MEMORANDUM OPINION
Plаintiffs Rosemary and Michael Iapa-lucci, on behalf of their minor daughter, A.I., and in their own right, brought this action under the Individuals with Disabilities Education Act (“IDEA” or “the Act”), 20 U.S.C. § 1400 et. seq., against Defendants, the District of Columbia and Robert C. Rice, in his official capacity as Interim Superintendent of the District of Columbia Public Schools. The IDEA provides that all children with disabilities will be provided a free and appropriate public education (“FAPE”), and provides for procedural safeguards to ensure that disabled children receive individualized education programs (“IEP”) to fulfill the Act’s goals. This case comes to the Court on appeal from the April 21, 2004 Hearing Officer Determination (“H.O.D.”) and related proceedings.
Currently before the Court are Plaintiffs’ Motion for Summary Judgment (“Pis.’ Summ. J.”), Defendants’ Opposition
I: BACKGROUND
A.I. is thirteen-year old child 1 who has been coded by the District of Columbia Public Schools (DCPS) with “Multiple Disabilities,” which includes a Speech-Language Impairment, a Learning Disability, and an Other Health Impairment, and has been found to be in need of special education. Compl. ¶ 7; Plaintiffs’ Statement of Undisputed Facts (“Pis.’ Facts”) ¶ 4. A.I. was adopted by Rosemary and Michael Iapalucci when she five years and nine months old from an orphanage in Kazakhstan. Compl. ¶ 6; Pis.’ Facts ¶ 2; R. at 56. Upon adoption, the Iapaluccis enrolled A.I. in pre-Kindergarten at Jan-ney Elementary School (“Janney”), their neighborhood elementary school in the District of Columbia. 4/2/2004 Tr. at 179. Because A.I. was almost six-years old at this time, pre-Kindergarten was a year behind her grade level. Id. Mrs. Iapalucci testified that upon enrollment she and Mr. Iapalucci immediately requested speech therapy. Id. When none was provided by the school, they obtainеd outside therapy at their own cost. Id. At the end of A.I.’s Kindergarten year, her teacher recommended more testing. Id. In response to this recommendation, Gabrielle Grunau, a DCPS School Psychologist, conducted a psychological evaluation of A.I. on May 19, 1999, and determined that “[a]t this time, [A.I.] does not meet the criteria as a Learning Disabled student, and therefore, is not considered multiply handicapped. She is Speech Impaired.” Pis’ Summ. J., Ex., 1 at 6. The Iapaluccis again requested testing when A.I. was in second grade because she continued to have difficulties in the classroom. Pis.’ Summ. J. at 6; 4/2/2004 Tr. at 179.
Concerned about the level of difficulty A.I. was having completing her homework, the Iapaluccis sought an outside neuropsy-chological evaluation by Dr. Patricia Pape-ro when A.I. was in fourth grade. 4/2/2004 Tr. at 179; R. at 56. Dr. Papero observed and tested A.I. on three occasions from October 25, 2002 through October 31, 2002. R. at 56. Dr. Papero concluded that A.I. should be classified by the DCPS as having an Other Health Impairment, a Learning Disability, and Speeeh/Language Disorder. R. at 69. Furthermore, Dr. Paperо suggested that “[m]ore intensive intervention must be put in place as possible in order for [A.I.] to have a chance of making a better rate of progress” and recommended that the Ia-paluccis consider placing A.I. in a “self-contained language-based learning program.” R. at 70. She also recommended that the Iapaluccis seek a comprehensive speech/language evaluation. R. at 72.
On December 12, 2002, the Iapaluccis had A.I. evaluated by Lisa Washington, a speech pathologist with the University of the District of Columbia. R. at 45. Ms.
The Iapaluecis subsequently provided both Ms. Washington’s and Dr. Papero’s reports to the DCPS. On January 24, 2003, Dr. Belton Wilder — a clinical psychologist contracted by the DCPS — conducted a review of Dr. Papero’s evaluation. R. at 51. In large part, Dr. Wilder’s conclusions did not differ from those of Dr. Papero, and Dr. Wilder agreed that A.I. would require educational accommodations for her weaknesses. R. at 54. During this same time period, on January 17, 2003, the DCPS conducted an occupational therapy (“OT”) evaluation of A.I., wherein the therapist, Amanda Farber, OTR/L, found that A.I. “demonstrates average visual motor skills and very strong visual perceptual skills. She demonstrates decreased speed when performing fine motor coordination and manipulation skills although she has fair accuracy when provided increased time.” R. at 196. The OT evaluation concluded that A.I. did not require special education OT services, but did recommend: (1) that A.I. be provided a pencil grip to “improve comfort and pressure of grasp,” (2) participation in extracurricular activities to improve balance and gross motor skills, (3) visual aids “to enhance learning secondary to her strong visual perceptual and visual memory skills,” and (4) additional time to complete tasks with fine motor components. R. at 197-97.
