Full opinion text
CORRECTED MEMORANDUM OPINION & FINDINGS OF FACT AND CONCLUSIONS OF LAW Royce C. Lambert, United States District Judge I. INTRODUCTION AND BACKGROUND The' named plaintiffs in this lawsuit— former preschool-age children in the District with various disabilities — allege that defendants have systemically failed to provide, or failed to timely provide, special education and related services to them and other children, in violation of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and District of Columbia law. The plaintiffs have been divided into four subclasses and bring claims that correspond to distinct requirements of the IDEA. More specifically, plaintiffs’ claims relate to the District’s alleged failures to: (1) identify substantial numbers of children who are in need of special education and related services, (2) timely evaluate children for special education and related services, (3) timely issue eligibility determinations for special education and related services, and (4) provide smooth and effective transitions for children from Part C to Part B services. Given that this lawsuit was initiated In 2005, the Court has had ample opportunity to acknowledge the importance of the early intervention programs at stake in this litigation. Indeed, when executed properly, the early intervention mandated by the IDEA and at the core of plaintiffs’ complaint “can work a miracle,” allowing an estimated 75-80% of disabled children to enter “kindergarten alongside every other ordinary five-year-old — without needing further supplemental special education.” DL v. District of Columbia, 845 F.Supp.2d 1, 5 (D.D.C.2011). These positive outcomes substantially advance the IDEA’S primary goal: “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). In order to achieve its aim, thé IDEA provides federal funding to states, including the District of Columbia, on the condition that they “establish policies and procedures to ensure .,. that free appropriate public education [FAPE] ... is available to disabled children.” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 518 (D.C.Cir.2005) (internal quotations omitted); see also 20 U.S.C. § 1412(a)(1)(A). More specifically, the IDEA imposes an affirmative obligation on school systems to “ensure that all children with disabilities residing in the State ... regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated.” Reid, 401 F.3d at 519-20 (internal quotations omitted); 20 U.S.C. § 1412(a)(3)(A). The District’s laws implementing the IDEA require that once a potential candidate for special education services is identified, the District must conduct an initial evaluation and make an eligibility determination within 120 days. D.C. Code § 38-2561.02(a)(l). The duties to identify, locate, and evaluate disabled children are collectively known as the “Child Find” obligation. 20 U.S.C. § 1412(a)(3)(A). Children under three years of age who are identified, evaluated, and determined .eligible may receive early intervention services under Part C of the IDEA. For these children, the Act requires a “smooth and effective” transition from Part C’s early intervention services to Part B’s preschool special education programs. 20 U.S.C. § 1412(a)(9). A smooth and effective transition is one that (1) begins no less than 90 days prior to the child’s third birthday; (2) does not include a disruption in services between Part C and Part B services; and (3) involves Part B personnel. See D.L. v. District of Columbia, 302 F.R.D. 1, 7 (D.D.C.2013); 34 C.F.R. § 303.209. The transition process must include a conference between the child’s family and school officials to determine eligibility for Part B services and to develop a transition plan and an Individualized Education Program (“IEP”). The goal is “a seamless transition between services” under Parts C and B of the Act. 34 C.F.R. § 303.209(a)(3)(ii). Dating back to 2005, the procedural history of this case is long and somewhat complex, centering in large part on issues relating to class certification. First, in August 2006 this Court certified a plaintiff class pursuant to Federal Rule of Civil Procedure 23(b)(2), defining it as: All children who are or may be eligible for special education and related services, who live in, or are wards of, the District of Columbia, and (1) whom defendants did not identify, locate, evaluate or offer special education and related services to when the' child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages- of three and five years old, inclusive. DL v. District of Columbia, 237 F.R.D. 319, 324 (D.D.C,2006); see also Mem. Order 3-4, ECF No. 389. With this group of children serving as the Original plaintiff class, in 2010, the Court found that the District’s policies were inadequate to meet its obligations under the IDEA and that they violated section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability in programs receiving federal funding. See Mem. Op. 4-5, ECF No. 389 (citing DL v. District of Columbia, 845 F.Supp.2d 1,10-17 (D.D.C.2011)). First, on August 10, 2010, the Court partially ruled for plaintiffs on summary judgment and found that, at least through 2007, the District violated the IDEA and District law by denying a FAPE to numerous preschool-age children with disabilities. DL v. District of Columbia, 730 F.Supp.2d 84, 95 (D.D.C.2010). The Court in 2010 also found that, at least through 2007, the District violated the Rehabilitation Act by demonstrating “bad faith or gross misjudgment” in failing to bring itself into compliance with the IDEA, even though it “knew that [its] actions were legally insufficient.” See Mem. Op. 4-5, ECF No. 389. Following this summary judgment ruling, the Court held a two-day bench trial on the 6th and 7th of April 2011 regarding the District’s liability and plaintiffs’ remaining claims for declaratory and injunc-tive relief for the period from January 1, 2008, through the trial. After hearing the evidence at trial, the Court found that the District’s prior liability extended to April 6, 2011. To remedy these violations, the Court then issued a structural injunction, which included programmatic requirements and numerical goals that would remain in effect until the District demonstrated sustained compliance. Mem. Op. & Findings of Fact and Conclusions of Law ¶¶ 138-76. After the trial but before this Court issued its final decision, the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), which clarified the proper interpretation of the commonality requirement for class certification under Federal Rule of Civil Procedure 23(a)(2) (“FRCP 23(a)(2)”). Wal-Mart essentially found that to establish commonality under FRCP 23(a)(2), a class must present a common question that is “capable of class-wide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at 2551. Immediately following Wal-Mart, the defendants in this case sought to decertify the consolidated plaintiff class, arguing that it was too broadly defined to satisfy FRCP 23(a)(2)’s commonality requirement. Essentially, the defendants argued that the single and undivided class could not satisfy FRCP 23(a)(2) because it “bundled together multiple different allegations of a variety of different provisions of the IDEA, the Rehabilitation Act, and local District of Columbia law” and “amalgamated] ... a variety of provisions of a single statutory scheme.” DL v. District of Columbia, 277 F.R.D. 38, 42 (D.D.C.2011). This Court rejected that argument, ruling that the plaintiff class satisfied FRCP 23’s commonality requirement because it presented the common question of whether or not each class member received a FAPE. The Court then ruled that the class members’ “differing allegations only represent the differing ways in which defendants have caused class members’ common injury,” that is, the “denial of their statutory right to a free appropriate public education.” Id. at 45. After the Court denied defendants’ motion to decertify the class, the District filed an appeal to the D.C. Circuit and ultimately prevailed. The D.C. Circuit vacated the Court’s original order on class certification grounds — which as a result effectively and entirely vacated the Court’s various findings of liability. The Circuit remanded the case for further proceedings, holding: After Wal-Mart it is clear that defining the class by reference to the District’s pattern and practice of failing to provide FAPEs speaks too broadly because it constitutes only an allegation that the class members “have all suffered a violation of the same provision of law,” which the Supreme Court has now instructed is insufficient to establish commonality given that the same provision of law “can be violated in many different ways.” Wal-Mart, 131 S.Ct. at 2551. In the absence of identification of a policy or practice that affects all members of the class in the manner Wal-Mart requires, the district court’s analysis is not faithful to the Court’s interpretation of Rule 23(a) commonality. DL v. District of Columbia, 713 F.3d 120, 126 (D.C.Cir.2013). On remand from the D.C. Circuit, this Court was to reconsider whether a “class, classes, or subclasses may be certified,” id. at 129, and ultimately did so, certifying the following four plaintiff subclasses in 2013: SUBCLASS 1: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and were not or will not be identified and/or located for the purposes of offering special education and related services; SUBCLASS 2: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and did not or will not receive a timely initial evaluation for the purposes of offering special education and related services; SUBCLASS 3: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and did not or will not receive a timely determination of eligibility for special education and related services; and SUBCLASS 4: All children with disabilities, as defined by the IDEA, who lived in or will live in, or are or will be wards of, the District of Columbia, and who participated or will participate in early intervention programs under Part C of IDEA, and who participated or will participate in preschool programs under Part B, and who did not or will not have a “smooth and effective” transition from Part C to Part B by the child’s third birthday. Mem. Op. 9, ECF No. 389. After these subclasses were certified, plaintiffs submitted a second amended complaint, alleging violations of the IDEA, Rehabilitation Act, and DC law specific to each subclass. Following another round of discovery, the parties filed cross-motions for summary judgment in 2014. The Court partially granted plaintiffs’ motion for summary judgment, finding that the District was liable for violating the IDEA and District law for the period up to April 6, 2011. Specifically, these claims corresponded to the four subclasses and related to the District’s failure to (1) identify substantial numbers of children who are in need of special education and related services, (2) timely to evaluate children for special education and related services, (3) timely to issue eligibility determinations for special education and related services, and (4) provide smooth and effective transitions for children from Part C to Part B services. Mem. Op. 9-14, 16-20, ECF No. 444. The Court did not grant plaintiffs summary judgment on their Rehabilitation Act claims for that same period, concluding that based on the record, it could not determine “whether the District’s actions reached ‘bad faith or gross misjudgment’ as to each subclass.” Id. at 15,20. In addition to partially ruling for plaintiffs, the Court also partially ruled for defendants on summary judgment. Specifically, the Court ruled for defendants on (1) plaintiffs’ IDEA and District law claims related to the failure timely to evaluate children for special education and related services for the period from April 6, 2011 to the present, and (2) all of plaintiffs’ Rehabilitation Act claims for the period from March 22, 2010 to the present. Id. at 36-37, 39-42; see also Order, ECF No. 491. The remainder of plaintiffs’ claims went to trial. These claims fell into two categories and relate to two distinct time periods. First, plaintiffs allege that the District has violated the IDEA and District law from April 6, 2011 through the present by failing to adequately identify preschool-age disabled children for the purpose of offering them special education and related services (subclass 1); failing to timely issue eligibility determinations for special education and related services for preschool-age children (subclass 3); and failing to provide a smooth and effective transition from the early intervention program under Part C of the IDEA to preschool special education and related services under Part B by the child’s third birthday (subclass 4). Second, plaintiffs claim that the District violated the Rehabilitation Act for the period up to March 22, 2010 by failing adequately to identify preschool-age disabled children for the purposes of offering them special education and related services (subclass 1); failing timely to evaluate preschool-age children for special education and related services (subclass 2); failing timely to issue eligibility determinations for special education and related services for preschool-age children (subclass 3); and failing to provide a smooth and effective transition from the early intervention program under Part C of the IDEA to preschool special education and related services under Part B by the child’s third birthday (subclass 4); and that the District acted in bad faith or gross misjudgment as to each subclass. Trial was held on the 12th, 13th, and 16th of November 2015. Based on all of the evidence and argument presented, the Court makes the following findings of fact and conclusions of law, and will, consistent with these findings, enter judgment in favor of plaintiffs. In short, the District has improved, but started at such a low base when this litigation began, that it is still failing to comply with federal and District law. II. FINDINGS OF FACT A. CREDIBILITY OF PLAINTIFFS’ WITNESSES 1.Dr. Carl J. Dunst 1. Plaintiffs retained Dr. Carl Dunst as an expert to study and assess the District’s compliance with its Child Find-related ob~ ligations. Direct Test, of Dr. Carl J. Dunst ¶ 7, Oct. 22, 2015, ECF No. 475-1 (“2015 Dunst Direct”). 2. Dr. Dunst holds a Bachelor’s degree in education from Temple University, a Master’s degree in Early Childhood Special Education from the George Washington University, and a Doctorate in Developmental Psychology from the George Peabody College at Vanderbilt University. Id. at ¶ 1. 