The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
This case arises under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., which requires state education agencies to identify, locate, and evaluate children with disabilities and to provide them with a free appropriate public education ("FAPE"). 20 U.S.C. § 1412(a)(1), (3). Plaintiffs Corine Anthony and her minor son, D.A., have sued the District of Columbia and the Superintendent of the District of Columbia Public Schools ("DCPS"), seeking review of two hearing officer determinations ("HODs") which awarded D.A. eighteen months of compensatory education as a remedy for defendants' IDEA violations. Plaintiffs argue that the hearing officer improperly limited D.A.'s compensatory education award by imposing sua sponte a two-year statute of limitations, by applying an incorrect statute of limitations, and by failing to address plaintiffs' arguments regarding the application of the continuing violation and equitable tolling doctrines. Defendants contend that the award was appropriate and should be upheld. Both parties have moved for summary judgment. Upon considering the pleadings and the entire record herein, the Court concludes that the hearing officer incorrectly limited the scope of relief and remands the matter to the hearing officer for a redetermination of his award of compensatory education consistent with this Memorandum Opinion.
Plaintiff D.A. is a seventeen-year-old boy with chronic paranoid schizophrenia and significant speech, language, emotional, and psychological deficiencies. (Pls.' Statement of Material Facts Not in Dispute ("Pls.' Statement") ¶¶ 1-3, 6.) D.A. performed poorly in school as early as the second grade, when his student report for school year ("SY") 1996-1997 showed that he had "little or no mastery of fundamental knowledge and skills" for his grade level. (Id. ¶ 10.) In third grade (SY 1997-1998), D.A. continued to perform poorly in all areas of his standardized tests, and he displayed disruptive social behavior and lack of focus. (Id. ¶ 11.) D.A. repeated third grade, but he showed no improvement in SY 1998-1999. (Id. ¶ 12.) D.A. nevertheless proceeded to fourth grade in SY 1999-2000, where D.A.'s teacher expressed concern about his behavior and where he continued to flounder academically. (Id. ¶¶ 12-13.) D.A. repeated fourth grade in SY 2000-2001. (Id. ¶¶ 13-14.)
Despite these clear warning signs, DCPS did not initiate the process of evaluating D.A. for a disability until January 2001, when D.A. was repeating the fourth grade. (Id. ¶¶ 7, 14.) Evaluations performed during 2001 revealed that D.A. was functioning at a borderline intellectual level, was suffering psycho-social and emotional difficulties, and had below age- and grade-level language and reading skills. (Id. ¶15; A.R. at 82.) In September 2001, DCPS prepared the first in a series of Individualized Education Plans ("IEPs") for D.A. (See Pls.' Statement ¶ 15.) That IEP included only five hours per week of special education in speech and language, with no special education services for other academic areas, no acknowledgment of the significant social and emotional difficulties detected in DCPS's evaluations, and no provision for a Behavioral Intervention Plan ("BIP") or Extended School Year ("ESY") services. (Id. ¶ 17.) The second IEP, dated May 15, 2002, was similarly limited, although it expanded D.A.'s specialized instruction to ten hours per week. (Id. ¶ 18.) The third IEP, dated October 2, 2002, increased D.A.'s specialized instruction and at last addressed his emotional problems by providing for some psychological counseling. (Id. ¶ 19; A.R. at 127.) The third IEP again failed to include a BIP or ESY, and DCPS dropped D.A.'s speech/language impairment classification without explanation. (Pls.' Statement ¶ 19.)
The fourth IEP, dated October 3, 2003, reduced D.A.'s specialized instruction from 16.5 hours to 8.35 hours, cut a half-hour from D.A.'s weekly counseling without explanation, and set no speech/language or social/emotional goals. (Id. ¶ 20.) Moreover, D.A. did not receive the speech/language therapy and psychological counseling services required under the IEP. (Id. ¶ 21.) For example, a leg injury prevented D.A. from attending school from September 2003 to January 2004, yet DCPS did not provide D.A. with any required services during that period. (Id. ¶¶ 21-22.) D.A.'s SY 2003-2004 report card showed that he made no academic progress that school year. (Id. ¶ 21.) The fifth IEP, dated November 18, 2004, did not contain social/emotional goals appropriate for a student classified with an emotional disorder. (Id. ¶ 23; A.R. at 46.) Although the IEP required fifteen hours per week of specialized instruction, D.A.'s report card attested to only ten hours per week. (Pls.' Statement ¶ 24.) During SY 2004-2005, D.A.'s school performance again failed to improve. (Id. ¶ 25.)
