WHEN THINGS GO WRONG… A CLOSER LOOK AT

COMPENSATORY SERVICES

Paula Maddox Roalson andChristina L. Garcia

Walsh Gallegos Trevino Russo & Kyle P.C.

PAULA MADDOX ROALSON & CHRISTINA L. GARCIA

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WHEN THINGS GO WRONG…A CLOSER LOOK AT COMPENSATORY SERVICES

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Compensatory Services,Generally Speaking

Who is entitled to compensatory services?

Compensatory services are future services to be provided to a student to make up or compensate for a school district’s failure to provide the student with appropriate services in the past.

TEA Dispute Resolution Systems Handbook (October 2016)

For example, if a student’s IEP says that the student should get 60 minutes per week of speech therapy, and it is determined that the student did not receive speech therapy for a time period, the student might be entitled to extra speech therapy sessions to compensate for the sessions that were missed.

What are compensatory services?

Courts and Hearing Officers have authority to award “appropriate relief” when a student has been denied FAPE.

Compensatory education is considered to be one way of providing “appropriate relief”—it is “an equitable remedy to be granted upon finding that a child has been denied FAPE under the Act." Diatta v. District of Columbia, 41 IDELR 124 (D.D.C. 2004).

Why are they awarded?

“…this specific type of equitable relief would only be granted on a case-by-case basis, depending on the specific situation of each student. In each case, a court will evaluate the specific type of relief that is appropriate to ensure that a student is fully compensated for a school district's past violations of his or her rights under the IDEA and develop an appropriate equitable award.” Ferren C. v. School Dist. of Philadelphia, 54 IDELR 274 (3d Cir. 2010).

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When things go wrong

Ways that things go wrong resulting in a need for compensatory education: Types of cases in which compensatory education

services are awarded:

Failure to Identify—the child should have been receiving special education services under the IDEA but the school district did not timely evaluate/identify the child as in need of services

Failure to Develop an Appropriate IEP—the child’s services/placement do not afford the child with FAPE

Failure to Implement the IEP or Inappropriate Implementation of the IEP—the child’s services/placement are calculated to provide FAPE, but school personnel do not implement them appropriately or correctly

Failure to identify

M.M. v. NYC DOE, 63 IDELR 156 (S.D.N.Y. 2014)

When the student was 17 years old, her parents reported that she was diagnosed with depression, anorexia, and suicidal attempts. She rarely attended school. At her parents’ request, the student received home instruction from the school. The student was hospitalized multiple times.

Her parents subsequently enrolled her in a structured private boarding school in Utah for students with eating disorders. The school followed the state curriculum and educational plan.

After sending the student to Utah, the parents referred the student for special education in her home school in New York City.

The NYC special education committee interviewed the student and determined she would not qualify for special education on the basis of her advanced grades. The committee also recommended the student’s placement in general education classes.

The parents then requested a special education due process hearing. They asked for reimbursement of the costs associated with the private program for the student in Utah, arguing that the school should have identified the student as in need of special education and then provided appropriate services to meet her individual needs.

The parents won their case in front of a state review officer, and the school appealed the case to federal court.

You be the judge

Who won the case in front of the federal judge?

A. The school district, because the student was making progress in the general curriculum without specially designed instruction & she was truant.

B. The school district, because the parents sent the student to Utah without prior notice to the school that they intended to ask the NYC school to foot the bill for the Utah placement.

C. The parents, because the school failed to identify the student as IDEA eligible and provide an appropriate placement.

D. The school, because ultimately, it was discovered that Grandma had agreed to pay for the Utah placement.

C. The student and her parents win

This was largely based on the student’s failure to attend school and the school’s decision to place her on homebound. Key Quotes:

“First, the SRO focused on an assessment of L.F.’s grades without considering the more fundamental question of whether L.F. could even attend school.”

“The government must find ways to open the school house doors, by helping children who suffer from emotional problems to attend school. She was absent from school for weeks at a time, and in her last months in the public school system….was unable to attend at all. During those last months, the DOE gave L.F. home instruction, a program which is normally only given to disabled students.”

What relief was awarded?

The court awarded the parents reimbursement for the costs of the unilateral private placement.

CAN THEY DO THAT? WHY DIDN’T THEY AWARD COMPENSATORY EDUCATION SERVICES IN THE HOME SCHOOL DISTRICT?

The parents established that the school program was inappropriate and the private program was appropriate to confer FAPE.

Failure to develop an appropriate IEP

L.O. v. NYC DOE, 67 IDELR 225 (2nd Cir. 2016)

The court found that a combination of procedural errors resulted in a denial of FAPE for three years. The district: 1) did not identify the evaluation material that it reviewed and relied

on;

2) did not conduct a FBA, which violated state law;

3) failed to offer appropriate speech/language services; and

4) violated state law by failing to offer parent counseling and training for the student with autism.