As a result of the testing, DCPS convеned a Multidisciplinary Team (“MDT”)/IEP meeting on March 18, 2003, in order to develop a strategy to cope with A.I.’s disabilities. Pis.’ Summ. J. at 8; R. at 147. While they attended and participated in the meeting, the Iapaluecis were ultimately dissatisfied with the number of hours of special education recommended in the resulting IEP — approximately 9.5 hours/week
3
— and refused to signed the IEP. Compl. ¶ 15, 4/2/2004 Tr. at 182. According to the Iapaluecis, the IEP also failed (1) to include AJ.’s present levels of educational performance in the classroom, (2) identify appropriate goals and objectives by not specifying the goals and objectives that she had not previously mastered, (3) address her OT-based needs, (4) list any classroom accommodations, and (5) place her in a situation where she was provided a low student-teacher ratio for large periods of time.
See
Pis.’ Facts ¶¶ 19-22. Despite these objections, A.I. received these services provided for in her IEP for the remainder of the 2002-2003
On June 11, 2003, a MDT/IEP meeting was held in order to review A.I.’s IEP, to examine her progress, and to discuss A.I.’s IEP for the 2003-2004 school year. The Iapaluccis once again attended and expressed their concern that the proposed IEP would not provide A.I. with enough support for her to make progress. R. at 202. It was their impression, based on the recommendations of the experts, that A.I. should be receiving more of her education in a special education setting, rather than in a regular classroom setting. R. at 203. The minutes of the IEP meeting reflect that the Iapaluccis agreed with the goals of the IEP but rejected (1) the level of service being offered and (2) Janney Elementary School (“Janney”) as a placement for A.I. Furthermore, they opined that certain goals should have been included in the IEP but wrongly were omitted. R. at 203. Despite these concerns, the IEP team concluded that mainstreaming A.I. would have educational benefit and declined to modify the IEP to provide her with more time out of the classroom in special education. 4 R. at 209. On June 24, 2003, the Iapaluccis informed Janney that they had decided to enroll A.I. in “a nonpublic special education setting” and that “[t]hey do not believe that [A.I.] would be expected to make meaningful educational progress in the program and placement proposed through the recent IEP process.” R. at 76. The Iapaluccis settled on Kings-bury Day School (“Kingsbury”), a private school in Washington, D.C., that offers special education services for children with language disorders, learning disabilities, and social/emotional disorders, and enrolled A.I. in school there for the 2003-2004 school year. Compl. 16-17; R. at 76. By all accounts, A.I. has been successful in this placement, wherein she is enrolled in a class of ten students, as opposed to twenty-five, and can now complete her homework independently. R. at 103 (H.O.D.); Pis. Summ. J. at 10; 4/2/2004 Tr. at 139, 154,183.
On November 4, 2003, the Iapaluccis attended an IEP meeting at Kingsbury intended to develop a new IEP for A.I. for the 2003-2004 school year there. R. at 94. The IEP that was developed by Kingsbury included one-hour and fifteen-minutes of speech and language therapy each week. R. at 77. The IEP noted that A.I. needed small group instruction and one-on-one support and that putting her in the least restrictive placement “will result in loss of self esteem as [a] competent learner.” R. at 93. The IEP developed by Kingsbury placed A.I. at Kingsbury for the 2003-2004 school year, R. at 93, and Mr. Iapalucci signed the IEP indicating that he, as A.I.’s parent, agreed with the IEP. R. at 77. On November 13, 2003, the Iapaluccis filed a request with the DCPS for a due process hearing seeking funding and placement at Kingsbury and alleging that “DCPS failed to develop an appropriate IEP [and] placement for [A.I.].” R. at 6.
