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Compensary Education: What, Why, When, Where and How

By Caryl Andrea Oberman, Esq.

  1. What Is It?
    Compensatory education is a remedy owed to children who are entitled to, but who have been denied, a free appropriate public education (“FAPE”). 
  2. Why Is It Required?
    The threshold issue is whether there has been a denial of FAPE.  Procedural errors, however egregious, only yield compensatory education awards if those errors cause a student not to receive FAPE.  Carlisle Area School LEA  v. Scott P., 62 F. 3d 520 (3d Cir. 1995); See also In Re Jamie D., Special Education Due Process Appeals  Panel Opinion No. 1120.

    Successful compensatory education claims typically arise when local educational agencies (LEAs) fail to provide FAPE in one of four ways:

    1. Violation of Child Find provisions – no services
      The IDEA  imposes an affirmative obligation on LEAs to identify and educate students with disabilities living within their boundaries.  This “child find” requirement mandates school LEAs to determine which students are eligible to receive FAPE pursuant to the IDEA and to provide appropriate IEPs to those students.  This obligation exists whether or not the student attends public school.

      Obviously, an LEA cannot provide an appropriate IEP without first evaluating a student.  Only by evaluation (or reliance on outside evaluations) can an LEA determine the student’s individual needs.  The appropriateness of an IEP is based in large part on how well the IEP is tailored to meet the student’s needs.  If a student is never identified, that student cannot be evaluated and an appropriate IEP cannot be provided.  Failure to identify is a complete violation of the right to FAPE.

    2. Failure to offer an appropriate IEP – the wrong services
      Most special education litigation focuses on the appropriateness of the IEP offered by LEAs to special education students.  Even when an LEA has identified a student and offered the student an IEP, the student is still denied FAPE if the IEP is inappropriate.  A plethora of cases have developed the analysis used to determine whether a student has received FAPE.  In the United States Court of Appeals for the Third Circuit (the federal court governing federal law in Pennsylvania, New Jersey, Delaware and the Virgin Islands), an IEP confers FAPE if it is calculated to provide a meaningful educational benefit at the time it is offered.  Ridgewood Board of Educ. v. N.E., 172 F.3d 238 (3rd Cir., 1999); Susan N. v. Wilson Sch. Dist., 70 F.3d 751 (3rd Cir., 1995).  The student has been denied FAPE and is entitled to compensatory education if the LEA fails to offer such an IEP.  While IEPs are not to be judged in hindsight, a student’s actual progress may be used to show that an IEP was or was not appropriate.  Moreover, an IEP that provides appropriate services for some but not all of the student’s identified disabilities may still subject an LEA to liability for compensatory education.  D.H. and D.H. ex rel. J.H. v. Manheim Township School LEA, No. 05-1113, __F. Supp. 2d__(E.D. Pa. 2006, 45 IDELR 38.
    3. Failure to implement an appropriate IEP – right services, no     delivery
      After the LEA identifies and evaluates a student and develops an appropriate IEP, the LEA must actually follow that IEP.  An appropriate IEP is not, in and of itself, FAPE.  The IEP specifies what should be provided.  Deviation in actual practice often gives rise to denial of FAPE and entitlement to a compensatory education award.
    4. Inappropriate implementation of an appropriate IEP – right services, wrong delivery
      LEAs must provide the right services in the right way.  It is possible for students to receive the correct services under an appropriate IEP and still be denied FAPE.  For instance, an LEA could offer a dyslexic student an IEP for an appropriate reading program for an appropriate number of hours per week.  The LEA could then actually provide the reading program for those hours.  Nevertheless, if the teacher were improperly trained to deliver the program and taught it out of sequence or skipped certain vital instructional steps, the LEA would have inappropriately implemented what would otherwise be a valid program.  If the student fails to make meaningful progress as a result of this inappropriate implementation, the student has been denied FAPE and is entitled to compensatory education.  Of the violations that yield compensatory education, this is often the hardest to prove.
  3. How Compensatory Education Claims Are Raised.
    Parents may bring an action against an LEA responsible for their child’s education when they believe that their child has been denied FAPE and is owed compensatory education.  Pennsylvania has established a two-tiered administrative process to handle such claims for school age children.  Children below school age have recourse to only one administrative hearing level before proceeding to court.

