Jorie Wimbish et.al. v. District of Columbia

Civil Action No. 2015-1429

2019 | Cited 0 times | District of Columbia | April 3, 2019

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JORIE WIMBISH, et al.

Plaintiffs, v. No. 15-cv-1429 (EGS) DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

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

1 The Court shall refer to the minor by her initials. See Fed. R. Civ. P. 5.2(a)(3); see also LCvR 5.4(f)(2).

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.

2

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

3

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

(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

4

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

2 A child with a disability who is found to be eligible for special education services is entitled to an IEP. Davis, 244 F. Supp. 3d at 32. IDEA sets forth the requirements for an IEP. 20 U.S.C. § 1414(d). Courts typically use the same abbreviation— IEP—for an “individualized education plan” and an “individualized education program.” See, e.g., Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 , 448, 450 (2d Cir. 2015); Reid v. District of Columbia, 401 F.3d 516 , 519, 527 (D.C. Cir. 2005). “The IEP—a document that teachers reference in classroom instruction—‘sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.’” Davis, 244 F. Supp. 3d at 32 (quoting Honig v. Doe, 484 U.S. 305 , 311 (1988)); see also 20 U.S.C. § 1414(d)(1)(A). While the IEP may be modified with proper notice to the parents and a written explanation, the school district “must revise the [IEP] at least yearly in light of academic progress, changes in needs, and other recent educational or 5

“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

medical information.” Davis, 244 F. Supp. 3d at 32 (emphasis in original) (citing 20 U.S.C. § 1414(d)(4)(A)). 6

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).

3 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 7

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

4 The Administrative Record (“AR”) is filed on the Court’s electronic docket in two parts at ECF No. 35 through ECF No. 36- 10. 8

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 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.

In 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

9

was based on the October 2014 neuropsychological evaluation.

HOD, ECF No. 35-2 at 22 ¶¶ 80-81, 28 ¶ 119.

1. August 2015 Due Process Complaint

In 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. Id.

In it, 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 process hearing and for contacting the [District’s] City Council complaining of DCPS’ “fraud, waste, and abuse.”

Pls.’ Mem. of Points & Authorities in Support of Pls.’ Mot. for

Summ. J. (“Pls.’ Mem.”), ECF No. 43-1 at 3. Ms. Wimbish

requested, inter alia, that DCPS fund IEEs to include:

“(i) ADHD; (ii) anxiety disorder, (iii) language processing; and

(iv) an assessment to collect classroom observations, teacher

interviews and/or behavior ratings, staff interviews and/or

behavior ratings, interventions provided in the current school

setting, . . . [J.W.’s] responses to interventions, and school

data and teacher input regarding the impact of . . . [J.W.’s]

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ADHD on her academic performance[.]” HOD, ECF No. 35-2 at 8.

2. November 2015 Hearing Officer’s Decision

Following a two-day due process hearing, the Hearing

Officer issued a fifty-page HOD on November 16, 2015 and a

corrected one on November 19, 2015. See, e.g., Wimbish I, 153 F.

Supp. 3d at 9 n.4; Pls.’ SOMF, ECF No. 43-3 at 1-2 ¶¶ 5-11; AR,

EFC No. 35-1 at 3. In the HOD, the Hearing Officer made four

primary findings:

1) On or about August 18, 2015, [DCPS] denied [J.W.] a FAPE by exiting [J.W.] from special education without evaluating her in all areas of suspected disability.

2) [DCPS] violated IDEA by failing to provide sufficient advance notice to [Ms. Wimbish] that [J.W.’s] eligibility would be discussed and determined at the August 18, 2015 meeting; however, the [prior written notice] issued after the meeting was sufficient to inform [Ms. Wimbish] of the decision made at that meeting.

3) [DCPS] denied [J.W.] a FAPE by failing to have an IEP in place for [J.W.] prior to the beginning of SY 2015-16.

4) [DCPS] denied [J.W.] a FAPE by failing to provide an appropriate placement for her prior to the SY 2015-16.”

HOD, ECF No. 35-2 at 42. The Hearing Officer also issued an

order and explained that “the specificity of [the] Order [was]

required due to the apparent inability of the parties and their

counsel to work cooperatively, even to schedule meetings.” HOD,

11

ECF No. 35-2 at 43 n.15. 5 As such, the order imposed certain

conditions on the parties. Id. at 43-50, ¶¶ 1-33.

Two of those conditions are relevant here. See id. at 44-

45, ¶¶ 8-15, 21. First, the Hearing Officer required Ms. Wimbish

to “obtain written authorization from a non-public, parochial,

out-of-state boarding school to allow DCPS to observe their

school or, if the school resists, to shoulder the financial

burden of forcing the school to allow the DCPS observation

through legal action.” Pls.’ Mem., ECF No. 43-1 at 4; see also

Pls.’ SOMF, ECF No. 43-3 at 2 ¶ 12 (“If Ms. Wimbish is unable to

secure either of these options, the [HOD] allows the District to

reinstate its finding that J.W. is ineligible.”). Second, the

Hearing Officer stated that, if DCPS determined at an

5 The Hearing Officer found that “[Ms. Wimbish] was not a reliable witness” at the due process hearing, HOD, ECF No. 35-2 at 9; thus, he “assigned little weight to her testimony when it conflicted with other evidence[,]” id. at 10. The District argues that “the Court should therefore defer to the hearing officer’s findings of witness credibility in evaluating [Ms. Wimbish’s] appeal of the HOD.” Def.’s Mot., ECF No. 46 at 7. It is undisputed that a “hearing officer [is] entitled to make reasonable credibility determinations and, in the absence of extrinsic evidence to the contrary, those determinations are entitled to deference from [the] Court.” McAllister v. District of Columbia, 45 F. Supp. 3d 72 , 77 (D.D.C. 2014). In reviewing an HOD in an IDEA case, the Court need not disturb the Hearing Officer’s credibility findings to reverse an HOD that fails to comport with IDEA. See N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57 , 73, 73 n.6 (D.D.C. 2010) (reversing an HOD and “[i]n so ruling, the Court [did] not disturb the Hearing Officer’s findings regarding the credibility of the witnesses who gave testimony at the due process hearing.”). 12

eligibility meeting that J.W. was ineligible for special

education services after the observations, interviews, and other

data collection at the private boarding school, “[n]othing in

this Order precludes [Ms. Wimbish] from filing a new Due Process

Complaint over such a finding of non-eligibility.” HOD, ECF No.

35-2 at 47 ¶ 21. “However, [Ms. Wimbish] may not challenge the

adequacy of . . . [J.W.’s] evaluation on the ground that

additional assessments should have been conducted.” Id.

(emphasis added).

Finally, the Hearing Officer found that when DCPS

unilaterally decided to terminate J.W.’s special education

services in August 2015, DCPS “unreasonably relied upon the

October 16, 2014 neuropsychological evaluation as the primary

source of information about . . . [J.W.’s] disability and the

educational impact of her disability.” Id. at 28 ¶ 119. The

Hearing Officer also found that Ms. Wimbish had “not met her

burden of proof regarding the need for any other assessments

(e.g., ADHD, anxiety disorder, language processing, or updated

academic achievement).” Id. at 27 ¶ 90. He did not order a new

evaluation of J.W. See generally HOD, ECF No. 35-2. He required

“observations, interviews, and other data collection” at Stuart

Hall. Id. at 45 ¶ 11.

C. Procedural History

On December 16, 2015, Ms. Wimbish filed a partial appeal of

13

the HOD in this Court. Wimbish II, 251 F. Supp. 3d at 190; see

generally docket for Civil Action No. 15-2182. Ms. Wimbish

alleges, inter alia, that: (1) the Hearing Officer erred as a

matter of law by denying further assessment of J.W. (“Count I”);

(2) the Hearing Officer erred in requiring Ms. Wimbish to bear

the financial burden of compelling a non-public, out-of-state,

parochial boarding school to allow DCPS to inspect and observe

its campus (“Count III”); and (3) the Hearing Officer erred in

limiting Ms. Wimbish’s ability to contest DCPS’ future actions

in a due process hearing (“Count IV”). Compl., Civil Action No.