The hearing was scheduled for December 12, 2003, and was presided over by Terry Michael Banks, an independent hearing officer. Pis.’ Facts ¶ 30. Due to the number of witnesses and the late hearing time, the hearing had to be continued to a date agreed upon by both counsel for Plaintiffs and Defendants. 12/12/03 Tr. at 115-16. On February 17, 2004, Plaintiffs’ counsel requested the Student Hearing Office to set a date for reconvening the hearing, stating that as of February 17, 2004,
In the April 21, 2004 H.O.D. resulting from the December 12, 2003 and April 2, 2004 hearings, Hearing Officer Banks concluded that DCPS had met its burden of proving the IEP for placement at Janney was appropriate for A.I., R. at 103 (H.O.D.). The decision of the IEP Team for A.I. to receive her education principally in the regular classroom was determined to be reasonable in light of testimony by AJ.’s teachers that she was benefiting from interacting with children who were not disabled. R. at 104 (H.O.D.). Hearing Officer Banks further concluded that while the testimony of Mrs. Iapаlucci regarding the progress A.I. made at Kingsbury was credible, DCPS had “provided [A.I.] with the education benefit as required by IDEA.” R. at 105 (H.O.D.). According to Hearing Officer Banks, “DCPS is obligated only to provide educational benefit to [A.I.], not maximize her educational experience.” Id.
In contesting the H.O.D., Plaintiffs’ Complaint alleges three central claims. Compl. ¶¶ 49-59. First, Plaintiffs charge that Defendants failed to provide A.I. with a free appropriate public education and due process of law. Second, Plaintiffs charge that Defendants failed to place and fund A.I. at Kingsbury for the 2003-2004 school year. Third, Plaintiffs charge that Hearing Officer Banks erroneously denied reimbursement of the Kingsbury tuition costs to the Iapaluccis. Defendants, in addition to contesting the claims made by Plaintiffs, contend in response: (1) Plaintiffs are not entitled to private school tuition reimbursement where a public school was appropriate, and where the parents were given a chance to have their objections to the IEP heard; (2) the Iapalucci’s failure to cooperate with the DCPS ensured that thеy forfeited any right to reimbursement; (3) the parents’ failure to provide notice that would permit the IEP team to address their concerns with Jan-ney nullified their right to reimbursement for private school tuition; and (4) Plaintiffs’ interest in a private school placement should have been expressed at the MDT/ IEP meeting before the unilateral withdrawal of A.I. from Janney. See Defs.’ Summ. J. at 18-25.
II: STATUTORY FRAMEWORK
The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education [“FAPE”] that emphasizes special education and related services designed to meet their unique needs.... ” 20 U.S.C. § 1400(d)(1)(A). “Implicit” in the IDEA’S guarantee “is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child.”
Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley,
include a written statement of evaluation and plan of action that sets forth the child’s present level of educational performance, measurable goals, including benchmarks or short-term objectives, special education and related services to be provided to the child and program modifications or supports for school personnel that will be provided to the child, the child’s ability to interact with non-disabled children, a statement of administrative modification, the projected date for the beginning of services, and the anticipated frequency, location and duration of those services, and how the child’s progress toward the annual goals will be measured.
Diatta v. Dist. of Columbia,
A student’s eligibility for a FAPE under the IDEA is determined by the results of testing and evaluating the student, and the findings of a “multidisciplinary team” and/or “individualized educational plan team” (“MDT/IEP team”). Such a team consists of the disabled student’s parents, teachers, and other educational specialists, who meet and confer in a collaborative process to determine how best to accommodate the needs of the students to provide a FAPE. See 20 U.S.C. § 1414(d)(1)(B) (outlining the membership of the IEP team). The federal regulations interpreting the IDEA require that a meeting to develop an IEP be held within thirty (30) days of the determination of a child’s need for special education and related services. 34 C.F.R. § 300.343(b)(2). 5 The District of Columbia’s regulations follow suit. D.C. Mun. Regs. tit. 5 § 3007.1.
The IDEA also guarantees parents of disabled children the opportunity to participate in the evaluation and placement process.
See
20 U.S.C. § 1414(f) (allowing for alternative means of participating in meetings, such as tele- or video-conferencing), 1415(b)(1) (ensuring that the parents have the opportunity to participate fully in the process by providing access to records relating to the child and allowing for independent evaluations of the child). “The IEP team shall conduct an initial evaluation of a child within a reasonable time of receiving a written referral and parental consent to proceed within timeliness consistent with Federal law and D.C.Code § 38-2501(a).” D.C. Mun. Regs. tit. 5, § 3005.2. The regulations require DCPS to use “a variety of assessment tools and strategies” to gather “relevant functional and developmental information about the child.”
