Reflections on the IDEA Remedies Tour - Part II Developments in Compensatory Education

This series of posts concerns my IDEA Remedies Tour. I spoke in early July at the Seattle University Academy for IDEA Hearing Officers on the topic of compensatory education. Lotsa changes going on in the law as to the remedy of compensatory education. By the way, I'm not talking about the Title I definition of compensatory education for poor and culturally deprived children. ( Instead, my session was on the changes in the law of compensatory education, meaning the remedy when a parent/student prevails in a special education case.

In late July, I presented two sessions at the 16th annual Education Law Conference in Portland, Maine. One of my topics was the remedy of reimbursement for a unilateral placement. This portion of the series focuses upon the meat of my presentations. There have been many recent developments in the area of compensatory education as a remedy for violations of IDEA. The biggest change is the trend toward a qualitative standard for comp ed awards. The "old" method for calculating such awards was more quantitative in nature, A hearing officer or court would award one hour of compensatory education for each hour (or day) of denial of FAPE. Then came the Reid decision.


>content="Microsoft Word 12">The D.C Circuit developed ">qualitative standard for awards of compensatory education in order to place disabled students in the same position they would have occupied but for the school district’s violation of IDEA. The court rejected the hearing officer’s calculation awarding one hour of compensatory education for each day of denial of FAPE. The court also rejected the parents’ request of one hour of compensatory education for each hour of denial of FAPE. Instead, the court adopted a more flexible approach based upon the needs of the child who has been denied FAPE and suffered an educational loss. For example some students might require only short intensive compensatory programs targeting specific deficiencies. Other students may require more extended programs, perhaps requiring even more hours than the number of hours of FAPE denied. Compensatory education awards require adherence to the equitable principle of case-specific flexibility. Accordingly, the court remanded the matter for the submission of evidence as to the student’s deficiencies resulting from the denial of FAPE. See also, Seattle Sch Dist 48 IDELR 86 (SEA Wash 6/12/7); West Lyon Community Sch Dist v. Northwest Area Educ Agency 107 LRP 30759 (SEA Iowa 5/9/7); BC by JC v. Penn Manor Sch Dist 46 IDELR 135 (Pa Commonwealth Ct. 8/15/6); Berkeley Unified Sch Dist 107 LRP 2566 (SEA Calif 12/28/6) (similar qualitative approaches). Friendship Edison Public Charter Sch Collegiate Campus v. Nesbit 532 F.Supp.2d 61, 49 IDELR 159 (D. DC 1/31/8) Ct rejected HO’s “cookie cutter” approach to compensatory ed, noting that HO could not calculate an appropriate compensatory ed award without first determining present levels of performance; Freemont Unified Sch Dist 108 LRP 24532 (SEA Calif 2/19/8) HO tailored compensatory education award to the specific needs and weaknesses of the student as shown by present levels of performance; Mary McLeod Bethune Day Academy Public Charter Sch v. Bland ex rel TB 534 F.Supp.2d 109, 49 IDELR 183 (D.DC 2/20/8) Court remanded to HO because he had provided no explanation as to the justification for an award of 37.5 hours of compensatory ed although the court rejected the district argument that HO had used “cookie cutter approach” because there was no explanation at all. {On remand, the court approved the formula articulated by the HO because even though hours of service were used, the award was tailored to the unique needs of the child, 555 F.Supp.2d 130, 50 IDELR 134 (D.DC 5/27/8)}

More on this development in the next post.

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