPED), 92,000 (6,853 SPED), and 90,416 (6,208 SPED) students, respectively, at costs of $1,550, $4,294, and $3,610 per student. (See Appendix B, Table I).

Clearly, the surrounding jurisdictions have discovered more cost-efficient ways of transporting students.

The DCPS history as transportation provider has involved mishaps and poor performance. The administration has failed to adequately manage its contractors, promoting allegations of impropriety. For the last five years, the Court has intervened through Nikita Petties, et al, v. the District of Columbia.

The Petties Case was filed January 20, 1995, in U.S. District Court, and subsequently assigned to Judge Paul L. Friedman. The Court held that DCPS was obligated to continue to fund tuition and related services at and transportation to private schools even though DCPS had ended the public school year early for fiscal reasons. In 1997, in connection with the Petties case, DCPS adopted a special education transportation corrective action plan.

The Court appointed a Special Master, Elise Baach, Esquire, in 1997 to negotiate an agreement between the plaintiffs and the DCPS and to advise the Court of actions needed to protect the safety and education of special needs students. The Court ordered on July 9, 1999 that the Exit Plan developed between the DCPS and Plaintiffs counsel be adopted (see Appendix E).

As it has struggled to comply with the orders of the Court, DCPS has reorganized the Transportation Division several times. DCPS managed its own transportation personnel until April 30, 1999, when it contracted with Laidlaw Transit to provide buses and to hire and manage drivers and attendants for routes transporting students from their homes in the District to schools within the District. This contract was terminated on June 16, 2000. Since the termination, DCPS has again reorganized to hire and manage in-house all the drivers and attendants who transport special education students living within the District to schools within the District and in the surrounding jurisdictions. DCPS has been directly responsible for transporting wards of the Court in leased and DCPS owned vehicles since July 1, 2000.

DCPS currently contracts with Laidlaw to lease buses and to maintain those buses. Faith Transportation has transported DC foster children living outside the District to both schools within the District and outside the District. Atel, a transportation service, also leases and maintain buses for DCPS.

On October, 2000, David Healy joined the staff of the Transportation Division as a special education transportation administrator to work with the Director of the Transportation Division, as required by the conciliation agreement.

• Transportation Readiness Status

The Special Committee, after discussions with DCPS and the Special Master, identified the following as conditions needed for a service-ready, cost-efficient transportation program:

• A complete and timely roster of all students to be transported, their correct addresses and home phone numbers and descriptions of their specific physical needs and their assigned schools;
• Well-designed routes and drivers trained to navigate them;
• An adequate number of buses with the equipment required by the transported students to both cover the routes and to stand in reserve in case of breakdowns or other emergencies;
• A repair and maintain program;
• An adequate number of trained and screened drivers and attendants and substitutes to cover the routes;
• Reliable and responsive communication between parents, drivers and administrators;
• An effective method to retrieve Medicaid costs; and
• Adequate procurement and budgetary controls.

Status of DCPS transportation program as of August 30, 2000:

(DCPS certified the following information as of August 30, 2000 regarding the capacity of the Transportation Division for the 2000-2001 school year.)

• A complete roster of all students to be transported, their correct addresses and home phone numbers, descriptions of the students specific transportation needs and their assigned schools.

Ann Gay, Assistant Superintendent for Special Education, and Alfred Winder. Director of the Transportation Division stated August 21, 2000 that DCPS had completed the roster of students who would be transported beginning September 5 and that the addresses and phone numbers of these students had been corrected and were up-to-date. The roster, on August 21, 2000, contained 3,220 students. Ms. Gay said that all the phone numbers and addresses had been verified.

DCPS stated in a memorandum dated August 23, 2000:² "The division received the transportation data base from the Division of Special Education on August 10, 2000. Routing for 3,369 students was completed as of August 22, 2000, resulting in 449 routes. Changes continue to be received."

• Well-designed routes and drivers trained to navigate the routes.

DCPS has designed its routes in-house. Al Winder, director of the Transportation Division, told the Washington Post in a September 6, 2000 article that, "the school system is buying new computer software to make bus routing more efficient and reduce the number of drivers needed. Currently, he said, school employees manually plan routes and enter addresses into the Yahoo! Site on the InterNet to generate and print directions for many drivers who take students to schools outside the city."

DCPS states that all drivers and attendants would receive training August 22-23, dry runs would be conducted on August 24-25 and first Aid and C. P. R. training would take place during the week of August 28.³

• An adequate number of buses, reserve buses, trained and screened drivers and attendants and substitutes to cover the routes.

DCPS maintains a 10% reserve of buses in case of breakdown or other emergencies. DCPS has stated in the media that it should employ between 10 to 30% substitute drivers.

DCPS states that it has 537 buses to cover 452 routes; by its own calculations it needs only 499 operable buses to cover its routes.