3. Dr. Dunst has worked as an early intervention practitioner, has directed an IDEA Part C early intervention and a Part B preschool special education program, and has taught numerous courses on infant and preschool development, assessment, and intervention practices. Id. at ¶ 2. 4. From 2003 to 2010, Dr. Dunst was the Principal Investigator at a research and training center funded by the U.S. Department of Education, Office of Special Education Programs (“OSEP”) called the Tracking, Referral, and Assessment Center for Excellence (“TRACE”). Id. at ¶ 4. TRACE investigated Child Find-related practices in IDEA Part C early intervention and IDEA Part B preschool special education programs in all 50 states, the District, and other jurisdictions, and researched and developed evidence-based practices for improving Child Find-related activities. Id. He has also been the Principal Investigator or Co-Principal Investigator of other OSEP-funded research and training projects that focus on early childhood intervention practices. Id. at ¶ 5. 5. Dr. Dunst is currently a Research Scientist and Director at the Orelena Hawks Puckett Institute in Asheville and Morganton, North Carolina, where he conducts research, evaluation, intervention, and training in Part C, Part B, early Head Start, Even Start, childcare and preschool practices, family-centered help-giving practices, and Child Find, referral, and outreach practices. Id. at ¶ 3. 6. Due to his extensive experience, Dr. Dunst is a recognized expert in infant and early childhood assessment practices, family systems intervention practices, infant and early childhood intervention practices, family-centered help-giving practices, and Child Find, referral, and outreach practices. Id. at ¶ 6; see also E-mail from Jerri Johnston-Stewart, OSSE, to Alison Whyte, May 27, 2010, Pis.’ Ex. 125, at 1 (“Dr. Carl Dunst is one of the leading authorities in [the] United States on early childhood/early childhood special education and is- highly regarded among OSEP and its technical assistance providers.”). 7. Dr. Dunst has received a number of awards from professional organizations for his research and practice. Id. ¶ 6. He has an extensive list of publications about Child Find-related policies and practices. Curriculum Vitae of Carl J. Dunst, Pis.’ Ex. 268, at 22-100. 8. During trial and in post-trial filings, the District attacked the credibility of Dr. Dunst on the basis that he had never logged into or received relevant training on the District’s database, called Special Education Database System, or “SEDS.” See Trial Tr., Nov. 12, 2015, 102:20-25, 108:7-13; Defs.’ Proposed Findings of Fact & Conclusions of Law ¶ 12, ECF No. 513. The Court has previously considered and rejected this argument, finding that Dr. Dunst is qualified to analyze the District’s Child Find-related obligations and assess its compliance. See Mem. Op. 26 n.l, ECF No. 444 (“[I]t is not clear why Dr.; Dunst needed to understand how the database operates in order to analyze the data pulled from it.”). 9. For these reasons, following the previous trial, the Court found that Dr. Dunst is a qualified expert in analyzing the District’s Child Find-related obligations for preschool-age children. Mem. Op. & Findings of Fact and Conclusions of Law ¶ 8, ECF No. 294. The Court also found that Dr. Dunst “testified credibly, demonstrated specific knowledge of the relevant literature, and explained clearly how his conclusions were based on both his research and personal experience- in the field.” Id. at ¶ 9. Based on the paragraphs above, the Court makes the same findings for the current period. 2. Dr. Leonard Cupingood 10. Plaintiffs retained Dr. Leonard Cu-pingood as an expert to study and provide statistical analysis of the District’s data related to its compliance with IDEA requirements related to special education services. 2015 Cupingood Direct Test. ¶ 22, Oct. 22, 2015, ECF No. 475-2 (“2015 Cu-pingood Direct”). 11. Dr. Cupingood holds a Bachelor’s degree in Mathematics from Rutgers University and a Master’s and a Doctorate in Statistics from Temple University. Id. at ¶1. 12. Dr. Cupingood is currently a Director of BLDS, LLC, a position in which he develops and applies statistical models and analyses for a wide variety of settings and industries. Id. at ¶ 2. He has extensive experience conducting statistical analysis in a variety of litigation matters, including employment discrimination cases and audits of insurance companies regarding claims processing. Id. at ¶¶2-3. He has provided deposition and trial testimony as a database expert and as a statistician. Id. at ¶¶ 9-10. 13. Dr. Cupingood is a member of the American Statistical Association and has published several statistics-based articles. Id. at ¶ 8. Curriculum Vitae of Leonard A. Cupingood, Pis.’ Ex. 269, at 3. 14. For these reasons, following the previous trial, the Court found that Dr. Cu-pingood is a qualified expert in statistics. Mem. Op. & Findings of Fact and Conclusions of Law ¶ 14, ECF No. 294. The Court also found that Dr. Cupingood provided credible and compelling testimony during trial regarding the District’s Child Find-related obligations, including the timeliness of the District in determining the eligibility for special education and related services of children ages three through five, and the number of preschool-age children who were referred each year for special education services Id. at ¶¶ 14-15. 15. In addition to statistics, Dr. Cupin-good is an expert in computer programming and databases. 2015 Cupingood Direct ¶ 5. He started working as a computer programmer in 1968 for Leeds and Northrup Company. Id. There, he developed computer programs to monitor power systems and was the lead programmer responsible for developing a system to monitor power to Disney World’s monorail that ran to its rides before the amusement park opened in 1971. Id. In 1972, he began working for Ketron, Inc., a consulting firm that obtained government contracts to analyze the effectiveness of social programs. Id. at ¶ 6. On that project, he developed computer programs to analyze survey and census data, constructed databases to organize the data, cleaned the data for inconsistencies, and then analyzed the cleaned data. Id. 16. Later, Dr. Cupingood began working on litigation-related data analysis. Id. at ¶ 7. For example, in employment cases, he reviewed employer databases for inconsistencies (e.g., multiple Social Security Numbers or dates of birth corresponding with a single name), cleaned the data, and then analyzed the cleaned data. Id. Each employer had its own database with different data organization techniques and variables. Id. In some cases, if the employer did not use an electronic database, he had to build a database from the company’s paper records before he cohld analyze the data. Id. Over the course of 40 years, he worked as a database manager — requiring computer programming, database construction, and cleaning skills — on approximately 300 cases. Id. 17. Since he obtained his doctorate in 1985, he has offered testimony as a statistical expert in approximately 40 cases. Id. at ¶ 9. Although the primary focus of his testimony in those cases has been statistical analysis, he would not have been able to perform that analysis if he had not initially performed the programming and required data cleaning; Id. He does not recall a single case in which he provided testimony as a statistical expert in which he did not also perform or supervise all of the necessary programming and data cleaning. Id. Moreover, in a small number of cases, Dr. Cupingood has testified as a database expert only. Id. at ¶ 10. 