Wimbish v. Dist. of Columbia

153 F.Supp.3d 4

Jorie Wimbish et al., Plaintiffs,

v.District of Columbia, Defendant.

Civil No. 15-1429(EGS)

United States District Court, District of Columbia.

Signed December 22, 2015

Steve Nabors, Moran & Associates, Washington, DC, Carolyn W. Houck, Law Office of Carolyn Houck, St. Michaels, MD, for Plaintiffs.

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

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

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

I. BACKGROUND

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

A. June 2014 Individualized Education Program (“IEP”)

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

B. January 5, 2015 Due Process Complaint

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

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

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

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

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

On the second criterion, the Hearing Officer found that Ms. Wimbish's enrollment of J.W. at Stuart Hall was “proper” under the Act. Id. at 18. Even though Stuart Hall was a “general education school,” the Hearing Officer found that it provided J.W. the services she required, such as small class sizes, individualized interventions, testing accommodations, psychiatric counseling, and “check-ins” with a social worker Id. at 17.

Finally, on the third criterion, that is, whether the equitable considerations supported the parent's claim, the Hearing Officer ordered a 50% reduction in DCPs's obligation to fund J.W.'s placement at Stuart Hall. Id. at 21. He found that Ms. Wimbish's refusal to meet with DCPS to rewrite or revise the June 5, 2014 IEP merited a 50% reduction in the reimbursement award. Id. However, he refused to deny tuition reimbursement altogether, finding that Ms. Wimbish did cooperate in the IEP process until June of 2014. Id. Neither party appealed the March 29, 2015 Hearing Officer Determination.

C. July 2015 IEP Meeting

In July 2015, after the 2014-2015 school year had concluded, DCPS contacted Ms. Wimbish to schedule an IEP meeting for J.W. prior to the start of the 2015-2016 school year. Pls.' Mem. Ex. 10, Docket No. 3-12 at 2. Ms. Wimbish and her counsel met with DCPS on August 18, 2015. Pls.' Mem. at 7; Def.'s Mem. Opp. at 3. At the meeting, DCPS informed Ms. Wimbish that it had determined that J.W. was no longer eligible for special education services, and that rather than create an IEP, the meeting would instead develop a § 504 plan for accommodations.³ Pls.' Mem. at 7; Def.'s Mem. Opp. at 3. Ms. Wimbish and her counsel indicated that they were surprised to learn that DCPS had terminated J.W. from special education services, as they expected to proceed with an IEP meeting that day. Pls.' Mem. at 8. Ms. Wimbish felt unprepared to participate in a § 504 plan meeting and asked that the meeting be adjourned. Id. DCPS continued the meeting in the absence of Ms. Wimbish and her counsel and developed a § 504 plan for J.W. Def.'s Mem. at 4-5.

D. August 20, 2015 Due Process Complaint

On August 20, 2015, Ms. Wimbish, through counsel, filed a second due process complaint challenging J.W.'s removal from special education services. Pls.' Mem. at 9. The complaint alleges that DCPS (1) failed to evaluate J.W. prior to exiting her from formal special education services; (2) failed to provide a prior written notice prior to changing the student's eligibility; (3) failed to have an IEP in place prior to the beginning of the 2015-2016 school year; (4) failed to provide an appropriate placement for J.W. prior to the beginning of the 2015-2016 school year; and (5) retaliated against Ms. Wimbish for exercising her right to litigate claims through a due process hearing and for contacting the D.C. City Council. Id.

Upon learning that DCPS did not intend to fund any portion of J.W.'s placement at Stuart Hall during the pendency of J.W.'s IDEA case, Plaintiffs filed a motion for a “stay-put” injunction on September 1, 2015. See generally Pls.' Mot., Docket No. 3; Pls.' Mem. Ex. 15 at 3. The motion sought to “maintain J.W.'s placement in order to protect her right to receive a free and appropriate public education (“FAPE”).”. Pls.' Mot. at 1.⁴

II. LEGAL STANDARD

The IDEA provides that “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child ....” 20 U.S.C. § 1415(j). Commonly referred to as the “stay-put provision,” this section requires the educational agency to maintain a disabled child in his...