Comment: What is highly unusual about this case is that the school prevailed before the hearing officer, the state review officer and the district court. The Circuit Court reversed.

What relief was awarded?

The Court remanded the case back to the lower court to develop and order an appropriate award of compensatory education services.

Failure to implement the IEP or inappropriate implementation of IEP

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Holman v. District of Columbia, 67 IDELR 39 (D.D.C. 2016)

During her final year in school, the 18 year old student was scheduled to receive 3.3 hours of special education services each day in a general education environment.

But the school only scheduled a special education teacher to be in the student’s general education classroom every other day, for a total of approximately four hours of service per week.

On top of that, the sped teacher was absent at least once per week; on days when she was there, she didn’t stay with the student in the classroom the entire time.

Despite the failure to receive all of the IEP services to which she was entitled, the student graduated with a class rank of 60 out of 130 students. When the student sued the school district for a denial of FAPE, who won the case?

A. The school, because the student had graduated with a regular diploma.

B. The student, because the school failed to implement required IEP services needed for FAPE.

C. The school, because the student passed her classes and was an “average” student as noted by her class rank.

You be the judge

B. The student wins

The Court concluded that less than half of the IEP services were actually provided. This amounted to a material failure to implement the IEP.

The Court held that the student did not need to demonstrate that she suffered harm—only that there was a “material failure” to implement the IEP.

Comment: The Court clearly held the opinion that the school district simply graduated the student without providing any educational benefit. Thus, it completely discarded the fact of graduation and the student’s standing in the upper half of the graduating class.

What relief was awarded?

The Court ordered the district to convene an IEP meeting for the student, who would remain eligible for compensatory education until age 22.

How to offer compensatory services

Considerations

What went wrong? Was this a procedural violation, or a substantive

violation, of the child’s rights? Do you know the difference and why it matters? What documentation is in place that supports the

concern? How long has the concern existed? When did we

first make a mistake?

Fear of liability exposure

We need to acknowledge if we owe the child compensatory services. It’s the right thing to do for the student.

Saying “I’m sorry” won’t result in liability. Trying to cover up a mistake will. Refusing to turn over student records to a parent

can create exposure under the IDEA.

Considerations

When the school becomes aware that a student has not received appropriate services, school administrators should investigate the concern. Immediately.

If the concern is substantiated, the school should consider making an offer of compensatory services to the student.

An offer of compensatory services does not have to be made during an ARD committee meeting, but the ARD is the best place to document compensatory services.

Any offer should be made in writing. Even if agreement cannot be reached on the amount of

compensatory services, be sure to confirm the school’s proposed offer of services in Prior Written Notice.

What do I offer?

Services to make the student “whole” again. Services designed to ensure that the student benefits from his/her special education program.

Compensatory services come in many different shapes, forms, and length of duration.

Possible ideas:

Training for staff members regarding IEP development and implementation

Tutoring at school expense Summer services (in addition to ESY, if required) to

make up for lost service time Additional related services Reimbursement to parents for outside tutoring or

programs

Q & A

Do compensatory services have to equal an hour per hour time for missed services? Will we really owe the student 962 hours of compensatory instruction?

It depends. Compensatory services can be counted hour for hour/day for day; however, some courts will not apply that strict analysis and will instead look at what the child requires to be made whole.

The student is about to graduate from high school with a regular diploma. Does this cut off the student’s right to receive compensatory services?

No. Cases have held that the student remains entitled to compensatory services required to make up for a denial of FAPE.

Can compensatory services be ordered by TEA in response to a substantiated TEA special education complaint? Yes. But I thought only a court could award compensatory services.

No. TEA has authority as the SEA to award compensatory services as corrective action. Special Education Hearing Officers also have authority to award compensatory services upon finding that a District violated a student’s right to FAPE.

We offered compensatory services to the student, to take place in the summer of 2017. We just got word that the student moved across the state. Do we still have an obligation to provide the services?

Yes, because the services are making up for a denial of FAPE.

Consider contracting with the local school district where the student now resides, or a private provider in the area, to implement the agreed upon compensatory services.

Our program and placement look great and are affording the student FAPE. Since we are now in compliance, do we still owe the student compensatory services for a past issue?

Yes, you may still owe the student compensatory education. See Boose v. District of Columbia, 65 IDELR 191 (D.C. Cir. 2015)

The information in this handout was created by WALSH GALLEGOS TREVIÑO RUSSO & KYLE P.C.

It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is

sought, consult an attorney.

Paula Maddox Roalsonproalson@wabsa.com

Christina L. Garciacgarcia@wabsa.com

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