If your school district does not give your child the special education services they are supposed to, you may be able to get what is known as compensatory education. AKA Comp Ed, for short.
What is Comp Ed?
Compensatory education or comp-ed, as it is often called, is an educational fund for a child to further their individualized education program (IEP) goals.
It’s a compensation fund to help the child “catch up” so to speak (though no guarantees are made) when the school district has been found not to be providing FAPE for a sustained amount of time.
For example, for 2+ years, a parent has repeatedly been asking for reading evaluations and specialized reading instruction for her child. The school district repeatedly denies her requests. Mom decides to have the child privately evaluated and it is determined that the child’s reading skills have not progressed in several years. Thus, the child may be awarded a comp ed fund to make up for the time when the school district should have been educating the child, but wasn’t.
Where is Compensatory Education mentioned in IDEA?
It’s not. Sorry! This is something that has come about from case law.
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.”
How do I get Comp Ed for my child?
More often than not, this is as a result of a Due Process hearing or a settlement agreement that was reached prior to Due Process. In some rare cases, I have seen a modest comp ed fund awarded as part of a 504 complaint. (However, please do not misconstrue this to mean that you should ask for this as part of a 504 complaint, and a way to avoid legal fees.)
If you believe that you have a case for Comp Ed for your child, I recommend that you seek out assistance from a Special Education Family Attorney.
Compensatory Education cases almost always involve IEEs and proving that the child could have made more progress during the given time frame, if only they had been given the appropriate supports and services. It all comes down to a denial of FAPE.
Bottom line is this. You, as the parent, have to initiate an action of some kind. And start the comp ed discussion. It is very unlikely that a school district is ever going to say, “Hey, we f*cked up. Here, have some comp ed for your trouble.”
How is the amount of Compensatory Education calculated?
There are many things that go into calculating the amount that the child is owed via Comp Ed. If it is a Due Process case, then the Hearing Officer will calculate the amount based upon the testimony during the hearing. If this is a legal settlement, then generally the attorney for the parents and the school district hash it out.
Among the considerations:
- Amount of time/duration that the student was denied FAPE.
- “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place…”
- “[what services, if any, were required] to place [the child] in the same position [he] would have occupied but for the district’s violations of IDEA.”
- “[the student’s] specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”
- “what services [the student] needs to elevate him to the position he would have occupied absent the school district’s failures”
You can read more case law decisions and hearing office quotes in this report. Know that the author of that report is an attorney for school districts, so it is not without bias.
Having an attorney is important to this. A good special education attorney can help you gather up the data to show how and when your child was denied FAPE.
What can I spend the comp ed on?
The short answer of course, is education. However, it is essential that the family get this defined in the settlement agreement. Especially if you intend to use it for things like transportation to access the services or technology (a laptop or device) to use for school work.
Some of the things that my clients have used their funds for:
- Internet access at home
- Transportation to community college and tutoring
- Vocational Evaluations
Items that are not usually included:
- College Tuition
Problems to Avoid with Comp Ed
Over the years, I have had several clients receive comp ed. However, once their situation got to that point, I had passed them off to an attorney. I have never handled this myself as an advocate.
And, a few stories are from the street, so to speak. I heard them from other advocates. Learn from past mistakes and make sure that your attorney addresses these issues.
- Time frame/age not long enough: Since most kids with IEPs can stay in school until 21, most comp ed funds expire at that time. However, I have had clients who did not even receive their comp ed funds until age 18 or 19, so age 21 was just not enough time. We got those bumped back to 25.
- Reimbursement System: Get it clearly defined how the money will be paid out. And, make sure that works for the parent. I had one parent who had to pay for the services first, then get reimbursed 60-90 days later. Problem was, she was a single mom living in poverty, and could not afford to pay for these services, nor did she have a credit card.
- Distribution System: I highly recommend you contact your local Arc or other agency and see if there is a joint trust of some kind that you can use to access the funds. One family had a particularly tense relationship with the school. Then, their comp ed fund required her to hand deliver invoices into the school office, despite the child then having an out of district placement. In other words, despite getting the situation worked out, she still had to walk into a hostile environment monthly and ask for money.
- Qualifying Items clearly defined: Brainstorm with your attorney and advocate on every possible expense that you would want covered. You don’t want things excluded after all of this.
- Attorney Fees: There is one local firm that takes 30% of all comp ed funds from parents. This often is overlooked (by the parent) at the time they are agreeing to use this attorney, as it catches many of them by surprise when it happens. Though they’ve often signed a contract stating this. Be clear of what the legal fees are up front.
Please know that at least in my area, these situations are always accompanied by a gag order. That is, if you file for Due Process and arrive at a Settlement Agreement, you likely will not be able to talk about it.
This is how school districts keep things under wraps and systemic problems never get fixed. But, I understand, parents have to do what is best for their kids.
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