Id.
§ 3005.9(b). Parents who object to their child’s “identification, evaluation, or educational placement” are entitled to an impartial due process hearing,
see
20 U.S.C. §§ 1415(b)(6)(A) (permitting the filing of a complaint by objecting parents), (f)(1)(A) (providing parents who file a complaint under § 1415(b)(6) with the opportu
Parents “aggrieved by” a Hearing Officer’s findings and decision may bring a civil action in either state or federal court. 20 U.S.C. § 1415(i)(2); D.C. Mun. Regs, tit. 5, § 3031.5. The district court has remedial authority under the Act, and broad discretion to grant “such relief as the court determines is appropriate” under the IDEA as guided by the goals of the Act. 20 U.S.C. § 1415(i)(2)(B)(iii).
Ill: LEGAL STANDARDS
A. Summary Judgment
In this case the Court is presented with cross motions for summary judgment. A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law.
See
Fed.R.Civ.P. 56(c);
Tao v. Freeh,
Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment.
See Anderson v. Liberty Lobby, Inc.,
B. The IDEA
1. Legal Standard
The IDEA permits “any party aggrieved by the findings and decision” rendered during administrative proceedings to “bring a civil action” in state or federal court without regard to the amount in controversy. 20 U.S.C. § 1415(i)(2); 34 C.F.R. § 300.512(b)(3). The reviewing court “shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, 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); 34 C.F.R. § 300.512(b)(3). In a review of an H.O.D., the burden of proof is always on the party challenging the administrative determination, who must “at least take on the burden of persuading the court that the Hearing Officer was wrong, and that a court upsetting the officer’s decision must at least explain its basis for doing so.”
Reid v. Dist. of Columbia,
The Supreme Court has interpreted the “preponderance standard of review not to be an allowance of unfettered
de novo
review.”
Dist. of Columbia v. Ramirez,
2. Private Placement
Under the IDEA, parents who unilaterally decide to place their disabled child in a private school, without obtaining the consent of local school officials, “do so at their own risk.”
Florence County Sch. Dist. Four v. Carter,
Moreover, even when a court finds that parents of a disabled child eligible for tuition reimbursement under
Carter,
Ill: DISCUSSION
Plaintiffs move for summary judgment on the grounds that the Hearing Officer failed to properly allocate the burden of proof, ignored relevant evidence regarding AJ.’s IEP, and failed to address the legal and factual issues in the case. Pis.’ Summ. J. at 15 — 16. Defendants dispute these allegations and move for summary judgment on the grounds that the Hearing Officer’s determinations that (1) DCPS provided A.I. with a FAPE and (2) that an adequate IEP had been developed were reasonable.
In reviewing an administrative determination under the IDEA, the Court must address two questions that are aimed at the DCPS’s paralleling responsibilities to comply with the procedural and substantive requirements of the IDEA:
First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.
Petersen v. Hastings Pub. Schs.,
A. The Alleged Procedural and Factual Deficiencies in the IEP
Plaintiffs allege roughly six deficiencies in AJ.’s IEP, each of which stem from the testimony of Dr. Laura Solomon offered at the April 2, 2004 hearing before the Hearing Officer. Pis.’ Summ. J. at 9; 4/2/2004 Tr. at 96 (beginning of Dr. Solomon’s Testimony), 121 — 33 (testimony of Dr. Solomon describing how the IEP is deficient in her opinion), 169 (end of Dr. Solomon’s testimony). The alleged deficiencies are:
1. The IEP did not include a description of A.I.s’ present level of performance in the classroom.
2. The IEP did not identify goals and objectives appropriate for A.I.’s skill level.
3. The IEP failed to include those goals from AJ.’s previous IEP that she had faded to master.
4. The IEP failed to include an implementation strategy to insure A.I. met the goals and objectives set forth.
5. The IEP did not addrеss AI.’s fine or gross motor skills.
6. The IEP did not provide A.I. with any classroom modifications.
Id. at 9. According to Plaintiffs, “DCPS has never offered any testimonial or written evidence to address or refute any of these deficiencies. The law on this point is clear: under the IDEA, placement is to be based on the IEP.” Pis.’ Opp’n at 4. Plaintiffs stress “[i]f the IEP is [injappropriate [sic], the placement is defacto inappropriate.” Id. In response to Plaintiffs’ assertion of procedural deficiencies, Defendants essentially concede the existence of some deficiencies. See Defs.’ Reply at 8. However, Defendants assert that “[instances of minor nonconformance with an IEP does not negate a placement.” Id.
