Compensatory education services as a remedy for violations of IDEA can present difficult issues for Impartial Hearing Officers. Just how does the trier of fact measure the educational loss and calculate the remedial services that will be needed to make up for it? A potentially important case on this topic is Somberg v. Utica Community Schools, Nos. 17-2195, 2196, 2197, 2313, 2018 WL 5784477, — F.3d —-, 118 LRP 45495 (6th Cir. Nov. 5, 2018). The dispute involved a student case who is now 24 years old. The student presented a number of disabling conditions: autism spectrum disorder, ADHD, Tourette’s Disorder, and obsessive-compulsive symptoms. The district offered a 2012-13 IEP that lacked measurable goals; moreover, though it provided for a 50-50 split between general education and special education classes, the school system enrolled the student in a community-based inclusion program for two periods of the day in addition to his three special education classes. This left only one general education class, and after the parent objected to the community-based program, the district provided instruction in principal’s office, secluding the student from other students, and kept him from enrolling in general education classes he wished to select. The court of appeals affirmed the district court’s award of 1,200 hours of tutoring and one year of transition planning as compensatory education, plus attorneys’ fees. The district court had reversed an ALJ decision which denied any compensatory education despite finding the denial of appropriate education. After determining that the case was not moot in light of the claim for compensatory education, the court of appeals found the district court’s award to be within that court’s discretion. The district court conducted a bench trial in which evidence outside the administrative record was heard regarding the years between 2008 and 2015 to determine the amount of educational loss that the student experienced from the inadequate 2012–2013 IEP, stating: “The district court would have been unable to discern the extent of Dylan’s educational loss in a vacuum. Evidence of his abilities and progress in the years before and after the IDEA violation is therefore relevant in determining whether he suffered a loss during the 2012–2013 school year. Without such testimony, for example, the court would have had no baseline against which to measure Dylan’s progress (or lack thereof) during the year in which the violation occurred. And without such a baseline, the court would have been unable to assess whether and how much Dylan progressed, stalled, or regressed because of UCS’s IDEA violation.” 2018 WL 5784477 at *8. The school district did not offer contrary evidence about the amount of compensatory education needed.

The court of appeals went on to affirm the district judge’s decision that services should be paid for by the district and provided by someone other than the district. The court emphasized the contentious relationship between the parent and the district, evidenced by the district’s having filed unsuccessful suits against the parent and the parent’s attorney. On cross-appeal, the court of appeals ruled that the judge did not make an error in taking into account the fact that the student made some advancement during the relevant school year when the judge determined the amount of compensatory education, despite the argument that Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017) requires more than some advancement to satisfy the appropriate education obligation. The court pointed out that the issue in Endrew F. was whether the child’s program complied with IDEA, not the  entitlement to compensatory education. The court also affirmed an award of attorneys’ fees as reduced from the award requested.

It is noteworthy that the court of appeals said that, though Endrew F. has no application to the task of determining compensatory education, it was legitimate to consider what benefits the student received and what advances he made despite the denial of appropriate education when the district court calculated the compensatory education amount. It is also noteworthy that the district court held an extensive evidentiary hearing on the compensatory education needed to make up for the loss of educational opportunity. There are cases rejecting compensatory education when a violation of the appropriate education duty occurs but there is not an adequate showing of what the student missed and how to compensate for it. See, e.g., Gill v. District of Columbia, 770 F. Supp. 2d 112, 118 (D.D.C.) (denying compensatory education for four-month denial of FAPE; stating: “[D]ue to the lack of evidentiary support, the Court is compelled to find that Plaintiffs have failed to support their claim for 150 hours of compensatory education. . . . Plaintiffs seek 150 hours of compensatory education in life skills training for W.G. but provide too little support for the number of hours or the value of the proposed program for this particular student. The Hearing Officer’s denial of compensatory education was for the very same reasons. He was right. The Hearing Officer’s decision will be affirmed and the appeal will be dismissed.”), aff’d, No. 11–70322011 WL 3903367 (D.C. Cir. Aug. 16, 2011).  On the other hand, Judge Mehta of the District of the District of Columbia recently wrote of the steps that a trier of fact, specifically a hearing officer, should take when there is insufficient evidence about what the educational loss is and how best to remediate it through compensatory education. After stating that the award must be individualized, the judge said: “A hearing officer who finds that he needs more information to make such an individualized assessment has at least two options. He can allow the parties to submit additional evidence to enable him to craft an appropriate compensatory education award . . . , or he can order the assessments needed to make the compensatory education determination, . . . In the end, he must solicit the evidence necessary to determine the student’s ‘specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits.’ What he cannot do is what the hearing officer did here, that is, outright reject an award for compensatory services and terminate the proceedings.” Butler v. District of Columbia, 275 F. Supp. 3d 1, 5, 70 IDELR 149 (D.D.C. Aug. 14, 2017).