The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff Darlene Hinson, on behalf of her minor son, N.H., brings this action pursuant to the Individuals with Disabilities Education Act ("IDEA") as amended, 20 U.S.C. § 1400 et. seq.,*fn1 against Defendant, District of Columbia. The IDEA provides that all children with disabilities shall receive a free and appropriate public education ("FAPE"), and creates procedural safeguards to ensure that disabled children receive individualized education programs ("IEP") to fulfill the Act's goals. See id. §§ 1412(a)(1)(A), 1414(d)(1)(A). A parent who objects to the identification, evaluation, or educational placement of his or her child may seek a due process hearing before a Hearing Officer, and if he or she remains dissatisfied, may file a lawsuit. Id. §§ 1415(f), (i). This case comes to the Court on appeal from the April 25, 2007 Hearing Officer's Determination ("HOD") and related proceedings.
Currently before the Court are Plaintiff's  Motion for Summary Judgment ("Pl.'s Mot. Summ. J.") and Defendant's  Opposition to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment ("Def.'s Opp'n"). After a thorough review of the Parties' submissions, the administrative record, applicable case law and statutory authority, the Court shall deny Plaintiff's Motion for Summary Judgment and grant Defendant's Cross-Motion for Summary Judgment, for the reasons that follow.
At the outset, the Court observes that the District Court for the District of Columbia has supplemented Federal Rule of Civil Procedure 56 with LCvR 7(h), which requires that each party submitting a motion for summary judgment attach a statement of material facts to which that party contends there is no genuine issue, with specific citations to those portions of the record upon which the party relies in fashioning the statement. The party opposing such a motion must, in turn, submit a statement of genuine issues enumerating all material facts which the party contends are at issue and thus require litigation. See LCvR 7(h). Where the opposing party fails to discharge this obligation, a court may take all facts alleged by the movant as admitted. Id. As the Court of Appeals for the District of Columbia Circuit has emphasized, "[LCvR 7(h)] places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 406 (6th Cir. 1992)). Because of the significance of this task and the potential hardship placed on the court if parties are derelict in their duty, courts require strict compliance with LCvR 7(h). See Jackson, 101 F.3d at 150 (citations omitted).
As the parties were advised before they filed their Motions for Summary Judgment, this Court strictly adheres to the text of Local Civil Rule 7(h) when resolving motions for summary judgment. See 8/21/07 Order, Docket No. ; see also Burke v. Gould, 286 F.3d 513, 519 (D.C. Cir. 2002). Although discretionary in the text of the Local Civil Rule 7(h), in resolving the present summary judgment motion, this Court "assume[s] that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 7(h)(1). The United States District Court for the District of Columbia has recently clarified that, for "cases in which judicial review is based solely on the administrative record . . . motions for summary judgment and oppositions thereto shall include a statement of facts with references to the administrative record." LCvR 7(h)(2). Local Civil Rule 7(h)(2) does not alter the parties' obligations to submit statements of material fact in support of motions for summary judgment in administrative review cases. Rather, as the Comment to Local Civil Rule 7(h) states, LCvR 7(h)(2) "recognizes that in cases where review is based on an administrative record the court is not called upon to determine whether there is a genuine issue of material fact, but rather to test the agency action against the administrative record." See Comment to LCvR 7(h).
In setting out the factual background, where possible, the Court cites to the parties' statements of facts filed in accordance with Local Civil Rule 7(h).*fn2 The Court has reviewed the record citations by the Parties to ensure that the representations made in the Parties' statements are accurate, and notes that so-called "factual assertions" that are unsupported by citations to accurate record evidence are insufficient to create issues of material fact. The Court also cites directly to the record, if appropriate, to address facts not covered by the Parties in their statements of material facts. Moreover, the Court only uses the facts in a manner consistent with the approach taken by the Parties in their briefing and arguments made to the Court. See, e.g., Morgan v. Federal Home Loan Mortgage Corp., 328 F.3d 647, 655 n.10 (D.C. Cir. 2003). Again the Court emphasizes-as it did in its March 10, 2008 Order striking Plaintiff's original Motion for Summary Judgment-that, in accordance with the Local Civil Rule, it "assume[s] that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 7(h)(1).