The Supreme Court has long recognized that the adequacy of an IEP is to be judged by whether the procedural requirements of the IDEA have been satisfied. In relevant part, the Court stated:
When the elaborate and highly specific safeguards embodied in § 1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attachеd to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e.g., § § 1415(a)-(d), as it did upon the measurement of the resulting IEP against a substantive standard.
Rowley,
However, contrary to Plaintiffs’ assertion, not every technical violation of the procedural prerequisites of an IEP will invalidate its legitimacy.
See Amanda J. v. Clark County Sch. Dist.,
Upon an analysis of the six alleged procedural deficiencies in the IEP developed at Janney for A.I., the Court concludes that the deficiencies constitute “technical” violations of the IDEA and — by themselves — are not sufficient to have rendered the IEP inappropriate and ensured the denial of a FAPE. Several important considerations lead to this finding. First, Plaintiffs overstate some of the alleged procedural deficiencies. For instance, while Plaintiffs claim that the Mаrch 18, 2003 IEP developed at Janney for A.I. “did not include any description of [A.I.’s] present levels of performance in the classroom,” Pis.’ Summ. J. at 9, a review of the IEP does indicate a detailed description of A.I.’s performance, at least in certain areas. See, e.g., R. at 147 (listing under “Present Educational Performance Levels in Areas Affected by the Disability,” A.I.’s strengths in math and reading, the impact of her disability in both areas, and test scores in both areas). Again, while Plaintiffs claim that the IEP “failed to identify goals and objectives appropriate for [A.I.’s] skill level,” Pis.’ Summ. J. at 9, the IEP developed for A.I. actually contains six pages of twenty-six (26) specific “short-term objectives” to be evaluated quarterly and six (6) annual goals. See R. at 148-54. While Plaintiffs might object to the appropriateness or adequacy of some of these goals and objectives, their claim that the IEP procedurally “failed to identify goals and objectives” is simply contradicted by the record.
The OT evaluation recommended four accommodations that were not included in [A.I.’s] IEP, one of which was addressed to [A.I.’s] mother. As for the three remaining recommendations, the testimony and exhibits revealed that [A.I.] did have access to visual aids and was provided ample time to complete assigned tasks. Thus, only the recommendation that [A.I.] be provided a pencil grip was ignored. In light of the examiner’s overall conclusions that [A.I.] “demonstrates average visual motor skills and very strong visual perceptual skills” and did not require OT services, the MDT’s failure to prescribe the pencil grip does not render the IEP inappropriate or amount to a denial of free appropriate public education.
R. at 104 (H.O.D.) (also noting that one of the two greatest areas of concern to the Hearing Officer was the MDT’s “failure to prescribe the accommodations recommended in the OT evaluation”). As such, based on the record, it is clear that the DCPS did address A.I.’s fine or motor skills, and provided some of the recommended solutions. Moreover, the Hearing Officer, when making his decision, was certainly informed of these facts, and testimony on this issue was provided. Accordingly, it is clear that while some information might have been left out of AJ.’s formal IEP, the Iapaluecis and the DCPS were aware of this information and collectively incorporated it into AJ.’s program. Given the awareness of the relevant information, the technical violation of the IEP does not necessarily render inappropriate the IEP provided to A.I.
See Defendant I,
Third,
as the Sixth Circuit has emphasized, “[a]dequate parental involvement and participation in formulating an IEP, not adherence to the laundry list of items given in [S]ection 1401(9), appear to be the
[Rowley
] Court’s primary concern in requiring that procedures be strictly followed.”
Id.
(citing
Rowley,
Congress incorporated an elaborate set of what it labeled “procedural safeguards” to insure the full participation of the parents and proper resolution of substantive disagreements. Section 1415(b) entitles the parents “to examine all relevant records with respect to the identification, evaluation, and educational placement of the child,” to obtain an independent educational evaluation of the child, to notice of any decision to initiate or change the identification, evaluation, or educational placement of the child, and to present complaints with respect to any of the above. The parents are further entitled to “an impartial due process hearing” ... to resolve their complaints.
