Among the issues that hearing officers find most challenging are how to apply the free, appropriate public education standard of Endrew F. v. Douglas County School District. RE-1, 137 S. Ct. 988 (2017), how to apply the standard in cases involving post-secondary transition services, and how to fashion compensatory education relief. A case that may provide some guidance on all three of those issues is Matthew B. v. Pleasant Valley School District, No. 3:17-CV-2380, 2019 WL 5692538, 119 LRP 42439 (M.D. Pa. Nov. 1, 2019). The case concerned a student with autism and speech and language impairments, who also met the criteria for having an intellectual disability. The court affirmed a hearing officer’s decision that during the 2012-13 through 2015-16 school years the district denied the student a free, appropriate public education with respect to transition services and functional skills instruction. It further affirmed the hearing officer’s decision that in the 2016-17 school year the district’s homebound program for the students completely denied him free, appropriate public education. The court went on to remand the case to the hearing officer to develop a more extensive compensatory education remedy than what the hearing officer had ordered.

With regard to transition and the years 2012-16, the court noted that the school district did provide a variety of transition and functional skills opportunities to the student, including instruction in cooking, using money, accessing transportation, following multi-step directions, and understanding common sight words. The district also had the student participate at work sites, including a library and supermarket. But, said the court, the district failed to explain how and why what it provided was appropriate under the student’s circumstances. The court appeared to be applying the parting comment in Endrew F.:

By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.

137 S. Ct. at 1001-02.

The court observed that the parties agreed that the program for the relevant years was to focus on transition services and functional skills. The court said that from its own review of the IEPs for those years, the hearing officer was correct in finding that the IEPs included numerous goals that the student had already nearly mastered, and that the same transition goals were repeated from year to year with little modification and no guidance about how the school would help the student attain the goals. “Thus, it sensibly follows that the Hearing Officer reached the conclusion that the IEP was deficient in that it failed to provide Matthew with an ‘appropriately ambitious’ program with respect to transition services and functional skills, which are considered the fundamental aspects of Matthew’s IEP. Endrew, 137 S. Ct. at 999., ” Matthew B., 2019 WL 5692538, at *11.

Affirming the finding of a complete denial of free, appropriate public education for 2016-17, the court pointed out that the student was placed on homebound instruction with only four hours of direct academic instruction a week, one hour of speech therapy, and some additional at-home assignments. Although the parents had requested homebound instruction due to the student’s school anxiety, the district accepted that proposal without challenge, and did not do anything to return the student to school. The court cited the hearing officer’s conclusion that the homebound program was calculated to provide no educational benefit to the student. The district, for its part, failed to show that the progress the student made was meaningful. The court said that when a student’s continuous behavior interferes with the ability to obtain any real benefit from the education offered, and the IEP fails to remedy the behavior, the school district has not provided even a basic floor of opportunity, much less a meaningful educational benefit.

On the issue of remedy, the court held insufficient the hearing officer’s order that the district fund the instructional components of any transition program that the Parents would unilaterally select, as long as it would teach independent living or vocational skills, for a period of no more than two years and not including residential funding. The court held remedy to be an issue of law over which it exercised plenary review. The denial of appropriate education spanned five years, and the court said the remedy should have taken into account the length of the denial; moreover, the possibility of the need for residential funding should have been considered, particularly in light of the fact that the student was now over 21. The court remanded the case to the hearing officer to fashion more extensive relief than what had been ordered.

Guidance that might be derived from the case is that, as Chief Justice Roberts said in Endrew F., “A reviewing court” and one would think, a hearing officer, “may fairly expect [school] authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Acting on that expectation does not undermine the deference some courts have said is due to school districts’ educational decision making. In addition, transition services and functional skills instruction will be subject to the same appropriate education standard as other services.

Moreover, the remedy must fit the violation and, here, the hearing officer offered little, if any, factual basis or rationale as to how the remedy ordered was fashioned. Although the court in Matthew B. declined to try to reconcile all the various approaches courts have taken to determining the proper amount of compensatory education, it found that a protracted denial of education cannot be remedied by a short-term fix. The court remanded the matter back to the hearing officer with specific instructions to hold further proceedings to clarify the record necessary to determine what remedy would be appropriate given the denials of FAPE.  A hearing officer must, starting as early as the prehearing conference, consider potential remedies should a denial of FAPE be found, by discussing specifically with the petitioner the remedy(s) being sought. Then during the hearing, the hearing officer must in a fair manner attempt to ensure that the record sets forth factual bases for what the hearing officer believes might be an appropriate remedy should a denial of FAPE be found. And then, if a denial is found, the hearing officer must base the remedy, and the rationale as to why it is appropriate given the denials, on the record. Failure to take these steps may well result in a remand such as occurred here.