15-2182, ECF No. 1 at 9-11, 13-16 ¶¶ 69-80, 90-105. 6

6 Plaintiffs assert four other claims against the District: (1) the Hearing Officer erred in limiting the reimbursement amount for J.W.’s attendance at Stuart Hall (“Count II”); (2) the District violated Ms. Wimbish’s right to due process by selecting a hearing officer who had not been reviewed by the community review panel under D.C. Code § 38-2572.02 (“Count V”); (3) Ms. Wimbish is entitled to attorney’s fees and costs associated with the claims brought by her in the November 2015 hearing (“Count VI”); and (4) she is eligible for an award of expert costs pursuant to D.C. Mun. Regs. tit. 5-E, § 3023.3 (“Count VII”). Compl., Civil Action No. 15-2182, ECF No. 1 at 12-13, 16-19 ¶¶ 81-89, 106-131. Plaintiffs request that this Court dismiss Count II because “the District has complied with the stay put order and is directly funding J.W.’s placement at Stuart Hall.” Pls.’ Mem., ECF No. 43-1 at 10; see also Wimbish I, 153 F. Supp. 3d at 13 (ordering the District to “fund 100% of Plaintiffs’ cost of attendance at Stuart Hall until the conclusion of these proceedings, unless the parties otherwise agree.”). Plaintiffs also request that the Court dismiss Count V because “[o]n September 1, 2016, the Office of Dispute Resolution articulated its intent to create a Community Review Panel to select hearing officers as required by the D.C. Code.” Pls.’ Mem., ECF No. 43-1 at 10. Accordingly, the Court dismisses without prejudice Counts II and V as moot. See Adagio Inv. 14

On December 22, 2015, the Court consolidated the instant

partial appeal of the HOD under Civil Action No. 15-1429. E.g.,

Wimbish I, 153 F. Supp. 3d at 9 n.4; Minute Order, Civil Action

No. 15-2182 (Dec. 22, 2015). Since the Court’s two prior

decisions did not reach the merits of Ms. Wimbish’s partial

appeal, e.g., Wimbish I, 153 F. Supp. 3d at 9 n.4; Wimbish II,

251 F. Supp. 3d at 190, the parties filed cross-motions for

summary judgment. See, e.g., Pls.’ Mot. for Summ. J., ECF No.

43; Pls.’ Mem., ECF No. 43-1; Def.’s Opp’n & Cross-Mot. for

Summ. J. (“Def.’s Mot.”), ECF No. 46. Those motions are ripe and

ready for the Court’s adjudication.

III. Standard of Review

A. Cross-Motions for Summary Judgment

Under Federal Rule of Civil Procedure 56, “[t]he court

shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

see also Celotex Corp. v. Catrett, 477 U.S. 317 , 324 (1986). In

ruling on cross-motions for summary judgment, the Court shall

grant summary judgment only if one of the moving parties is

Holding Ltd. v. Fed. Deposit Ins. Corp., 338 F. Supp. 2d 71 , 75 n.7 (D.D.C. 2004) (dismissing claims based on plaintiffs’ representation that they were moot). At Plaintiffs’ request, the Court will stay Counts VI and VII until thirty (30) days after the Court issues this Memorandum Opinion. 15

entitled to judgment as a matter of law upon material facts that

are not genuinely disputed. See Citizens for Responsibility &

Ethics in Wash. v. U.S. Dep’t of Justice, 658 F. Supp. 2d 217 ,

224 (D.D.C. 2009).

B. IDEA

“The Court’s approach toward IDEA administrative decisions

diverges somewhat from its role in the typical lawsuit.” Davis,

244 F. Supp. 3d at 37. “Although the [cross-motions] bear the

familiar placard of ‘summary judgment,’ judicial review of

[HODs] does not follow ‘a true summary judgment procedure.’” Id.

(quoting L.R.L. ex rel. Lomax v. District of Columbia, 896 F.

Supp. 2d 69, 73 (D.D.C. 2012) (citation omitted)). Under IDEA,

the reviewing court “(i) shall receive the records of the

administrative proceedings; (ii) shall hear additional evidence

at the request of a party; and (iii) basing its decision on the

preponderance of the evidence, shall grant such relief as the

court determines is appropriate.” D.R. ex rel. Robinson v.

District of Columbia, 637 F. Supp. 2d 11 , 15–16 (D.C. Cir. 2009)

(quoting 20 U.S.C. § 1415(i)(2)(C)).

In an IDEA case, the HOD is afforded “less deference than

is conventional in administrative proceedings.” Reid, 401 F.3d

at 521 (citation and internal quotation marks omitted). While a

court must “engage in a more rigorous review of the decision

below than is typical in administrative cases,” it should

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“nevertheless accord the [HOD] due weight[,]” and “should not

substitute its own view of sound educational policy for that of

the hearing officer.” G.G. ex rel. Gersten v. District of

Columbia, 924 F. Supp. 2d 273 , 278 (D.D.C.2013) (internal

quotation marks omitted). Nonetheless, “a [HOD] without reasoned

and specific findings deserves little deference.” Reid, 401 F.3d

at 521 (citation and internal quotation marks omitted); B.D. v.

District of Columbia, 817 F.3d 792 , 797 (D.C. Cir. 2016)

(same). The burden of proof is with the party challenging the

administrative determination, who must “at least take on the

burden of persuading the [C]ourt that the Hearing Officer was

wrong.” Reid, 401 F.3d at 521 (citation omitted).

Finally, “when a school district denies a child a FAPE, the

courts have ‘broad discretion’ to fashion an appropriate

remedy.” Boose v. District of Columbia, 786 F.3d 1054 , 1056

(D.C. Cir. 2015) (quoting Florence Cty. Sch. Dist. Four v.

Carter, 510 U.S. 7 , 15–16 (1993)). Appropriate relief may entail

an order compelling a school district to conduct and fund an

evaluation of a child with a disability. See, e.g., Davis, 244

F. Supp. 3d at 52; Hill v. District of Columbia, No. 14-CV-1893

(GMH), 2016 WL 4506972 , at *26 (D.D.C. Aug. 26, 2016).

IV. Analysis

Ms. Wimbish seeks the partial reversal of the HOD on three

grounds: (1) the Hearing Officer erred in “conditioning J.W.’s

17

right to a FAPE on Ms. Wimbish[’s] ability to fund a type of

legal proceeding that does not exist and [that she] could not

afford even if it did[;]” (2) the Hearing Officer “violated

[her] right to bring a due process complaint by improperly

limiting the subject matter of any future due process

complaints[;]” and (3) the Hearing Officer “refused” to order

the District to comply with IDEA and “fully evaluate J.W.” Pls.’

Mem., ECF No. 43-1 at 1. The Court addresses each argument in

turn, concluding that Ms. Wimbish has demonstrated by a

preponderance of the evidence that the Hearing Officer erred in:

(1) requiring her to compel Stuart Hall to allow DCPS to conduct

observations and interviews at Stuart Hall; and (2) restricting

her ability to bring an administrative due process challenge for

future actions by DCPS. The Court also concludes that the

Hearing Officer erred as a matter of law by denying a full

evaluation of J.W. before DCPS decided that she was no longer

eligible for special education services. Ms. Wimbish is

therefore entitled to summary judgment.

A. The Hearing Officer Erred in Requiring Ms. Wimbish to Compel Stuart Hall to Allow DCPS to Conduct Observations and Interviews at Stuart Hall

Ms. Wimbish asks this Court to reverse and strike the

portion of the HOD that ordered her to “secure access for DCPS

employees to observe Stuart Hall’s campus” because it conditions

“J.W.’s receipt of a FAPE on Ms. Wimbish’s ability to pay for

18

legal action against Stuart Hall” and she “cannot comply with

[that] order as a matter of legal impossibility because no cause

of action exists to implement the order.” Pls.’ Mem., ECF No.

43-1 at 7. Ms. Wimbish states that she attempted to comply with

that portion of the HOD, but Stuart Hall rejected her request.

See Pls.’ Reply & Opp’n (“Pls.’ Reply”), ECF No. 47 at 2; see

also Letter from Douglas Burtch, Counsel for Stuart Hall, to

Tanya Chor, Counsel for DCPS, & Stevie Nabors, Counsel for

Ms. Wimbish (Sept. 14, 2015), ECF No. 47-1 at 4 (“Stuart Hall is

not open to this proposed on-site visit and observation.”).

[hereinafter “Stuart Hall Ltr.”]. According to Ms. Wimbish,

“[n]either the District nor [her counsel] have been able to

identify any legal proceedings which could produce such an

order.” Pls.’ Reply, ECF No. 47 at 1; see also Declaration of

Stevie Nabors, ECF No. 47-2 at 1-2 (explaining his extensive

legal research and efforts to possibly bring an action under

federal, D.C., or Virginia law to satisfy the HOD’s conditions)

[hereinafter “Nabors Decl.”].

The District responds that the Hearing Officer “correctly”

and “appropriately ordered Ms. Wimbish to facilitate the

District’s entrance into the school” for the “purposes of

evaluation, observation, and inspection.” Def.’s Mot., ECF No.

46 at 9-10. The District argues that this condition was

appropriate, in part, because “Ms. Wimbish unilaterally chose

19

for J.W. to attend [Stuart Hall].” Id. at 9. The District

contends that Ms. Wimbish has not taken any action to obtain a

court order to allow the observations at Stuart Hall, and she

has “failed to account for what, if any, costs would be

associated with obtaining said court order.” Id.; see also

Def.’s Reply, ECF No. 50 at 2.

