Wednesday, June 16, 2010

Special Education Law 101- Part V Compensatory Education - Revisited

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I have recently been rerunning a previous series on the basics of special education law. I hope that it has been a good basic course for some and an important review for others. Let me know what you think.

Today's final installment involves compensatory education

Special Ed Law 101- Part III Compensatory Education

Relief to successful parents in a special education case does not include money damages. In addition to reimbursement for unilateral placements, the most common relief awarded to a prevailing parent/student in a special education case. A hearing officer awards compensatory education as a remedy for denial of FAPE to the student. The prerequisite again is a denial of FAPE or some other violation of IDEA.

The method for determining the appropriate type and amount of compensatory education varies wildly among hearing officers. The most common method has been to determine the period of time equal to the deprivation of FAPE excluding the time reasonably required for the school district to have corrected it. Cumberland Valley Sch. Dist. 106 LRP 20056 (SEA Pa. 2/18/6). See also, Warwick Sch Dist 107 LRP 10896 (SEA PA 12/1/6); In Re Student with a Disability 106 LRP 65292 (SEA NY 10/31/6) (similar quantitative approaches).

The D.C Circuit, however, has developed a preferable 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. Reid ex rel Reid v. District of Columbia 401 F.3d 516, 43 IDELR 32 (D.C. Cir. 3/25/05). 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. 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. Accordingly, the court remanded this matter for the submission of evidence as to the student’s deficiencies resulting from the denial of FAPE. Reid, supra. See also, West Lyon Community Sch Dist v. Northwest Area Educ Agency 107 LRP 30759 (SEA Iowa 5/9/7); Bd. of Educ. of Fayette County v. LM ex rel TD 45 IDELR 95 (E.D.Ky 3/6/6); 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). I find the qualitative approach to be better reasoned than the quantitative (hour for hour) method of calculating compensatory education.

Please note that that a prevailing parent/student cannot receive both reimbursement for educational services purchased and an award of compensatory education for the same violation of IDEA. Ambridge Area Sch Dist 106 LRP 60446 (SEA PA 10/2/6) The panel concluded that this would constitute impermissible double recovery.

1 comment:

  1. Fabulous primer on FAPE!! Many thanks Jim.