Thursday, August 10, 2017
Special Education Law 101 - Part XI #compensatory education
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.
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 Circuit 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.
Particularly in discipline and behavior cases, I look for hearing officers to award restorative relief, that is, compensatory education that includes staff training in restorative justice or restorative practices. See, by analogy, Larimer County Sch Dist, Poudre (CH) No. 2015:510 (SEA Colo 7/14/15) A state complaint investigator issued a decision requiring the school district, that had failed to comply with IDEA discipline requirements, to provide training to its staff - including training on alternatives to traditional discipline- including restorative justice.
Many fairly 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 aprivate 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; Horizon Instructional System Charter Schs 58 IDELR 145 (SEA Calif 1/3/12) After finding a transition violation, HO ordered a vocational assessment to be followed by an IEP using the results, a mobility guide and a job coach; Montgomery County Intermediate Unit 112 LRP 39052 (SEA Penna 7/3/12) HO awarded compensatory education plus a personal care assistant and an augmentative communication device; Pasadena Independent Sch Dist 58 IDELR 210 (SEA TX 2/6/12) HO required as comp ed and as equitable relief that the district provide staff training to all SpEd teaching staff on teaching human sexuality appropriately to students with disabilities; IT by Renee & Floyd T v Dept of Educ, State of Hawaii 113 LRP 51351 (D Haw 12/17/13) Court held that compensatory education or relief can take the form of reimbursement for private tuition. The purpose of compensatory education is to put the student back in the position that he would have occupied had the district not violated IDEA.