The Court is not persuaded by the District’s arguments.

First, as Ms. Wimbish points out, the Hearing Officer improperly

allows the District to determine that J.W. is ineligible for

special education services if Ms. Wimbish fails to obtain a

court order, at her own expense, to compel Stuart Hall to permit

on-site observations and interviews there. See Pls.’ Mem., ECF

No. 43-1 at 8; see also HOD, ECF No. 35-2 at 45 (“If [Stuart

Hall] fails or refuses to provide permission . . ., [DCPS] may

reinstate the finding of the Student’s ineligibility for special

education and related services . . . .”). Neither IDEA nor its

implementing regulations contemplate conditioning eligibility

for special education services on such a requirement.

IDEA provides that DCPS must evaluate J.W. before

determining that she is no longer a child with a disability.

See, e.g., 20 U.S.C. § 1414(c)(5); 34 C.F.R. § 300.305(e)(1). It

also requires that J.W.’s special education services be

“provided at public expense, under public supervision and

direction, and without charge.” 20 U.S.C. § 1401(9) (emphasis

20

added). 7 Neither the Hearing Officer nor the District has cited

any authority to support the conditions placed on Ms. Wimbish

requiring her to bear the financial costs of compelling Stuart

Hall to permit the observations and interviews. See generally

HOD, ECF No. 35-2; Def.’s Mot., ECF No. 46; Def.’s Reply, ECF

No. 50. Therefore, the Hearing Officer placed an improper burden

on Ms. Wimbish, requiring her to take actions not required by

IDEA for J.W. to receive special education services at public

expense. Cf. Horne v. Potomac Preparatory P.C.S, 209 F. Supp. 3d

146 , 155 (D.D.C. 2016) (finding that a hearing officer

improperly placed the burden on the parent to renew her initial

request for an IEE, which was not required by IDEA).

The District’s arguments—that Ms. Wimbish has failed to act

to secure a court order and she has failed to provide the costs

for such an order—are unavailing. See Def.’s Mot., ECF No. 46 at

9-10; see also Def.’s Reply, ECF No. 50 at 2. Ms. Wimbish’s

counsel submitted a declaration in which he states that

7 The parties disagree as to whether two decisions, Wimbish I, 153 F. Supp. 3d at 13 and Susquenita Sch. Dist. v. Raelee S. By & Through Heidi S., 96 F.3d 78 , 86 (3d Cir. 1996), stand for the proposition that the Hearing Officer erroneously conditioned J.W.’s receipt of a FAPE based on Ms. Wimbish’s ability to bear the litigation costs against Stuart Hall. Compare Pls.’ Mem., ECF No. 43-1 at 8, with Def.’s Mot., ECF No. 46 at 10. Neither party denies that both decisions deal with IDEA’s “stay-put” provision. See 20 U.S.C. § 1415(j). The Court therefore rejects Plaintiffs’ attempt to analogize the issues raised in the instant partial appeal of the HOD to the issues presented in the two stay-put opinions dealing with a different IDEA provision. 21

Ms. Wimbish has “incurred $8,292 in attorneys’ fees for legal

research related to identifying a cause of action or proceeding

that could implement the HOD.” Nabors Decl., ECF No. 47-2 at 2.

The District does not challenge the declaration or the

statements contained therein. See generally Def.’s Reply, ECF

No. 50 at 1-4.

Further, her counsel’s legal research concluded that she

“cannot use the IDEA to secure an observation because Stuart

Hall does not accept federal funds” and “the Code of the

Commonwealth of Virginia provides no cause of action to compel

Stuart Hall to allow DCPS to observe its campus.” Pls.’ Mem.,

ECF No. 43-1 at 9 (citing Va. Code Ann. § 22.1); see also Pls.’

SOMF, ECF No. 43-3 at 1 ¶ 5 (“Stuart Hall does not receive

federal funds, therefore it is not subject to the IDEA or [the

Family Educational Rights and Privacy Act of 1974].”). The

District does not dispute Ms. Wimbish’s counsel’s research

indicating that Virginia law does not provide a cause of action

to compel Stuart Hall to permit DCPS to observe on its campus

and that IDEA does not offer a legal mechanism to do so. See

generally Def.’s Mot., ECF No. 46; Def.’s Reply, ECF No. 50. By

not responding to her argument that she cannot rely on IDEA for

DCPS to gain access to Stuart Hall’s property, the District has

conceded it. See Campbell v. Nat’l R.R. Passenger Corp., 311 F.

Supp. 3d 281, 327 n.13 (D.D.C. 2018). Indeed, Stuart Hall “is

22

exercising the traditionally private function of regulating

access to private property.” Tynecki v. Tufts Univ. Sch. of

Dental Med., 875 F. Supp. 26 , 33 (D. Mass. 1994).

As to the “legal impossibility” argument, the District

attacks it by contending that Ms. Wimbish failed to provide a

“sufficient legal basis” in relying on Virginia’s education

statute, Va. Code Ann. § 22.1-1, et seq. Def.’s Mot., ECF No. 46

at 10. 8 The District’s argument misses the point. Given that

Stuart Hall has refused to permit DCPS onto its campus and the

parties have not identified any legal proceedings to force a

private school to give the parties access to its property, it is

a legal impossibility for Ms. Wimbish to obtain Stuart Hall’s

permission to allow DCPS to enter Stuart Hall for the

observations and interviews. Cf. White v. Fraternal Order of

Police, 707 F. Supp. 579 , 593 (D.D.C. 1989) (“Where, as here,

all the facts in the letters are concededly true, it is a legal

impossibility for plaintiff to prove that the statements were

8 The District further contends that the “record evidence clearly shows that Stuart Hall” will not allow DCPS “to gain entry to its campus without a valid subpoena.” Def.’s Reply, ECF No, 50 at 1. This contention is unsupported by the record. See generally AR, ECF Nos. 35 & 36. Stuart Hall’s counsel states that the school “will produce documents and information concerning [J.W.] to DCPS when served with a valid, appropriate subpoena that would be binding on the school.” Stuart Hall Ltr., ECF No. 47-1 at 3. Nowhere in the letter does it state that Stuart Hall will allow DCPS to gain access to the school’s property with a subpoena. See id. 23

published with knowledge that they were false or with reckless

disregard of whether they were false or not.”), aff’d, 909 F.2d

512 (D.C. Cir. 1990).

The District’s other argument is equally unavailing. The

District suggests that Ms. Wimbish’s decision to enroll J.W. in

Stuart Hall and her “inaction” to “facilitate DCPS’s entrance

into Stuart Hall” created a “true ‘impossible’ situation.”

Def.’s Mot, ECF No. 46 at 10; Def.’s Reply, ECF No. 50 at 1-2.

It is disingenuous to blame Ms. Wimbish for the difficult

decision to place her child with a disability hours away from

her home to ensure that she could have “smaller class size[s]

with more individualized attention” and a “solid foundation of

academic skills[.]” Neuropsychological Evaluation Report, ECF

No. 35-4 at 37. The District ignores the difficult choice that

Ms. Wimbish faced when DCPS did not fulfil its obligations under

IDEA. See HOD, ECF No. 35-2 at 42. Because IDEA neither requires

her to gain access for DCPS to observe on Stuart Hall’s campus

nor pay for legal action against Stuart Hall, Ms. Wimbish has

demonstrated that the Hearing Officer erred in ordering her to

do so. Accordingly, the Court reverses and strikes the portions

of the HOD regarding Ms. Wimbish’s obligation to secure

permission for DCPS to observe at Stuart Hall, and to secure an

order requiring Stuart Hall to allow DCPS to observe there. See

L.O. ex rel. D.O. v. E. Allen Cty. Sch. Corp., 58 F. Supp. 3d

24

882, 894-95, 899 (N.D. Ind. 2014) (granting a party’s request to

strike a hearing officer’s orders).

B. The Hearing Officer Erred in Restricting Ms. Wimbish’s Ability to Bring an Administrative Due Process Challenge for Future Actions by DCPS

The Court next considers whether the Hearing Officer

unlawfully restricted Ms. Wimbish’s right to administratively

challenge the adequacy of J.W.’s future evaluation on the ground

that additional assessments should have been conducted. HOD, ECF

No. 35-2 at 47; see also Pls.’ SOMF, ECF No. 43-3 at 1 ¶ 5.

According to Ms. Wimbish, reversal of the portion of the HOD

that limited her right to bring an administrative due process

complaint is warranted and the Court should find that she has a

“right to challenge the District’s subsequent evaluation of or

failure to evaluate J.W. prior to terminating her services.”