Burlington Sch. Comm.,
Ultimately, given the fact that (1) Plaintiffs overstate the scope of the alleged procedural deficiencies in the IEP, (2) the remaining deficiencies were essentially “technical” and known to the parties during the evaluation and determination process, (3) Defendants clearly ensured adequate parental involvement, and (4) no “procedural bad faith” took place, the Court concludes that to the extent that the IEP provided by Janney to A.I. failed to meet all of the laundry list of procedural requirements outlined in the IDEA, such deficiencies are insufficient to invalidate the IEP and compel a conclusion that A.I. was denied a FAPE. As such, the Court shall shift from a consideration of the alleged procedural deficiencies to an examination of both the substance of the IEP provided to A.I. and the conclusions reached by the Hearing Officer in the H.O.D.
B. Defendants Carried Their Burden of Proving at the Hearing that A.I.’s IEP Was Adequate and that She Was Receiving a FAPE.
Plaintiffs’ Complaint hinges on whether the Defendants carried their burden at the hearing. The District of Columbia regulations that apply IDEA to the District mandate that the DCPS, as the local education agency (“LEA”) under D.C. Mun. Regs. tit. 5, § 3001, carries the burden of proving “based solely upon the evidence and testimony presented at the hearing, that the action or proposed placement is adequate to meet the educational needs of the student.” D.C. Mun. Regs, tit. 5, § 3030.3. In addition, as stated above, Plaintiffs in this case, as the party challenging the Hearing Officer’s determination, carry the burden of persuading this Court that the Hearing Officer was wrong in making his determination.
Kerkam I,
The Plaintiffs focus almost exclusively on the substantive deficiencies in the 2002-2003 IEP in order to show that the pro
Importantly, while the Hearing Officer must make his determination based on the testimony at the hearing, he is also required to examine all of the evidence presented, including the evidence presented in the written administrative record.
Kerkam I,
The standard set out by the Supreme Court in determining whether a child is receiving a FAPE, or the “basic floor of opportunity,” is whether the child has “access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.”
Rowley,
It is therefore highly relevant whether A.I. was making progress and experiencing meaningful educational benefit from the IEP established and implemented at Janney. It is uncontested that A.I. is benefiting from her placement at Kingsbury, and that Kingsbury “is a better fit for [A.I.] than Janney,” R. at 105 (H.O.D.). However, a court must not focus on whether the DCPS is maximizing A.I.’s potential through its proposed placement of A.I. at Janney under the terms of the IEP; rather, the appropriate focus of the court’s review should be on whether DCPS is providing A.I. with an IEP that is reasonably calculated to produce meaningful educational benefit.
See Rowley,
458 U.S. at
The Hearing Officer heard testimony from A.I.’s teachers that while she did not master the goals of her IEP during the relatively short period of time between the issuance of the IEP and the Iapaluecis decision to remove A.I. from Janney, she did make noticeable progress between March 2003 (when the IEP was implemented) and the end of that school year roughly two months later. R. at 103 (H.O.D.); 12/12/2003 Tr. at 64-65 (testimony of Ms. Laura Estomin, one of A.I.’s teachers, explaining anecdotally how A.I.’s reading, writing, and math improved after the implementation of the IEP); R. at 159-61 (A.I.’s IEP Report Cards, indicating progress); R. at 162-67 (AJ.’s Related Services Progress Reрorts dealing with speech and language, noting “continued improvement” and a good “prognosis” for future improvement). Upon a review of both the written record and oral testimony, the Hearing Officer concluded that as a result of the IEP, A.I.
made progress on her speech and language skills throughout the 2002-2003 school year. She mastered none of her IEP goals, but she generally made progress on all of them. She improved from being overwhelmed by being asked to summarize a chapter in a book to being able to do things on her own, including writing on her own. Her comfort level doing math also increased over the year, and “things came a lot faster and easier towards the end of the year.”
