United States District Court, District of Columbia
JORIE WIMBISH, et al. Plaintiffs,
DISTRICT OF COLUMBIA, Defendant.
G. SULLIVAN UNITED STATES DISTRICT JUDGE
Jorie Wimbish (“Ms. Wimbish”), on behalf of her
minor daughter J.W.,  brings this action against Defendant
District of Columbia (the “District”) under the
Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. §§ 1400 et
seq., seeking partial reversal of a Hearing
Officer's decision (the “HOD”). Since 2014,
J.W., a resident of the District, has been enrolled in Stuart
Hall School (“Stuart Hall”), a private boarding
school in Staunton, Virginia. She is eligible for special
education services. It is uncontested that in August 2015,
the District of Columbia Public Schools (“DCPS”)
unilaterally decided that she was ineligible for those
services without proper notice to her parents, an evaluation,
an individualized education program (“IEP”), and
an appropriate placement for the 2015-2016 school year. After
an administrative due process hearing in November 2015, an
impartial Hearing Officer determined that DCPS denied J.W. a
free appropriate public education (“FAPE”) by
terminating her special education services without an
evaluation, an IEP, and an appropriate placement. The Hearing
Officer also determined that DCPS violated IDEA by failing to
provide Ms. Wimbish with prior written notice of its
fashioning a remedy, the Hearing Officer issued an HOD that
imposed certain conditions. First, the HOD required Ms.
Wimbish to obtain written permission from Stuart Hall for
DCPS to conduct observations and interviews there, with Ms.
Wimbish to bear the costs associated with any legal action to
compel Stuart Hall to authorize the on-site observations and
interviews by DCPS. Second, the HOD restricted Ms.
Wimbish's future due process complaints in that she could
not challenge the adequacy of J.W.'s evaluation if DCPS
determined that J.W. was ineligible for special education.
Despite finding that J.W. was entitled to an evaluation
before DCPS' decision that she was no longer a child with
a disability, the HOD declined to order any further
assessments of J.W. Ms. Wimbish challenges these portions of
Wimbish asks this Court to, among other things, order the
District to: (1) conduct a full evaluation of J.W. in all
areas of suspected disability, and if she disagrees with that
evaluation, an independent educational evaluation
(“IEE”) at public expense in line with market
rates; (2) convene a meeting of J.W.'s IEP team to review
the evaluations, determine her eligibility, and develop an
IEP for J.W. if she is eligible to receive an IEP; (3)
maintain J.W.'s placement at Stuart Hall until an IEP is
developed or she is determined to be ineligible for special
education services; and (4) reverse certain portions of the
before the Court are the parties' cross-motions for
summary judgment. Upon careful consideration of the
parties' submissions, the applicable law, and the entire
record, the Court concludes that: (1) the Hearing Officer
erred in ordering Ms. Wimbish to obtain written permission
from Stuart Hall for DCPS to conduct on-site observations and
interviews and requiring her to bear the costs associated
with any legal action to compel those observations and
interviews there; and (2) the Hearing Officer did not provide
a reasoned explanation for restricting Ms. Wimbish's
ability to challenge the adequacy of J.W.'s evaluation in
future due process complaints. Because the Hearing Officer
did not provide an adequate remedy for DCPS' failure to
conduct an evaluation of J.W. before its ineligibility
determination, the Court directs the District to conduct a
full evaluation of J.W. Therefore, the Court
GRANTS Plaintiffs' motion for summary
judgment and DENIES the District's
cross-motion for summary judgment.
Court begins with the statutory and regulatory framework
under IDEA, and then turns to the facts and procedural
history in this matter.
Statutory and Regulatory Framework
1975, Congress enacted IDEA “to ensure that all
children with disabilities have available to them a [FAPE]
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). A FAPE must
“sufficient[ly] . . . confer some educational benefit
upon the . . . child.” Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200
(1982). To that end, “IDEA requires state and local
educational agencies that seek federal funding to first adopt
procedures for securing appropriate services for students
with disabilities.” Davis v. District of
Columbia, 244 F.Supp.3d 27, 31 (D.D.C. 2017).
District's sole local educational agency, DCPS must
identify children who may have disabilities and then evaluate
those impairments. Id. at 31-32 (citing 20 U.S.C.
§ 1401(3)(A); id. § 1414; 34 C.F.R.
§§ 300.301-.311); see also N.G. v. District of
Columbia, 556 F.Supp.2d 11, 25 (D.D.C. 2008)
(“DCPS has a duty to locate [potential candidates] and
complete the evaluation process.”). Importantly,
DCPS' obligations under IDEA extend to residents of the
District who attend out-of-District schools. District of
Columbia v. Abramson, 493 F.Supp.2d 80, 86 (D.D.C. 2007)
(“Just because Connecticut may have child find
responsibilities of its own and just because S.A. is
currently enrolled in school in Connecticut does not relieve
DCPS from having to fulfill its own responsibilities as the
[local educational agency] of residence to evaluate the
student and make FAPE available.”).
not all disabilities are permanent or even manifest, the
school district generally must reevaluate a
child's status at least once every three years and at
most annually.” Davis, 244 F.Supp.3d at 32
(emphasis added) (citing 20 U.S.C. § 1414(a)(2)(B)).