Pls.’ Mem., ECF No 43-1 at 7. She argues that this portion of

the HOD violates the IDEA provision that gives her the right to

bring a due process complaint as to an evaluation of J.W. Id.

(citing 20 U.S.C. § 1415(b)(6)(A)). Finally, Ms. Wimbish

contends that the Hearing Officer failed to “provide any

explanation for this restriction on [her] ability to bring

future claims through a due process complaint.” Id. at 7.

The District maintains that the “[H]earing [O]fficer did

not err in precluding Plaintiffs from challenging the adequacy

25

of J.W.’s evaluation” 9 because he determined that she did not

prove the need for any other assessments. Id. at 8-9. The

District argues that the Hearing Officer “clarified” that

Ms. Wimbish was not precluded from filing a new due process

complaint with respect to an ineligibility finding. Def.’s Mot.,

ECF No. 46 at 9.

IDEA requires “an opportunity for any party to present a

complaint . . . with respect to any matter relating to the

identification, evaluation, or educational placement of the

child, or the provision of a [FAPE].” 20 U.S.C. § 1415(b)(6)(A)

(emphasis added). Neither party disputes that Ms. Wimbish has

this right. See Pls.’ Reply, ECF No. 47 at 6; see generally

Def.’s Reply, ECF No. 50. In fact, the District did not

9 The District contends that “in the Due Process Complaint at issue, Plaintiffs already challenged this point[.]” Def.’s Mot., ECF No. 46 at 8. Ms. Wimbish argues that the District’s implicit argument—that her due process challenge is barred by issue preclusion—should be rejected because the HOD “is so broadly written that it would bar [her] from bringing a due process complaint even in the event of future violations of the IDEA’s evaluation requirements.” Pls.’ Reply, ECF No. 47 at 7. She points out that IDEA mandates that “a student receive a full evaluation every three years,” 34 C.F.R. § 300.303(b)(2), and “substantial changes” have occurred in J.W.’s life since her last evaluation on October 16, 2014; thus, “issue preclusion cannot apply in this case.” Id. (citing Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292 , 2305-07 (2016) (holding that res judicata does not bar claims in a case involving “important human values” and “even a slight change of circumstances”). In its reply brief, the District does not address this argument, see generally Def.’s Reply, ECF No. 50; therefore, the District has conceded the argument by not responding to it. See Campbell, 311 F. Supp. 3d at 327 n.13. 26

challenge Ms. Wimbish’s argument as to her right under 20 U.S.C.

§ 1415(b)(6)(A) in its reply brief. See generally Def.’s Reply,

ECF No. 50.

The Court agrees with Ms. Wimbish that the Hearing Officer

failed to explain why he expressly prohibited her challenge to

the adequacy of J.W.’s evaluation “on the ground that additional

assessments should have been conducted.” HOD, ECF No. 35-2 at 47

¶ 21. This portion of the HOD appears to be predicated on the

finding that she failed to meet her burden of proof as to the

need for any other assessments. See id. at 24 ¶ 90. But the

Hearing Officer found that DCPS’ ineligibility determination was

“significantly impeded” by a “lack of information” about J.W.’s

specific supports at Stuart Hall. Id. The Hearing Officer also

found that Ms. Wimbish and her counsel did not have an

opportunity to participate in the ineligibility determination

because DCPS failed to provide them with adequate notice. Id. at

26 ¶ 89. Given that DCPS did not conduct an evaluation before it

determined that J.W. was ineligible for special education

services and that it “unreasonably relied upon the October 16,

2014 neuropsychological evaluation as the primary source of

information” for its unilateral decision, id. at 28 ¶ 119, the

Hearing Officer did not provide a reasoned explanation for the

part of the order that limits Ms. Wimbish’s ability to challenge

its failure to assess and/or evaluate J.W. See Reid, 401 F.3d at

27

521 (“[A] [HOD] without reasoned and specific findings deserves

little deference.” (citation and internal quotation marks

omitted)). “Consequently, the Hearing Officer’s ruling merits

little deference.” Shaw v. District of Columbia, No. 17-00738

(DLF/RMM), 2019 WL 498731 , at *8 (D.D.C. Feb. 8, 2019) (citing

Reid, 401 F.3d at 521), adopted by, 2019 WL 935418 (D.D.C. Feb.

26, 2019). The Court therefore finds that the Hearing Officer

erred in restricting Ms. Wimbish’s ability to assert a new due

process complaint. Accordingly, the Court reverses the portions

of the HOD that limit Ms. Wimbish’s right to bring an

administrative due process complaint on any matter under IDEA.

C. The Hearing Officer Erred as a Matter of Law by Denying a Comprehensive Evaluation of J.W. Before DCPS Decided That She Was No Longer Eligible for Special Education Services

Finally, the Court considers whether the Hearing Officer

erred as a matter of law in failing to order DCPS to fully

evaluate J.W. While Ms. Wimbish argues that the HOD refused to

order DCPS to fully evaluate J.W., see Pls.’ Mem., ECF No. 43-1

at 5, the District contends that the Hearing Officer ordered

psychological evaluations of J.W., see Def.’s Mot., ECF No. 46

at 7-9. The Court cannot agree with the District because the

record does not support the District’s contention.

As an initial matter, IDEA could not be any clearer: DCPS

“shall evaluate a child with a disability in accordance with

28

this section before determining that the child is no longer a

child with a disability.” 20 U.S.C. § 1414(c)(5) (emphasis

added); see also V.S. ex rel. A.O. v. Los Gatos-Saratoga Joint

Union High Sch. Dist., 484 F.3d 1230 , 1234 (9th Cir. 2007)

(holding that because the student was “officially classified as

a ‘child with a disability’ . . ., the school at that point, and

prospectively, had only two choices: 1) provide [the child]

services in accordance with the appropriately developed IEP, . .

.; or 2) properly complete the assessment in order to find her

ineligible.”).

It is undisputed that the Hearing Officer concluded that

DCPS denied J.W. a FAPE by “exiting” her from “special education

without evaluating her in all areas of suspected disability.”

HOD, ECF No. 35-2 at 42 (emphasis added). Despite this

conclusion, the Hearing Officer did not order an evaluation of

J.W. See generally HOD, ECF No. 35-2. In its effort to defend

DCPS, the District attempts to characterize the condition placed

on Ms. Wimbish to facilitate DCPS’ entrance onto Stuart Hall’s

property as an “order” for psychological evaluations. Def.’s

Mot., ECF No. 46 at 7. The District states that this condition

was “for purposes of evaluation, observation, and inspection.”

Id. at 9. The HOD and the record does not support the District’s

characterizations. See generally HOD, ECF No. 35-2. The Hearing

Officer ordered observations, interviews and other data

29

collection—not an evaluation. Id. at 44-45 ¶¶ 8-15. Furthermore,

the Hearing Officer did not order further assessments of J.W.

Id. at 24 ¶ 90.

“[A] reevaluation requires a new round of tests and

analysis to evaluate the child.” James v. District of Columbia,

194 F. Supp. 3d 131 , 143 (D.D.C. 2016); see also 20 U.S.C. §

1414(b), (c) (outlining the requirements for a reevaluation). In

James, the court found that DCPS’ “failure to conduct a new

comprehensive psychological evaluation of [the student] means

that her IEP might not be sufficiently tailored to her special

and evolving needs.” 194 F. Supp. 3d at 144 (emphasis added).

DCPS finds itself in the same situation for its failure to

evaluate J.W. Therefore, the Hearing Officer erred in not

requiring DCPS to evaluate J.W. because IDEA expressly provides

that she was entitled to an evaluation before DCPS decided that

she was no longer a child with a disability. See, e.g., 20

U.S.C. § 1414(c)(5); 34 C.F.R. § 300.305(e)(1).

Accordingly, the Court reverses the portions of the HOD

that improperly denied J.W. the appropriate relief for the

District’s IDEA violations. DCPS is ordered to conduct a full

evaluation of J.W. in all areas of suspected disability. See

James, 194 F. Supp. 3d at 144 (ordering DCPS to provide and fund

a full evaluation of a child for its reliance on an outdated

evaluation and failure to conduct a reevaluation). Furthermore,

30

if Ms. Wimbish disagrees with the evaluation, DCPS must fund an

IEE. See 34 C.F.R. § 300.502(b) (“A parent has the right to an

[IEE] at public expense if the parent disagrees with an

evaluation obtained by the public agency[.]”).

V. Conclusion

For the reasons set forth above, the Court GRANTS

Plaintiffs’ motion for summary judgment and DENIES the

District’s cross-motion for summary judgment. A separate Order

accompanies this Memorandum Opinion.

The Court DISMISSES without prejudice Counts II and V of

the Complaint as moot. The Court STAYS Counts VI and VII of the

Complaint until thirty (30) days after the date of this

Memorandum Opinion.

