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Wimbish v. District of Columbia

United States District Court, D. Columbia.

December 22, 2015

JORIE WIMBISH et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant

          For J.W., Plaintiff: Steve Nabors, MORAN & ASSOCIATES, Washington, DC USA; Carolyn W. Houck, LAW OFFICE OF CAROLYN HOUCK, St. Michaels, MD USA.

         For Jorie Wimbish, Plaintiff: Carolyn W. Houck, LEAD ATTORNEY, LAW OFFICE OF CAROLYN HOUCK, St. Michaels, MD USA; Steve Nabors, LEAD ATTORNEY, MORAN & ASSOCIATES, Washington, DC USA.

         For District of Columbia, A Municipal Corporation, Defendant: Tasha Monique Hardy, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL/DC, Washington, DC USA.

         MEMORANDUM OPINION

         Emmet G. Sullivan, United States District Judge.

         On September 1, 2015, Plaintiff Jorie Wimbish, on behalf of her minor daughter, J.W.,[1] filed a Motion for Preliminary Injunction, Docket No. 3, seeking to invoke the " stay-put" provision of the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1415(j), to require the District of Columbia (" the District" ) to fund J.W.'s placement at a private school during the pendency of all administrative and judicial proceedings in Plaintiffs' underlying IDEA case. Following a hearing on Plaintiffs' motion on October 8, 2015, the Court granted the motion, and requested supplemental briefing on the issue of whether the District would be required to fund 50% or 100% of Plaintiffs' cost of attendance at the private school. October 9, 2015 Minute Order. This Memorandum Opinion accompanies the Court's October 8, 2015 oral ruling and October 9, 2015 Minute Order, and resolves the outstanding issue regarding the District's funding obligation. For the following reasons, Plaintiffs' motion to require the District of Columbia to fund J.W.'s placement at Stuart Hall is GRANTED. The District shall fund 100% of Plaintiffs' cost of attendance at Stuart Hall, retroactive to the commencement of the 2015-2016 school year and continuously thereafter through the completion of all administrative and judicial proceedings in this matter, unless the parties otherwise agree.

         I. BACKGROUND

         J.W. is a 14-year-old student whose parents reside in the District of Columbia. Pls.' Mem. Supp. Mot. Prelim. Inj. (" Pls.' Mem." ), Docket No. 3-1 at 1; Def.'s Mem. Opp. Mot. Prelim. Inj. (" Def.'s Mem. Opp." ), Docket No. 9 at 2. Sometime in 2007 or 2008, J.W. was deemed eligible for special education services under the IDEA as a student with a disability under the classification " Other Health Impairment (ADHD)" . Pls.' Mem. at 1; Def.'s Mem. Opp. at 2. From 2008 to 2014, D.C. Public Schools (" DCPS" ) funded J.W.'s placement at Kingsbury Day School (" Kingsbury" ), a full-time special education day school. Pls.' Mem. at 2; Def.'s Mem. Opp. at 2. Early in the 2013-2014 school year, Ms. Wimbish and DCPS agreed that Kingsbury was too restrictive a placement for J.W. and that she should transfer to a less-restrictive environment. Pls.' Mem. at 1; Def.'s Mem. Opp. at 2.

         A. June 2014 Individualized Education Program (" IEP" )

         In June of 2014, prior to the beginning of the 2014-2015 school year, Ms. Wimbish and representatives from DCPS met to develop an updated individualized education program (" IEP" ) for J.W. Pls.' Mem. Ex. 1, Docket No. 3-3 (" March HOD" ) at 8. The IEP states that J.W. experiences anxiety which causes disruptions to her school day. See generally Pls.' Mem. Ex. 3, Docket No. 3-5 (" 2014 IEP" ). The IEP recommended 30 hours per week of specialized instruction outside the general education environment and various classroom accommodations including preferential seating and small group testing. Id. at 13. Following the June 2014 meeting, there was some dispute between the parties as to the finality of the IEP developed that day. In July 2014, DCPS reached out to Ms. Wimbish to schedule another IEP meeting to revise or rewrite the June IEP. March HOD at 9. Ms. Wimbish believed that the June IEP was final and refused to meet with DCPS again. Id.

         B. January 5, 2015 Due Process Complaint

         On January 5, 2015, Ms. Wimbish filed a " due process complaint" with DCPS' Office of Dispute Resolution alleging that DCPS failed to develop an appropriate IEP for J.W. for the 2014-2015 school year and failed to propose an adequate school placement. See generally Id. Ms. Wimbish, with the encouragement of DCPS officials, had enrolled J.W. at Stuart Hall, a private boarding school in Staunton, VA for the 2014-2015 school year. Id. at 9. The administrative complaint sought reimbursement from DCPS for J.W.'s cost of attendance.[2] Id.

         In a decision issued by an Independent Hearing Officer (" Hearing Officer Determination" or " HOD" ), dated March 29, 2015, the Hearing Officer found that DCPS had denied J.W. a free appropriate public education (" FAPE" ) for the 2014-2015 school year and ordered DCPS to fund 50% of Plaintiffs' tuition expenses at Stuart Hall for that year. Id. at 22. As the Hearing Officer explained:

[T]he District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate (" first criterion[]" )[,] the services selected by the parent are appropriate (" second criterion" ), and equitable considerations support the parent's claim (" third criterion" ), even if the private school in which the parents have placed the child is unapproved.

Id. at 12 (citing School Committee of the Town of Burlington v. Dep't of Educ., Mass., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); Florence Cnty Sch. Dist. Four et al. v. Carter by Carter, 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993)).

         On the first criterion, the Hearing Officer determined that the District's proposed placement was inappropriate or inadequate, resulting in a denial of a FAPE for J.W. for the 2014-2015 school year. Id. at 14-16. First, the Hearing Officer found that the June 2014 IEP " clearly provides the Student with an inappropriately restrictive program" in contravention of the IDEA's requirement that children be placed in the " least restrictive environment" appropriate for their disability. Id. at 13-15 (citing 20 U.S.C. § 1412(a)(5); N.T. v. Dist. of Columbia, 839 F.Supp.2d 29, 34-35 (D.D.C. 2012)). In the alternative, the Hearing Officer held that, if the June 2014 IEP was merely a " draft" IEP, as DCPS had argued, then J.W. had " no IEP at all ...


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