R. at 103 (H.O.D.) (quoting testimony of Ms. Estomin).
Plaintiffs now attack the testimony offered at the hearing by A.I.’s teachers at Janney, contending that “DCPS witnesses were unable to point to any quantitative data demonstrating [A.I.’s] progress [during the 2002-2003 school year].” Pis.’ Facts ¶ 50. While it is true that the vast majority of evidence presented at the hearing and relied on by the Hearing Officer was anecdotal, the Hearing Officer based his analysis regarding A.I.’s progress in part on four detailed progress reports crafted during A.I.’s 2002-2003 school year at Janney. The Hearing Officer specifically mentioned that A.I.’s “fourth quarter progress report provided a thorough analysis of the progress she had made during the year toward meeting her IEP goals.” R. At 104 (H.O.D.). While a review of A.I.’s “Elementary Report Card — Progress Toward IEP Goals” does reveal a lack of reference to specific test score or grade advances by A.I., these reports certainly contain a myriad of specifics that substantiate the Hearing Officer’s finding of progress. For instance, these “report cards” note,
inter alia,
that A.I. now (1) is able to solve word problems, (2) can add and subtract with and without regrouping, (3) is able to use a multiplication table, (4) is starting to memorize her multiplication tables, (5) can tell time, (6) can identify the main idea of a chapter, (7) can verbalize events in a chapter, and set them out in paragraph form, (8) edit her
In addition to the detailed testimony and specific written evidence provided by the DCPS, indicаting AJ.’s academic progress during the 2002-2008 school year, the Hearing Officer was also provided significant testimony detailing the opinion of A.I.’s teachers and the IEP team that AJ.’s spoken language skills and her language recognition would benefit from interaction with children who were not disabled and were able to talk to her on age-appropriate topics. 12/12/2003 Tr. at 67 (testimony of Ms. Estomin regarding whether A.I. benefited from being in a classroom with non-disabled children); R. at 204 (6/11/2003 IEP/MDT Meeting Minutes). The Hearing Officer was presented with evidence by the DCPS indicating progress in this area as well, as AJ.’s fourth quarter progress report noted that, “[s]he has many friends in the classroom, and she seems to really enjoy her time at school.” R. at 104 (H.O.D.).
Importantly, it is not necessary that all benefits fall under the strict category of “academic benefit.” The decision by the D.C. Circuit in
Dawkins v. District of Columbia
is instructive on this matter. In
Dawkins,
the D.C. Circuit stated that the vocational program that DCPS identified as the appropriate placement for the child was not rendered inappropriate simply because it did not constitute an “academic type program”; rather, the
Dawkins
court emphasized that the IEP was appropriate because it was “reasonably calculated to confer educational benefit,” and noted that the fact that there may have been a better placement does not render inadequate the current placement.
Dawkins v. Dist. of Columbia,
In response, Plaintiffs contend that Hearing Officer Banks disregarded the evidence presented by Plaintiffs’ that contradicts that presented by the Defendants. Plaintiffs’ contention is undermined by three important facts.
First,
the Hearing Officer’s H.O.D. was often quite explicit in recognizing possible contradictions. For instance, while noting that “DCPS offered credible testimony from Ms. Wood and Ms. Estomin that [A.I.] was receiving educational bеnefit at Janney” and gaining social acceptance, he also specifically indicated that A.I.’s “mother refuted the purported progress, testifying that [A.I.] had to spend an inordinate amount of time on homework, was confused, and was socially unaccepted.” R. at 104 (H.O.D.). The Hearing Officer did consider this disparity “significant,” and although he ultimately credited the testimony of Ms. Estomin and the analysis in A.I.’s progress reports on this issue, he did credit the testimony of A.I.’s mother to the extent that she found that “Kingsbury was a better fit for [A.I.] than Janney.” R. at 105 (H.O.D.). Moreover, the Hearing Officer also emphasized that “[t]he two issues of greatest concern to the hearing officer were the MDT’s failure to adopt the recommendations of Dr. Panero [sic]
6
and Ms. Washington to
Second, Hearing Officer Banks was the trier of fact at the due process hearing. As such, it was his responsibility to determine how much weight to give the evidence. Upon a review, it is impossible to support the assertion that Hearing Officer Banks “ignored” the testimony of Plaintiffs’ witnesses. It is just as likely that Hearing Officer Banks relied heavily upon the testimony of the DCPS witnesses because those witnesses worked everyday with A.I. throughout the three-month implementation of the 2002-2003 IEP and would be in the best position to gauge her performance and determine whether the goals of the 2003-2004 IEP were appropriate. See R. at 104 (H.O.D.) (noting that the teachers involved “offered credible testimony”). Indeed, the H.O.D. is replete with references by the Hearing Officer to the evidence offered by Plaintiffs. For instance, the Hearing Officer specifically noted that one of the two areas of “greatest concern” for him was the MDT’s “failure to adopt the recommendations of Dr. Panero [sic] and Ms. Washington to place Petitioner in a self-contained setting.” R. at 104 (H.O.D.). The Hearing Officer correctly emphasized that Dr. Papero clearly favored a self-contained classroom model, as Plaintiffs requested; while considering that evidence, the Hearing Officer also weighed the social benefits of mainstream placement, with a high level of daily supports — an option supported by the MDT and identified by Dr. Papero as having certain “relative benefits.” R. at 104 (H.O.D.). In this area, the Hearing Officer clearly considered Plaintiffs’ evidence, but rejected some of their conclusions, finding “[i]n light of the progress reported by Ms. Estomin throughout the school year, the MDT’s decision to place [A.I.] in a lesser restrictive environment was reasonable.” R. at 104 (H.O.D.).
