COMPENSATORY
EDUCATION
STATUTORY AUTHORITY
(C) Additional requirements
In any action brought under this
paragraph, the court-(iii) basing its decision on the
preponderance of the evidence, shall
grant such relief as the court determines
is appropriate.
20 U.S.C. §1415(i)(2)(C), 34 C.F.R.
§300.516(c)(3) and Mississippi State
Board Policy 7219 §300.516(c)(3).
Sch. Comm. of the Town of Burlington,
Mass. et al. v. Dep’t of Educ. of the
Commonwealth of Mass., 471 U.S. 359,
105 S. Ct. 1996 (1985).
The United States Supreme Court held that
20 U.S.C. §1415 authorizes reimbursement
to parents of private school expenditures
(1) if the Court ultimately determines that
the public school failed to provide a FAPE
and (2) the private school placement was
appropriate. Id. at 369. The Statute directs
the Court to “grant such relief as the Court
determines is appropriate.”
§1415(i)(2)(C)(iii).
Sch. Comm. of the Town of Burlington,
Mass. et al. v. Dep’t of Educ. of the
Commonwealth of Mass., 471 U.S. 359,
105 S. Ct. 1996 (1985).
The United States Supreme Court also held
that a parental violation of §1415(e)(3) of
the “stay put” and changing of the “then
current educational placement” does not
constitute a waiver of reimbursement. Id. at
372. To do so would go against the purpose
of the Act; because the Act is intended to
give handicapped children both an
appropriate education and a free one. Id.
Sch. Comm. of the Town of Burlington,
Mass. et al. v. Dep’t of Educ. of the
Commonwealth of Mass., 471 U.S. 359,
105 S. Ct. 1996 (1985).
“We are confident that by empowering the court
to grant ‘appropriate’ relief Congress meant to
include retroactive reimbursement to parents
as an available remedy in a proper case. In this
Court, the Town repeatedly characterized
reimbursement as ‘damages,’ but that simply
was not the case. Reimbursement merely
requires the Town to belatedly pay expenses
that it should have paid all along and would
have borne in the first instance had it
developed a proper IEP.”
WHAT TRIGGERS
COMPENSATORY EDUCATION?
Failure of an educational agency to
provide a FAPE to a child with a
disability as required by the IDEA. G
v. Fort Bragg Dependent Schools,
343 F.3d 295, 309 (4th Cir. 2003).
WHAT TRIGGERS
COMPENSATORY EDUCATION?
Any FAPE issues, such as:
(1) Failure to timely identify/child find. See Miener v.
Missouri, 800 F.2d 749 (8th Cir. 1986) and Compton
Unified School District v. Addison, 598 F. 3d 1181
(9th Cir. 2010);
(2) Failure to implement IEP. See Draper v. Atlanta
Independent School System, 518 F.3d 1275 (11th Cir.
2008);
(3) Failure to develop appropriate IEP. See Florence
County School District Four v. Carter, 510 U.S. 7,
114 S.Ct. 361 (1993); OR
(4) Failure to address behavior issues or for
improperly disciplining a child with a disability.
See B.H. v. West Clermont Board of Education, 788
F. Supp. 2d 682 (S.D. Ohio 2011).
WHAT IS COMPENSATORY
EDUCATION?
Compensatory education involves discretionary,
prospective, injunctive relief crafted by a court
to remedy what might be termed an educational
deficit created by an educational agency's
failure over a given period of time to provide a
FAPE to a student. The Fourth Circuit agreed
with every circuit that had previously
addressed the question that the IDEA permits
an award of such relief in some circumstances.
G. v. Fort Bragg Dependent Schools, 343 F.3d
295, 309 (4th Cir. 2003).
WHAT IS COMPENSATORY
EDUCATION?
Educational services ordered by the court to be
provided prospectively to compensate for a
past deficient program—may be “appropriate
relief” under the IDEA. G. v. Fort Bragg
Dependent Schools, 343 F.3d 295, 308 (4th Cir.
2003)
Ridgewood Bd. Of Educ. v. N.E., 172 F.3d 238,
249 (3d Cir. 1999)(recognizing appropriateness,
in some circumstances, of award of
compensatory education beyond age 21
remanding for determination of whether it
should be awarded).
WHAT IS COMPENSATORY
EDUCATION?
“An equitable remedy granted by the court
as it finds appropriate.” Bd. Of Educ. Of
Fayette Cty. Ky. v. L.M., 478 F.3d 307 (6th Cir.
2007).