Under certain circumstances, parents have the right to an IEE
at public expense. 34 C.F.R. § 300.502(b). If a parent
requests an IEE at public expense, the public agency must
“without unnecessary delay” either initiate a
hearing to show that its evaluation is appropriate or ensure
that an IEE is provided at public expense. Id.
school district must not decide that the child is ineligible
for special education services without conducting a
reevaluation. E.g., 20 U.S.C. § 1414(c)(5).
IDEA expressly provides that “a local educational
agency shall evaluate a child with a disability in
accordance with this section before determining that the
child is no longer a child with a disability.”
Id. § 1414(c)(5) (emphasis added); see
also 34 C.F.R. § 300.305(e)(1) (“[A] public
agency must evaluate a child with a disability in accordance
with §§ 300.304 through 300.311 before determining
that the child is no longer a child with a
may seek administrative and judicial relief if they object to
the “identification, evaluation, or educational
placement” of the student, or the provision of a FAPE.
See 20 U.S.C. § 1415(b)(6)(A); see also
Id. § 1415(f)(1). A parent may first request an
impartial administrative due process hearing. This process
involves the parent filing an administrative due process
complaint, and then an impartial Hearing Officer determining
during the hearing whether the student received a FAPE.
See id. § 1415(f)(3)(E)(i). After the hearing,
“any party aggrieved by the findings and decision . . .
shall have the right to bring a civil action with respect to
the complaint presented” to the Hearing Officer
“in a [federal] district court . . . .”
Id. § 1415(i)(2)(A).
material facts in this case are undisputed. See
Pls.' Statement of Material Facts Not in Dispute
(“SOMF”), ECF No. 43-3 at 1-2. The Court assumes
the parties' familiarity with the factual background and
procedural history, which are set forth in greater detail in
the Court's two prior opinions. See Wimbish v.
District of Columbia (“Wimbish I”),
153 F.Supp.3d 4 (D.D.C. 2015); see also Wimbish v.
District of Columbia (“Wimbish
II”), 251 F.Supp.3d 187 (D.D.C. 2017).
and Ms. Wimbish are residents of the District. Pls.'
SOMF, ECF No. 43-3 at 1 ¶ 2. In 2007, J.W. was diagnosed
with, among other things, Attention Deficit Hyperactivity
Disorder (“ADHD”). Neuropsychological Evaluation
Report, ECF No. 35-4 at 38-39. As a student with a disability,
she was deemed eligible for special education services
pursuant to IDEA under the “Other Health
Impairment” classification. Admin. Due Process Compl.
Notice, ECF No. 35-9 at 36 ¶ 2; see also IEP,
ECF No. 35-4 at 10. From 2008 to 2014, DCPS funded her
placement at a full-time special education day school.
Wimbish I, 153 F.Supp.3d at 7. Because that school
was too restrictive a placement for her, Ms. Wimbish and DCPS
agreed that J.W. should be transferred to a less-restrictive
2014-2015 school year, DCPS was required to develop an
updated IEP for J.W. and propose an appropriate school
placement for her. Id. The parties met to develop an
IEP in June 2014, but they did not agree as to the finality
of the IEP developed at that meeting. Id. With the
encouragement of DCPS officials, Ms. Wimbish enrolled J.W. in
Stuart Hall-a school that provided services for her
disability-before the beginning of the 2014-2015 school year.
Id. A neuropsychological evaluation was conducted on
October 16, 2014, and it confirmed J.W.'s disability.
Neuropsychological Evaluation Report, ECF No. 35-4 at 37-50.
filing an administrative due process complaint in January
2015 with the Office of Dispute Resolution alleging DCPS had
failed to develop an IEP for J.W. for the 2014-2015 school
year and had failed to propose an appropriate placement, a
Hearing Officer issued a March 2015 decision in Ms.
Wimbish's favor-a decision that neither party appealed.
Wimbish I, 153 F.Supp.3d at 8.
August 2015, DCPS and Ms. Wimbish met, and the meeting was
scheduled to prepare an IEP for the 2015-2016 school year.
Id. Instead of developing an updated IEP, however,
DCPS informed Ms. Wimbish that J.W. was no longer eligible
for special education services and the DCPS representatives
aimed instead to develop a plan for accommodations under
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 701 et seq. Id. at 8-9. In turn, Ms.
Wimbish requested an adjournment of the meeting, but DCPS
pressed forward with the meeting in the absence of Ms.
Wimbish and her counsel. Id. at 9. Thereafter, DCPS
developed a Section 504 plan for J.W. without Ms.
Wimbish's participation. Id. DCPS issued a Final
Eligibility Determination Report, which found that J.W. was
ineligible for special education services. HOD, ECF No. 35-2
at 24 ¶ 91. This decision was based on the October 2014
neuropsychological evaluation. HOD, ECF No. 35-2 at 22
¶¶ 80-81, 28 ¶ 119.
August 2015 Due Process Complaint
August 2015, Ms. Wimbish challenged the unilateral decision
of DCPS to discontinue J.W.'s special education services
by filing an administrative due process complaint.
she alleged that DCPS:
(1) failed to evaluate the student prior to exiting her from
special education; (2) failed to provide a prior written
notice before changing the student's eligibility; (3)
failed to have an IEP in place prior to the beginning of the
school year; (4) failed to provide an appropriate placement
prior to the beginning of the 2015-16 school year, including
failure to involve Ms. Wimbish in the placement decision; and
(5) retaliated against Ms. Wimbish for exercising her rights
to litigate claims through a due ...