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This is another in our continuing
series on the basics of special education law. If the parents (or
adult student) win a due process hearing, the two most common types of
relief are compensatory education and reimbursement for a unilateral
placement. Today we will take a hard look at the former remedy.
Compensatory Education
Reid ex rel Reid v. District of Columbia 401 F.3d 516, 43 IDELR 32 (D.C. Cir. 3/25/05). The D.C Circuit developed a 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. 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.
The
other standard method for calculating compensatory education is a more
quantitative method providing an approximation of the lost number of
days of FAPE and awarding tutoring (or other compensatory services)
based upon that calculation minus the time it reasonably should have
taken the school district to learn of the denial of FAPE. See the Third
Circuiot decision in MC v. Central Regional Sch Dist 81 F.3d 389, 21 IDELR 389 (3d Cir. April 17, 1997).
Another important issue involves delegation. Bd of Educ of Fayette County, KY v LM ex rel TD 478 F.3d 307, 47 IDELR 122 (6th Cir. 3/2/7) It is inappropriate for HO to delegate the type or amount of compensatory education to the IEP team.
Many recent compensatory education awards have
been creative: Draper v. Atlanta Indep Sch System 518
F.3d 1275, 49 IDELR 211 (11th Cir. 3/6/8)
The Eleventh Circuit specifically approved of a private school placement as a form of compensatory education where
the school district continued to use an ineffective reading program for three
years despite the student’s failure to make progress. Park v. Anaheim Union High Sch.
Dist. 106 LRP 23543 (9th Cir. 4/17/6). The Ninth
Circuit affirmed an award of compensatory education by a hearing officer in the
form of requiring training of two of
the teachers who implemented the student’s IEP.
The hearing officer phrased the award as compensatory education for the
student in the form of training for his teachers in order to meet the student’s
needs. P by Mr & Mrs P v. Newington Bd of Educ 546 F.3d 111, 51
IDELR 2 (2d Cir 10/9/8) The Second Circuit affirmed an award of compensatory ed
by a HO that required the school district to hire an inclusion expert for a year and to permit him to participate
in the development of an FBA for the student; District of Columbia Public
Schs 111 LRP 71480 (SEA DC 5/22/11) Where violation was failure to
update IEP and resulting behavioral issues HO awarded as comp ed school
district funding of summer camp
suited to address emotional issues; District of Columbia Public Schs 111 LRP 75901 (SEA DC 8/21/11) Where psychologist testified that student
needed behavior therapy, HO awarded behavioral
support services as comp ed; District
of Columbia Public Schs 111 LRP 25934 (SEA DC 3/18/11) HO awarded computer software and a speech/language
evaluation in addition to tutoring
as comp ed;
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