SO ORDERED

Signed: Emmet G. Sullivan United States District Judge April 3, 2019

31

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JORIE WIMBISH, et al.

Plaintiffs, v. No. 15-cv-1429 (EGS) DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

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

1 The Court shall refer to the minor by her initials. See Fed. R. Civ. P. 5.2(a)(3); see also LCvR 5.4(f)(2).

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.

2

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

3

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

(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

4

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

2 A child with a disability who is found to be eligible for special education services is entitled to an IEP. Davis, 244 F. Supp. 3d at 32. IDEA sets forth the requirements for an IEP. 20 U.S.C. § 1414(d). Courts typically use the same abbreviation— IEP—for an “individualized education plan” and an “individualized education program.” See, e.g., Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 , 448, 450 (2d Cir. 2015); Reid v. District of Columbia, 401 F.3d 516 , 519, 527 (D.C. Cir. 2005). “The IEP—a document that teachers reference in classroom instruction—‘sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.’” Davis, 244 F. Supp. 3d at 32 (quoting Honig v. Doe, 484 U.S. 305 , 311 (1988)); see also 20 U.S.C. § 1414(d)(1)(A). While the IEP may be modified with proper notice to the parents and a written explanation, the school district “must revise the [IEP] at least yearly in light of academic progress, changes in needs, and other recent educational or 5

“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

medical information.” Davis, 244 F. Supp. 3d at 32 (emphasis in original) (citing 20 U.S.C. § 1414(d)(4)(A)). 6

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).

3 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 7

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

4 The Administrative Record (“AR”) is filed on the Court’s electronic docket in two parts at ECF No. 35 through ECF No. 36- 10. 8

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 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.

In 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

9

was based on the October 2014 neuropsychological evaluation.

HOD, ECF No. 35-2 at 22 ¶¶ 80-81, 28 ¶ 119.

1. August 2015 Due Process Complaint

In 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. Id.

In it, 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 process hearing and for contacting the [District’s] City Council complaining of DCPS’ “fraud, waste, and abuse.”

Pls.’ Mem. of Points & Authorities in Support of Pls.’ Mot. for

Summ. J. (“Pls.’ Mem.”), ECF No. 43-1 at 3. Ms. Wimbish

requested, inter alia, that DCPS fund IEEs to include:

“(i) ADHD; (ii) anxiety disorder, (iii) language processing; and

(iv) an assessment to collect classroom observations, teacher

interviews and/or behavior ratings, staff interviews and/or

behavior ratings, interventions provided in the current school

setting, . . . [J.W.’s] responses to interventions, and school

data and teacher input regarding the impact of . . . [J.W.’s]

10

ADHD on her academic performance[.]” HOD, ECF No. 35-2 at 8.

2. November 2015 Hearing Officer’s Decision

Following a two-day due process hearing, the Hearing

Officer issued a fifty-page HOD on November 16, 2015 and a

corrected one on November 19, 2015. See, e.g., Wimbish I, 153 F.

Supp. 3d at 9 n.4; Pls.’ SOMF, ECF No. 43-3 at 1-2 ¶¶ 5-11; AR,

EFC No. 35-1 at 3. In the HOD, the Hearing Officer made four

primary findings:

1) On or about August 18, 2015, [DCPS] denied [J.W.] a FAPE by exiting [J.W.] from special education without evaluating her in all areas of suspected disability.

2) [DCPS] violated IDEA by failing to provide sufficient advance notice to [Ms. Wimbish] that [J.W.’s] eligibility would be discussed and determined at the August 18, 2015 meeting; however, the [prior written notice] issued after the meeting was sufficient to inform [Ms. Wimbish] of the decision made at that meeting.

3) [DCPS] denied [J.W.] a FAPE by failing to have an IEP in place for [J.W.] prior to the beginning of SY 2015-16.

4) [DCPS] denied [J.W.] a FAPE by failing to provide an appropriate placement for her prior to the SY 2015-16.”

HOD, ECF No. 35-2 at 42. The Hearing Officer also issued an

order and explained that “the specificity of [the] Order [was]

required due to the apparent inability of the parties and their

counsel to work cooperatively, even to schedule meetings.” HOD,

11

ECF No. 35-2 at 43 n.15. 5 As such, the order imposed certain

conditions on the parties. Id. at 43-50, ¶¶ 1-33.

Two of those conditions are relevant here. See id. at 44-

45, ¶¶ 8-15, 21. First, the Hearing Officer required Ms. Wimbish

to “obtain written authorization from a non-public, parochial,

out-of-state boarding school to allow DCPS to observe their

school or, if the school resists, to shoulder the financial

burden of forcing the school to allow the DCPS observation

through legal action.” Pls.’ Mem., ECF No. 43-1 at 4; see also

Pls.’ SOMF, ECF No. 43-3 at 2 ¶ 12 (“If Ms. Wimbish is unable to

secure either of these options, the [HOD] allows the District to

reinstate its finding that J.W. is ineligible.”). Second, the

Hearing Officer stated that, if DCPS determined at an

5 The Hearing Officer found that “[Ms. Wimbish] was not a reliable witness” at the due process hearing, HOD, ECF No. 35-2 at 9; thus, he “assigned little weight to her testimony when it conflicted with other evidence[,]” id. at 10. The District argues that “the Court should therefore defer to the hearing officer’s findings of witness credibility in evaluating [Ms. Wimbish’s] appeal of the HOD.” Def.’s Mot., ECF No. 46 at 7. It is undisputed that a “hearing officer [is] entitled to make reasonable credibility determinations and, in the absence of extrinsic evidence to the contrary, those determinations are entitled to deference from [the] Court.” McAllister v. District of Columbia, 45 F. Supp. 3d 72 , 77 (D.D.C. 2014). In reviewing an HOD in an IDEA case, the Court need not disturb the Hearing Officer’s credibility findings to reverse an HOD that fails to comport with IDEA. See N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57 , 73, 73 n.6 (D.D.C. 2010) (reversing an HOD and “[i]n so ruling, the Court [did] not disturb the Hearing Officer’s findings regarding the credibility of the witnesses who gave testimony at the due process hearing.”). 12

eligibility meeting that J.W. was ineligible for special

education services after the observations, interviews, and other

data collection at the private boarding school, “[n]othing in

this Order precludes [Ms. Wimbish] from filing a new Due Process

Complaint over such a finding of non-eligibility.” HOD, ECF No.

35-2 at 47 ¶ 21. “However, [Ms. Wimbish] may not challenge the

adequacy of . . . [J.W.’s] evaluation on the ground that

additional assessments should have been conducted.” Id.

(emphasis added).

Finally, the Hearing Officer found that when DCPS

unilaterally decided to terminate J.W.’s special education

services in August 2015, DCPS “unreasonably relied upon the

October 16, 2014 neuropsychological evaluation as the primary

source of information about . . . [J.W.’s] disability and the

educational impact of her disability.” Id. at 28 ¶ 119. The

Hearing Officer also found that Ms. Wimbish had “not met her

burden of proof regarding the need for any other assessments

(e.g., ADHD, anxiety disorder, language processing, or updated

academic achievement).” Id. at 27 ¶ 90. He did not order a new

evaluation of J.W. See generally HOD, ECF No. 35-2. He required

“observations, interviews, and other data collection” at Stuart

Hall. Id. at 45 ¶ 11.

C. Procedural History

On December 16, 2015, Ms. Wimbish filed a partial appeal of

13

the HOD in this Court. Wimbish II, 251 F. Supp. 3d at 190; see

generally docket for Civil Action No. 15-2182. Ms. Wimbish

alleges, inter alia, that: (1) the Hearing Officer erred as a

matter of law by denying further assessment of J.W. (“Count I”);

(2) the Hearing Officer erred in requiring Ms. Wimbish to bear

the financial burden of compelling a non-public, out-of-state,

parochial boarding school to allow DCPS to inspect and observe

its campus (“Count III”); and (3) the Hearing Officer erred in

limiting Ms. Wimbish’s ability to contest DCPS’ future actions

in a due process hearing (“Count IV”). Compl., Civil Action No.

