The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Melodia Phillips, the plaintiff in this civil case, brings this action on behalf of her son, T.P., seeking the reversal of a decision issued on May 23, 2008 by the District of Columbia Public Schools (the "DCPS"), in which T.P. was denied an award of compensatory education under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. §§ 1400-1491 (2006). Currently before the Court are the plaintiff's motion for summary judgment and defendant District of Columbia's cross-motion for summary judgment.*fn1 After carefully considering the plaintiff's Amended Complaint, the plaintiff's Motion for Summary Judgment, the Defendants' Opposition to Plaintiffs' Motion for Summary Judgment, and Defendants' Cross-Motion for Summary Judgment, and all memoranda of law and exhibits submitted by the parties,*fn2 the Court concludes for the reasons that follow that it must deny without prejudice the plaintiff's motion for summary judgment, deny without prejudice the defendant's cross-motion for summary, and remand the case to the administrative Hearing Officer for additional fact finding and a determination of what, if any, relief the plaintiff is entitled to receive on behalf of her son.
The stated purpose of the IDEA is "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). "School districts must ensure that 'all children with disabilities residing in the State... who are in need of special education and related services,' are identified." Gellert v. Dist. of Columbia Pub. Sch., 435 F. Supp. 2d 18, 21 (D.D.C. 2006) (Kessler, J.) (quoting Branham v. Gov't of the Dist. of Columbia, 427 F.3d 7, 8 (D.C. Cir. 2005)). Once students "are identified, a 'team' [consisting of] the child's parents and select teachers, as well as a representative of the local educational agency with knowledge about the school's resources and curriculum, develops an 'individualized education program... for the child." Id. (quoting Branham, 427 F.3d at 8.) An individualized education program (the "Program") must, "at a minimum, 'provid[e] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.'" Id. (quoting Bd. of Educ. Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203, (1982)).
T.P. is an eight-year old child attending the Katherine Thomas School (the "School"), a special education institution located in Rockville, Maryland. A.R. at 4. In April of 2004, when T.P. was approximately four-years old, he "developed a viral rhomboencephalitis... and was hospitalized at Children's Hospital" as a result of this illness. Id. at 6. On August 19, 2004, Dr. Crystal Taylor-Davis, an employee of the DCPS, reported in her Medical Review of Records that because of his illness, it would be "appropriate" for T.P. to receive "the educational classification of Other Health Impairment." Id. at 6. An Other Health Impairment ("Impaired") classification is given to a student who has "limited strength, vitality, or alertness, including a heightened alertness with respect to environmental stimuli... that... [is] due to chronic or acute health problems," which in turn, "results in a limited alertness with respect to the educational environment that... adversely affects a child's educational performance." 34 C.F.R. § 300.8(c)(9)-(9)(ii) (2007).
In August of 2004, the plaintiff "provided the [District] with copies of T.P.'s [hospital records] and completed the necessary paperwork to begin the special education process." Pl.'s Facts ¶ 4. In September of 2004, "Ms. Phillips forwarded copies of evaluations, reports, and Dr. Taylor-Davis' recommendations to [the] DCPS and also requested [the] DCPS to complete several additional evaluations." Id. ¶ 12. In February of 2005, as a result of the District's failure to respond to the plaintiff's request for additional evaluations, the plaintiff filed an administrative due process complaint. Id. ¶ 13. Subsequently, the parties entered into a settlement agreement in which the District agreed to evaluate and determine T.P.'s eligibility for special education services and, if eligible, to develop an appropriate Program within thirty days. Id. The plaintiff then filed a second administrative due process complaint "on March 18, 2005 because [the District] failed to comply with the February 2005 settlement agreement," id. ¶ 15, resulting in a second agreement to convene a meeting regarding T.P.'s eligibility for special education services on April 25, 2005, id. ¶ 18. At that meeting, a representative for the District, Gloria Everett, "informed [the plaintiff] that [T.P.'s hospital records] were not appropriate and stated [that] additional assessments needed to be completed" before eligibility could be determined. Id. ¶ 19.
In a meeting with the plaintiff on September 22, 2005, Ms. Everett reasoned that because Dr. Taylor-Davis's review was more than a year old and conducted "prior to [T.P.'s] enrollment in school, and in light of [his] teacher's report that [T.P.] was performing at grade level[, the District] determined that Dr. Taylor-Davis should conduct another review of [T.P.'s] records." A.R. at 8. Dr. Taylor-Davis completed the second review of T.P.'s records and maintained that he was still eligible for special education services as an Impaired student because he
[suffered] a severe brain insult, [and the d]ata supports the educational classification of [Impaired]. He continues to require Occupational Therapy and Speech/Language Therapy... [and a]s academic challenges increase, the emergence of problematic behaviors is quite possible. [T.P.] could benefit from a highly structured, enclosed classroom with a low[-]student[-]to teacher ratio.