If all 467 drivers report to work, the 452 routes will be covered. DCPS reports that it has experienced a high absentee rate among its drivers. Washington Post articles have quoted Eloise Brooks, former Deputy Superintendent, as saying that DCPS should maintain 30% more drivers than the number of routes. Using Ms. Brooks estimate and DCPS figures, there could be a shortfall as many as 120 drivers depending on the number of drivers failing to report to work.

• A repair and maintain program.

DCPS states that all but 60 of its 572 buses are covered by maintenance contracts. DCPS states that it is has arranged for the DC Department of Public Works and FleetPro "for a determination of the operational life of buses that could be repaired and/or maintained, or whether they should be sold."

• Reliable and responsive communication between parents and the buses and the central office.

In a August 21, 2000 meeting with DCPS officials, Al Winder said that the buses used to transport students will be equipped with NEXTEL radios and that all bus drivers will be able to communicate with the central office.

In a letter dated October 16, 2000, DCPS, DCPS General Counsel Veleter M.B. Mazyck stated that "The NEXTEL communication system, as currently programmed, permits all bus drivers to communicate with their respective terminals."

DCPS states that a total of 16 employees are assigned to the Parent Center. This number includes two employees "serving light duty" and the Director and Secretary.

• Effective retrieval of Medicaid costs.

In its Transportation Plan, FY 2001-2004 (See Appendix B), DCPS states that historically it has done a "poor job of billing Medicaid for transportation services." It states that it has established a Medicaid Unit in the office of the Chief Financial Officer and signed a new revenue maximization contract in FY 2000. DCPS expects to capture 95% - 100% of billable service data by FY 2003.

• Adequate procurement process and budgetary controls.

The Inspector General audit finds that DCPS has been deficient in its procurement and financial management and finds that "the actions set forth by DCPS should correct the conditions noted."

DCPS reported that it was exploring the following initiatives in order to reduce the number of routes and/or reduce ride time. DCPS said that none of these initiatives would be in place as of the opening of school September 5, 2000.

1. Provide stipends to parents to transport their own children

DCPS has proposed a program titled "the Flat Rate Reimbursement Pilot Program" to offer a stipend to parents/guardians of special education students who transport their children to and from school each day during the coming school year. This would be available to parents whose student was found eligible for transportation as a related service prior to August 31, 2000. Stipends would be for as little as $3,000 and as much as $7500, depending on the length of the trip.

DCPS staff said that a large number of parents would have to sign up for the stipend program. The end result must be a significant reduction of the number of routes, they said. or the administration costs of the program could not be justified.

DCPS is obligated by the Court to discuss this proposal with the plaintiffs in the Petties Case. Plaintiffs counsel objected to the stipend plan in a letter dated August 17. 2000 to Rick Love, Esquire and Veleter Mazyck, Esquire (see Appendix E), but did not ask the Court to intervene. Plaintiffs counsel objected because the plan:

• Could have a devastating impact on the financial stability of many families, as increases in income of between $3,000 to $7,500 may jeopardize the public benefits of some students and/or their families
• Asks parents to waive rights " . . . without fully disclosing the implications that such waivers may have on students who require specialized equipment and/or an aide for medical reasons or otherwise in order to meet their transportation."
• Foster parents have no authority to make such agreements with DCPS.
• Makes no reference to transportation to related services that occur during the school day or before or after school.
• Has been presented in a confusing manner and parents don't know if the stipend offered is merely an option and that " . . . parents continue to have an absolute right, when it is specified in a child's IEP, to receive timely and appropriate transportation services provided by DCPS."

2. Institute staggered bells at specific schools where it is determined that the arrangement would not be detrimental to the school's program

DCPS staff said that three or four schools have indicated that receiving and dismissing students at times different from the DCPS official starting and closing times could be considered. Teachers as well as administrators would have to agree to the arrangement. (As of 9/18/00, three city-wide programs have bell times of 7:45 am - 2:15 pm. Those schools are Sharpe Health, Mamie D. Lee and Prospect Learning Center.)

DCPS staff said that the arrangements would enable buses to be used for two routes instead of only one. DCPS states in its Transportation Performance Plan: FY 2001-2004 that it is " tentatively projecting consolidation of 60 routes by the start of the 2001-2002."

3. Contract for temporary or emergency replacement drivers.

4. Establish bus terminals in Maryland and Virginia

DCPS transports students in foster homes in Maryland and Virginia back into the District and to schools in Maryland and Virginia. The new terminals would, in numerous cases, decrease the ride time of these students.

5. Enter into a cooperative agreement with Prince George's County

DCPS staff member said they were negotiating a contract with Prince George's County schools to transport DC foster children into the District. The staff estimated that eight routes would be removed and that each student would be transported for a cost of 55,000 per child. (In her October 16, 2000 letter, DCPS General Counsel Veleter M.B. Mazyck stated: "No positive feedback has been received from Prince George's County regarding the possibility of establishing a contractual arrangement for children living and attending school in that county.")

6. Encourage non-public providers to transport DC students attending their programs

DCPS staff said that were talking to several of its non-public providers about the liability, safety and cost involved if the providers were to transport their own students.