18. In the 1980’s, Dr. Cupingood was appointed by a Special Master in the United States District Court of the Eastern District of Pennsylvania as an automation consultant. Id. at ¶ 11. His responsibility was to supervise computer programmers to ensure that the data system, which they created to monitor the referral and dispatching process of a union operating under the court’s supervision, collected the necessary data and produced the required output. Id. Thus, over 20 years ago, Dr. Cupingood was recognized as an expert in the field of computer programming and databases. 19. Dr. Cupingood has substantial additional experience in computer programming and statistics. Cupingood Supplemental Direct Test., Nov. 2, 2015, ECF No. 489-1. Similar to Dr. Dunst, at trial and in post-trial filings, the District attacked Dr. Cupingood’s credibility because he had never logged into SEDS or received training on the database. Trial Tr., Nov. 12, 2015, 30:20-81:9, 44:25-45:3; Defs.’ Proposed Findings of Fact & Conclusions of Law ¶ 4, ECF No. 513. The Court previously rejected these arguments and will do the same today. Mem. Op. 30, ECF No. 444 (“Dr. Cupingood does not need to have any particular understanding of special education policies or databases to assess the data provided to him. Furthermore, it is entirely unclear to the Court why Dr. Cu-pingood needed to access the database himself rather than rely on the data provided by the District”). 20. Based on findings paragraphs 11-49, the Court again finds that Dr. Cupingood is a qualified expert in statistics, and also finds that he is an expert in computer programming and databases. The Court also finds that Dr. Cupingood provided credible and compelling testimony during trial regarding the District’s data related to the number of preschool-age children who are enrolled, the number of preschool-age children who timely received an initial eligibility determination for special education and related services, the number of children who received a smooth and effective transition from Part C- to Part B services, and the District’s special education databases. 3. Lauren Seffel 21. Plaintiffs moved for the admission under Rule 1006 of the Federal Rules of Evidence of a summary of facts related to individual children in the District who were referred for special education services, which was compiled by plaintiffs’ counsel. Plaintiffs’ Factual Summary, Pis.’ Ex. 270, ECF No. 456-1 (sealed). Over defendants’ objection, the Court granted that motion, see generally Mem. Op., ECF No. 478, and required the attorney that compiled the summary to appear for a deposition by the District’s counsel and to introduce the summary at trial and be subject to' cross-examination. Id. at 16. Lauren Seffel, an attorney for plaintiffs, did so. Ms. Seffel provided credible testimony regarding the creation of plaintiffs’ Factual Summary. B. CREDIBILITY OF DEFENDANTS’ WITNESSES 22. The District offered the testimony of 13 fact witnesses, 11 of whom are District of Columbia’s Office of the State Superintendent of Education (“OSSE”) or District of Columbia Public Schools (“DCPS”) employees. Those witnesses testified regarding positive improvements in the District’s policies, procedures, and practices. These witnesses did not directly rebut or discuss the statistical conclusions of plaintiffs’ expert witnesses regarding the effectiveness of the District’s policies, procedures, and practices, nor did any of the District’s witnesses challenge the findings of plaintiffs’ Factual Summary. 23. Dr. Amy Maisterra is the Assistant Superintendent of Elementary, Secondary, and Specialized Education at OSSE. Direct Examination of Dr. Amy Maisterra ¶ 1, Oct. 22, 2015, ECF No. 477-1. She holds a doctorate in educational leadership from the University of Pennsylvania and a master’s degree in clinical social work from the Smith College School for Social Work. Her background includes professional experience in both educational and behavioral health. Id. 24. Kerda DeHaan is a Special Assistant for IDEA Part C at OSSE; she has spent approximately six years with the agency, and her work focuses on the District’s Part C program, also known at the Strong Start DC Early Intervention Program (“DC EIP”). Direct Examination of Kerda De-Haan ¶ 1, Oct. 20, 2015, ECF No 477-2. 25. Dr. Nathaniel Beers is the Chief Operating Officer (“COO”) for DCPS. Direct Examination of Dr. Nathaniel Beers ¶ 1, Oct. 21, 2015, ECF No. 477-3. He is also a developmental and behavioral pediatrician, and his background includes serving as the Chief of DCPS’s Office of Specialized Instruction, Executive Director of the Early Stages Center, and Deputy Director for Community Health Administration with the District’s Department of Health, Id. Dr. Beers was previously employed by Children’s National Medical Center in a variety of capacities, where, among other tasks, he oversaw the largest primary care clinic in the District. Id. He is a past president of the District of Columbia Chapter of the American Academy of Pediatrics and a current member of the Council of School Health for the National American Academy of Pediatrics. Id. 26. Dr. Travis Wright is the Deputy Chief for Early Childhood Education at DCPS. He holds a doctorate degree in human development and psychology from Harvard University. Direct Examination of Dr. Travis Wright ¶ 1, Oct. 21, 2015, ECF No. 477-4. His areas of expertise focus on teaching in highly stressed communities, teaching children who have experienced trauma, and early childhood education. Id. Dr. Wright has been a faculty member in education at George Washington University and the University of Wisconsin-Madison. Id. Dr. Wright has served as the Research in Review Editor for Young Children, a journal published by the National Association for the Education of Young Children, and he was a Board Member of the Early Childhood Education Special Interest Group of the American Educational Research Association. Id. 27. Donna Anthony is the Assistant Superintendent for Health and Wellness at OSSE. Direct Examination of Donna Anthony ¶ 1, Oct. 22, 2015, ECF No. 477-5. Through October 16, 2015, she worked at DCPS, primarily serving as Chief of Staff and Interim Chief of the Office of Specialized Instruction. Id. She holds a master’s degree in public health from George Washington University. Id. 28. Brian Massey is the Child Find Field Coordinator for Ward 6, at the Early Stages Center. Direct Examination of Brian Massey ¶ 1, Oct. 22, 2015, ECF No. 477-6. Previously, Mr. Massey served as the Child Find Field Coordinator for Medical Constituency Outreach at Early Stages, and he has worked as a classroom educator at the Capital City Public Charter School in Washington, D.C. Id. 29. Sean Compagnucci is the Executive Director of the Early Stages Center. Direct Examination of Sean Compagnucci ¶ 1, Oct. 22, 2015, ECF No. 477-7 (“Com-pagnucci