“Compensatory education is not an
automatic entitlement but, rather, a
discretionary remedy for nonfeasance or
misfeasance in connection with a school
system’s obligations under the IDEA.” C.G.
v. Five Town Community Sch. Dist., 53 F.3d
279, 290 (1st Cir. 2008).
PURPOSE OF COMPENSATORY
EDUCATION
“Compensatory education is meant to ‘place
children in the position they would have been in
but for the violation of the Act.’” Draper v.
Atlanta Indep. School Sys., 480 F. Supp. 2d 1331
(N.D. Ga. 2007), aff’d 518 F.3d 1275 (11th Cir.
2008). See also B.H. v. West Clermont Board of
Education, 788 F. Supp. 2d 682 (S.D. Ohio 2011).
PURPOSE OF COMPENSATORY
EDUCATION
Compensatory education is “relief
ordered pursuant to the IDEA and should
be designed to ensure a free appropriate
public education, not to compensate a
personal injury.” Nieves-Marquez v.
Puerto Rico, 353 F.3d 108, 125 (1st Cir.
2003).
WHAT DO COMPENSATORY
EDUCATION SERVICES LOOK LIKE?
“As a discretionary equitable remedy, the extent of a
compensatory education award is very dependent on the
particular facts and circumstances of the case. The
nature and extent of compensatory education services
which federal courts have recognized arises according to
the facts and circumstances of a given case. Such an
award may include extra assistance in the form of
tutoring, or summer school while students are still within
the age of entitlement for regular services under the Act,
or an extended period of assistance beyond the statutory
age of entitlement.” Pihl v. Mass. Dept. of Educ., 9 F.3d
184, 188 n.8 (1st Cir. 1993); See also Millay v. Surry
School Dept., 2011 WL 1122132, 56 IDELR 162 (D.Me.
2011).
Florence County School District Four v.
Carter, 510 U.S. 7, 114 S.Ct. 361 (1993)
Courts may award reimbursement of private
school tuition if the school district’s IEP
was inappropriate under IDEA and the
private school’s education was proper under
IDEA even if the private school does not
meet all of 20 U.S.C. §1401(a)(18)’s
requirements because it cannot be read to
apply to parental placements. Id. at 365.
Forest Grove School District v. T.A., 557
U.S. 230, 129 S. Ct. 2484 (2009)
The United States Supreme Court held that
the “IDEA authorizes reimbursement for the
cost of private special-education services
when a school district fails to provide a
FAPE and the private-school placement is
appropriate regardless of whether the child
previously received special education or
related services through the public school.”
Id. at 247.
Forest Grove School District v. T.A., 557
U.S. 230, 129 S. Ct. 2484 (2009)
“When a court or hearing officer concludes
that a school district failed to provide FAPE
and the private placement was suitable, it
must consider all relevant factors, including
the notice provided by the parents and the
school district’s opportunities for evaluating
the child in determining whether
reimbursement for some or all of the cost of
the child’s private education is warranted.”
Id. at 247.
Miener v. Missouri, 800 F.2d 749 (8th
Cir. 1986)
In this case, the school district failed to determine that
child was eligible for IDEA services; and the parent could
not afford a private placement and was forced to place
child in the Youth Center of the St. Louis State Hospital
for three years. Id. at 750. Recognizing appropriateness
of compensatory education award and holding that
plaintiff was entitled to recover compensatory education
if she prevailed in her claim that she was denied a FAPE
for several years. Id. at 753. Further, compensatory
education services are available for future services to
remedy the failure to provide FAPE in previous years and
is not solely limited to retroactive financial
reimbursement. Id. at 753. “We are confident that
Congress did not intend the child’s entitlement to a free
education to turn upon her parent’s ability to “front” its
costs.” Id. at 753.
Board of Education of Oak Park & River
Forest High Sch. Dist. 200 v. Illinois State
Board of Edu.,79 F.3d 654 (7th Cir. 1996)
The IDEA's authorization to courts to grant
“appropriate” relief “encompasses the full
range of equitable remedies and therefore
empowers a court to order adult compensatory
education if necessary to cure a violation”. Id.
at 656. “Except for the judge-created remedial
exception for claims for compensatory
education, the entitlements created by the
IDEA expire when the disabled individual turns
21. The exception is where a claim for
compensatory education is made.
Compensatory education is a benefit that can
extend beyond the age of 21.“ Id. at 660.