Actions to be taken by DCPS Transportation Division

The Transportation Performance Plan: FY 2001-2004 (See Appendix C), provided the Special Committee on November 30, 2000 states that the DCPS will continue to follow the following strategies:

• Staggered Bells
• Transitional Services Initiative - training students to take public transportation.
• Stipends for Parents
• Driver Training Academy- training drivers to fill vacancies
• Improved Medicaid management
• Routing automation
• Improved Fleet Maintenance

The Transportation Performance Plan: FY 2001-2004 (See Appendix C) provides a detailed description of how the Transportation Division plans to improve the performance and cost-efficiency of the DCPS Transportation Division.

Comments on information provided by the DCPS:

According to reports by the DCPS from 1996 to present, the numbers of special education students being transported and the number of routes and drivers and attendants employed have varied considerably from month to month. The chart below illustrates the changes and estimates over only several months.

Management Controls over Transportation costs:

The DCPS Transportation Division has contracted with four transportation service providers over the last four years. Laidlaw Transit has the central contract.

The period (April 30, 1999 to June 16, 2060) in which Laidlaw held contract DCFRA-99-C-099 was one of turmoil and continuous reports of poor performance both in the media and in complaints by families to the Council.

The Special Council Committee held a status hearing on the operations of the Transportation Division of the DCPS on November 4, 1999. Superintendent Arlene Ackerman, Deputy Superintendent Brooks and Director of Transportation Winder represented the DCPS. Senior Vice-President Michael Ruskin represented Laidlaw Transportation. Numerous public witnesses also testified.

Summary of Laidlaw's Testimony

Michael Ruskin presented written testimony stating that Laidlaw was having difficulty overcoming four problems:

1. A lack of timely, accurate student data
2. A workable, real-time complaint management system
3. An efficient radio-communication system
4. An adequate supply of operable buses

Mr. Ruskin said Laidlaw uses a software program - Edulog - to schedule its routes, but this program requires accurate, timely data in order to design the routes on which the drivers will be trained. He said for the August 30 start date, Laidlaw received no data until August 13, and more on August 19, 23 and 26. He said that students had no addresses listed, students who were not riders were included, and "nearly 25% of the addresses did not include zip codes - a critical data set required by our routing software."

Ruskin said that "during the first 10 days of school, DCPS submitted 1,028 changes in student data - that's 40 percent of all the students transported."

Ruskin said that while DCPS operates the Parent Call Center, it frequently fails to communicate complaints to Laidlaw. He said that Laidlaw often does not receive or is told late about mistakes and parent complaints. Laidlaw was not able to fix problems it does not know about.

Ruskin said that Laidlaw was 51 buses short of the minimum set by the court rulings [this was as of 11/4/00].

Laidlaw terminated its contract to provide drivers and attendants in June 2000. (As of the beginning of September 2000, Laidlaw Transit was leasing 275 buses to DCPS and held a contract to maintain and repair these buses as well.

As of the beginning of the 2000-2001 School Year, ATEL (Atlantic Transportation Equipment, Limited) was leasing 237 buses to DCPS. (ATEL has a contract to maintain and repair these buses as well.)

Status of the Petties Case

The Petties Case has kept a focus on the DCPS' Special Education programs since 1995. The Court has overseen the payment of non-public providers and the provision of transportation services to students with special needs. The Court ordered adoption of an Exit Plan (see Appendix E) on July 9, 1999.

On August 8, 2000, Judge Friedman issued a Consent Order directing DCPS to "hire or otherwise retain, as soon as possible, an administrator for the District of Columbia Public Schools (DCPS) special education transportation (administrator). The administrator shall be responsible for taking appropriate actions sufficient to satisfy the requirements of the Exit Plan and the underlying Orders in this case. The administrator shall report directly to the Superintendent of DCPS and shall, with the Superintendent's concurrence, have full authority for personnel, budget, and operations within the Division of Transportation ." The Judge ordered that the individual to fill the position of the new administrator be selected by both the defendants and the plaintiffs no later than September 15, 2000 and that the position be maintained "at least through the end of the 2001 summer school." The Judge also ordered that the "defendants shall promptly contract for a full management, operational and budgetary audit of the DCPS special education transportation system" which is to "commence as soon as possible but not later than October 1, 2000."

The following is a summary of the testimony of Elise Baach, Esquire, Special Master assigned to the Petties Case, at the June 2000 Special Committee Hearing on Transportation in US District Court for the District of Columbia.

Baach:

• Hoped that DCPS would be able to fulfill the Exit Plan by July, 2001. She said that it would take the cooperation and collaboration of everyone involved.
• Noted that DCPS must provide accurate information. She gave the example of DCPS presenting a 2001 transportation budget based on instituting staggered bells. Staggered bells were not a certainty and were not instituted, so the $2 million DCPS proposed to save through this innovation were not achieved. However, the budget was not adjusted.
• Noted that the June 5th draft transition plan presented to the Plaintiffs counsel dealt with the challenge caused by Laidlaw canceling its contract: 1) hiring drivers permanently or subcontracting services; 2) getting places to put buses; 3) and beefing up the infrastructure of DCPS' Transportation Division if the roster of drivers swells.
• Noted that improved communication - through NEXTEL radio system - and acquisition of buses continued despite Laidlaw's departure.
• Stated that DCPS can run a major program.