    Parents typically initiate compensatory education claims by notifying the LEA in writing of their belief that FAPE has been denied and that they are seeking compensatory education to remedy that denial.  The written notice must set out the facts that form the basis of the claim and propose a resolution.  The parties, before proceeding to a due process hearing, must hold a resolution meeting to try to work things out unless both parties agree that it is a waste of time.  If the parties are unable to settle the matter themselves, they may move on to mediation or a due process hearing.  The mediation option is only available if both parties want it.  Otherwise, the parties may go directly to a due process hearing.

    Requests for due process hearings in Pennsylvania are made to the Office for Dispute Resolution (“ODR”), an independent agency contracted by the Department of Education to hear special education cases.  Each case is assigned a case manager and a Hearing Officer.  Hearing Officers then hear live testimony, given under oath, during a due process hearing.  The Hearing Officer considers the evidence and testimony and issues a decision either awarding or denying compensatory education.  The Hearing Officer’s order should, and usually does, specify the nature and amount of compensatory education, if awarded.

    If either party is aggrieved by the Hearing Officer’s decision, that party may file an appeal to the Special Education Due Process Appeals Panel, also assigned through ODR.  In Pennsylvania, that appeal is a “paper” process.  Although the Appeals Panel is authorized to hear additional testimony, it never actually has.  The Appeals Panel may uphold, reverse or modify the decision of the Hearing Officer.

    After the administrative process is completed, but not before, either party may appeal the decision of the Appeals Panel, (or, for students younger than school age, the decision of the Hearing Officer) to either state or federal court.  In theory, compensatory education cases may move up the Pennsylvania state court system through the Commonwealth Court to the Pennsylvania Supreme Court, or up the federal court system through the appropriate federal district court through the Court of Appeals for the Third Circuit all the way to the United States Supreme Court.  Cases rarely get that far.

  4. How Far Back? : Time Limits And Statute Of Limitations

    The right to compensatory education accrues when the LEA knew or should have known the student was not receiving an appropriate education.  M.C. v. Central Regional School District, 81 F.3d 389, 397 (3d. Cir. 1996); Gregory R. v. Penn Delco School District, 262 F.Supp.2d 488 (E.D.Pa.  2003) (Absent evidence that the LEA knew or should have known that the student was not receiving an appropriate education prior to or in the unilateral private school placement, there is no right to compensatory education.)

    Until the reauthorization of the IDEA in 2004, there was contradictory case law about the limitations period within which claims had to be made, and about how far back those claims could go.  Pennsylvania state courts relied on Montour School District v. S.T., 805 A.2d 29 (Pa. Cmwlth 2002), a case that imposed a one year “statute of limitations” on compensatory education cases unless mitigating circumstances warranted a delay in pursuing administrative remedies, in which case a delay of up to two years was acceptable, depending on the circumstances. Id.  Federal courts in Pennsylvania held exactly opposite in the cases like Amanda A. v. Coatesville Area School Dist., 2005 WL 426090, (E.D. Pa. 2005), where the Court held that there is no limitations period, whether equitable or legal, on a disabled child’s claim for compensatory education pursuant to the IDEA, regardless of parental vigilance or the lack of it.   All three federal district courts in Pennsylvania, relying on Third Circuit precedents, have concluded that prior to IDEA 2004 there was no statute of limitations on compensatory education claims.  Jonathan T. v. Lackawanna Trail Sch. Dist., No. 3:03CV522, 40 IDELR 235, 2004 U.S. Dist. LEXIS 2915, (M.D. Pa., 2004); Jonathan H. v. Elizabeth Forward Sch. Dist., No. 03-1996, 40 IDELR 261, (W.D. Pa., 2004); Amanda A. v. Coatsville Area Sch. Dist., 42 IDELR 260 (E.D.Pa. 2005).