Ferren C. v. School District of
Philadelphia, 612 F.3d 712 (3rd Cir. 2010)
In resolution of legal disputes, the school
district agreed to set up a trust fund in excess
of $200,000.00 to provide student with three
years of compensatory education past 21st
birthday. Id. at 715. Student attended an
approved private school. Id. The school district
declined to provide IEPs or serve as the LEA
during the compensatory education period;
however, the district court ordered it to do
both. Id. at 716. The 3rd Circuit found that the
court had the authority to award this type of
specific non-monetary equitable relief and it
was appropriate under IDEA based on the facts
of the case. Id. at 718.
Ferren C. v. School District of
Philadelphia, 612 F.3d 712 (3rd Cir. 2010)
If the relief furthers the purposes of the IDEA, then it is
“appropriate”. Id. at 719. “A ‘money-only’ type of award
for Ferren is exactly the type of empty victory that the
Supreme Court sought to avoid in Burlington.” Id. at 71920. “Ferren was already deprived of a FAPE and by
extension an IEP. Compensatory education is ‘a remedy
to compensate for rights the district already denied.’ If
an individual was deprived of their right to an adequate
FAPE, and by extension an IEP, prior to the age of twentyone, it follows that the student could only be fully
compensated by an award that contains the elements of
a FAPE that she was previously denied. There is nothing
in IDEA that evinces Congressional intent to limit courts’
equitable power to awards of only financial support. In
certain cases, such as the one here, monetary awards
cannot fully compensate a student for a school district’s
past failures.” Id.
Ferren C. v. School District of
Philadelphia, 612 F.3d 712 (3rd Cir. 2010)
The Third Circuit emphasized “that 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 the student’s rights under IDEA
and develop an appropriate equitable award.
Further any additional litigation over the
adequacy of the compensatory education can
be minimized if the School District simply
complies with the requirements of the IDEA.”
Id. at 720.
Draper v. Atlanta Independent School
System, 518 F.3d 1275 (11th Cir. 2008)
1. The school district initially concluded that the student
had an IQ of 63 in June of 1998 when the student was 11
years old. The initial evaluation consisted merely of an
IQ test and failed to assess Draper for a specific learning
disability even though he displayed signs of dyslexia,
such as writing letters, numbers and words backwards.
2. Student was placed in self-contained classroom for
children with mild intellectual disabilities from 1999
through 2003.
3. When the student was in the ninth grade and sixteen
years old, he was re-evaluated in April 2003 and again in
July 2003. His IQ was found to be 82. On Sept. 9, 2003
the school modified student’s diagnosis from mild
intellectual disabilities to specific learning disability.
4. His reading and math skills in July 2003 were on a
third-grade level. His spelling skills were on a second
grade level. His reading level had not improved since
April 2000.
Draper v. Atlanta Independent School
System, 518 F.3d 1275 (11th Cir. 2008)
5. He was placed in general education classes for the first time
since third grade even though to survive academically in high
school, a witness from the school testified he needed a fifth or
sixth grade reading level.
6. The IEP provided he would use the Lexia program to improve
his ability to read, but he was not provided the program. Even
after the school system agreed during mediation that he would
receive the program no later than November 21, 2003, he did
not receive the program until December 9, 2003.
7. By January 12, 2004 he had received only 2.5 hours of
instruction with the Lexia program.
8. The school’s own expert in the summer of 2004 found
student’s skills severely discrepant from his potential, that he
suffered from a SLD consistent with dyslexia and recommended
intensive multi-sensory training to remedy academic deficits.
9. The IEP team decided to continue the use of the Lexia
program despite the objections by the parents that it was
inadequate to meet his needs.
Draper v. Atlanta Independent School
System, 518 F.3d 1275 (11th Cir. 2008)
The court enjoys broad discretion in fashioning
an appropriate equitable relief for a student
when determining compensatory education
services. Id. at 1285-86. The 11th Circuit
affirmed the district court’s determination that
the school district failed to provide the student
a FAPE for three school years. The Court also
affirmed as appropriate the student’s
placement at a private school including the
supplemental services as outlined by student’s
doctor totaling $34,150.00 a year through 2011
or when the student receives a high school
diploma. Id. at 1283-84.
Draper v. Atlanta Independent School
System, 518 F.3d 1275 (11th Cir. 2008)
The 11th Circuit found that, “An award of compensation
for a violation of the Act is different from the educational
program ordinarily required by the Act. An educational
program must be ‘reasonably calculated to enable the
child to receive educational benefits.’ (citations omitted.)
“[W]hen measuring whether a handicapped child has
received [adequate] educational benefits...courts must
only determine whether the child has received the basic
floor of opportunity.” (citations omitted.) If there has
been a violation, the district court may award
“appropriate” compensatory relief. (citations omitted.)