Baach, in a private interview September 8, 2000 said that:

• Transportation of over 3000 students continues to pose a challenge to DCPS.
• DCPS appears to have recognized the need to project the number of students much earlier in the summer to ensure that bus routing can be completed.
• The Parent Center appears to be operating better.
• The attention and presence of Superintendent Vance at Court status hearings indicates that DCPS is taking Court compliance seriously.
• DCPS must maintain programs in neighborhoods.
• DCPS must be able to act independently in order to resolve crises, to hire, evaluate and fire bus drivers, to procure in a timely manner, and to make payroll in a timely manner. However, DCPS has not put incentives in place for the drivers, such as a career-ladder. Procurement, even though it has been turned over to DCPS, continues to be weighted down with inter-agency wrangling. Payroll is slow to enroll new employees and checks have been late.
• DCPS appears to not have granted Winder flexibility to improve the transportation system.

Findings

• Findings of the Inspector General audit

Management of routes (See Appendix C, page 10-16)

The Inspector General Audit finds that:

• DCPS had not fully implemented measures to reduce transportation costs, such as 1) devising paired/shared bus routes; 2) implementing staggered bell times; 3) establishing neighborhood school special education programs; and 4) designing efficient bus routes.
• DCPS could have saved $2.4 million by implementing the above strategies.
• The DCPS system lacked sufficient drivers to transport special education students for FY 2001.
• DCPS will transport approximately 4,200 students in FY 2001
• DCPS may violate current court orders requiring timely transport of students because it maintains too few drivers.
• 22 special education routes had a solo rider, at a cost of $94,783 to operate each route for a 40-week period.

Surveys of the Inspector General indicated that:

• Parents thought the drivers and attendants needed training in being "courteous and patient with the students;"
• Principals reported buses were late from 1 to 4 days a week;
• Drivers and attendants were satisfied about their jobs, but wanted changes in training, equipment and routing.
• DCPS was using an inefficient routing process.

Management of procurement (See Appendix C)

The Inspector General audit finds that:

• DCPS did not have adequate management controls in place to ensure that transportation services were adequately procured, documented, and paid.
• DCPS procured approximately $270,000 in bus maintenance services without a valid written contract.
• DCPS failed to record the expenditures in the proper period and recorded a portion of the transportation expenditures in the wrong account. As a result, DCPS staff violated procurement regulations, risked exceeding the transportation budget and caused unrecorded liabilities to exist.
• DCPS paid invoices with insufficient documentation.
• DCPS did not timely claim liquidated damages in the amount of 5261,260 allowed under its contract for transportation services. As a result, DCPS lost the potential for interest revenues on these monies and may jeopardize the recovery of the entire amount.

Additional findings of the Special Committee

• DCPS must better manage transportation costs and provide a more dependable service.

The Special Committee finds that the Transportation Division has taken steps to control and improve its services. DCPS reports that among its continuing problems is the shortage of drivers and attendants because of the tight labor market in the region and the relative unattractiveness of the positions. The pay of drivers and attendants was capped in the contract of the former contractor Laidlaw and drivers cannot easily advance their careers.

The Special Committee finds that the costs of the Transportation Division are excessive and that DCPS has not used strategies that would reduce these costs while providing better transportation service.

Recommendations

Recommendations of the Inspector General audit:

• Management of routes

The Inspector General recommends that the Superintendent:

• Implement policies such as staggered bell times and paired bus routes in an attempt to reduce the cost of transportation and
• Establish programs and career paths for drivers and attendants.

• Management of procurement

The Inspector General recommends that the Superintendent ensure:

• Procurement regulations are adhered to;
• Adequate support for all expenditures are maintained; and
• DCPS personnel accurately review invoices and certify for payment only those charges allowed in the contract.
  

• Recommendations of the Special Committee:

The Council should oversee the DCPS Transportation Division as it reduces costs and improves service.

The Special Committee recommends that the Superintendent

• Conduct a performance audit to determine the number and qualifications of personnel needed to ensure the proper procurement, documentation and payment;
• Expand the number of innovations DCPS adopts to provide better services at lower costs. Possible initiatives include:
  • Contracting with private providers with strong incentives to supply reliable and efficient transportation services for their own students. Those providers who already operate transportation services could furnish trained workers that enjoy a relationship with families because they work with special needs students from six to eight hours a day.
  • Establishing a training and maintenance center where drivers and attendants develop their job skills and recommend service improvements.
  • Decreasing the number of students using DCPS transportation services. Options such as students walking or taking public transportation should be encouraged when possible; and
• More special education programs and services should be established in the District.
• Reduce the number of routes operated by the DCPS and increase the routes served by a single driver/attendant team
• When a route serves a solo rider, other less expensive options for transporting the student should be found;
• An automated routing program should be quickly implemented.
• Enhance the jobs of driver and attendant to make them attractive to career-oriented personnel; and
• Move rapidly to resolve the Petties case.