On March 25, 2005, D.A.'s mother filed a request for a due process hearing under 20 U.S.C. § 1415(b)(6), challenging DCPS's past and continuing failure to provide FAPE and seeking an appropriate non-public special educational placement for D.A., as well as an award of compensatory education. (Pls.' Statement¶ 26; A.R. at 5-7.) The hearing request alleged that each of the IEPs developed for D.A. was inappropriate and/or had not been implemented as written and also challenged DCPS's failure to identify and evaluate D.A. in a timely manner. (A.R. at 5-7, 9.) At the May 2, 2005 hearing, DCPS presented no evidence but instead relied solely on the documents that plaintiffs' counsel submitted. (Pls.' Statement ¶ 27.) After hearing testimony from plaintiffs' witnesses, the hearing officer granted plaintiffs' request that D.A. be placed at the High Road Upper School. (A.R. at 368-70; see also id. at 37.) The hearing officer reserved judgment on the issue of compensatory education and asked the parties to submit memoranda about the effect of the Court of Appeals' decision in Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005), and the District of Columbia's "catch-all" three-year statute of limitations, D.C. Code § 12-301(8), on the 7200-hour compensatory education award that plaintiffs had requested. (A.R. at 369-70; see also id. at 37.) Although both parties submitted supplemental memoranda, only plaintiffs addressed the statute of limitations issue. Plaintiffs agreed that a three-year statute of limitations applied to due process hearing requests in IDEA cases but argued that the claim for eight years of compensatory education was timely under the continuing violation and equitable tolling doctrines. (A.R. at 24-26.) A hearing regarding compensatory education was held on October 26, 2006, but DCPS did not attend. (Pls.' Statement ¶ 30; A.R. at 44.)
On November 7, 2006, the hearing officer issued a second HOD. Although DCPS had failed to address the issue and plaintiffs had apparently agreed with the hearing officer's suggestion that a three-year statute of limitations was appropriate, the hearing officer applied the two-year statute of limitations in the Individuals with Disabilities Education Improvement Act of 2004 ("IDEIA"), which had become effective after the initial hearing, to bar any claim for compensatory education before March 25, 2003, two years before plaintiffs filed their due process complaint. (A.R. at 47-48.) The hearing officer awarded D.A. two school years of compensatory education in the form of after-school tutoring and counseling but reserved the right to modify the award upon his review of D.A.'s school attendance records. (A.R. at 50.) Plaintiffs appealed this HOD by filing a complaint with this Court on February 3, 2006, pursuant to 20 U.S.C. § 1415(i)(2)-(3). On March 22, 2006, the hearing officer issued an order reducing the award from two years to eighteen months in light of D.A.'s record of absences at his new placement. (A.R. at 53-54.) Plaintiffs amended their complaint on May 18, 2006, and defendants filed their answer on June 22, 2006. Both parties have now moved summary judgment.
In reviewing an administrative determination under the IDEA, the district court "(i) shall review 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." 20 U.S.C. § 1415(i)(2)(c). The reviewing court must give "due weight" to the hearing officer's determinations, Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982), but less deference is appropriate than is conventional in administrative proceedings, Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988). Where, as here, neither party seeks to present additional evidence, a motion for summary judgment "operates as a motion for judgment based on the evidence comprising the record." Jenkins v. District of Columbia, No. 02-1055, 2005 U.S. Dist. LEXIS 34002, at *4 (D.D.C. Dec. 16, 2005). The party challenging the administrative decision bears the burden of persuading the court to set aside the decision. Kerkam, 862 F.2d at 887.
I. Hearing Officer's Consideration of Statute of Limitations Issue
Plaintiffs argue that the hearing officer erred by imposing any statute of limitations because defendants waived the statute of limitations defense by failing to raise it in the administrative proceedings. (Pls.' Mem. of P. & A. in Support of Pls.' Mot. for Summ. J. ("Pls.' Mem") at 12-13.) Defendants argue that plaintiffs' waiver argument is inapposite because Federal Rule of Civil Procedure 8(c) does not apply to administrative proceedings. (Defs.' Mem. in Opp'n to Pls.' Mot. for Summ. J. ("Defs.' Opp'n") at 3-4.)
As initial matter, the Court agrees with defendants that Rule 8(c) does not apply in these circumstances. Rule 8(c) requires certain affirmative defenses to be raised in a responsive pleading; however, there was no requirement under either the IDEA or the federal or District of Columbia implementing regulations in effect at the time of the hearing that defendants file any responsive pleading. Indeed, the only affirmative disclosure obligation on defendants under those regulations was the duty to disclose, within five business days prior to the hearing, "all evaluations completed by that date and recommendations based on the ...