UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

JORIE WIMBISH, et al.

Plaintiffs, 

v. 

DISTRICT OF COLUMBIA, 

Defendant. 

No. 15-cv-1429 (EGS) 

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). 
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. 
3 

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 
4 

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 
5 

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-ofDistrict 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 
6 

“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)).
7 

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.
8 

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. 
9 

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 
10 

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] 
11 

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, 
12 

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.”). 
13 

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 
14 

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. 
15 

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. 
16 

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 
17 

“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 
18 

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 
19 

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 
20 

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 
21 

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. 
22 

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 
23 

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. 
24 

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 
25 

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 
26 

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.
27 

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 
28 

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 
29 

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 
30 

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, 
31 

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