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Chapter 4: DC Public Charter Schools

DC public charter schools are legally independent public schools organized as non-profit corporations. They direct their own curriculum and teaching methods, control their own budgets, and establish their own standards for teacher hiring and performance. At the same time they are fully public schools, receive District tax money and are funded at the same per pupil level as are the DCPS schools. They also receive federal monies for education, child nutrition, after-school and other programs.

Charter schools must be non-discriminatory and non-sectarian; they may not reject students for academic or other reasons; and they must provide special education services. Admission to public charter schools is free and open. Students must be accepted randomly and may apply to any of the District's public charter schools regardless of where they live.

DC public charter schools are subject to District and federal laws and regulations including compliance with all aspects of the Individuals with Disabilities Education Act (IDEA).

Two chartering authorities -- the District of Columbia Board of Education and the DC Public Charter School Board -- were authorized to charter public schools in 1995. The first charter schools opened in 1996. In less than five years, 36 DC public charter schools have opened. This rate of growth is greater than in any other jurisdiction in the nation and has posed numerous challenges.

Questions must be answered how charter schools will assess and serve the special needs of its students and how these services will be funded and monitored.

The two chartering authorities monitor their schools through charter application process and then frequent reviews. The authorities ensure that each school complies with the law and meets the expectations for student achievement set out in the school's charter. Both charter boards do on-site implementation reviews, and evaluate each school's annual report, which is required under the charter law. The school's annual report must contain detailed student performance and attendance data and an audited financial statement. If deficiencies are found, the boards work closely with the school to ensure improvement, and in serious cases, may place the school on probation.

Before the District authorized charter schools, it had only one Local Education Agency (LEA) with 146 schools the District of Columbia Public Schools. Today, the District has 33 LEAs operating 182 schools. Adding to the complexity, some charter schools have chosen, only for questions of special education, to claim the DCPS as its LEA.

The Council passed legislation that became law (D.C. Act 13-387) on July 26, 2000, to establish a State Education Office. Among its initial responsibilities is, by no later than October 2001, to:

• Verify annual fall enrollment counts for all public and private charter schools;
• Formulate and promulgate rules for the documentation and verification of District residency for public and public charter school students;
• Make recommendations to the Mayor and Council for periodic revisions to the Uniform Per Student Funding Formula and provide information and data related to such revisions including the study of actual costs of education in the District of Columbia, consideration of performance incentives created by the formula in practice, research in education and education finance; and
• Conduct a study to be submitted to the Mayor and Council recommending additional functions to be assumed by the SEO.

The Council designed the SEO legislation so that its responsibilities would evolve as needed as the District works out the details of moving from one independent school system to 33 independent schools.

DC public charter schools and special education

The Special Committee considered whether:

• DC charter schools are aware of and comply with District and federal laws to provide services to their special needs students;
• The monitoring provided by the chartering authorities is adequate to ensure that individual charter schools are 1) meeting timelines for assessment and placement and 2) whether students are receiving the services specified in their IEP; and
• The per pupil funding formula provides the individual charter schools with adequate funds to fulfill their obligations to provide services to their students with special needs.

Notification and assurance that charter schools have special education capacity

The District has two chartering authorities: the DC Board of Education and the DC Public School Board. These chartering authorities are obligated to judge whether an applicant for a charter is aware of and has adequate capacity to comply with IDEA. Both chartering authorities provided the Committee the materials charter applicants received for school years 1999-2000 and 2000-2001. Both authorities elaborated in greater detail in their application materials for School Year 2000-2001 the charter schools requirement to comply with IDEA and to provide services to students with special needs.

The DC Public Charter School Board, in its 2000 Application Guidelines for Application, requires applicants to provide the following:

"d. Students with Disabilities: Describe how you will identify the needs of students with disabilities; how students will be evaluated; who will make decisions about special education services; and who is responsible for delivering special education and related services."

The following evaluation criteria is presented:

"Reviewers will look for the quality of . . .

5. Program models and delivery strategies suitable for limited English proficient students and students with disabilities; . . ."

The Board of Education in its SY 2000 Public Charter School Application establishes the following selection criteria:

"D. Criteria for Reconsidering Public charter School Applications:

Applicants must meet the following criteria in the initial application review to be eligible for reconsideration:

1. Receive a number of eight (8) (on a scale of 1-10) in the following areas:

". . . Strategies for complying with statues and regulations for District and federal regulations B civil rights, IDEA, and safety"

Committee finding: Charter Schools #1.

