What is it?
Compensatory education is generally defined as a remedy owed to children with a disability who have been denied, a Free Appropriate Public Education (FAPE). Compensatory education may include summer services, additional therapy hours, or other measures that make the student whole for past violations of the Individuals with Disabilities Education Act (IDEA) by the School District. Compensatory education is intended to be a onetime offer to compensate for past denial of FAPE and doesn’t relieve the School District of providing FAPE on a go forward basis. Thus, compensatory education should be in addition to the necessary services to provide the child FAPE in the current or future Individualized Education Programs (IEP).
Examples of When a School District might owe Compensatory Education
1. Violation of Child Find provisions
Child find requires School Districts to find all children with a disability and make sure they are identified, located, evaluated and provided FAPE in a timely manner. If there is a violation because the child was never identified, or should have been identified earlier, then the School District might owe compensatory education. This may also include those School Districts that delay performing special education assessments including a) not following the mandated timelines, or b) insisting on performing Response to Intervention (RTI) first.
2. Failure to implement an appropriate IEP
The IEP is a legally binding document that acts similar to a contract. Thus, after the School District develops an appropriate IEP, they must actually follow it. If the IEP is deviated from in any way it can cause a denial of FAPE. That denial of FAPE can then entitle the student to compensatory education to make them whole for the missed services.
3. Failure to offer an appropriate IEP
The Supreme Court defined FAPE to mean; at the time it’s offered it must be 1) individually designed to provide some educational benefit, 2) allowing the child to receive a basic floor of opportunity, and 3) allow the child to show progress. It goes on to say that one way to show progress is by passing grades in classes and advancement to a higher grade. The student has been denied FAPE and is entitled to compensatory education if the School District failed to offer an IEP that provided the above. It is possible to prove that parts of the IEP were inappropriate even though some parts were appropriate (i.e. The Student needed additional speech therapy but the occupational therapy services were appropriate). Also, you may use a student’s actual progress to show that an IEP was not appropriate.
Failure to offer an appropriate IEP may include, 1) not offering the student the appropriate services hours or placement, 2) suspending the child for more than 10 days without holding a manifestation determination meeting, and 3) removing the child from the educational setting for extended periods of time because of behavior.
How long is the Statute Of Limitations?
The Parents have two years to file a Due Process Claim for compensatory education.
What does the Office of Special Education Programs (OSEP) say about compensatory education?
In a Letter to Margaret Kohn, 17 EHLR 522 (1990) OSEP stated:
Compensatory education is a proper method to provide FAPE to children with disabilities who were entitled to, but were denied, FAPE. Moreover, compensatory education may be the only means to provide FAPE to children with disabilities who have been forced to remain in inappropriate public placements due to their parents’ financial inability to pay for private placements.
An impartial hearing officer has the authority grant any relief deemed necessary, including compensatory education, to ensure that a child with disabilities receives FAPE.
A hearing officer, who has concluded that a child with disabilities is entitled to compensatory education, may order summer school programming as a means to redress the denial of FAPE.
What do the Courts say about compensatory education?
In MC v. Central Regional School District 81 F.3d 389, 21 IDELR 389 the opinion created a quantitative approach to determine the amount of compensatory education owed which stated:
A school district that knows or should know that a child has an inappropriate IEP or is not receiving more than a de minimis educational benefit must correct the situation. If it fails to do so, a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem. We believe that this formula harmonizes the interests of the child, who is entitled to a free appropriate education under IDEA, with those of the school district, to whom special education and compensatory education is quite costly.
In Reid v. District of Columbia 401 F.3d 516, 43 IDELR 32 the opinion created a qualitative approach to determine the amount of compensatory education owed which stated:
….We think it would be highly incongruous if this qualitative focus on individual needs gave way to mechanical hour-counting when past rather than current violations of the FAPE standard were at issue. Accordingly, just as IEPs focus on disabled students’ individual needs, so must awards compensating past violations rely on individualized assessments.
Unlike the Reids’ one-for-one standard, this flexible approach will produce different results in different cases depending on the child’s needs. Some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies. Others may need extended programs, perhaps even exceeding hour-for-hour replacement of time spent without FAPE. In addition, courts have recognized that in setting the award, equity may sometimes require consideration of the parties’ conduct, such as when the school system reasonably “require[s] some time to respond to a complex problem,” M.C., 81 F.3d at 397, or when parents’ refusal to accept special education delays the child’s receipt of appropriate services, Parents of Student W., 31 F.3d at 1497. In every case, however, the inquiry must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.
While compensatory education is not specifically outlined in IDEA through various court decisions and guidance from OSEP it has become clear that this is an acceptable remedy. Although there is still some disagreement from the Courts on how to calculate the proper amount of compensatory education, it is, however, very clear that it is the hearing officer or courts rights to “grant any relief deemed necessary” for violations of FAPE.