On December 2, 2005, the plaintiff filed a motion for a preliminary injunction with this Court, seeking a final determination of T.P.'s eligibility for special education services. Id. at 9. On December 21, 2005, the District determined that T.P. did not meet the criteria for classification as Impaired and was therefore ineligible for special education services. Id. Before the Court could rule on the preliminary injunction request, a special master appointed to T.P.'s case placed him at the School in early 2006, which effectively resolved the issue of T.P.'s entitlement to special education services. Id. at 9.
On November 19, 2007, Dr. Denise White-Jennings, a school psychologist, conducted a Psychological Reevaluation of T.P. and concluded that "[T.P.'s] verbal comprehension and perceptual reasoning abilities were... both in the [l]ow [a]verage range," and that his overall "academic skills were [also] in the low average range[,] with the exception of reading comprehension[,] which was in the extremely low range." Id. at 9-10. Dr. White-Jennings further recommended that T.P. "should be considered for special education services as a[n Impaired] student... due to the ongoing impact of his diagnosed systematic rheumatoid arthritis." Id. at 10. On November 15, 2007, District employee Tawana Hinton completed a Speech and Language Classroom Observation and Supplemental Testing evaluation and concluded that T.P. met "the criteria for speech and language intervention to address his auditory processing and reasoning skills deficits as well as his receptive and expressive language deficits." Id. She further found that "[T.P.] should receive one hour of intervention weekly." Id. On February 11, 2008, the plaintiff filed her third administrative due process complaint, "alleging that [the District had] 'denied [T.P.] access to a free appropriate public education by failing to timely evaluate [him] and determine his eligibility for special education and related services... and [by] failing to provide compensatory education for this failure.'" Id. at 4.
On March 10, 2008, the District convened a meeting and determined that T.P. "was eligible for special education services with a[n Impaired] classification... [but] that [he] did not require compensatory [education] services because he was progressing at [School]." Id. at 11. On April 25, 2008, a due process hearing regarding T.P.'s entitlement to compensatory education was convened, and Hearing Officer Terry Banks determined that there was "sufficient documentary evidence to show a violation of the IDEIA [and] that no testimonial evidence would be necessary."*fn3 Id. After the hearing was continued to May 14, 2008, Hearing Officer Banks reaffirmed in his decision that an IDEA violation had occurred with respect to T.P. Id. at 4, 11, 13. Hearing Officer Banks further stated that although T.P. had shown marked improvement in his communication and academic skills, he still "has difficulty acquiring and retaining information and continues to require one-on-one attention in a small classroom environment," and that he "has difficulty processing information and requires constant repetition." Id. at 11.
However, Hearing Officer Banks concluded that T.P. was not entitled to a compensatory education award because T.P.'s "proof as to the inability of [his current Program] to meet his needs is insufficient to meet his burden in several respects." Id. at 12. Specifically, Hearing Officer Banks disagreed with the plaintiff's witness at the hearing, Dr. Ida Jean Holman, concerning the proposed award of two-hundred and fifty five hours of additional tutoring because "her justification for increased services was unsupported by any objective criteria." Id. Additionally, Hearing Officer Banks asserted that because there was no request for compensatory services in 2006 or 2007, and that other specialists in contact with T.P. did not testify that additional services were necessary, the plaintiff did not meet her burden of proving entitlement to compensatory education in the amount proposed. Id. at 13.
The plaintiff subsequently filed her Complaint in this Court on May 27, 2009, which was later amended on June 12, 2009, alleging that Hearing Officer Banks erred when he determined that there was an IDEA violation, but refused to "award [T.P.] compensatory education services for the [District's] failure to provide T.P. with access to a free and appropriate public education." Plaintiff's Complaint at 51, Plaintiff's Amended Complaint at 51. The plaintiff essentially reiterates in her motion for summary judgment that because Hearing Officer Banks and the defendant conceded there was a violation of the IDEA that resulted in a denial of a free and appropriate public education, T.P. is entitled to two-hundred and fifty-five hours of compensatory education. Pl.'s Mot. at 13-19. The defendant counters in its cross-motion for summary judgment that the plaintiff has failed to prove that T.P. is entitled to an award of compensatory education. Def.'s Mem. at 10. More specifically, the defendant argues that Hearing Officer Banks' ...