The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Plaintiff Shawn Banks brings this action on behalf of her son, D.B., against the District of Columbia Government and Michelle Rhee, in her capacity as the Chancellor of the District of Columbia Public School System (the "School System"), seeking the reversal of a Hearing Officer's Determination (the "Determination") by the District of Columbia State Education Agency that denied D.B. a compensatory education award pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1491 (2006). Currently before this Court are the plaintiff's Motion for Summary Judgment and the defendant's Cross-Motion for Summary Judgment. After carefully considering the plaintiff's complaint, the administrative record, the parties' motions, and memoranda of law and exhibits submitted in conjunction with those filings,*fn1 the Court concludes that it must deny without prejudice the plaintiff's motion, deny without prejudice the defendant's cross-motion, and remand the case to the hearing officer for additional findings. Specifically, the Court must deny the plaintiff's motion without prejudice because contrary to the plaintiff's assertions, the hearing officer did not determine that the denial of services included in D.B.'s Individualized Education Program (the "Program") constituted a denial of a free appropriate public education under the IDEA. Additionally, the Court must deny the defendant's cross-motion without prejudice because while the plaintiff's proposed award may not meet the necessary standards required of an award, the hearing officer may determine on remand that D.B. was denied a free appropriate public education, in which case D.B. would be entitled to a "reasonably calculated" compensatory education award. Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (providing guidelines for how a compensatory education award should be "reasonably calculated"). Therefore, the Court must remand this matter to the hearing officer for additional fact-finding and findings, in addition to an articulation of the reasons why failing to provide all of the services included in D.B.'s Program did not violate the IDEA or deny the student a free appropriate public education. Whether D.B. is entitled to any compensatory education, if deemed appropriate, relies on this determination.
Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education 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 free appropriate public education entitles each disabled student to a Program that is tailored to meet the unique needs to each disabled student. See 20 U.S.C. §§ 1414(d)(1)(A)-(d)(2)(A).
The following facts are part of the administrative record. In 2008, D.B. was a 9-year-old student attending Anthony Bowen Elementary School in the District of Columbia. Administrative Record (the "A.R.") at 3. In 2006, the School System conducted multiple evaluations of D.B.'s status, including a speech and language evaluation, a physical therapy evaluation, an occupational therapy evaluation, and a psycho-educational evaluation. Id. at 4. The evaluations recommended that D.B. receive thirty minutes of physical therapy per week, sixty minutes of occupational therapy per week, and a full neuropsychological evaluation. Id. at 4. D.B.'s April 10, 2008 Program classified him as having multiple disabilities that required twenty hours of specialized education instruction each week over the following ten months. Id. at 5. Also at a meeting held on April 10, 2008, the plaintiff requested an adaptive technology assessment for D.B., id. at 5, however, the School System and the occupational therapist did not recommend the assessment and declined the request, id. at 5, 56, 58, 62.
On April 15, 2008, the plaintiff filed a due process complaint with the District of Columbia State Education Agency alleging that by failing to provide the adaptive technology assessment and failing to provide all of the specialized education services in D.B.'s Program between 2006 and 2008, the School System had denied D.B. a free appropriate public education. Id. at 30-41. The plaintiff also asserted that because of the denial of a free appropriate public education, D.B. was entitled to "appropriate" compensatory education. Id. at 38-39.
The hearing officer, in his June 20, 2008 Determination, found that the School System's failure to "timely initiate" the adaptive technology assessment was a denial of a free appropriate public education.*fn2 Id. at 5. However, the hearing officer made no finding on whether a free appropriate public education had been denied, instead finding that there was convincing evidence that the School System failed to provide all of the services contained in D.B.'s Program, "thereby depriving the student of the services designed to provide him with [an] educational benefit." Id. at 5-6. Additionally, the hearing officer found that D.B. was not entitled to compensatory education because the plaintiff failed to provide persuasive evidence regarding D.B.'s educational needs sufficient to satisfy the standard set forth in Reid, 401 F.3d 516. Id. at 6. The plaintiff then appealed that final administrative decision to this Court. Pl.'s Compl.
