Compensatory education, an often overlooked remedy, is a legal term used to describe future educational services (or funds for services) that courts can award to a disabled student under the interpretation of the Federal IDEA statute. A compensatory education (comp ed) award is meant to compensate the student for the educational services he or she should have received but for the school district’s gross failure to provide a FAPE (free appropriate public education). Comp ed is meant to remedy and “compensate” for the educational deficit created by an educational agency’s failure to provide a FAPE.
The fact scenario comes up time and again, “The school district told us that our son, Jack would receive an hour of occupational therapy each week and his IEP mandates it – but the school doesn’t have an occupational therapist!” Jack’s mother asks several times, “When are you getting an occupational therapist?” The CSE chairperson replies, “There is nothing we can do about it – we have no control over staffing.” During the time the school district has no occupational therapy, Jack receives none of his mandated occupational therapy services. Four months later, the school district finally hires a new therapist and begins to deliver the one hour per week of occupational therapy Jack was mandated on his IEP to receive. In this scenario, the student may be entitled to be “compensated” for the approximately 16 hours of occupational therapy, i.e., the therapy he should have received during those four months.
What happens if the school district refuses to make up the missed hours? Jack’s parents must bring a due process proceeding seeking a comp ed award for the 16 hours of missed occupational therapy – the number of hours the student should have received.1 An Administrative Law Judge (ALJ) can award a “bank” of occupational therapy hours that can be used in the future. If the school district begins to deliver the occupational therapy services, as mandated, after an award of compensatory education, the student can “tack on” the additional occupational therapy hours per week awarded as comp ed, in an effort to put the student back to where he would have been “but for” the school district’s failure to deliver the occupational therapy during those four months. The idea is to “make up” for the services “lost” and give Jack an opportunity to get to where he would have been had he received the occupational therapy all along.
Let’s consider a different scenario. Sydney, a 4-year-old girl with an autism diagnosis, is evaluated privately by a reputable speech and language pathologist and neuropsychologist. Each of the evaluations make recommendations for Sydney including a twelve-month school year, intensive speech therapy (5 hours per week), and 10 hours per week of home based 1:1 ABA intervention. Upon receipt of the evaluations and recommendations, Sydney’s parents send all of them to the school district to consider.
At the IEP meeting, the IEP team rejects all the recommendations and offers only 2 hours of speech per week and no ABA services. The IEP chairperson tells Sydney’s parents that “no child” in the district receives five hours of speech per week, and 10 hours per week of home based 1:1 ABA therapy is excessive, and by the way, we are not permitted to discuss “methodology” at IEP meetings.
After the IEP meeting, Sydney’s parents write a letter to their school district and tell them that they do not agree with the IEP mandates and do not understand why their private evaluators’ recommendations were ignored. The parents get no response. Sydney’s parents are stunned but they do not know what to do about it (since the school district has never included parent counseling and training as part of the related services on Sydney’s IEP and have not advised them of their rights) and they “wait and see” how it goes – after all, the school district does have Sydney’s best interests at heart, right?
At the next annual IEP meeting, Sydney’s lack of progress is discussed. Her teacher and parents report that Sydney has developed more interfering behaviors with greater frequency. Sydney’s parents all but beg the team to incorporate the recommendations of the private evaluators. After Sydney’s parents are completely exasperated, the IEP team “chairperson” agrees to “up” Sydney’s speech services by a half hour per week – still two and a half hours short of the recommendation and no ABA services. Sydney’s parents again write a letter to the school district and continue their request for additional speech and 10 hours of 1:1 ABA therapy.
After a couple of months, Sydney’s parents continue to see a lack of progress, and despite the “extra” half hour of speech, Sydney is losing language skills, i.e., she is regressing. In November, Sydney’s speech therapist goes out on maternity leave and is not timely replaced. Sydney’s parents learn for the first time that Sydney has not been receiving her mandated speech services during a February parent-teacher conference, when the classroom teacher “slips” and reveals that Sydney was not getting any of her speech services. Sydney’s parents realize at this point they can no longer patiently wait for the school district to help them – they need to find out what Sydney’s educational rights are under the law and consult with a lawyer who specializes in special education law.
After consulting with their lawyer, Sydney’s parents put the school district on notice that they will provide Sydney with 5 hours of speech therapy and 10 hours of home-based 1:1 ABA, and will look to the school district for reimbursement. Sydney’s parents then file a demand for due process. Sydney has viable claims for the missed speech sessions that were mandated on her IEP and to be “compensated” for the services the school district never mandated in the first place, but should have. Of course, the evidence will need to support these claims to get an award of comp ed. Compensatory education is an important “equitable” remedy that parents and their advocates should always keep in mind whenever a school district fails to deliver or recommend appropriate services.
Tracey Spencer Walsh, JD (Fordham University School of Law, ’94) is the Senior Counsel at Mayerson & Associates, a New York law firm dedicated to representing children and adolescents on the autism spectrum, and assisting families in accessing the education and related services necessary and appropriate for students. For six years, Ms. Walsh worked as an educator and served as an Upper School Dean of Students at an independent school in Westchester, New York.
Footnotes
1. Depending on the facts of the case, the demand may seek more than 16 hours of occupational therapy comp Ed. While 16 hours were missed, because of the gap in services, the student may have regressed, and additional time may be required to get the student back to where he was prior to the discontinuation of services. So while 16 hours are the actual hours missed, it may now take more than 16 hours to get the student back to where he would have been “but for” the school district’s gross failure to deliver the services.
