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).

The Long and Winding to School-Supported Private School Placement

I receive a number of calls from parents of children with IEPs asking how they can require their child’s school district to pay the tuition and related costs for their child's placement in an out–of–state private school. 

I explain that unless a school district agrees to the placement and to payment of the tuition and fees, a parent will have a long, tough road ahead. An example of this complex terrain is demonstrated by the following abbreviated history of the Steckelberg v. Chamberlain School District case.  

Background:

The Steckelberg's son, AMS, was a special education student in a South Dakota public school high school. He had several diagnoses, including autoimmune disorder, PANS/PANDA, Obsessive Compulsive Disorder, Tourette's Syndrome, and random tic disorders. His symptoms prevented him from sitting still in the classroom, paying attention to his teachers, and learning the information being taught. It was difficult for AMS to control his challenging behaviors which included shouting, swearing, not following rules, cheating, and sexual behaviors. 

2018:  

• In February, a behavior analyst hired by the school district who had performed a Functional Behavior Assessment of AMS, developed and gave to the school district a behavior support plan. However, it was never shared with AMS's parents, teachers, or the IEP team, and was never implemented.
• In the summer, before AMS started his junior year, he had a sexually related incident with a six-year-old girl that resulted in criminal charges.
• On December 14, the principal sent an email to the parents stating, "I'm at the point where I don't think being at Chamberlain High School is the right setting for [AMS]." 

2019: 

• The IEP team met on January 25 with the parents in attendance. During the meeting, the parents agreed to home placement of AMS, believing that AMS would receive behavioral and educational supports and services at home. However, the School District did not provide those supports and services, and the home placement was a disaster.
• In April, the parents gave to the School District information about some possible out-of-state placements for AMS that they had located. Their list included the Kaizen Academy, a residential treatment facility in Utah. The School District contacted Kaizen to see if AMS might be a fit for that facility. The District didn't pursue the placement when it learned that Medicaid would not pay any portion of the costs associated with AMS's attendance at Kaizen.
• On August 26, although neither Medicaid nor the School District was willing to pay any portion of the costs for educational and therapeutic services, room, board, or transportation, the parents enrolled AMS at Kaizen Academy.
• On August 30, the parents filed a due process complaint with the South Dakota Department of Education, alleging that the school district had denied AMS a FAPE and that his placement at the Kaizen Academy for therapy and education should be paid for by the School District under the Individuals with Disabilities in Education.*

2021: 

• On July 8, the hearing officer ruled on the parents' due process complaint, likening AMS's circumstances to those of the special education student in S.B. v. Murfreesboro City Sch., 2016 U.S. Dist. LEXIS 31675, 2016 WL 927441 (M.D. Tenn. March 11, 2016), in which the district court found that the student's educational difficulties could not be separated from his emotional and behavioral problems, and that the residential placement was needed for the student to benefit from special education. The hearing officer in the Steckelberg parents' due process case ruled that the School District failed to offer AMS a free appropriate public education ("FAPE"), that the private placement at Kaizen Academy was proper, and that the School District was responsible for reimbursing the parents for AMS's private tuition and travel expenses. 
• On August 6, the School District appealed the hearing officer's decision to the South Dakota State District Court. 
• On August 23, the parents filed a motion to remove the case from state court to the US District Court for the Southern District of South Dakota.

2022:  

• On January 18, the US District Court for the Southern District of South Dakota found in favor of the parents' request for the case to be removed from state to federal court. Steckelberg v. Chamberlain Sch. Dist., No. 4:21-CV-4147-LLP, 2022 U.S. Dist. LEXIS 10294 (D.S.D. Jan. 18, 2022).
• On the same day, it affirmed the hearing officer's due process decision. Steckelberg v. Chamberlain Sch. Dist., 77 F.4th 1167 (8th Cir. 2023).
• AMS graduated from high school at Kaisen Academy.

2023:  

• The School District appealed the federal district court decision to the Eighth Circuit Court of Appeals.
• On August 15, the Eighth Circuit issued a decision upholding the due process hearing decision and the federal district court ruling that both found that the School District failed to provide AMS with a FAPE and awarded reimbursement to the parents of his private school tuition and related costs. See Steckelberg v. Chamberlain Sch. Dist., 77 F.4th 1167 (8th Cir. 2023).

*The IDEA (20 U.S.C. § 1412(a)(10)(C)(i)) bars private school tuition reimbursement when a school district makes a free appropriate public education (FAPE) available by correctly identifying a child as having a disability and proposing an IEP adequate to meet the child's needs. Additionally, 20 U.S.C. § 1412(a)(10)(C)(iii) covers the circumstances under which the amount of reimbursement for private school tuition described in § 1412(a)(10)(C)(ii) may be reduced or denied by a public educational entity, such as when a parent fails to give 10 days' notice before removing a child from public school or refuses to make a child available for evaluation, and § 1412(a)(10)(C)(iv) lists circumstances in which a parent's failure to give notice may or must be excused.