Although “ordinary [educational programs] need only
provide ‘some benefit,’ compensatory awards must do
more—they must compensate.” Reid ex rel. Reid v.
District of Columbia, 401 F.3d 516, 525 (D.C.Cir.2005).
Compensatory awards should place children in the
position they would have been in but for the violation of
the Act.
Reid v. District of Columbia, 401 F.3d 515
(D.C. Cir. 2005)
The Court found that the IEP was inappropriate
and denied the student a FAPE for four-and-ahalf years. Id. at 520. “We hold that
compensatory education awards fit comfortably
within the ‘broad discretion’ of courts
fashioning and enforcing IDEA remedies.” Id. at
523. We agree that “there is no obligation to
provide a day-for-day compensation for time
missed. Appropriate relief is relief designed to
ensure that the student is appropriately
educated within the meaning of the IDEA.” Id.
at 524. Thus, the need for flexibility and to
consider the unique needs of the child. Id.
Reid v. District of Columbia, 401 F.3d 515
(D.C. Cir. 2005)
The Court further found that “while an
ordinary IEP need only provide ‘some
benefit,’ compensatory awards must do
more-they must compensate.” Id. at 525. If
anything, the district court should have
required the school district to offer proof
that the placement at Accotink Academy
compensated for prior FAPE denials in
addition to providing some benefit going
forward. Id.
Reid v. District of Columbia, 401 F.3d 515
(D.C. Cir. 2005)
“The hearing officer may not delegate his
authority to a group that includes an
individual specifically barred from
performing the hearing officer’s
functions…The Order is meant to be final;
therefore the award is binding on the
parties absent a new hearing.” Id. at 526-27.
Board of Education of Fayette
County, Kentucky v. T.D., 478 F.3d
307 (6th Cir. 2007)
The Sixth Circuit found that T.D. was denied a FAPE for
two years plus one summer. The Sixth Circuit felt a
flexible approach rather than rote hour-by-hour
compensation award, was more likely to address T.D.’s
educational problems successfully; therefore, it upheld
the district court’s reversal of the 125 compensatory
hours and declined to implement the parents’ requested
hour for hour. The Court noted that T.D. may well need
more than 125 hours. However, we hold that neither a
hearing officer nor an Appeals Board may delegate to a
child’s IEP team power to reduce or terminate a
compensatory education award. The Court remanded the
case with instructions to award a remedy consistent
with opinion.
Millay v. Surry School Department, 2011 WL
1989923, 56 IDELR 257, 111 LRP 37001
(D.Me. 2011)
The Court awarded 86 weeks of compensatory
education for student, and developing and
implementing those services. The Court found that
“although the idea of a compensatory education
trust fund is not completely out of the question, that
allowing a parent to decide how to use limited
public education dollars creates its own set of
problems. Specifically, the court might be forced to
step in and determine whether the services
selected by the parent were appropriate. This would
place the court precisely in a position it should not
occupy—the position of setting educational policy
and dictating future programming decisions.”
Heather D. v. Northampton Area Sch. Dist.,
511 F. Supp. 2d 549 (E.D. Penn. 2007)
The Court noted that the Third Circuit in
discussing the right to compensatory
education, has stated that where such an
award is appropriate, the “disabled child is
entitled to compensatory education for a
period equal to the period of deprivation.”
Therefore, an award of compensatory
education ties to services denied in the
past, rather than a corrective approach
designed to help the student perform in
accordance with some speculated
potential. Id. at 557.
Heather D. v. Northampton Area Sch. Dist.,
511 F. Supp. 2d 549 (E.D. Penn. 2007)
The Court found the following:
(1) the statute of limitations does not bar Heather’s claim
for compensatory education for her first, second and
third grade years (96-99);
(2) the school district denied her a FAPE for her first
through eighth grade school years (96-04);
(3) the appropriate remedy for the denial of FAPE for the
first through sixth grades is 10 hours per week of
compensatory education services for 1,860 hours;
(4) the appropriate remedy for the denial of FAPE for the
seventh grade is 460 hours and 108 hours for eighth
grade;
(5) $75.00/hour at 2,428 hours = $182,100.00
compensatory education award;
(6) the parents may decide how the hours should be
spent so long as they take the form of any appropriate
developmental, remedial, or enriching instruction that
furthers the IEP goals.
Westendorp v. Independent School
District No. 273, 35 F.Supp. 2d 1134 (D.C.