Summary judgment is appropriate if the pleadings, discovery, and affidavits demonstrate "that there is no genuine issue as to any material fact and that the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the pleadings or other documents in the record,]. which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In making this assessment, the Court must draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986) (citation omitted). However, the non-moving party may not rely on "mere allegations or denials," but "must set forth specific facts showing that there is a genuine issue for trial." Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248) (internal quotation marks omitted). Additionally, "in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed." Shays v. FEC, 424 F. Supp. 2d 100, 109 (D.D.C. 2006) (citation omitted).
When reviewing a hearing officer's decision in an IDEA case, the 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] determines is appropriate." 20 U.S.C. § 1415(i)(2)(C). Given the Court's authority to hear additional evidence and base its decision on the preponderance of the evidence standard, the "IDEA plainly suggests less deference [to the administrative hearing officer's determination] than is conventional in administrative proceedings." Reid, 401 F.3d at 521 (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988) (internal quotation omitted). However, the "party challenging the administrative determination" bears the burden of persuading the court that "'the hearing officer was wrong.'" Brown v. Dist. of Columbia, 568 F. Supp. 2d 44, 50 (D.D.C. 2008) (citing Reid, 401 F.3d at 521 (quoting Kerkam, 862 F.2d at 887)) (internal quotation omitted). If neither party introduces new evidence in a civil suit seeking review of a hearing officer's determination, "a motion for summary judgment operates as a motion for judgment based on the evidence comprising the record." Thomas v. Dist. of Columbia, 407 F. Supp. 2d 102, 109 (D.D.C. 2005). But, where a reviewing court rejects a hearing officer's award, "the court may take supplemental evidence or return the case to the hearing officer." Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt ("Nesbitt I"), 532 F. Supp. 2d 121, 123 (D.D.C. 2008) (citing Reid, 401 F.3d at 526).
A. The Hearing Officer Failed to Make a Determination on Which the Plaintiff's Assertions Rely
While neither party challenges the adequacy of the hearing officer's determination, the Court has to find that the hearing officer made a valid determination in order to consider the merits of the parties' cross-motions for summary judgment. In his June 2008 Determination, the hearing officer found there was "[c]onvincing evidence" in the record that the School System failed to provide all of the services in D.B.'s Program. A.R. at 6. The plaintiff references Abney v. District of Columbia, 849 F.2d 1491, 1496 n.3 (D.C. Cir. 1988) (citing 20 U.S.C. § 1401(a)(18)), as support for her position that "the complete failure to implement a child's [Program]... would undoubtedly... result in the failure to provide the child [']a free and appropriate public education.[']" Pl.'s Mem. at 10. Upon reviewing the administrative record, the Court cannot conclude for the reasons set forth below that the hearing officer made this legal determination in his June 2008 Determination.
The District of Columbia Circuit has not directly addressed what standard applies to the failure-to-implement claims under the IDEA. However, a member of this Court recently noted that the "consensus approach to this question among federal courts that have addressed it has been to adopt a standard articulated by the Fifth Circuit in Houston Independent School District v. Bobby R., 200 F.3d 341 (5th Cir. 2000)." S.S. v. Howard Rd. Acad., 585 F. Supp. 2d 56, 67 (D.D.C. 2008) (citations and internal quotation marks omitted). The court in Bobby R. held that "to prevail on a claim under the IDEA, a party challenging the implementation of a [student's Program] must show more than a de minimis failure to implement all elements of that [Program], and, instead, must demonstrate that the... authorities failed to implement substantial or significant provisions of the [Program]." 200 F.3d at 349. Therefore, a "material failure" to implement a student's Program constitutes the denial of a free appropriate public education. Stanton v. Dist. of Columbia, 680 F. Supp. 2d 201, 206 (D.D.C. 2010) (citing Howard Rd. Acad., 585 F. Supp. 2d at 71) (internal ...