The opinion of the court was delivered by: Schiller, J.
A hearing officer determined that the School District of Philadelphia ("the District") denied Candiss C. free appropriate public education ("FAPE") as required by federal law. The Hearing Officer's opinion, however, satisfied neither party. Accordingly, both Candiss and her mother, Deborah A., as well as the District, appealed to a Special Education Appeals Panel ("the Panel"). After the Panel issued its decision, the District appealed to the Commonwealth Court of Pennsylvania. Candiss and Deborah removed that action to this Court. They also filed in this Court a separate lawsuit under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq. and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, against the District. These two cases have been consolidated. Now before the Court are the motions of the parties for judgment on the administrative record. Plaintiffs also seek a remand to an administrative body that would consider additional claims previously held barred by the statute of limitations. For the reasons below, both motions will be granted in part, and denied in part.
Candiss C. is currently seventeen years old and at all relevant times resided in the District.
The District identified her as eligible for special education services under the IDEA. (Compl. ¶ 2.) Candiss possesses average intellectual ability but has a Specific Learning Disability in reading. (Hearing Officer Opinion ["HO"] at 2.)
On July 27, 2007, Deborah A. requested a due process hearing. (Pls.' Mem. in Supp. of Mot. for J. on the Administrative R. and Mot. for Remand [Pls.' Mem.] at 2.) She sought, for Candiss, compensatory education from the 1999-2000 school year through the 2006-07 school year (excluding the 2005-06 school year). (Id.) She also sought compensatory education for the summer of 2007 for the District's failure to both meet its Child Find obligations to timely identify Candiss as eligible for special services and to provide her with appropriate evaluations and Individualized Education Programs ("IEP"s) during that period.
A. The Hearing Officer's Decision
On January 17, 2008, the Hearing Officer issued a written decision that addressed five issues:
(1) whether claims prior to July 27, 2005 were barred by the statute of limitations; (2) whether any exceptions to the two-year limitations period applied; (3) whether the District provided Candiss with FAPE from July 27, 2005 through the balance of the summer; (4) whether the District provided Candiss with FAPE during the 2006-07 school year; and (5) whether the District failed in its Child Find obligations. (HO at 2-3.) Over the course of the two-day due process hearing, the Hearing Officer heard testimony from two witnesses and received documentary evidence.
The Hearing Officer's decision includes fifty-one findings of fact and seven legal conclusions. The Hearing Officer concluded that the District failed to provide Candiss with FAPE for the 2006-07 school year, that the statute of limitations barred claims for compensatory education and remedies under Section 504 and the IDEA prior to July 27, 2005, and that neither of the two exceptions to the IDEA-2004 statute of limitations applied to Candiss.*fn1 (HO at 8.) The Hearing Officer also declined to award Candiss Extended School Year Services ("ESY") for the summer of 2007. (Pls.' Mem. at 3.)
The Hearing Officer determined that the 2006-07 IEPs were "certainly deficient in the behavior area. A prompt evaluation should have been completed. Without an evaluation, the IEP is deficient because it failed to address documented behavior issues." (HO at 14.) The Hearing Officer also determined that Candiss showed a need for reading intervention and that she fell well below grade level in reading. (HO at 14.) She concluded that the IEPs dated November 3, 2006, March 29, 2007, and June 8, 2007 were deficient and their implementation was a denial of FAPE for the 2006-07 school year. (HO at 15.) The Hearing Officer ordered, inter alia, compensatory education at the rate of two hours per day multiplied by the number of school days Candiss attended school between November 1, 2006 and the date an appropriate IEP was implemented. (HO at 17.)
B. The Appeals Panel's Decision
Both Plaintiffs and the District appealed to the Panel. The Panel affirmed the Hearing Officer's decision that Candiss was not denied FAPE for the summer of 2007. (Appeals Panel Opinion ["AO"] at 6-7.) The Panel also affirmed the Hearing Officer's decision regarding the IDEA-2004 statute of limitations but noted that it lacked jurisdiction to address the Section 504 claim. (AO at 7-10.) The Panel also agreed that neither of the statutory exceptions to the IDEA-2004 statute of limitations applied to Candiss's case and that the IDEA-2004 did not recognize non-statutory exceptions. (AO at 10-11.) The Panel did modify the Hearing Officer's decision in one regard; the majority of the Panel deemed the District's denial of FAPE sufficiently pervasive to warrant a dayfor-day remedy. (AO at 12.) Accordingly, Candiss was awarded compensatory education at the rate of 5.5 hours per day multiplied by the number of school days that Candiss attended school from November 1, 2006 to the end of the 2006-07 school year. (AO at 13.)