15-2182, ECF No. 1 at 9-11, 13-16 ¶¶ 69-80, 90-105. 6

6 Plaintiffs assert four other claims against the District: (1) the Hearing Officer erred in limiting the reimbursement amount for J.W.’s attendance at Stuart Hall (“Count II”); (2) the District violated Ms. Wimbish’s right to due process by selecting a hearing officer who had not been reviewed by the community review panel under D.C. Code § 38-2572.02 (“Count V”); (3) Ms. Wimbish is entitled to attorney’s fees and costs associated with the claims brought by her in the November 2015 hearing (“Count VI”); and (4) she is eligible for an award of expert costs pursuant to D.C. Mun. Regs. tit. 5-E, § 3023.3 (“Count VII”). Compl., Civil Action No. 15-2182, ECF No. 1 at 12-13, 16-19 ¶¶ 81-89, 106-131. Plaintiffs request that this Court dismiss Count II because “the District has complied with the stay put order and is directly funding J.W.’s placement at Stuart Hall.” Pls.’ Mem., ECF No. 43-1 at 10; see also Wimbish I, 153 F. Supp. 3d at 13 (ordering the District to “fund 100% of Plaintiffs’ cost of attendance at Stuart Hall until the conclusion of these proceedings, unless the parties otherwise agree.”). Plaintiffs also request that the Court dismiss Count V because “[o]n September 1, 2016, the Office of Dispute Resolution articulated its intent to create a Community Review Panel to select hearing officers as required by the D.C. Code.” Pls.’ Mem., ECF No. 43-1 at 10. Accordingly, the Court dismisses without prejudice Counts II and V as moot. See Adagio Inv. 14

On December 22, 2015, the Court consolidated the instant

partial appeal of the HOD under Civil Action No. 15-1429. E.g.,

Wimbish I, 153 F. Supp. 3d at 9 n.4; Minute Order, Civil Action

No. 15-2182 (Dec. 22, 2015). Since the Court’s two prior

decisions did not reach the merits of Ms. Wimbish’s partial

appeal, e.g., Wimbish I, 153 F. Supp. 3d at 9 n.4; Wimbish II,

251 F. Supp. 3d at 190, the parties filed cross-motions for

summary judgment. See, e.g., Pls.’ Mot. for Summ. J., ECF No.

43; Pls.’ Mem., ECF No. 43-1; Def.’s Opp’n & Cross-Mot. for

Summ. J. (“Def.’s Mot.”), ECF No. 46. Those motions are ripe and

ready for the Court’s adjudication.

III. Standard of Review

A. Cross-Motions for Summary Judgment

Under Federal Rule of Civil Procedure 56, “[t]he court

shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

see also Celotex Corp. v. Catrett, 477 U.S. 317 , 324 (1986). In

ruling on cross-motions for summary judgment, the Court shall

grant summary judgment only if one of the moving parties is

Holding Ltd. v. Fed. Deposit Ins. Corp., 338 F. Supp. 2d 71 , 75 n.7 (D.D.C. 2004) (dismissing claims based on plaintiffs’ representation that they were moot). At Plaintiffs’ request, the Court will stay Counts VI and VII until thirty (30) days after the Court issues this Memorandum Opinion. 15

entitled to judgment as a matter of law upon material facts that

are not genuinely disputed. See Citizens for Responsibility &

Ethics in Wash. v. U.S. Dep’t of Justice, 658 F. Supp. 2d 217 ,

224 (D.D.C. 2009).

B. IDEA

“The Court’s approach toward IDEA administrative decisions

diverges somewhat from its role in the typical lawsuit.” Davis,

244 F. Supp. 3d at 37. “Although the [cross-motions] bear the

familiar placard of ‘summary judgment,’ judicial review of

[HODs] does not follow ‘a true summary judgment procedure.’” Id.

(quoting L.R.L. ex rel. Lomax v. District of Columbia, 896 F.

Supp. 2d 69, 73 (D.D.C. 2012) (citation omitted)). Under IDEA,

the reviewing court “(i) shall receive the records of the

administrative proceedings; (ii) shall hear additional evidence

at the request of a party; and (iii) basing its decision on the

preponderance of the evidence, shall grant such relief as the

court determines is appropriate.” D.R. ex rel. Robinson v.

District of Columbia, 637 F. Supp. 2d 11 , 15–16 (D.C. Cir. 2009)

(quoting 20 U.S.C. § 1415(i)(2)(C)).

In an IDEA case, the HOD is afforded “less deference than

is conventional in administrative proceedings.” Reid, 401 F.3d

at 521 (citation and internal quotation marks omitted). While a

court must “engage in a more rigorous review of the decision

below than is typical in administrative cases,” it should

16

“nevertheless accord the [HOD] due weight[,]” and “should not

substitute its own view of sound educational policy for that of

the hearing officer.” G.G. ex rel. Gersten v. District of

Columbia, 924 F. Supp. 2d 273 , 278 (D.D.C.2013) (internal

quotation marks omitted). Nonetheless, “a [HOD] without reasoned

and specific findings deserves little deference.” Reid, 401 F.3d

at 521 (citation and internal quotation marks omitted); B.D. v.

District of Columbia, 817 F.3d 792 , 797 (D.C. Cir. 2016)

(same). The burden of proof is with the party challenging the

administrative determination, who must “at least take on the

burden of persuading the [C]ourt that the Hearing Officer was

wrong.” Reid, 401 F.3d at 521 (citation omitted).

Finally, “when a school district denies a child a FAPE, the

courts have ‘broad discretion’ to fashion an appropriate

remedy.” Boose v. District of Columbia, 786 F.3d 1054 , 1056

(D.C. Cir. 2015) (quoting Florence Cty. Sch. Dist. Four v.

Carter, 510 U.S. 7 , 15–16 (1993)). Appropriate relief may entail

an order compelling a school district to conduct and fund an

evaluation of a child with a disability. See, e.g., Davis, 244

F. Supp. 3d at 52; Hill v. District of Columbia, No. 14-CV-1893

(GMH), 2016 WL 4506972 , at *26 (D.D.C. Aug. 26, 2016).

IV. Analysis

Ms. Wimbish seeks the partial reversal of the HOD on three

grounds: (1) the Hearing Officer erred in “conditioning J.W.’s

17

right to a FAPE on Ms. Wimbish[’s] ability to fund a type of

legal proceeding that does not exist and [that she] could not

afford even if it did[;]” (2) the Hearing Officer “violated

[her] right to bring a due process complaint by improperly

limiting the subject matter of any future due process

complaints[;]” and (3) the Hearing Officer “refused” to order

the District to comply with IDEA and “fully evaluate J.W.” Pls.’

Mem., ECF No. 43-1 at 1. The Court addresses each argument in

turn, concluding that Ms. Wimbish has demonstrated by a

preponderance of the evidence that the Hearing Officer erred in:

(1) requiring her to compel Stuart Hall to allow DCPS to conduct

observations and interviews at Stuart Hall; and (2) restricting

her ability to bring an administrative due process challenge for

future actions by DCPS. The Court also concludes that the

Hearing Officer erred as a matter of law by denying a full

evaluation of J.W. before DCPS decided that she was no longer

eligible for special education services. Ms. Wimbish is

therefore entitled to summary judgment.

A. The Hearing Officer Erred in Requiring Ms. Wimbish to Compel Stuart Hall to Allow DCPS to Conduct Observations and Interviews at Stuart Hall

Ms. Wimbish asks this Court to reverse and strike the

portion of the HOD that ordered her to “secure access for DCPS

employees to observe Stuart Hall’s campus” because it conditions

“J.W.’s receipt of a FAPE on Ms. Wimbish’s ability to pay for

18

legal action against Stuart Hall” and she “cannot comply with

[that] order as a matter of legal impossibility because no cause

of action exists to implement the order.” Pls.’ Mem., ECF No.

43-1 at 7. Ms. Wimbish states that she attempted to comply with

that portion of the HOD, but Stuart Hall rejected her request.

See Pls.’ Reply & Opp’n (“Pls.’ Reply”), ECF No. 47 at 2; see

also Letter from Douglas Burtch, Counsel for Stuart Hall, to

Tanya Chor, Counsel for DCPS, & Stevie Nabors, Counsel for

Ms. Wimbish (Sept. 14, 2015), ECF No. 47-1 at 4 (“Stuart Hall is

not open to this proposed on-site visit and observation.”).

[hereinafter “Stuart Hall Ltr.”]. According to Ms. Wimbish,

“[n]either the District nor [her counsel] have been able to

identify any legal proceedings which could produce such an

order.” Pls.’ Reply, ECF No. 47 at 1; see also Declaration of

Stevie Nabors, ECF No. 47-2 at 1-2 (explaining his extensive

legal research and efforts to possibly bring an action under

federal, D.C., or Virginia law to satisfy the HOD’s conditions)

[hereinafter “Nabors Decl.”].

The District responds that the Hearing Officer “correctly”

and “appropriately ordered Ms. Wimbish to facilitate the

District’s entrance into the school” for the “purposes of

evaluation, observation, and inspection.” Def.’s Mot., ECF No.

46 at 9-10. The District argues that this condition was

appropriate, in part, because “Ms. Wimbish unilaterally chose

19

for J.W. to attend [Stuart Hall].” Id. at 9. The District

contends that Ms. Wimbish has not taken any action to obtain a

court order to allow the observations at Stuart Hall, and she

has “failed to account for what, if any, costs would be

associated with obtaining said court order.” Id.; see also

Def.’s Reply, ECF No. 50 at 2.