Direct”). Mr. Compagnucci joined Early Stages as a Child Find Field Coordi: nator shortly after the organization was created in 2009; he has also held the positions of Child Find Program Manager and Deputy Director. Id. 30. Carla Watson is the Deputy Chief of Compliance and Policy for the Office of the Chief Operating Officer at DCPS. Direct Examination of Carla Watson ¶ 1, Oct. 21, 2015, ECF No. 477-8. She has worked as a child advocate, providing legal services in New York, and as a guardian ad litem and education advocate for students in foster care in the District. Id. Ms. Watson joined DCPS in February 2008, as a Senior Policy Associate on the Special Education Reform Team and has subsequently worked on and overseen compliance and policy. Id. 31. Jessica Roche is the Director of the Policy and Legal Strategy Team within the Compliance and Policy Division at DCPS. Direct Examination of Jessica Roche ¶ 1, Oct. 22, 2015, ECF No. 477-9. She began working for DCPS as a Program Coordinator on the Least Restrictive Environment Support and Policy Team in August 2011, and has been promoted several times to her current position. Id. Ms. Roche holds a B.S.Ed. in Inclusive Elementary and Special Education and is licensed to practice law in both New Hampshire and Massachusetts. Id. She works under Ms. Watson, and her work focuses primarily on Early Stages compliance and monitoring. Id. 31(a). Peter Marshall is a manager with Public Consulting Group, Inc. (PCG). His division of PCG — PCG Education — is a provider of comprehensive, web-based student case management solutions for special education. Direct Examination of Peter Marshall ¶ 1, Oct. 22, 2015, ECF No. 477-10. The District’s Special Edücation Data System (SEDS) is a customized version of one such product, EasylEP. Id. at ¶¶ 1-2. 31(b). At the time of trial, Jeff Noel was the Assistant Superintendent of Data, Accountability, and Research for OSSE. Direct Examination of Jeff Noel ¶ 1, Oct. 22, 2015, ECF No. 477-11. Prior to serving in this position, he was OSSE’s Data Management Director for four years, and he has been involved in the design and maintenance of education data systems since 1997. Id. 31(c). Anupama Proddutur is a Data Analyst for OSSE. Direct Examination of An-upama Proddutur ¶ 1, Oct. 22, 2015, ECF No. 477-12. She is assigned to the Specialized Education Data Team, where she is responsible for special education data collection and reporting, including federal reporting to the OSEP. Id. at ¶¶ 1-2. 31(d). Chenise Purvis is the mother of a child who went through the Early Stages Process, and she provided testimony regarding her experience with and impressions of Early Stages and its staff. Direct Examination of Chenise Purvis ¶¶ 1-5, Oct. 22, 2015, ECF No. 477-13. 32.Dr. Maxine Freund is the Associate Dean for Research and External Relations at the George Washington University’s Graduate School of Education and Human Development. Direct Examination of Dr. Maxine Freund ¶ 1, Oct. 22, 2015, ECF No. 477-14 (“2015 Freund Direct”). Dr. Freund is also a tenured professor in the University’s Department of Special Education and Disabilities Studies and a resident of the District. Id. 33. -During her thirty-year career as a professor, Dr. Freund has designed and implemented doctoral leadership programs and master’s degree programs that, among other things, prepared infant and early childhood specialists for early intervention work with atypical infants, toddlers, and preschoolers. Id. Many of these programs were funded by the United States Department of Education through competitive grant programs and by national and local foundations interested ¡special education for at-risk and special-needs populations. Id. 34. Dr. Freund has authored extensive publications and presentations in the special education and early childhood education fields. Defs.’ Ex. 55, at 5-12. As an Associate Dean of the George Washington University, she also directs doctoral candidates’ dissertations on special education and early childhood education and has developed a specific focus on the special education eligibility determination process for preschool-age children. Id. 35. Based on paragraphs 32-34, the Court concludes that Dr. Freund is qualified as an expert to analyze the District’s Child Find obligations as they relate to preschool children. The Court also finds that Dr. Freund testified credibly, demonstrated specific knowledge of the relevant literature, and explained clearly how her conclusions were based on her research, personal experience in the field, and in depth examination of the District’s preschool Child Find system. 36. Like the District’s fact witnesses, however, Dr. Freund was largely silent as to the statistical conclusions of plaintiffs’ expert witness, which plaintiffs offered to highlight the ineffectiveness of the District’s policies, procedures, and practices. C. BACKGROUND 37. Part B of IDEA concerns special education and related services for three-to-fíve-year-old children. 20 U.S.C. §§ 1411-1419 (“Assistance for Education of All Children with Disabilities”); § 1412(a)(1)(a) (requiring states to have “in effect policies and procedures to ensure that ... [a] free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive”). 38. Early Stages is a DCPS center, which is the primary facility for providing Part B special education screenings, evaluations, and eligibility determinations for three-to-five-year-old children in the District. See Compagnucci Direct ¶ 2; see generally Expert Report of Dr. Maxine Freund, Sept. 14, 2009, EOF No. 172-2 (“2009 Freund Report”). Early Stages is also responsible for outreach to find children in need of special education and related services. Compagnucci Direct ¶ 5. 39. If a parent, teacher, or any other person with knowledge of a child in the District has a concern that a child requires special education services, they can contact Early Stages. See Compagnucci Dep. 6:19-7:13, June 2, 2014, Pis.’ Ex. 15 (“Compagnucci Dep.”); Early Stages Family Care Manual, Feb. 8, 2011, Pis.’ Ex. 72, at DL2014 177 (“Family Care Manual”). Early Stages is required to screen the children, which it does through a questionnaire. See Compagnucci Direct ¶ 24; Com-pagnucci Dep. 8:11-9:9. Early Stages then assesses the child to determine the child’s needs. Compagnucci Direct ¶ 27. 40. Once those assessments are performed (together referred to as the evaluation), see Compagnucci Dep. 26:10-13, Early Stages determines whether the child is eligible for special education and related services. See Compagnucci Direct ¶29. The District must complete the evaluation and provide an eligibility determination within 120 days of the child’s referral. See infra paras. 254-57, 262. If the child is eligible, then Early Stages must prepare an Individualized Education Plan (“IEP”) and identify a location (ie., a school) where the services will be provided. Compagnucci Direct ¶ 29; Compagnucci Dep. 13:7-14:4. 41. Services include (1) special education and (2) related services. Special education is “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability.” 20 U.S.C. § 1401(29). Related services are “transportation, and such developmental, corrective, and other supportive services ... as may be required to assist a child with a disability to benefit from special education .... ” 20 U.S.C. § 1401(26). 