D.Minn. 1998)
The Eighth Circuit held that ISD No. 273 violated
Aaron’s rights under IDEA by denying him a
paraprofessional at Calvin Christian School and
remanded the case back to the District Court for a
determination of the proper scope of relief. Peter v.
Wedl, 155 F.3d 992, 1001 (8th Cir. 1998). On remand,
Independent School District No. 273 was ordered to
provide a classroom paraprofessional aide to Aaron
Westendorp at the school chosen by his parents,
whether public or private (including religious), the
equivalent of six academic years. Id. at 1138. NOTE:
that these services were only available at a private
school through the 1996-1997 school year because
of Congress’ 1997 amendments to IDEA.
Gill v. District of Columbia, 751 F.Supp.2d
104 (D.C. 2010)
The Court found that student was denied FAPE;
however, parent provided insufficient evidence for
the court determine the appropriate compensatory
education services. The Court found that W.G. could
not read and needed to be taught basic like-skills
such as recognizing letters and crossing the street
on signal, yet sat in Algebra and Chemistry which
provided no benefit to the student with a 51 IQ.
However, the court sits in equity and may hear
additional evidence and invited the parents to
request an evidentiary hearing to determine
compensatory services. The education of a special
needs child cannot be forfeited by lawyering when
the facts and needs of the child are clearly revealed
in the record.
C.G. v. Five Town Community Sch. Dist.,
53 F.3d 279, 290 (1st Cir. 2008).
The district court found that the parents' actions
disrupted the IEP process, stalling its
consummation and preventing the development of a
final IEP. Moreover, the court found, the parents did
so despite their knowledge that the School District
planned to complete the unfinished portions with the
parents' help. Tellingly, the court determined that the
cause of the disruption was the parents' single-minded
refusal to consider any placement other than a
residential one. Such actions, whether or not wellintentioned, constitutes an unreasonable approach to the
collaborative process envisioned by the IDEA. Here, that
attitude sufficed to undermine the process. Their
unreasonable obstruction of an otherwise promising IEP
process fully justifies a denial of reimbursement under
the IDEA.
Letter to Anonymous, 21 IDELR 1061, 21 LRP
2775 (August 29, 1994).
“OSEP’s position has been that compensatory education
is an appropriate means for providing a FAPE to a child
with disabilities who has previously been denied FAPE.
In certain instances, compensatory education may be the
only means through which children who are forced to
remain in an inappropriate placement, due to their
parents’ financial inability to pay for an appropriate
placement, would receive FAPE. Both the State
Educational agency (SEA) and an impartial due process
hearing officer has the authority to require compensatory
education if it is required to provide FAPE to a child with
disabilities who has been denied FAPE. With respect to
the obligation of a SEA or LEA to provide remediation for
educational performance, Part B of the IDEA does not
require remediation as a part of providing FAPE to a
child. ” See also Letter to Kohn, 17 IDELR 522, 17 LRP
1319 (Feb. 13, 1991).
Letter to Kohn, 17 IDELR 522, 17 LRP
1319 (Feb. 13, 1991).
Compensatory education is an appropriate method for providing FAPE to
a child with disabilities for whom FAPE has been previously denied.
Compensatory education may be the only means through which children
who are forced to remain in an inappropriate placement due to their
parents’ financial inability to pay for an appropriate private placement
would receive a FAPE. Though Part B does not address the specific
remedies that an impartial hearing officer may order upon a finding that
a child has been denied a FAPE, OSEP’s position is that, based upon the
facts and circumstances of each individual case, an impartial hearing
officer has the authority to grant any relief they deem necessary,
inclusive of compensatory education, to ensure that a child receives
the FAPE to which they are entitled. The scope of compensatory
education ordered in an impartial hearing officer’s decision must be
consistent with a child’s entitlement to FAPE, but should not impose
obligations that would go beyond entitlement. Therefore, a hearing
officer who concludes that a child with disabilities is entitled to
compensatory education may order, as a means of redressing the denial
of FAPE to that child, that compensatory education include or take the
form of summer school programming.
Letter to Riffel, 33 IDLER
188 (2000)
In OSEP’s opinion, if it is determined that
a student is eligible for compensatory
education, then the student is entitled to
those services to remedy a past denial
of FAPE. Even if the student graduates
with a regular high school diploma, the
student cannot be required to delay
graduation in order to receive the
services.
HEATHER S. DEATON
OFFICE OF THE MISSISSIPPI
ATTORNEY GENERAL
COUNSEL TO THE MISSISSIPPI
DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL
EDUCATION