Compensatory Education: An Update Based on Recent Decisional Case Law

1. What is compensatory education?

Compensatory education is an equitable form of reimbursement when a school district does not provide a free and appropriate public education (“FAPE”). Compensatory education can be in the form of reimbursement for out-of-pocket educational expenses, additional prospective services or supports, and even a more supportive educational setting (such as residential or day school placement) than what the student would have been entitled to if the district had not failed to provide a FAPE. The concept behind compensatory education is to place the student in a position that he or she would have been if there had been no violations under the Individuals with Disabilities Education Improvement Act (“IDEA”).

“[T]he usual remedy under the IDEA for a student who has been denied appropriate services in the past is an award of compensatory educational services to place her in the same position she would have occupied, had the District complied with the IDEA.” Sanford School Department, 47 IDELR 176 (Maine State Educational Agency, October 31, 2006)

2. What are some examples of awards of compensatory educational services?

Compensatory educational services can include an award of additional time at an appropriate residential or day placement, Sanford School Dept, 47 IDELR 176 at 16 (Maine State Educational Agency, Oct. 31, 2006) (ordering payment of 1 year of residential placement for a child with learning disabilities); Draper v. Atlanta Independent School System, 518 F.3d 1275 (March 6, 2008) (11th Cir. 2008)(ordering 3 years of private school for a student with learning disabilities); Carbondale Elementary School District 95, 23 IDELR 766 (Illinois State Educational Agency, Jan. 12, 1996)(ordering two years of private day school for failing to address dyslexia); Chicago Public School, 108 LRP 35213 (Illinois State Educational Agency, Apr. 17, 2008)(awarding two additional years at Hyde Park Day School as compensatory education).

Awards can also include reimbursement for the costs of private educational tutoring. Heather D. v. Northampton Area School District, 48 IDELR 67 (E.D. Penn, June 19, 2007)(awarding 2,428 hours of compensatory education at $75 an hour, creating a $182,100 compensatory education fund).

3. How is Compensatory Education authorized by the IDEA?

The IDEA does not explicitly authorize the award of compensatory education. However, the IDEA “…authorizes the court to ‘grant such relief as the court determines appropriate.'” Bd. of Educ. of Oak Park & River Forest High Sch. Dist. 200 v. Todd A., 79 F.3d 654, 656 (7th Cir. 1996)(quoting 20 U.S.C. Section 1415(3)(2)(now at 20 U.S.C. Section 1415(i)(2)(c)(iii)). The Seventh Circuit has recognized that this provision allows district courts “to order … compensatory education if necessary to cure a violation.” Id.

4. When is compensatory education awarded?

Compensatory education is awarded upon a denial of a FAPE. However, not every denial of a FAPE requires compensatory education. A Wisconsin district court has indicated that de minimus violations do not warrant an award of compensatory education. James S. v. Milwaukee Public Schools, No. 01-C-928, 2009 WL 1615520 (E.D. Wisc. June 9, 2009). The same court also stated that compensatory education is not appropriate in cases where a student’s educational potential has been reached.

“Regardless of any denial of FAPE, if a student has reached the maximum of his or her educational potential, providing compensatory services would not serve its purpose as an equitable remedy.” Id. at *31.

In determining whether compensatory educational services should be awarded, the question to consider is- if the student had not been denied a FAPE, would the student be in a better position than he is now? If so, compensatory education is appropriate.

In assessing whether there is a violation of a FAPE, there is no requirement that the failure to provide services results in serious harm to the child. The U.S. Supreme Court has made it clear that a school district must comply with a child’s IEP to provide a FAPE. Board of Educ. of the Hendrick Hudson Central School Dist., et. al., v. Amy Rowley,et. al.,, 458 U.S. 176 at 188-189 (1982). Therefore, if a school district fails to provide a service included in the child’s IEP, even if the child’s program is otherwise exemplary, it is likely liable for a modest award of compensatory services. Evanston Community Consolidated Sch. Dist. No. 65 v. Michael M., 356 F.3d 798 (7th Cir. 2004)(finding that a non-licensed service provider providing occupational services was a violation of a FAPE requiring compensatory occupational therapy services).

5. How is the amount of compensatory education services determined?

Courts have indicated that compensatory awards should compensate, meaning they should provide more than what is required under an IEP. Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 525 (C.A.D.C. 2005).

The Seventh Circuit has never provided guidance to the lower courts concerning how to determine the amount of compensatory services. The Northern District of Illinois has declined to adopt rote day-by-day formulas for determining the amount of services. Petrina W. v. City of Chicago Public Sch. Dist. 299, No. 08 CV 3183, 2009 WL 5066651 (N.D. Ill. December 10, 2009). The Northern District cited numerous court decisions throughout the United States in support of more flexible approach “Accordingly, just as IEPs focus on disabled students’ individual needs, so must awards compensating past violations rely on individualized assessments.” Reid, 401 F.3d 516 at 524. This is particularly appropriate given that some students may require “…short, intensive compensatory programs targeted at specific problems…” while others may need “extended programs … exceeding hour-for-hour replacement of time spent without FAPE.” Id.

The Northern District concluded, “[b]ecause a flexible, individualized approach is more consonant with the aim of IDEA, as articulated in its statutory language and Supreme Court jurisprudence, this Court finds such an approach more persuasive than the Third Circuit’s formulaic method.” Petrina W., 2009 WL 5066651 at *4.

Therefore, each court must look to the nature of the FAPE violation and the clinical information available to determine the nature and amount of services required to remedy the violation.

6. Can compensatory education be awarded past a student’s 22nd birthday?

Yes, because the purpose of compensatory educational services is to place the student in a position he or she would have been in if there had been no IDEA violations, a court can order adult compensatory services as necessary to cure a violation. Michael M., 356 F. 3d, at 803, Kevin T. v. Elmhurst Comm. Sch. Dist. No. 206, No. 01 C 0005, 2002 WL 433061, *2 (N.D. Ill. March 20, 2002)(granting a free and appropriate public education until child turns 21, as well as one additional year of compensatory education).

7. Are compensatory services an appropriate remedy for a violation of the stay-put provision?

Yes. In John M. v. Bd. Of Educ. of Evanston Twp. High Sch. Dist. 202, the Northern District of Illinois found that compensatory services may be awarded to remedy a violation of the IDEA’s stay-put provision, even when all other IEP claims are resolved. John M. v. Bd. Of Educ. of Evanston Twp. High Sch. Dist. 202, No. 05 C 6720, 2009 WL 691276 at *5-6 (N.D. Ill. March 16, 2009).