A. Events Occurring Prior to the April 25, 2007 Hearing Officer Determination
N.H. is a thirteen-year old resident of the District of Columbia diagnosed with Attention- Deficit Hyperactivity Disorder ("ADHD"). Pl.'s Stmt. ¶¶ 1-2, Def.'s Resp. ¶¶ 1-2; Administrative Record ("A.R.") at 3, 110. At the time of the HOD, N.H. was enrolled at the Merritt Educational Center ("Merritt"), an open-space public school in the District of Columbia, for the 2006-2007 school year. Pl.'s Stmt. ¶¶ 12, 15; Def. Resp. ¶¶ 12, 15; Administrative Record ("A.R.") at 3.
1. The January 23, 2007 MDT Meeting
On January 23, 2007, a Multi-Disciplinary Team ("MDT") Meeting was convened to evaluate and determine N.H.'s eligibility for special education. Def.'s Stmt. ¶ 5; A.R. at 106-10. The participating members of the MDT present at the January 2007 meeting included: the student; the student's mother; a special education teacher; a general education teacher; an occupational therapist; a social worker; a speech therapist; a psychologist; and a representative from the Local Education Agency ("LEA"). Def.'s Stmt. ¶ 6; A.R. at 108. Plaintiff's attorney also participated in the meeting by telephone. Def.'s Stmt. ¶ 6; A.R. at 108. In making its determination as to the type of services the student required and where he should be placed, the MDT reviewed the following evaluations: (1) a Neuropsychological Evaluation; (2) a Psycho-Educational Evaluation; (3) a Speech and Language Evaluation; (4) an Occupational Therapy Evaluation; and (5) a Review of the Neuropsychological Evaluation. A.R. at 4.
The MDT was also presented with information concerning N.H.'s poor attendance and academic record during the 2006-2007 school year. A.R. at 109. Specifically, N.H.'s general education teacher stated that N.H. had previously been absent for forty-five days, from October 30, 2006 to January 18, 2007, and had not completed any assignments or homework in that teacher's class. Id. Although Plaintiff's attorney contested whether all of N.H.'s absences during that period were voluntary, raising the fact that N.H. had been suspended at some point during that time period, the Hearing Officer found that at least some portion of N.H.'s absences during the period from October 30, 2006 to January 18, 2007 were voluntary. Id. at 5. Nevertheless, regardless of the reason for N.H.'s absences, it is undisputed that the members of the MDT were made aware-prior to developing the IEP and deciding placement-that N.H. had been absent from school for a substantial period of time and that his academic performance was suffering as a result. See id. at 109.
Based on the MDT's discussions, the proffered evaluations, and N.H.'s ADHD diagnosis, the MDT determined that N.H. was eligible for special education services as an "other health impaired" ("OHI") student and crafted an IEP for N.H. based on that determination. Pl.'s Stmt. ¶ 11; Def.'s Resp. ¶ 11; Def.'s ¶ 9; A.R. at 3, 106-10, 120. In developing the IEP, the record reflects, and Plaintiff does not dispute, that the MDT considered several alternatives, including keeping N.H. in general education full time, placing N.H. in special instruction outside of general education full time, or some combination of the two. A.R. at 106. Ultimately, the MDT decided that "current documentation (and parent wishes) indicates that N.H. can assess the general education curriculum in the special education resource room," and accordingly crafted an IEP that provided for a combination of general education and special education services. Def.'s ¶¶ 9, 12; A.R. at 106-23. Specifically, the IEP provided for fifteen hours per week of specialized instruction in reading, written language and math, as well as thirty minutes per week for both psychological counseling and speech therapy. Def.'s Stmt. ¶ 9; A.R. at 120. Plaintiff's attorney, who disagreed with the way the math objective was written and felt that the IEP should require one hour of psychological counseling per week rather than the thirty minutes provided, was the only member of the MDT to disagree with the IEP. A.R. at 120-22. Plaintiff herself fully agreed with the substance of the IEP. Id. at 120. At the conclusion of the MDT Meeting, Plaintiff signed the approval line indicating that she agreed with the contents of the IEP. Id. at 4, 111, 120.