The Court is not persuaded by the District’s arguments.

First, as Ms. Wimbish points out, the Hearing Officer improperly

allows the District to determine that J.W. is ineligible for

special education services if Ms. Wimbish fails to obtain a

court order, at her own expense, to compel Stuart Hall to permit

on-site observations and interviews there. See Pls.’ Mem., ECF

No. 43-1 at 8; see also HOD, ECF No. 35-2 at 45 (“If [Stuart

Hall] fails or refuses to provide permission . . ., [DCPS] may

reinstate the finding of the Student’s ineligibility for special

education and related services . . . .”). Neither IDEA nor its

implementing regulations contemplate conditioning eligibility

for special education services on such a requirement.

IDEA provides that DCPS must evaluate J.W. before

determining that she is no longer a child with a disability.

See, e.g., 20 U.S.C. § 1414(c)(5); 34 C.F.R. § 300.305(e)(1). It

also requires that J.W.’s special education services be

“provided at public expense, under public supervision and

direction, and without charge.” 20 U.S.C. § 1401(9) (emphasis

20

added). 7 Neither the Hearing Officer nor the District has cited

any authority to support the conditions placed on Ms. Wimbish

requiring her to bear the financial costs of compelling Stuart

Hall to permit the observations and interviews. See generally

HOD, ECF No. 35-2; Def.’s Mot., ECF No. 46; Def.’s Reply, ECF

No. 50. Therefore, the Hearing Officer placed an improper burden

on Ms. Wimbish, requiring her to take actions not required by

IDEA for J.W. to receive special education services at public

expense. Cf. Horne v. Potomac Preparatory P.C.S, 209 F. Supp. 3d

146 , 155 (D.D.C. 2016) (finding that a hearing officer

improperly placed the burden on the parent to renew her initial

request for an IEE, which was not required by IDEA).

The District’s arguments—that Ms. Wimbish has failed to act

to secure a court order and she has failed to provide the costs

for such an order—are unavailing. See Def.’s Mot., ECF No. 46 at

9-10; see also Def.’s Reply, ECF No. 50 at 2. Ms. Wimbish’s

counsel submitted a declaration in which he states that

7 The parties disagree as to whether two decisions, Wimbish I, 153 F. Supp. 3d at 13 and Susquenita Sch. Dist. v. Raelee S. By & Through Heidi S., 96 F.3d 78 , 86 (3d Cir. 1996), stand for the proposition that the Hearing Officer erroneously conditioned J.W.’s receipt of a FAPE based on Ms. Wimbish’s ability to bear the litigation costs against Stuart Hall. Compare Pls.’ Mem., ECF No. 43-1 at 8, with Def.’s Mot., ECF No. 46 at 10. Neither party denies that both decisions deal with IDEA’s “stay-put” provision. See 20 U.S.C. § 1415(j). The Court therefore rejects Plaintiffs’ attempt to analogize the issues raised in the instant partial appeal of the HOD to the issues presented in the two stay-put opinions dealing with a different IDEA provision. 21

Ms. Wimbish has “incurred $8,292 in attorneys’ fees for legal

research related to identifying a cause of action or proceeding

that could implement the HOD.” Nabors Decl., ECF No. 47-2 at 2.

The District does not challenge the declaration or the

statements contained therein. See generally Def.’s Reply, ECF

No. 50 at 1-4.

Further, her counsel’s legal research concluded that she

“cannot use the IDEA to secure an observation because Stuart

Hall does not accept federal funds” and “the Code of the

Commonwealth of Virginia provides no cause of action to compel

Stuart Hall to allow DCPS to observe its campus.” Pls.’ Mem.,

ECF No. 43-1 at 9 (citing Va. Code Ann. § 22.1); see also Pls.’

SOMF, ECF No. 43-3 at 1 ¶ 5 (“Stuart Hall does not receive

federal funds, therefore it is not subject to the IDEA or [the

Family Educational Rights and Privacy Act of 1974].”). The

District does not dispute Ms. Wimbish’s counsel’s research

indicating that Virginia law does not provide a cause of action

to compel Stuart Hall to permit DCPS to observe on its campus

and that IDEA does not offer a legal mechanism to do so. See

generally Def.’s Mot., ECF No. 46; Def.’s Reply, ECF No. 50. By

not responding to her argument that she cannot rely on IDEA for

DCPS to gain access to Stuart Hall’s property, the District has

conceded it. See Campbell v. Nat’l R.R. Passenger Corp., 311 F.

Supp. 3d 281, 327 n.13 (D.D.C. 2018). Indeed, Stuart Hall “is

22

exercising the traditionally private function of regulating

access to private property.” Tynecki v. Tufts Univ. Sch. of

Dental Med., 875 F. Supp. 26 , 33 (D. Mass. 1994).

As to the “legal impossibility” argument, the District

attacks it by contending that Ms. Wimbish failed to provide a

“sufficient legal basis” in relying on Virginia’s education

statute, Va. Code Ann. § 22.1-1, et seq. Def.’s Mot., ECF No. 46

at 10. 8 The District’s argument misses the point. Given that

Stuart Hall has refused to permit DCPS onto its campus and the

parties have not identified any legal proceedings to force a

private school to give the parties access to its property, it is

a legal impossibility for Ms. Wimbish to obtain Stuart Hall’s

permission to allow DCPS to enter Stuart Hall for the

observations and interviews. Cf. White v. Fraternal Order of

Police, 707 F. Supp. 579 , 593 (D.D.C. 1989) (“Where, as here,

all the facts in the letters are concededly true, it is a legal

impossibility for plaintiff to prove that the statements were

8 The District further contends that the “record evidence clearly shows that Stuart Hall” will not allow DCPS “to gain entry to its campus without a valid subpoena.” Def.’s Reply, ECF No, 50 at 1. This contention is unsupported by the record. See generally AR, ECF Nos. 35 & 36. Stuart Hall’s counsel states that the school “will produce documents and information concerning [J.W.] to DCPS when served with a valid, appropriate subpoena that would be binding on the school.” Stuart Hall Ltr., ECF No. 47-1 at 3. Nowhere in the letter does it state that Stuart Hall will allow DCPS to gain access to the school’s property with a subpoena. See id. 23

published with knowledge that they were false or with reckless

disregard of whether they were false or not.”), aff’d, 909 F.2d

512 (D.C. Cir. 1990).

The District’s other argument is equally unavailing. The

District suggests that Ms. Wimbish’s decision to enroll J.W. in

Stuart Hall and her “inaction” to “facilitate DCPS’s entrance

into Stuart Hall” created a “true ‘impossible’ situation.”

Def.’s Mot, ECF No. 46 at 10; Def.’s Reply, ECF No. 50 at 1-2.

It is disingenuous to blame Ms. Wimbish for the difficult

decision to place her child with a disability hours away from

her home to ensure that she could have “smaller class size[s]

with more individualized attention” and a “solid foundation of

academic skills[.]” Neuropsychological Evaluation Report, ECF

No. 35-4 at 37. The District ignores the difficult choice that

Ms. Wimbish faced when DCPS did not fulfil its obligations under

IDEA. See HOD, ECF No. 35-2 at 42. Because IDEA neither requires

her to gain access for DCPS to observe on Stuart Hall’s campus

nor pay for legal action against Stuart Hall, Ms. Wimbish has

demonstrated that the Hearing Officer erred in ordering her to

do so. Accordingly, the Court reverses and strikes the portions

of the HOD regarding Ms. Wimbish’s obligation to secure

permission for DCPS to observe at Stuart Hall, and to secure an

order requiring Stuart Hall to allow DCPS to observe there. See

L.O. ex rel. D.O. v. E. Allen Cty. Sch. Corp., 58 F. Supp. 3d

24

882, 894-95, 899 (N.D. Ind. 2014) (granting a party’s request to

strike a hearing officer’s orders).

B. The Hearing Officer Erred in Restricting Ms. Wimbish’s Ability to Bring an Administrative Due Process Challenge for Future Actions by DCPS

The Court next considers whether the Hearing Officer

unlawfully restricted Ms. Wimbish’s right to administratively

challenge the adequacy of J.W.’s future evaluation on the ground

that additional assessments should have been conducted. HOD, ECF

No. 35-2 at 47; see also Pls.’ SOMF, ECF No. 43-3 at 1 ¶ 5.

According to Ms. Wimbish, reversal of the portion of the HOD

that limited her right to bring an administrative due process

complaint is warranted and the Court should find that she has a

“right to challenge the District’s subsequent evaluation of or

failure to evaluate J.W. prior to terminating her services.”

Pls.’ Mem., ECF No 43-1 at 7. She argues that this portion of

the HOD violates the IDEA provision that gives her the right to

bring a due process complaint as to an evaluation of J.W. Id.