42. At the time of the last trial, Dr. Nathaniel Beers was the Executive Director of Early Stages. Test, of Nathaniel Beers ¶ 1, Mar. 16, 2011, ECF No. 210-1 (“2011 Beers Direct”). Sean Compagnucci is now the Executive Director. Compag-nucci Direct ¶ 1. 43. Part C refers to the part of IDEA that relates to special education services for children younger than three years old. 20 U.S.C. §§ 1431-1444 (“Infants and Toddlers with Disabilities”); § 1432(5) (defining “infant or toddler with a disability”). Children in Part C receive an Individual Family Service Plan (“IFSP”), rather than an IEP. See Family Care Manual, Pis.’ Ex. 72, at DL2014 194, Part C services are the responsibility of a District program called Strong Start, not Early Stages. Direct Examination of Kerda Dehaan ¶ 1. 44. The District has summarized the main differences between Part B and Part C services: Early intervention [Part C] services are provided within a natural environment for the child [e.g., the home] and services are family centered. They can include nursing and medical care in some cases. ... Special education [Part B] services are usually provided in a public school, Head Start center, or inclusive community early care and education center. [Part B] [o]nly provides nursing or medical care services [ie., related services] that are considered necessary for the child to access educational programs. Family Care Manual, Pis.’ Ex. 72, at DL2014 194. 45. Pursuant to the IDEA, children must receive a “smooth and effective” transition from Part C to Part B services by the child’s third birthday. 20 U.S.C. § 1412(a)(9); That requires Part B special education and related services to be provided to transitioning children by their third birthdays. Id. (“By the third birthday of such a child, an individualized education program ... has been developed and is being implemented for the child”); Mem. Op. 39, ECF No. 444 (“All services must commence for a transition to be smooth and effective.” (emphasis in original)). 46. On April 15, 2014, the District issued Policies and Procedures for the Extended IFSP Option for Children age. three to four. See Pis.’ Ex. 52. This policy permits parents to choose to have their child receive their Part C services, with an educational component, until the beginning of the school year after he or she turns four years old. Id. at 2. 47. The District Office of the State Superintendent of Education (“OSSE”) is the State Education Agency (“SEA”) for the District “serves as the lead and local agency for Part C,” and “fulfills state-level obligations for Part B and Part C of IDEA.” Direct Test, of Amy Maisterra ¶ 3, Mar. 16, 2011, ECF No. 210-3 (“2011 Maisterra Direct”). “OSSE is responsible for monitoring the performance of the District’s Local Education Agencies (‘LEAs’), of which [DCPS] is the largest.” Id; see also Direct Examination of Amy Maisterra ¶ 5, Oct. 22, 2015, ECF No. 477-1 (“2015 Maisterra Direct”). OSSE assumed these roles from DCPS after OSSE was created in 2007. 2009 Freund Report 4. 48. OSSE obtains federal IDEA Part B funds from OSEP and allocates those funds among District LEAs. 2011 Maister-ra Direct ¶¶8, 21. Accordingly, OSEP monitors OSSE’s compliance — and OSSE monitors LEAs compliance — with IDEA Part B requirements. Id. 49. Dr. Amy Maisterra is OSSE’s Assistant Superintendent of Elementary, Secondary, and Specialized Education. 2015 Maisterra Direct ¶ 1. She was previously OSSE’s Assistant Superintendent for the Division of Specialized Education. Maister-ra Dep. 6:11-14, June 2, 2014, Pis.’ Ex. 14. OSSE’s Division of Specialized Education “is responsible for overseeing the development and promulgation of state policy governing special education; monitoring LEAs for compliance with IDEA as well as other federal and local regulations and court-ordered consent decrees; allocation and administration of IDEA grant funds to LEAs and other public agencies; provision of training and technical assistance to LEAs; and investigation and resolution of state complaints relating to special education.” OSSE website, Pis.’ Ex. 58. 50. DCPS keeps documents and data related to children who receive referrals to Early Stages in the Early Stages database, part of which is then uploaded into a different database, called the SEDS. Com-pagnucci Dep. 20:14-21:2, 21:17-22:11, 32:13-33:2, 43:3-6, 43:15-44:16, 45:9-48:10, Aug. 12, 2014, Pis.’ Ex. 21. OSSE requires documents and data related to children who receive referrals to be uploaded into SEDS. 2011 Maisterra Direct ¶ 7; Maister-ra Dep. 336:18-337:3, July 2, 2014, Pis.’ Ex. 18. 51. OSSE uses SEDS to prepare statistics for this case and for reporting to OSEP, Direct Examination of Anupama Proddutur ¶2, EOF No. 477-12 (“Proddu-tur Direct”); Proddutur Dep., July 2, 2014, Pis.’ Ex. 18; Maisterra Dep. 336:18-337:3, July 2, 2014, Pis.’ Ex. 18. These statistics include data such as the number of children who have IEPs at a given point in time, the percentage of children who receive an eligibility determination within 120 days over a given period of time, and the percentage of children who receive a smooth and effective transition from Part C to Part B services over a given period of time. See Proddutur Direct ¶ 2. To calculate the percentage of children who receive a smooth and effective transition from Part C to Part B services, in addition to SEDS, OSSE uses data from the Early Stages database and the Part C database (a separate database that tracks data related to children receiving Part C services). See Proddutur Dep. 164:17-165:11, July 2, 2014,' Pis.’ Ex. 18; Trial Tr., De-Haan Test., Nov. 13,2015,17:21-18:8. 52. Plaintiffs contend that the District’s policies, procedures, and practices are deficient, as evidenced in large part by the District’s own data. Essentially, they allege that the District’s statistics — which on their face help to demonstrate the District’s compliance — are prepared in a way that makes it appear that the District’s policies, procedures, and practices are more effective than they actually are. Indeed, the bulk of the plaintiffs’ evidence examines the data that underpins the District’s contention that it is and has been serving over • 8.5% of the preschool-age population, performing timely eligibility determinations for over 95% of referred children, and smoothly and effectively transitioning over 95% of children into Part B. The plaintiffs argue that these numbers are inflated because the District applies incorrect assumptions and-in some cases misreports outcomes. The District counters plaintiffs’ arguments primarily by focusing on the enactment and design of its policies and arguing that its reporting practices were “developed around the federal Department’s guidance.” Defs.’ Proposed Findings of Facts and Conclusions of Law ¶ 65, and produce accurate and valid results “across staff and across reports.” Id. at 64. In other words, the District fails to challenge plaintiffs’ evidence on its own terms. As the defendants point out, the plaintiffs litigation strategy has shifted from the 2011 trial to the more recent trial conducted in November 2015. See, e.g., Trail Tr., Nov. 12, 2015, 19:8-10 (District’s counsel: “[T]he statistics that plaintiffs offer today are not the statistics that the Court credited in' 2011. It’s not apples to apples.”). Indeed, the plaintiffs’ arguments and evidence have evolved to focus on the outcomes and effectiveness of the District’s policies and the accuracy of its statistical conclusions in addition to the design of the polices themselves. See, e.g., id. at 20:6-8 (District’s counsel: “This time, unlike in 2011, plaintiffs will not critique any major or substantive aspect of the District’s preschool Part B program.”). But as plaintiffs’ arguments have developed, the defendants for the most part presented evidence as though plaintiffs’ litigation strategy has remained constant since 2011. The District claims its statistics show its policies are effective and are implemented - a. way that complies with the IDEA’S requirements. In presenting this evidence, however, the District does very little to counter the plaintiffs’ core theory and substantial testimony that the District’s self-reported data significantly inflate the District’s actual rates of compliance. Even assuming the District “has always been clear with OSEP on how the District selects data points,' collects data, and calculates statistics,” Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 65 (quoting 2015 Maisterra Direct ¶ 15), it does not follow that the District’s assumptions are well founded and that its reporting is accurate. Indeed, plaintiffs have offered ample evidence that speaks to the substance of the District’s statistics, while the District has responded primarily with conclusory assertions that its statistics are “accurate[e] and valid[ ] across staff and across reports,” id. at ¶ 64, and with evidence showing it has made noticeable improvements since 2011. In the Court’s view, however, substantial progress and good faith efforts are insufficient to satisfy the IDEA’S affirmative duties. For the District to comply with the IDEA and District law, its policies and procedures must produce the proper results — something that plaintiffs’ evidence demonstrates they are currently failing to do. 53.While the District’s policies, procedures, and practices are important, the outcomes of those policies, procedures, and practices are even more critical. The Court made this clear when it adjudicated the motions for summary judgment. Mem. Op. 18-19, ECF No. 444 (“The question ... is whether the District’s policies were successfully implemented, thus ensuring that the District met the required conditions.”); id. at 27 (“Indeed, evidence that the District is failing to identify, evaluate, determine eligibility for, and transition large numbers of students may necessarily reflect a failure in policies and procedures.”); id. at 34 (“While the District thoroughly details the policies it has enacted since 2010, the Court must also consider the effectiveness of these policies in achieving compliance with IDEA and D.C. law.”); id. at 38 (“[Plaintiffs’ statistics tend to show that the District’s policies — whatever' they may be — have failed to ensure that eligibility' determinations are timely.”) (emphases in original). 54. The Court also previously found, see Mem. Op. ¶¶ 60-63, ECF No. 294, and finds again, that the District has improved, and that its improvement, including reforms to the District’s Child Find-related policies, procedures, and practices, and the organization of the Early Stages Center, occurred during and because of this lawsuit. See accompanying Mem. Op. issued on this date, at 15-18. 55. Despite the District’s extensive testimony about the strengths of its program, see, e.g., Trial Tr., Maisterra Test., Nov. 13, 2015, 15:9-10, its deficiencies have continued, although to- a .lesser degree. The plaintiffs have provided evidence that corresponds specifically to the alleged harms suffered by each subclass, evidence which the District has not successfully rebutted. This evidence tends to demonstrate that despite the District’s efforts, it is failing to identify preschool-age disabled children for the purposes of offering them special education and related services, failing to timely determine the eligibility of preschool-age children for special education and related services, and failing to provide a smooth and effective transition from the early intervention program under Part C of the IDEA to preschool special education and related services under Part B by the child’s third birthday. D. CHILDREN RECEIVING SPECIAL EDUCATION SERVICES 56. As described below, the District should be providing special education and related services to at least 8.5% of its preschool-age population. See infra paras. 59-82. The District contends that it served between 8.40% and 9.89% of that population monthly since January 2013, when it began producing monthly data. See District of Columbia Monthly Enrollment Reports, Defs.’ Ex. 53, at 5-6 (displaying a high in Mar. 2013 of 9.89%), 45-46 (displaying a low in Nov. 2014 of 8.40%); see also Pis.’ Ex. 285, at 1; Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 101. These numbers, however, áre not accurate, in large part because they are calculated using an outdated census figure. See infra paras. 86-95. 57. When calculating its data appropriately (e.g., using an annual population estimate rather than the 2010 census figure), the District served a high of 8.04% of its preschool-age population in March 2013, a figure which fell nearly monthly to a low of 6.27% in November 2014. See infra para. 84. In other words, the District failed to provide special education and related services to between 98 and 515 children, varying monthly, since' 2013. Id. The District contends that it is screening over half of its preschool-age population. See Trial Tr., Beers Test., Nov. 13, 2015, 21:13-18; see also Defs.’ Proposed Findings of Fact and Conclusions of Law ¶¶ 77-78 (describing the safeguards and procedures the city has in place to ensure that families are able to “receive developmental screenings”). Despite these efforts, at any given time, hundreds of children are still not receiving needed special education and related services. 58. Moreover, the District reported to OSEP that it provided special education and related services to 1,429 three-to-five-year-old children for 2014-2015, which amounts to only. 6.19%- of the District’s preschool population. See infra para. 96. That is a decline of approximately 19% since 2011 and is essentially equal to the average percentage of children served nationwide. See supra paras. 97-98. Based on its risk factors, the District should be serving substantially more children than the national average. The District is far from meeting the 8.5% benchmark. 1. The District Should Be Serving at Least 8.5% of Its Preschool-age Population with Special Education and Related Services 59. OSEP tracks the percentage of children who receive special education and related services in each state and similar jurisdictions. 2015 Dunst Direct ¶ 44. The District has historically provided special education and related services to the lowest or near the lowest percentage of preschool-age children in the United States. 2015 Dunst Direct ¶¶ 45-46; see infra paras. 