The chartering authorities have ensured that schools applying for a charter to operate an independent public school are aware of their obligation to serve students with special needs. The chartering authorities state that when they award a charter, they have made a judgment that the school will have the capacity to deliver services to students with special needs.

Monitoring Special Education Services of the Charter Schools

The chartering authorities also are required to "monitor the operations of each public charter school to which the eligible chartering authority has granted a charter" and to "ensure that each such school complies with applicable laws and the provisions of the charter granted to such school" (D.C. School Reform Act of 1995, as Amended Subparts B and D.)

The DC School Reform Act of 1995, which authorized public charter schools, requires that public charter schools elect to be treated as a local education agency (LEA) or a District of Columbia Public School for the purposes of special education. Those chatter schools that choose to be District charter schools are able to draw upon some of the services of the Special Education Division of DCPS. Those that choose to be LEAs look elsewhere for technical assistance and help with assessment and reporting.

The State Education Office is expected to assume some special education monitoring, with an immediate emphasis on establishing costs of providing special education services.

SY1998-99

District of Columbia Public Charter School Board submitted the following information in response to questions posed by the Special Committee:

DC Public Charter School Board stated in writing that many students were still in the process of being evaluated (9/99). In addition, approximately 400 special needs students were enrolled which represented 10% of total enrollment and that services for these students had been creative, including inclusion and specialized services. The board also wrote that:

• Four of its schools have opted to become part of the DC Public Charter School Cooperative, which pools resources and contracts with agencies to provide services.
• Assessment activities were monitored by the people in charge of special education at each of the schools and were done in as many as four ways -- by a review of student record, parent/student interview, assessment tests, and classroom observations.
• Some Charter schools used the DCPS Procedural Manual for parents; others had created documents based on this manual. They all used Form 6 to secure informed consent from parents.
• DCPS provided transportation to special education students attending charter schools.
• DCPS acts as the LEA in disputes for those charter schools that have elected to be District Charters, however, DCPS exercises an oversight role only. DCPS treats the District Charters as site-managed entities and cannot assign staff or pupils to charter schools. The District charters can elect to contract for services from providers other than DCPS.
• DCPS acted as the SEA for those charter schools that had elected LEA status. DCPS exercised no direct oversight. DCPS acted as the State Education Agency for monitoring compliance.

The DC Public Charter School Board stated that they employed a number of rigorous monitoring and accountability strategies ranging from the application process to an end of the year annual report to help schools to work constantly to improve their educational program:

• Schools went through an application review process, personal interview, and public hearings at which time they are asked questions regarding the provision of special education services.
• Included in the legally binding Charter agreement was a statement concerning Students with Disabilities and the federal requirements concerning the education of these students.

The DC Board of Education, as a chartering authority, submitted the following information to the Special Committee on September 30, 1999. Limited information was provided regarding each school.

1. The DC Board of Education has granted 17 charters from 1996 until September 30, 1999. Eleven of those schools claimed LEA status for the purpose of Special Education:

Options PCS, 1996-97
Community Academy PCS, 1998-99
Elsie Whitlow Stokes Community Freedom PCS, 1998-99
Integrated Design Electronics PCS, 1998-99
Next Step PCS, 1998-99
Techworld PCS, 1998-99
Village Learning Center PCS, 1998-99
World PCS of Washington, 1998-99
Ideal Academy PCS, 1999-00
Hyde Leadership PCS of Washington, 1999-00
Young Technocrats PCS, 1998-99

Six of the schools had opted to be District Charters for the purpose of Special Education

Children's Studio PCS, 1996-97
Richard Milburn PC Alternative High School (Rabaut), 1998-99
Richard Milburn PC Alternative High School (Carver), 1999-00
Booker T. Washington PCS for Technical Arts, 1999-00
New Vistas Preparatory PCS, 1999-00
Roots PCS, 1999-00

The Board of Education stated that:

• District Charters provide parents with special needs children with the DCPS procedural manual. Independent LEA charter schools provide parents with documents describing special education services (only Options and Community Academy procedural manuals were provided).
• Charter schools organized in 1998-99 have implemented assessment strategies, but schools opening in 1999-00 are in the process of developing strategies for compliance.
• Administrators in each charter school have assumed responsibility for monitoring the timelines of the assessments and follow-up with parents to ensure compliance

The Board of Education stated that it monitored the charter schools by observing the special education instructional program and reviewing records including the IEP and documentation of service delivery for students. Monitoring reports are written describing the status of special education programs and include feedback for corrective action by public charter schools.

In the September 29 public hearing testimony regarding monitoring:

1. Nelson Smith, Exec. Director of the DC Public Charter Board Panel, said that the challenge was to provide sufficient monitoring while respecting the autonomy of schools that may be trying new approaches. He said that charter schools under his Board:

• All provided special education services.
• Often have difficulty securing the IEPs of students transferring from DCPS.
• Are monitored in the second semester of each school year.
• Receive implementation reviews in each school. Each sign a memoranda of understanding to improve.
• Provide annual report on special education.