Both Plaintiffs and the District raise issues with the Panel's decision. The District requests that this Court affirm the decision of the Panel with one key exception -- the District would like the Hearing Officer's award of two hours a day to be reinstated rather than the Panel's 5.5 hours per day award. Candiss and Deborah, on the other hand, want this Court to remand this matter so that a hearing officer can consider Candiss's claims previously deemed outside the statute of limitations. Plaintiffs also want this Court to reverse the Panel's decision that Candiss is not entitled to compensatory education services for the summer of 2007. Finally, Plaintiffs ask the Court to affirm the Panel's 5.5 hours per day compensatory education award for the 2006-07 school year.
In IDEA actions, 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 the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C) (2006). In evaluating such claims, "the District Court applies a modified version of de novo review and is required to give due weight to the factual findings" made during the administrative proceeding. L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006); see also Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982). A district court's standard of review when a party challenges the ruling of a state administrative agency has been characterized as "unusual" because:
Although the District Court must make its own findings by a preponderance of the evidence, the District Court must also afford "due weight" to the [agency's] determination. Under this standard, "[f]actual findings from the administrative proceedings are to be considered prima facie correct," and "[i]f a reviewing court fails to adhere to them, it is obliged to explain why." In addition, if a state administrative agency has heard live testimony and has found the testimony of one witness to be more worthy of belief than the contradictory testimony of another witness, that determination is due special weight. . . . [T]his means that a District Court must accept the state agency's credibility determinations "unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion." In this context, the word "justify" demands essentially the same standard of review given to a trial court's findings of fact by a federal appellate court.
Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004) (citations omitted). The burden of proof in an action challenging an IEP falls upon the party seeking relief and remains on that party throughout the case. Schaffer v. Weast, 546 U.S. 49, 62 (2005); Oberti v. Bd. of Educ. of Clementon Sch. Dist., 995 F.2d 1204, 1218-19 (3d Cir. 1993).
A. The Statute of Limitations
Plaintiffs claim that this Court may not apply IDEA-2004's statute of limitations retroactively to bar claims that existed prior to July 1, 2005, the date the law became effective. Plaintiffs' argument regarding application of the IDEA-2004's statute of limitations has persuaded a number of judges in this District. See Steven I. v. Cent. Bucks Sch. Dist., Civ. A. No. 08-571, 2009 WL 415767 (E.D. Pa. Feb. 18, 2009); Laura P. v. Haverford Sch. Dist., Civ. A. No. 07-5395, 2008 WL 5000461 (E.D. Pa. Nov. 21, 2008); Zoe S. v. W. Chester Area Sch. Dist., Civ. A. No. 06-3985, Docket Entry No. 22 (E.D. Pa. Oct. 16, 2008); Tereance D. v. Sch. Dist. of Phila., 570 F. Supp. 2d 739 (E.D. Pa. 2008). Unfortunately for Plaintiffs, this Court came to a different conclusion when it considered this legal issue. In Evan H. v. Unionville-Chadds Ford School District, this Court analyzed the meaning and application of IDEA-2004, which requires that "a parent or agency [ ] request an impartial due process hearing within 2 years of the date the parents or agency knew or should have known about the alleged action that forms the basis of the complaint." Civ. A. No. 07-4990, 2008 WL 4791634, at **3-4 (E.D. Pa. Nov. 4, 2008) (citing 20 U.S.C. § 1415(f)(3)(c)). After examining the legal landscape on the retroactive application of IDEA-2004, this Court focused on the fact that the action in Evan H.,similar to the case now before the Court,was brought after the change in the statute of limitations and under the amended law. The Court then held that barring claims outside the two-year window in which one must request a due process hearing under IDEA-2004 was not "impermissibly retroactive." Id. at *4.
Admittedly, the law in this area is unsettled. This legal uncertainty leaves IDEA litigants in an unenviable position. The Third Circuit hopefully will soon shed light on this important question. But until then, Plaintiffs have put forth no arguments that would lead this Court to reconsider its decision in Evan H. regarding the applicability of the IDEA-2004 statute of limitations.*fn2 Here, the Hearing Officer barred Plaintiffs' claims for compensatory education that arose prior to July 27, 2005, which was two years before Deborah requested a due ...