Wimbish v. Dist. of Columbia

• Decision Date: 03 April 2019
• Docket Number: No. 15-cv-1429 (EGS),15-cv-1429 (EGS)
• Citation: 381 F.Supp.3d 22
• Parties: Jorie WIMBISH, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

381 F.Supp.3d 22

Jorie WIMBISH, et al., Plaintiffs,

v.DISTRICT OF COLUMBIA, Defendant.

No. 15-cv-1429 (EGS)

United States District Court, District of Columbia.

Signed April 3, 2019

Charles Anthony Moran, Steve Nabors, Moran & Associates, Washington, DC, for Plaintiffs.

Tasha Monique Hardy, Office of Attorney General, Washington, DC, for Defendant.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

I. Introduction

Plaintiff Jorie Wimbish ("Ms. Wimbish"), on behalf of her minor daughter J.W.,¹ 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 ineligibility determination.

In 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 the HOD.

Ms. 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 HOD.

Pending 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.

II. Background

The Court begins with the statutory and regulatory framework under IDEA, and then turns to the facts and procedural history in this matter.

A. Statutory and Regulatory Framework

In 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, 102 S.Ct. 3034, 73 L.Ed.2d 690 (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).

As the 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.").²

"As 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. § 300.502(b)(2).

A 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 disability.").

Parents 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).

B. Factual Background

The material facts in this case are undisputed. See Pls.' Statement of Material Facts Not in Dispute ("SOMF"), ECF No. 43-3 at 1-2.³ 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).

J.W. 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 38-39.⁴ 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 environment. Id.

For the 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.

After filing an administrative due process complaint in January 2015 with the Office of Dispute Resolution...