    The IDEA reauthorization in 2004 contained an explicit statute of limitations for compensatory education cases.  The language of that statute of limitations, however, is far from clear.  It is an oversimplification to say that IDEA 2004 imposes a two year statute of limitations on compensatory education claims. Two years from when?  IDEIA §615(b)(6)(B) states that parents may bring claims for compensatory education that “set forth an alleged violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint.”  Two years before anyone should have known? Moreover, since it is unlikely that IDEA 2004 will be applied retroactively, it is anyone’s guess what will happen to claims that arose prior to July of 2005 (the effective date of IDEA 2004).

    IDEA 2004 provides that: “A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing …in such time as the State law allows.” 20 U.S.C.A. §1415(f)(3)(C).   However, the two year statute of limitations will not apply to a parent if the parent was prevented from requesting the hearing due to: (i) specific misrepresentations by the LEA that it had resolved the problem forming the basis of the complaint, or (ii) the LEA’s withholding of information from the parent that was required to be provided to the parent.  There is generally a 90 day appeal period to file suit after the completion of the administrative special education due process procedures, unless the State has an explicit time limitation for bringing such action, in which case, the action must be commenced in the time allowed by state law.  20 U.S.C.A. §1415(i)(2)(B).

    While this may seem clearer, the statute of limitations set forth in IDEA 2004 explicitly applies to the parent. That leaves the question open whether a student may be able to file a complaint after the child becomes an adult, even years after the alleged violation of the IDEA.  Although the provisions pertaining to the two year statute of limitations for the initiation of special education due process hearings explicitly refers to the parent, the 90 day period for bringing a court action following the appeals panel decision applies to the party filing the action—meaning that it perhaps may apply to the child as well as the parent.  The recent United States Supreme Court case of  Winkelman v. Parma City School District, __U.S.__, 127 S. Ct. 1994 (2007), which can be read to state that parents bringing IDEA cases are actually asserting their own rights and not their child’s, makes these issues even less clear.

    1. Does parental vigilance matter?
      Case law has historically held that compensatory education is a remedy owed to the student, not to the student’s family.  Therefore, parental vigilance historically has had no bearing on the award itself.  M.C. v. Central Regional School District, 81 F.3d 389 (3rd Cir. 1996); Millersburg Area School District v. Lynda T., 707 A.2d 572 (Pa. Commonwealth., 1998).  Under this standard, it makes no difference if the parents agree to an inappropriate IEP, fail to object to an inappropriate IEP or fail to seek services from the school at all.  This logic is consistent with LEA’s Child Find obligations.  Recent cases have held specifically children should not be punished for their parents’ lack of vigilance.  Amanda A. v.  Coatsville Area School District, supra, (E.D. Pa. 2005).
    2. Equitable reduction
      Compensatory education awards may be reduced by certain equitable considerations.  The LEA has a reasonable time in which to cure any alleged defects in an IEP before any right to private placement at public expense would accrue.  J.C. v. Central Regional School District, 81 F.3d 389 (3d Cir. 1996); Spec. Ed. Op. No. 1530 42 IDELR 79 (SEA Pa. 2004).    Also, compensatory education awards have in the past been reduced because of parents’ unreasonable contribution to delay.  Spec. Ed. Op. No. 1012, 32 IDELR 136 (SEA Pa. 2000).
  5. WHAT EXACTLY CONSTITUTES COMPENSATORY EDUCATION?
    1. The difference between compensatory education and FAPE
      Compensatory education in no way replaces an LEA’s obligations to provide FAPE to its students on an ongoing basis.  If a student is entitled to both FAPE and to compensatory education, compensatory education hours may not be applied to services that the student should receive as part of FAPE.  In such cases, compensatory education must be used to supplement what the student will receive under an appropriate IEP.  In essence, compensatory education must go above and beyond what is currently appropriate.  Otherwise, compensatory education awards would not give students anything more than that to which they are already entitled. LEAs would suffer no economic loss when a student won a compensatory education award.  Indeed, by not providing appropriate services in the past and providing no more than appropriate services in the present, LEAs would often reap an economic benefit by denying FAPE.

      This distinction is particularly important in cases of remediation.  Often, compensatory education hours are used for remedial services.  This makes sense, as one purpose of compensatory education is to bring students to the point where they would be had they received FAPE all along.  However, some students require remediation as part of FAPE regardless of compensatory education.  If these students are also entitled to compensatory education, they must receive remedial education through their IEP, not through their compensatory education awards.  The distinction is often a tricky one.  See Diatta v. LEA of Columbia, 03-2653, 41 IDELR 124 (D.D.C. 2004); Reid ex. rel. Reid v. District of Columbia, 401 F. 3d 516 (D.D.C. 2005).