2. Beth Giovannetti, DC Public Charter School Cooperative, and Linda Moore, Exec. Director Whitlow Stokes Community Freedom PCS, spoke about the need to maintain a Cooperative to assist charter schools with special education assessments and services. They said their cooperative was receiving a federal charter schools grant and that it was the first public charter cooperative in the nation. Moore said that the cooperative identified service for the member schools to develop more effective way to operate. Giovanetti said that of the 12 schools in the cooperative, 50% were LEAs and the others were DCPS charters.

3. Parents of students in charter schools said that neither chartering authority was ensuring compliance. They said that parents receive no written policies. One mother said her daughter had been expelled from SEED PCS without the appropriate procedures and that SEED did not deliver FAPE. She said that the school had no regard for "stay-put" and procedural safeguards.

Eric Adler, Chairman of SEED PCS, said that the school serves special education students. He said that as a new school, SEED may fall short of their goals, including some special education goals, but that it would improve with time.

Ms. Poole, Principal SEED PCS, said the school had 70 students, including 9 with IEP's, all served by a special education specialist. She said that their greatest challenges have been lack of information and the process of securing appropriate resources to meet the needs of students.

A parent of a SEED student said that her son was receiving a good education.

Committee finding: Charter Schools #2

• There is a variation of what parents are told about special education processes. Parents do not all receive the same procedure manuals in all schools, even though the due process procedures should be the same for all parents.
• The two chartering authorities report a concern over meeting assessment and program development or placement deadlines.
• Based on the self-reports of the two chartering authorities, there is considerable variation in monitoring of the charter schools performance in special education.

RECOMMENDATIONS:

1. The SEO be asked to rule on whether the DCPS and the charter schools should special education procedure manuals to parents. The District government is ultimately responsible in lawsuits brought against DCPS, as well as against the charter schools.

2. The SEO be asked to make a recommendation on how timeline monitoring can best be effected within the charter schools. Again the District government is legally liable in lawsuits citing a charter school for failure to meet assessment, placement and due process timelines.

3. The SEO be asked to make a review of monitoring of the delivery of special services in all LEAs and make a recommendation of how best to ensure that the District meets its monitoring obligations posed by the US Department of Education.

Funding charter schools adequately to serve students with special needs.

Both DCPS and the DC public charter schools receive funding based on amounts and calculations established in the Uniform Per Student Funding formula. A base amount is established by the Council that approximates the monies needed to educate a student with no extraordinary needs. Additional weights (multipliers) are then allocated to cover extraordinary or supplemental services required by students with specific characteristics. Weights have been set for grade levels, special education services and English as a Second Language/low English proficient and low-income students.

The switch from program funding to funding based on per pupil costs took place with little preparation. Initially, the weights were necessarily based on informed estimates of actual cost, because DCPS had maintained records of program funding rather than per pupil costs. The Uniform Per Student Funding For Public Charter Schools Act of 1998 provided that the initial allocations for the base and the weights would be reviewed at intervals to fine-tune the amounts. Thus, the Act provides for periodic revision of the formula: A(Sec. 112)(a)) "The Mayor and Council, in consultation with representatives of the DCPS and of the Public Charter Schools, shall review and revise this Formula within 2 years of its establishment, within 2 years after this initial review and revision, and once every 4 years subsequently. Revisions shall be based upon information and data including study of actual costs of education in the District of Columbia, consideration of performance incentives created by the Formula in practice, research in education and education finance, and public comment."

In the Spring of 2000, Councilmember Chavous, as Chair of the Committee on Education, Libraries and Recreation, convened a working group comprising. representatives of the Committee members, the CFO, the Office of the Mayor, DCPS, the chattering authorities, and experts in school finance. The working group informed legislation that would adjust the weight for level 4 and establish a weight for level 5. However, the efforts of the group to obtain actual numbers were flawed:

• DCPS was almost exclusively serving level 4 and level 5 students through placements in nonpublic day and non-public residential centers
• The funds for these placements were not derived totally from the Per Pupil Formula, but rather, came in part or in total from a separate budget item titled State Education Office.

The working group consensus was that funding for levels 1, 2, 3, as well as level 4 did not reflect the actual amount the individual charter schools were paying to serve their students with special needs.

During the September 29, 1999 public hearing, witnesses from charter schools testified that:

• The per-pupil funding formula is inadequate to cover the costs being incurred by charter schools to serve students with special needs.
  • The cost of providing special education services to students who enter a charter school mid term and are assessed with special needs after October can not be recouped, because the charter school's budget is set in October with no regard to incoming students during the school year.
  • DCPS was no longer using the levels 1,2 3, 4, and 5 distinction and had chosen to distribute its special education money to its local schools on a different bases.
• The DC Public Charter School Board submitted analysis from two of its charters demonstrating the inadequacy of the current per-pupil funding formula for special education.