Third,
Plaintiffs provide no legal support for the assertion that Hearing Officer Banks had to offer a detailed explanation for why he gave more weight to Defendants’ evidence than to Plaintiffs’ evidence. A similar argument was made by the plaintiffs in
Schoenbach v. District of Columbia,
Importantly, this “Court may reverse the Hearing Officer’s decision only if the Court — giving his decision due weight — is nevertheless satisfied that [Plaintiffs] ha[ve] shown by a preponderance of the evidence that he was wrong.”
Id.
at 895. “[W]hile
de novo
review is inappropriate, a court’s authority is not so limited that it must accord the hearing officer deference as great as the ‘clearly erroneous,’ ‘abuse of discretion,’ or ‘substantial evidence’ standards of review.... In short, the standard of review is somewhere in the middle.... ”
Id.
at 895 (citation omitted).
IV: CONCLUSION
For the reasons set forth above, Plaintiffs’ Motion for Summary Judgment is denied and Defendants’ Motion for Summary Judgment is granted. The Court finds that Plaintiffs are not entitled to any reimbursement of costs incurred while A.I. has bеen at Kingsbury and are not entitled to attorney’s fees. An Order accompanies this Memorandum Opinion.
Notes
. A.I. was born on January 24, 1992, R. at 4, and was twelve-years old when the Complaint was filed on May 2, 2004. Compl. ¶ 6.
. It should be noted that the Defendants' Statement of Material Facts as to Which There is No Dispute consists largely of rote incorporation of the Hearing Officer’s Findings of Facts and Conclusions of Law. Furthermore, while the Plaintiffs do not challenge the Defendants’ Statement of Material Facts insofar as it shows that the Hearing Officer made Findings of Fact and Conclusions of Law, they do object to the rote reproduction of the Findings of Facts and Conclusions of Law into the Defendants’ Statement of Material Facts. Plaintiffs also object specifically to ¶¶ 6 and 8 of the Hearing Officers Findings of Fact and to the inclusion of the Conclusions of Law in Defendants’ Statement of Material Facts. See Pis’ Response to Defs.' Statement of Material Fact ¶¶ 4, 5.
. Specifically, the IEP provided A.I. with three (3) hours per week of "Specialized Instruction” within the general classroom of twenty-three students, five (5) hours per week of "Specialized Instruction” remоved from the general classroom, and one-and-one-half (1.5) hours per week of "Speech Language Therapy” services, also removed from the general classroom. Pis.'Facts ¶ 16.
. The Record does not include a proposed IEP from the June 11, 2003 meeting, although the H.O.D. found that the resulting IEP for 2003-2004 was the same as the 2002-2003 IEP. R. at 103 (H.O.D.).
. On November 13, 2003, the District of Columbia amended the statute that required DCPS to assess and evaluate a student who may have a disability and who may require special education services, changing the amount of time allotted for completion of the evaluation from sixty (60) days to one hundred and twenty (120) days. See D.C.Code § 38-2501. The amended statute allots one hundred and twenty (120) days within learning of a child's disability to locate an appropriate placement. Id. §§ 38-2501(a) & (b).
. The Hearing Officer, in the H.O.D., consistently misspells Dr. Papero's name "Panero." See R. at 104 (H.O.D.).
. Given this conclusion, the Court need not reach Defendants’ argument that the Iapaluc-ci’s alleged failure to cooperate with the DCPS and alleged failure to provide notice regarding their concerns and their intention to move A.I. to a private school waived any right they may have possessed to tuition reimbursement.