191-99; see also Mem. Op. ¶¶ 25-28, EOF No. 294. That is true despite the fact that, based on risk factors in the District, and the fact that it is the only entirely urban jurisdiction, it has the largest percentage of children who may be eligible for special education services: 2015 Dunst Direct ¶¶ 36-413; see also Mem. Op. ¶¶ 29-30, EOF No. 294. Otherwise said, the District has had the highest need for special education services, but has historically provided those services to the fewest children. 2015 Dunst Direct ¶ 43. 60. In 2011, the Court found that the District violated federal and District law by failing to provide Part B services to a substantial number of three-to-five-year-old children. Mem. Op. ¶¶ 111-13, ECF No. 294. The Court also found that, “on the low end, the District should expect to be serving 8.5% of its preschool-age population with Part B services.” Id. at ¶ 30. Accordingly, the Court ordered the District to “ensure that at least 8.5 percent of children between the ages of three and five years old, inclusive ... who reside in or are wards of the District of Columbia, are enrolled in special education and related services under Part B of IDEA.” Id. at ¶ 147. 61. At the recent trial, Dr. Dunst again explained why the District should currently be serving at least 8.5% of its preschool-age population with Part B services, a figure that is in line with the Court’s benchmark set in 2011. 2015 Dunst Direct ¶¶ 29-40; Trial Tr., Dunst Test., Nov. 12, 2015, 117:25-119:7, 128:6-19. Dr. Dunst based this figure upon evidence related to risk factors in the District, comparisons to other jurisdictions, and incidences of developmental delays nationwide. 2015 Dunst Direct ¶¶ 29-40; Trial Tr., Dunst Test., Nov. 12, 2015, 117:25-119:7, 128:6-19. He explained that the relevant risk factors in the District are high, meaning that children in the District face higher risks of experiencing developmental disabilities than the national average. 2015 Dunst Direct ¶¶ 41-42. These greater risk factors contribute to the relatively high target 8.5% enrollment rate, which is a few percentage points above the national enrollment figure. Id. And importantly, these risk factors have not materially changed since 2011, when the Court first found that the 8.5% enrollment benchmark was appropriate. Id.', see also U.S. Census Bureau, Small Area Income and Poverty Estimate, Under Age 5 in Poverty, Pis.’ Ex. 193, at 4 (2007, 26.1% in poverty; 2013, 26.8% in poverty); see generally Data Related to Risk Factors, Pis.’ Ex. 287. Looking to the specific risk factors, as of the November 2015 trial, 55% of the number of children in the District live in single parent households, see Pis.’ Ex. 287, at 4126, 15% live in non-English speaking households, id. at 4130, 14% live in households where parents have less than a high school education, id. at 4131,23% of households receive assistance through the Supplemental Nutrition Assistance Program (the highest in the country), id. at 4132, 33% live in concentrated poverty areas, id. at 4134, and 22% of families experience severe housing problems, id. at 4135. 62. Dr. Dunst’s conclusion that thé.- District should be serving 8.5% of its preschool population is also entirely consistent with the District’s documents and Dr. Beers’ testimony at the last trial, although at that time Dr. Beers suggested that the benchmark should be even higher. The Early Stages Family Care Manual states: “Given DC’s risk factors for developmental delays, including low birth weight, poverty, and HIV/AIDS infection, DC’s projected identification rate is about 12%.” See Pis.’ Ex. 72, at DL 204. When asked at his 2011 deposition about how the 12% figure was derived, Dr. Beers testified that it was an estimation based upon the identification rates of other urban jurisdictions, namely Atlanta and Detroit, which “range[d] between 10 to 12 percent, but [the District] picked 12 percent as an aggressive target that [it] wanted people to strive towards.” Beers Dep. 61:12-62:11, Mar. 1, 2011, Pis.’ Ex. 12. At the recent trial, Dr. Beers explained that he initially looked at a range of 10-12%, and then looked at a range of 8-12%: I believe in my testimony here when we talked in 2011, we talked about a range from 10 to 12 percent. We were still at that point moving rapidly and we had gone from about 2 percent of the eligible kids to about 4 percent of eligible ki[d]s at the time we appeared in court at that time. So at that point we had also a better estimation of what we were going to get when we were screening kids and started talking about a range of 8 to 12 ■ percent as where we thought was a reasonable place for us to get over time, •recognizing that I had no data when I arrived in 2009. Trial Tr., Nov. 13, 2015, 20:22-21:6; see also Mem. Op. ¶ 30, EOF No. 294. 63. Whether' it is Dr. Dunst talking about 8.5%, or Dr. Beers talking about 10 to 12% (or 8 to 12%), both individuals were addressing the percentage of children who would be served. Dr. Dunst testified that the District “should expect to be serving 8.5 percent of its preschool-age population with Part B services.” 2015 Dunst Direct ¶ 40. Although other language in his direct examination made it appear as though he meant -this to relate just to children who are found eligible .for Part B services, he explained that he meant it as an estimate of “eligibility, enrollment, and provision of services.” Trial Tr., Dunst Test., Nov. 12, 2015, 130:15-16. Indeed, he provided extensive testimony comparing the number of children receiving special education and related services in the District with the 8.5% benchmark. 2015 Dunst Direct ¶¶ 43-88. Dr. Beers similarly explained, at the last trial, that the District’s “identification rate” relates to children receiving services. See Trial Tr„. Apr. 6, 2011, Pis.’ Ex. 6, 175:23-176:18. 64. The 8.5% benchmark is also consistent with portions of Dr. Freund’s previous testimony. See Freund Dep. 57:3-7, Oct. 1, 2014, Pis.’ Ex. 22 (“[I]t certainly seems to be somewhere in the 8 percent area might be the current appropriate identification of children with disabilities preschool, given the current population.”). 65. It is also consistent with many of the District’s own documents. For example, the District’s Special Education Monitoring & Compliance Manual (IDEA Part B) from August 2014 uses 8% as the enrollment benchmark: Child Find monitoring is a process designed to ensure that students with disabilities are being appropriately identified and served by their LEAs. Twice a year, OSSE will review the enrollment rates for students with qualifying disabilities under IDEA at each LEA. LEAs that have special education enrollment rates of less than 8% of the total student population will be reviewed to ensure that the LEA has proper special education referral and eligibility processes in place, and to ensure that 'LEA staff understand their obligation to provide special education and related services to students with disabilities. Pis.’ Ex, 51, at 15 (emphasis added). 66. In addition, the current version of the Early Stages Manual, which is maintained online and is date stamped April 29, 2015, and includes updates as of April 2015, states: “Nationally, about 6% of three-to-five year olds are identified with developmental delays, but taking into consideration the additional risk factors in DC, including low "birth weight, poverty, and HIV/AIDS infection, the number of children who are expected to be