Compensatory Education

When a school district fails to provide a child with a free and appropriate education (FAPE), the IDEA doesn’t provide for recovery of money damages. However, it allows for reimbursement through the provision of compensatory educational services. See Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2020).

Compensatory Education "compensates" the child's educational deprivation (loss of FAPE) resulting from a school district's failure to provide special education services. When those services are not provided or the IEP is not appropriate for the child, the parent may assert a claim for compensatory education.

Whether the school district provides the child a FAPE going forward is irrelevant to an award of compensatory education. See Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2020). An award of compensatory education is backward-looking in nature; its purpose is restorative and intended to put the child in the education position the child would have been had the school district appropriately provided a FAPE. Id.

Example 1: A child’s IEP stated that each week she would receive 45 minutes of specially designed instruction (SDI) in social skills. A year later, the child’s parents found out that the SDI was never provided. The parents filed a complaint and were awarded an equivalent number of hours of compensatory education to make up for the child’s educational loss. 

Example 2: A school district failed to identify a child as eligible for special education. His parents paid the cost of private tutoring to remediate his academic deficits and filed a complaint. They were awarded reimbursement for the cost of tutoring.* The reimbursement was calculated according to the actual costs of tutoring. 

On June 30, 2020, the U.S. Eighth Circuit Court of Appeals issued a decision upholding the due process hearing award of compensatory education. Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1076 (8th Cir. 2020). Under the facts of that case, the school district knew the child was missing significant time due to mental health issues and was receiving treatment at a psychiatric facility. Id. However, the district did not refer her for a special education evaluation because she was of above-average intelligence. The Eighth Circuit, finding that the school district violated its IDEA child-find obligation since the student's eligibility for special education was not foreclosed by her intellect, the Court reinstated the due process award (1) finding that the student eligible for special education and related services; (2) requiring the school district to develop an IEP providing the child with a FAPE; (3) requiring the school district o conduct quarterly meetings to consider changes to the IEP; (4) requiring the school district to reimburse the parents for the past diagnostic and educational expenses they incurred; and (5) requiring the school district to pay for compensatory services in the form of private tutoring and the cost of attendance of the Student's psychiatrist and private tutor at IEP meetings.  Id. 

* In Iowa, one of the duties of the Iowa Department of Education’s School Budget Review Committee may grant supplemental aid to a school district from any funds appropriated to the Department of Education to address any unusual need for additional funds for special education or compensatory education programs. See Iowa Code§ 257.31(5)(h).