DCPS payments to non-public day schools compare with money provided to charter schools for the same services:

By self-report on applications for federal funds, DCPS has stated that it pays between $30,000 and $45,000 to maintain a level 4 student at a non-public program. In its Special Education Performance Plan: FY 2001-2004, "DCPS states that its " . . . non-public placements have had an average cost of $30,000."

Two non-public programs operating outside the District that enroll DCPS students contacted the Committee on Education, Libraries and Recreation for assistance in exploring the feasibility of establishing charter schools within the District. They reasoned that the students would receive a less restrictive education if their school was closer to their families and neighborhoods and, at the same time, the District would be able to reduce transportation time and costs. Both non-public programs determined that given the existing weights, they could not afford to operate a school that would serve a special education population.

Committee Findings: Charter Schools #3

• Little progress has been made in determining the real cost of special education services both in DCPS and charter schools.
• The DC public charter schools are not adequately funded to provide services needed by students with special needs. This under-funding appears to constitute a barrier for organizations that have explored using the structural vehicle of the charter school to provide special education services within the District in District public schools.

RECOMMENDATIONS:

The Council should ask the SEO to make recommendations for the adjustment of the special education weights in the uniform per pupil formula for the FY 2002 budget process.

The Special Committee recommends the SEO review and recommend adjustments in the special education weights for the FY 2002 education budget to ensure that:

• DCPS local schools and DC public charter schools are adequately funded to provide special education services;
• DCPS accurately monitor the costs of special education services.

The Special Committee further recommends that the SEO ensure DCPS and DC public charter schools are uniform in explaining to parents the rights of students with special needs:

• The SEO should ensure that uniform materials be provided to parents of students in public schools using special education assessment and placement services and due-process procedures.
• The SEO should oversee a uniform timeline for students requesting assessment, placement and due-process proceedings.

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Chapter 5: The State Education Office

Before the District authorized charter schools, it had only one Local Education Agency (LEA), the District of Columbia Public Schools, with 146 schools. In most situations, the DCPS served as its own State Education Agency. This meant it monitored itself for compliance with federal laws, made application for federal funds, and monitored itself as it spent federal monies.

Today, the District has 33 LEAs operating 182 schools. Each LEA now has "rights" to apply for federal monies. The question of how LEAs are given access to federal money and monitored as they spend these monies is one of the big challenges of this new system of District public schools. Most states monitor their LEAs through a State Education Agency or Authority.

The Council passed legislation that became law (D.C. Act 13-387) on July 26, 2000, to establish a State Education Office (See Appendix E for text of the bill). The SEO, by no later than October 2001, must:

• Verify annual fall enrollment counts for all public and private charter schools;
• Formulate and promulgate rules for the documentation and verification of District residency for public and public charter school students;
• Make recommendations to the Mayor and Council for periodic revisions to the Uniform Per Student Funding Formula and provide information and data related to such revisions including the study of actual costs of education in the District of Columbia, consideration of performance incentives created by the formula in practice, research in education and education finance; and
• Conduct a study to be submitted to the Mayor and Council recommending additional functions to be assumed by the SEO.

The Council designed the SEO legislation so that its responsibilities would evolve as needed as the District works out the details of moving from just one independent school system to 33 or more independent schools.

The Special Committee recommends that:

The Council ask the SEO to make recommendations for the adjustment of the special education weights in the uniform per pupil formula for the FY 2002 budget process.

The Special Committee recommends the SEO review and recommend adjustments in the special education weights for the FY 2002 education budget to ensure that:

• DCPS local schools and DC public charter schools are adequately funded to provide special education services;
• DCPS accurately monitor the costs of special education services.

The Special Committee further recommends that the SEO ensure DCPS and DC public charter schools are uniform in notifying parents of the rights of students with special needs:

• The SEO should ensure that uniform materials be provided to parents of students in public schools using special education assessment and placement services and due-process procedures.
• The SEO should oversee a uniform timeline for students requesting assessment, placement and due process proceedings.

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Statutory Change

A. Amending the uniform per pupil funding formula to adjust the special education weights to percentages that will capture the actual costs of providing special education services.

B. Amending the State Education Office Act of ?000 to authorize the SEO to establish uniform materials, forms and procedures for District LEAs (includes DCPS and all DC charter schools).

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Further Council Inquiry

The Special Committee's investigation found several areas of concern that were either outside of the Committee's charge and/or needed further attention. Below is an outline of areas that require further Council attention:

• Oversight of DCPS as it implements steps to capture Medicaid and other-reimbursements.
• Assessment of 1) how well DCPS has served as a self-monitor in its efforts to comply with the Individuals with Disabilities Education Act (IDEA) and 2) whether this monitoring should be done by the State Education Office.

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Footnotes

1. Individuals with Disabilities Education Act (IDEA)

2. In a memorandum dated August 23, 2000 from Veleter M.B. Mazyck, General Counsel for the DCPS, to Elise Baach, Esquire, Beth Goodman, Esquire and Elizabeth Greczek, Esquire with the subject line of "Transportation Update, Petties, et al. v. D.C., et al.

3. IBID.