The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Yvonne Stanton, as mother and guardian for K.T., seeks review of an administrative decision denying her request for a compensatory education award from the District of Columbia Public Schools ("DCPS"). Plaintiff alleges that DCPS violated the Individuals with Disabilities Education Improvement Act of 2004 ("IDEIA"), which requires states receiving federal financial assistance to identify, locate, and evaluate children with disabilities and to provide them with a free appropriate public education ("FAPE"). The parties agree that defendant denied K.T. a FAPE by failing to provide him with the services required by his Individualized Education Program ("IEP"). However, they disagree over whether the Hearing Officer appropriately rejected plaintiff's claim for compensatory education and whether plaintiff sufficiently supported her proposed award. For the reasons herein, the Court finds that the Hearing Officer erred by ignoring DCPS's failure to provide K.T. with counseling and tutoring services from October 2007 through February 2008 and improperly rejected plaintiff's claim for a compensatory award. However, because of the insufficiency of the record, the Court will remand the case for further proceedings.
K.T., a sixteen-year-old boy, has been diagnosed with a "mixed anxiety depressive disorder" and a learning disability. (Pl.'s Statement of Material Facts ["SMF"] ¶ 2; Def.'s SMF ¶ 1.) In November 2006, a multi-disciplinary team*fn1 created an IEP that placed K.T. in a "combination general education/special education setting," required that he receive twenty hours of specialized instruction and five hours of counseling per week, and set goals for him in language arts, math and mental health. (Id. ¶¶ 3-4; Administrative Record ["AR"] at 95-101.) In October 2007, K.T. began attending Ballou Senior High School ("Ballou"). (Pl.'s SMF ¶ 1; Def.'s SMF ¶ 5.) For reasons that remain unclear, Ballou placed K.T. in a general education curriculum and failed to provide him with any of the specialized instruction and counseling required by his IEP. (Def.'s SMF ¶ 6; Pl.'s Response to Def.'s SMF ¶ 2.)
On February 13, 2008, a multi-disciplinary team met and, without plaintiff's involvement, amended K.T.'s IEP. (Pl.'s SMF ¶ 4.) The team held another meeting on February 15th, which plaintiff attended. (See id. ¶¶ 3-4.) At this meeting, K.T.'s teachers admitted that they had not implemented the November 2006 IEP and had been unaware of its existence. (Id. ¶ 4; Def.'s Response to Pl.'s SMF ["Def.'s Response"] ¶ 4.) The Ballou staff, which apparently was confused because another student at the school had the same name as K.T., provided plaintiff with an inaccurate report on K.T.'s grades and attendance. (See Pl.'s SMF ¶¶ 7-8; Def.'s Response ¶¶ 7-8.) At the meeting, DCPS denied plaintiff's request for a compensatory education award. (Pl.'s SMF ¶ 6; Def.'s Response ¶ 6.)
On February 19, 2008, plaintiff filed a due process complaint with the DCPS, alleging that it had failed to implement the IEP and that K.T. was entitled to a compensatory education award. (Id. ¶ 9.) On March 17, plaintiff filed a second complaint alleging that the February 13th meeting was not a "proper MDT meeting," and therefore, that DCPS had failed to "develop an appropriate IEP." (Id.) The two complaints were consolidated, and a due process hearing was set for April 7.
At the hearing, DCPS conceded "all issues raised by the plaintiff, except that of compensatory education." (Def.'s SMF ¶ 13.) Plaintiff called Stephanie Denzel, an educational advocate with a masters in special education and a doctorate in psychology, to propose a compensatory education award. (AR, Hr'g Tr. ["Hr'g Tr."] at 17-18.) Denzel testified that she had reviewed K.T.'s records, attended the multi-disciplinary team meeting on February 15th, and met with both K.T. and his mother. (Id. at 19, 21-22.) In addition to introducing evaluations of K.T.'s reading, writing, and math skills (AR 102-24), Denzel testified that K.T. read at a level between third and fourth grade and could perform basic mathematical operations at a third grade level. (Hr'g Tr. at 20-21.) This placed K.T. five to six years behind the level of his peers. (Id. at 21.)
Denzel argued for an award of 372 hours of one-on-one tutoring, including two hours a week for math, two hours for reading and two hours for writing for sixty-two weeks. (Id. at 24-31.) She pointed out that K.T. could not "demonstrate 8 out of the 11 objectives listed in his 2006 IEP" and argued that the compensatory award would allow him to "ma[k]e up that ground" and catch up "so that he can move forward successfully accumulating credits." (Id. at 25-28.)
Defendant "offered no cross examination or evidence to rebut" Denzel's testimony. (Pl.'s SMF ¶ 16; Def.'s Response ¶ 16.) Indeed, defendant offered no assistance in calculating an appropriate compensatory education award, stating only that "we'll leave them to their proofs . . . ." (Hr'g Tr. at 15.)
On April 17, the Hearing Officer denied plaintiff's request for compensatory education. (AR at 1-8.) In his decision, the Officer made no mention of Ballou's failure to implement K.T.'s IEP from October 2007 through February 2008. (See id.) Indeed, the Officer apparently believed K.T. was only denied a FAPE between the February 13th meeting and the filing of plaintiff's complaint "two weeks later." (Id. at 5-6 ("[Plaintiff] failed to prove a nexus between the violation proven, the failure to develop an appropriate IEP on February 13, 2008, and the proposed compensatory education plan . . . .").) The Officer concluded that this brief deprivation could not have resulted in K.T. being deprived of "460 hours of instruction," and that therefore plaintiff had not established the number of hours DCPS had failed to provide. (Id.) The Officer determined that plaintiff failed to meet its "burden of establishing the type and amount of compensatory services" needed to "compensate the student for the services that were denied." (Id. at 5-6.) Plaintiff submitted a motion for reconsideration on April 25, 2008, which, after thirty days, was deemed to have been denied. (Id. ¶¶ 19-20.) Plaintiff filed this case on May 27, 2009.
I. REVIEW UNDER THE IDEIA
Under the IDEIA, a party aggrieved by a hearing officer's decision may bring a civil action challenging it. 20 U.S.C. § 1415(i)(2)(A). A 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 [it] deems appropriate." Id. § 1415(i)(2)(C). If neither party introduces additional evidence, a motion for summary judgment acts as a motion for judgment based on the evidence in the record. Brown ex rel. E.M. v. District of Columbia, 568 F. Supp. 2d 44, 50 (D.D.C. 2008). The party challenging the administrative decision carries the burden of "persuading the court that the hearing officer was wrong." Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)). A court must give "'due weight'" to the hearing officer's determinations and "may not substitute its own notions of sound educational policy for those of the school authorities." S.S. v. Howard Road Academy, 585 F. Supp. 2d 56, 63-64(D.D.C. 2008) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982)).
However, less deference is to be accorded to the hearing officer's decision than would be the case at a conventional administrative proceeding. Reid, 401 F.3d at 521. The Court is "obligated by the IDE[I]A to ensure that relief set forth in the administrative award was 'appropriate[.]'" Id. Thus, the Court may not simply "rely on the hearing officer's exercise of discretion"; a decision "'without reasoned and specific findings deserves little deference.'" Id. (quoting Kerkam v. Superintendent, D.C. Pub. Schs., 931 F.2d 84, 87 (D.C. Cir. 1991)). Where the administrative record lacks "pertinent findings" and where neither party requested "consideration of additional evidence, the [Court] may determine that ...