    2. Types of services provided as compensatory education
      Compensatory education awards may include a broad range of services.  Often, hearing officers order compensatory education to be used for, “any appropriate habilitative, developmental, or enriching activities that further [the student’s] education and training (including those associated with leisure and recreation).”  E.g., In re Educational Assignment of Joseph J., Spec. Ed. Op. No 1027 (2000).  Sometimes, however, the awards are limited to replacement of the actual service(s) denied. (e..g.: miss an hour of speech therapy in 2003, get an extra hour of speech therapy in 2005).  See also In Re:  the Educational Assignment of N.S., Special Education Op. 1764.  That formulation, while easy to apply, makes little sense.  At least one court has held that each hour without a FAPE entitles the student to one hour of compensatory instruction, minus the time it would reasonably take the LEA to rectify the problem.  M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389, 391-92, 396-97 (3rd Cir. 1996).

      Most recently, some courts are struggling to articulate a “replacement of benefit” theory.  Under this theory, there is no obligation to provide a day-for-day compensation for time missed.  Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (D.D.C. 2005).  “Appropriate relief is designed to ensure that the student is appropriately educated within the meaning of the IDEA.” Id at 524.  Appropriate compensatory education under the replacement of benefit theory is intended to place the student in the position he or she would have been in were it not for the denial of FAPE.  The remedy can therefore comprise fewer hours, or many more hours, than those denied, and either similar services or entirely different ones.

    3. The form of compensatory education: services or money?
      Despite the recent cases using a replacement of benefit theory, most compensatory education awards are still in the form of hours, either of a particular service or as a “bank” of hours that can be drawn from for a variety of services.   If the award is large, these hour or service banks can be very difficult to administer.  Although hearing officers are not empowered to award compensatory education in the form of actual money, it is often administratively attractive to both LEAs and parents (and courts) to convert the hour award to a dollar amount to be used for educational services.  See also Heather D. v. Northampton Area School District, __F. Supp. 2d__, C.A. No. 01-770 & 03-3852 (E.D. Pa. 2007).
    4. Who decides how the award will be used?
      There are decisions awarding compensatory education subject to the discretion, variously, of the parents, the LEA or the IEP team.  Appeals panels have noted that the law allows but does not require parental discretion in choosing compensatory education services.  In re the Educational Assignment of A.L., Spec. Edu. Op. No. 1055 (2000).  Some panels leave the decision squarely in the parents hands, others do not.  Compare Special Educ. Opinion Nos. 999 , 992 , 917 and 1763 (parental choice) with Special Educ. Opinion Nos. 1036, 1029 and 723 (IEP team choice).  Since compensatory education is available only if the LEA has been unable or unwilling to provide FAPE, it may be illogical to expect the same LEA to devise an appropriate remedial plan.  Moreover, leaving the decision to the IEP team, which includes both parent and LEA members, may be an invitation to further (and potentially unending) litigation.  Board of Educ. of Fayette County, Kentucky v. L.M. ex rel. T.D., __F. 3d__, 47 IDELR 122 (6th Cir. 2007).
    5. Availability of compensatory education beyond age 21.
      Compensatory education may be owed to a student even after the student reaches age 21.  Students can bring actions for compensatory education and receive compensatory education services past age 21.  While the Appeals Panels have ruled this way consistently, the reasoning behind those decisions is variable.  See Spec. Edu. Appeals Panel Decisions 1067, 1100, 1362, 1419, and 1426. Rationales for providing compensatory education beyond age 21 may include, inter alia,  prohibiting LEAs from escaping a financial burden; allowing a student to receive previously denied services; and placing the student in the position the student would have been in but for the denial of FAPE before age 21.
    6. What happens if the student leaves the LEA?
      Because compensatory education is intended to be a remedy for past wrongs, it remains available to the student even if he or she no longer resides within the LEA that violated his or her right to FAPE.

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