COMPENSATORY SERVICES

Under Part B of the Individuals with Disabilities Education Act (IDEA), each State and its public agencies must ensure that a free appropriate public education (FAPE) is made available to all children with disabilities in mandatory age ranges. FAPE includes, among other matters, the provision of special education and related services that meet State education standards and Part B requirements.

Compensatory education is 'a legal term used to describe future educational services' which courts award to a disabled student under the IDEA 'for the school district's failure to provide a FAPE in the past.

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.

Conclusion

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.

There may be situations throughout the school year when services written into a student’s IEP are not fully provided. This generally occurs due to staffing shortage in difficult to hire areas of services, as well as long term absences of related service personnel, when coverage is not available. In those minimal circumstances, services can be provided during the summer following the school year.

In the event the above mentioned occurs, related service staff should notify their principals and lead related service staff. If concerns persist, principals should contact their DSS administrator and Lead related service staff. Detailed documentation of the total amount of services that were missed must be calculated by the related service provider and a copy given to their principal & lead staff.

Related service providers should follow the established guidelines to determine compensatory time annually. Data about students requiring compensatory services will be collected by the lead staff and reported to the Assistant Director of Student Services by March 30.

Other points:

• A letter will be provided to each parent of a student who is not going to receive a related service within the 1stweek of school

• A letter to principals and intervention Specialist needs to go out the 1stweek of school explaining the OT/SLP staff shortages in their buildings and encourage them to discuss this issue with parents. Also assure them that DSS will keep them informed of updates in staffing.

• SLPs: If a SLP is out less than 4 weeks the SLP should make up time during the indirect weeks (there are 9 indirect weeks) or during a regular therapy session

• OTs: If an OT is out less than 2 weeks, the OT should make up this time during regular therapy sessions

• All related service personnel must have all compensatory minutes that are owed to individual students to their prospective lead staff no later than the end of the 1st week in May.