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Compensatory Education in the Age of COVID-19

By Piper A. Paul and Camille E. Serrano February 15, 2021 Posted in General

Introduction

The transition to virtual learning has been enormously challenging for all students, especially those with disabilities. Many parents have reached out to me inquiring what they can do to hold school districts accountable during these trying times, and I wanted to address one potential recourse – known as compensatory education.

Compensatory education or “comp ed” is not encapsulated in the IDEA and has been developed through case law which allows courts to grant relief as they deem appropriate. Comp ed is intended to place the student in the position they would have been but for the violation of a Free Appropriate Public Education (FAPE). Hearing Officers can award comp ed in the form of tutoring, therapeutic camps/supports, and private placements.

History of Comp Ed

Of note, comp ed is not mentioned anywhere in the Individuals with Disabilities Act (IDEA) but has developed through case law. The first major case on this topic occurred in 1982, when a plaintiff named Miener sued the state of Missouri for violating FAPE, and demanded relief in the form of compensatory education. However, the courts rejected the plaintiff’s claim, declaring that there is no legal right to such comp ed. Then, three years later, in a separate case called Burlington School Committee v. Department of Education, the Supreme Court established the importance of having an “equitable remedy” if a school district violates FAPE. This decision provided Miener with ammunition for an appeal, and in 1986, the Appellate Court reversed its decision and declared that Miener had a right to compensatory educational services.

Miener’s victory was a landmark case that laid the groundwork for granting comp ed to students across the country. In the aftermath of the decision, courts established a precedent that school districts had to be liable for “egregious misconduct” for plaintiffs to receive comp ed. Eventually that standard was discarded and now plaintiffs merely have to prove that their school district has failed to provide an appropriate educational program for their child.

Casework in recent years has established a few other precedents that parents should be aware of when filing comp ed lawsuits. First, the courts have determined that comp ed can extend past a student’s 21st birthday. Second, courts have ruled that students have a right to seek additional comp ed beyond what is originally granted when school districts prolong the process through appeals. Finally, courts have established a “statute of limitations” of sorts on these cases, and thus parents should make sure to file their lawsuits as quickly as possible after the alleged misconduct.

Filing for Comp Ed During the Pandemic

Prior to filing a comp ed lawsuit, I advise parents to first try seeking recourse with their respective school districts. The pandemic has created a lot of uncertainty over what proactive steps parents can take with their child’s educators, but parents should not be fearful to advocate for their children. Students have all the rights they had prior to COVID from both a legal and advocacy standpoint. In fact, the Department of Education has not established any waivers under the IDEA and, thus, school districts are still required to provide FAPE to all of their students during COVID. This means that schools must continue evaluating, and that it is well within parents’ right to request IEP meetings and to petition the school to develop a distance learning plan for their child that provides FAPE. Also, because parents have taken on much of the responsibilities of teachers in this at-home setting, they are entitled to training from the school district on how best to implement virtual learning plans.

If communication with the school district fails to improve a child’s virtual education, parents may have a claim for compensatory education. Parents should consult with attorneys experienced in education law to help determine if they have a viable cause of action. Parents will need written data, information and evidence regarding the denial of FAPE, including the impact on the child. Parents should save every communication they have with the school and keep track of how their child’s education is progressing at home. Parents should keep a daily log regarding services provided, by whom, and whether or not their child was able to engage and access the information provided. This data does not have to be overly complex – Data is pivotal in helping to determine whether a denial of FAPE has occurred and if so, what are possible remedies.

I am happy to talk more with you about your child’s unique needs, whether there appears to have been a denial of FAPE, and if so, what are options you may want to pursue on behalf of your child.

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