At the January 23, 2007 Meeting, the MDT also considered the appropriate placement for implementation of N.H.'s IEP. See id. at 120-22. Although the record shows that Plaintiff initially expressed concerns that N.H. "can not make it" in the open-space environment at Merritt, id. at 109, Plaintiff ultimately concluded that Merritt, N.H.'s neighborhood school, was an appropriate placement for her son: "After a description of the combination setting was given along with additional discussion of services that would be provided, [the Plaintiff] agreed to Merritt." Id. at 121. Indeed, by the end of the MDT Meeting, the record shows that Plaintiff was fully in favor of placement at Merritt, expressing concerns that if N.H. was placed at a different school, "his unacceptable behaviors will increase." Id. Although the Plaintiff's Attorney remained opposed to the placement at Merritt, Plaintiff herself agreed that Merritt could provide the services set forth in the IEP. Def.'s Stmt. ¶¶ 13-14; A.R. at 120-22. At the conclusion of the MDT Meeting, Plaintiff agreed to and signed the initial placement notice indicating agreement with the placement at Merritt. A.R. at 107, 111.
2. Plaintiff's February 8, 2007 Request For A Due Process Hearing
On February 8, 2007-only sixteen days after Plaintiff had agreed to N.H.'s IEP and placement-Plaintiff filed a Due Process Hearing Request alleging that Defendant had failed to develop an appropriate IEP for N.H. and to provide N.H. with an appropriate educational placement. Def.'s Stmt. ¶ 1; A.R. 14-18. Plaintiff requested that N.H. be placed in a "therapeutic school," but did not provide any support for the request. Id. at 16.
3. The March 6, 2007 Due Process Hearing
A Due Process Hearing was initially convened on March 6, 2007. Pl.'s Stmt. ¶ 27; Def's Resp. ¶ 27; A.R. at 134-35; 4/12/07 Due Process Hearing Transcript ("DPH Tr.") at 4.*fn3 At that time, however, the Hearing Officer continued the matter so that the Parties could meet again to review N.H.'s IEP and placement, and determine whether any revisions were appropriate. Pl.'s Stmt. ¶ 28; Def.'s Resp. ¶ 28; A.R. at 134-35; DPH Tr. at 4.
4. The April 10, 2007 MDT Meeting
A MDT Meeting was subsequently convened on April 10, 2007. A.R. 134-35. Present at the meeting were as follows: Plaintiff; Plaintiff's attorney; a special education teacher; a general education teacher; a speech therapist; a social worker; a psychologist; and a LEA representative. Id. at 134. The record does not reflect, nor does Plaintiff suggest, that Plaintiff provided the MDT with any new evaluations or other documentation that were not previously available to the MDT at the January 23, 2007 meeting. Rather, it appears from the record that the only new information presented at the April 10, 2007 meeting concerned N.H.'s continued attendance problems and a recent suspension. Id. Specifically, the MDT Meeting notes reflect that: (1) N.H.'s general education teacher reported that N.H. had attended class only three times since she last met with N.H.'s mother; and (2) N.H. had been accused of stealing another student's cell phone and threatening to put the student's head in a toilet. Id. Moreover, all members of the MDT, with the exception of Plaintiff and her attorney, believed that N.H.'s actions in stealing the other student's cell phone were not a manifestation of his disability. Id. at 137. The ...