(citing 20 U.S.C. § 1415(b)(6)(A)). Finally, Ms. Wimbish

contends that the Hearing Officer failed to “provide any

explanation for this restriction on [her] ability to bring

future claims through a due process complaint.” Id. at 7.

The District maintains that the “[H]earing [O]fficer did

not err in precluding Plaintiffs from challenging the adequacy

25

of J.W.’s evaluation” 9 because he determined that she did not

prove the need for any other assessments. Id. at 8-9. The

District argues that the Hearing Officer “clarified” that

Ms. Wimbish was not precluded from filing a new due process

complaint with respect to an ineligibility finding. Def.’s Mot.,

ECF No. 46 at 9.

IDEA requires “an opportunity for any party to present a

complaint . . . with respect to any matter relating to the

identification, evaluation, or educational placement of the

child, or the provision of a [FAPE].” 20 U.S.C. § 1415(b)(6)(A)

(emphasis added). Neither party disputes that Ms. Wimbish has

this right. See Pls.’ Reply, ECF No. 47 at 6; see generally

Def.’s Reply, ECF No. 50. In fact, the District did not

9 The District contends that “in the Due Process Complaint at issue, Plaintiffs already challenged this point[.]” Def.’s Mot., ECF No. 46 at 8. Ms. Wimbish argues that the District’s implicit argument—that her due process challenge is barred by issue preclusion—should be rejected because the HOD “is so broadly written that it would bar [her] from bringing a due process complaint even in the event of future violations of the IDEA’s evaluation requirements.” Pls.’ Reply, ECF No. 47 at 7. She points out that IDEA mandates that “a student receive a full evaluation every three years,” 34 C.F.R. § 300.303(b)(2), and “substantial changes” have occurred in J.W.’s life since her last evaluation on October 16, 2014; thus, “issue preclusion cannot apply in this case.” Id. (citing Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292 , 2305-07 (2016) (holding that res judicata does not bar claims in a case involving “important human values” and “even a slight change of circumstances”). In its reply brief, the District does not address this argument, see generally Def.’s Reply, ECF No. 50; therefore, the District has conceded the argument by not responding to it. See Campbell, 311 F. Supp. 3d at 327 n.13. 26

challenge Ms. Wimbish’s argument as to her right under 20 U.S.C.

§ 1415(b)(6)(A) in its reply brief. See generally Def.’s Reply,

ECF No. 50.

The Court agrees with Ms. Wimbish that the Hearing Officer

failed to explain why he expressly prohibited her challenge to

the adequacy of J.W.’s evaluation “on the ground that additional

assessments should have been conducted.” HOD, ECF No. 35-2 at 47

¶ 21. This portion of the HOD appears to be predicated on the

finding that she failed to meet her burden of proof as to the

need for any other assessments. See id. at 24 ¶ 90. But the

Hearing Officer found that DCPS’ ineligibility determination was

“significantly impeded” by a “lack of information” about J.W.’s

specific supports at Stuart Hall. Id. The Hearing Officer also

found that Ms. Wimbish and her counsel did not have an

opportunity to participate in the ineligibility determination

because DCPS failed to provide them with adequate notice. Id. at

26 ¶ 89. Given that DCPS did not conduct an evaluation before it

determined that J.W. was ineligible for special education

services and that it “unreasonably relied upon the October 16,

2014 neuropsychological evaluation as the primary source of

information” for its unilateral decision, id. at 28 ¶ 119, the

Hearing Officer did not provide a reasoned explanation for the

part of the order that limits Ms. Wimbish’s ability to challenge

its failure to assess and/or evaluate J.W. See Reid, 401 F.3d at

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521 (“[A] [HOD] without reasoned and specific findings deserves

little deference.” (citation and internal quotation marks

omitted)). “Consequently, the Hearing Officer’s ruling merits

little deference.” Shaw v. District of Columbia, No. 17-00738

(DLF/RMM), 2019 WL 498731 , at *8 (D.D.C. Feb. 8, 2019) (citing

Reid, 401 F.3d at 521), adopted by, 2019 WL 935418 (D.D.C. Feb.

26, 2019). The Court therefore finds that the Hearing Officer

erred in restricting Ms. Wimbish’s ability to assert a new due

process complaint. Accordingly, the Court reverses the portions

of the HOD that limit Ms. Wimbish’s right to bring an

administrative due process complaint on any matter under IDEA.

C. The Hearing Officer Erred as a Matter of Law by Denying a Comprehensive Evaluation of J.W. Before DCPS Decided That She Was No Longer Eligible for Special Education Services

Finally, the Court considers whether the Hearing Officer

erred as a matter of law in failing to order DCPS to fully

evaluate J.W. While Ms. Wimbish argues that the HOD refused to

order DCPS to fully evaluate J.W., see Pls.’ Mem., ECF No. 43-1

at 5, the District contends that the Hearing Officer ordered

psychological evaluations of J.W., see Def.’s Mot., ECF No. 46

at 7-9. The Court cannot agree with the District because the

record does not support the District’s contention.

As an initial matter, IDEA could not be any clearer: DCPS

“shall evaluate a child with a disability in accordance with

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this section before determining that the child is no longer a

child with a disability.” 20 U.S.C. § 1414(c)(5) (emphasis

added); see also V.S. ex rel. A.O. v. Los Gatos-Saratoga Joint

Union High Sch. Dist., 484 F.3d 1230 , 1234 (9th Cir. 2007)

(holding that because the student was “officially classified as

a ‘child with a disability’ . . ., the school at that point, and

prospectively, had only two choices: 1) provide [the child]

services in accordance with the appropriately developed IEP, . .

.; or 2) properly complete the assessment in order to find her

ineligible.”).

It is undisputed that the Hearing Officer concluded that

DCPS denied J.W. a FAPE by “exiting” her from “special education

without evaluating her in all areas of suspected disability.”

HOD, ECF No. 35-2 at 42 (emphasis added). Despite this

conclusion, the Hearing Officer did not order an evaluation of

J.W. See generally HOD, ECF No. 35-2. In its effort to defend

DCPS, the District attempts to characterize the condition placed

on Ms. Wimbish to facilitate DCPS’ entrance onto Stuart Hall’s

property as an “order” for psychological evaluations. Def.’s

Mot., ECF No. 46 at 7. The District states that this condition

was “for purposes of evaluation, observation, and inspection.”

Id. at 9. The HOD and the record does not support the District’s

characterizations. See generally HOD, ECF No. 35-2. The Hearing

Officer ordered observations, interviews and other data

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collection—not an evaluation. Id. at 44-45 ¶¶ 8-15. Furthermore,

the Hearing Officer did not order further assessments of J.W.

Id. at 24 ¶ 90.

“[A] reevaluation requires a new round of tests and

analysis to evaluate the child.” James v. District of Columbia,

194 F. Supp. 3d 131 , 143 (D.D.C. 2016); see also 20 U.S.C. §

1414(b), (c) (outlining the requirements for a reevaluation). In

James, the court found that DCPS’ “failure to conduct a new

comprehensive psychological evaluation of [the student] means

that her IEP might not be sufficiently tailored to her special

and evolving needs.” 194 F. Supp. 3d at 144 (emphasis added).

DCPS finds itself in the same situation for its failure to

evaluate J.W. Therefore, the Hearing Officer erred in not

requiring DCPS to evaluate J.W. because IDEA expressly provides

that she was entitled to an evaluation before DCPS decided that

she was no longer a child with a disability. See, e.g., 20

U.S.C. § 1414(c)(5); 34 C.F.R. § 300.305(e)(1).

Accordingly, the Court reverses the portions of the HOD

that improperly denied J.W. the appropriate relief for the

District’s IDEA violations. DCPS is ordered to conduct a full

evaluation of J.W. in all areas of suspected disability. See

James, 194 F. Supp. 3d at 144 (ordering DCPS to provide and fund

a full evaluation of a child for its reliance on an outdated

evaluation and failure to conduct a reevaluation). Furthermore,

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if Ms. Wimbish disagrees with the evaluation, DCPS must fund an

IEE. See 34 C.F.R. § 300.502(b) (“A parent has the right to an

[IEE] at public expense if the parent disagrees with an

evaluation obtained by the public agency[.]”).

V. Conclusion

For the reasons set forth above, the Court GRANTS

Plaintiffs’ motion for summary judgment and DENIES the

District’s cross-motion for summary judgment. A separate Order

accompanies this Memorandum Opinion.

The Court DISMISSES without prejudice Counts II and V of

the Complaint as moot. The Court STAYS Counts VI and VII of the

Complaint until thirty (30) days after the date of this

Memorandum Opinion.

SO ORDERED

Signed: Emmet G. Sullivan United States District Judge April 3, 2019

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