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.
The pandemic has schools engaging in many more comp ed and comp services discussions than ever before. Here I will explain the difference between comp ed and comp services and get you started if you need to request either.
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.”
What are Compensatory IEP Services?
Compensatory services are educational services needed to make up for skills or learning that have been lost when services described in an IEP were not provided. This may come in the form of scheduled services or in the form of a lump sum of money (Comp Ed).
It has been my experience during COVID that schools are offering comp services and not direct comp ed funding.
New: Click button below to see the official guidance for IEP Compensatory Education for All 50 States. Please note, this information changes frequently so do your due diligence and double check that this is the latest guidance provided by your state.
Evaluation/Reevaluation Issues
Was your child in the middle of an IEP initial evaluation or IEP re-evaluation? If so, were those evaluations paused or delayed? Did the pandemic shutdown cause a delay in needed services? Or regression?
IEP Service Considerations during Shutdown
▪ How has your LEA communicated with families regarding services provided and not provided? If you received NO communication from the school, your child may be eligible for compensatory services. Many school districts did absolutely nothing during the pandemic.
▪ Does your state’s Emergency Contingency Guidance, or similar guidance from your specific school district, outline or mention planning for possible compensatory supports? In other words, compare the state and local guidance with your child’s IEP. What’s missing? And, what instruction was NOT provided?
▪ Was your child provided instruction or services via an alternative method (e.g. online math instruction, online speech therapy, or instruction provided telephonically) during the closure?
▪ Were those alternative methods of instruction and services provided to the student as beneficial for the student as the methods normally used to serve the student? Did they make progress toward goals?
▪ Was the student able to access the instruction and services? I’ve heard a lot of parents talk about their child not being able to do distance learning. Did your child have meaningful participation?
▪ Is there clear documentation of the amount of instruction and services the student was provided during the closure (including dates, times, and duration)? If so, what amount of instruction and services did the student receive? Did you document when and what types of instruction were provided? See! This is why I was nagging you back in March and April.
▪ How will the LEA clearly communicate the amount of instruction and time required of compensatory services so that parents, as members of the IEP team, can be ensured meaningful participation in the decision-making process? You should participate in an IEP meeting to discuss compensatory services. And, not just have a document sent home for you to agree to. A PWN should be provided.
▪ How will the LEAs monitor service times and notify families of completion? How will progress monitoring be done? Just like typical IEP progress, there will need to be a way to document that your child is making progress with compensatory services. Make sure you know exactly what your child will be able to do for the school to say they are finished. If your child has new baselines, the goal should be a restoration to previous baselines.
▪ What percentage of the student’s IEP supports and services did the student actually receive?
▪ Are there indications that the student regressed either academically or non-academically during the closure? Has the student lost any specific skills?
▪ How can the IEP team address the need to make up these skill deficits without overwhelming both kids and families? I always give the example of my own son. In normal times, he is programmed from 8-5:30 every day M-F year-round.
Much as I’d like him to have them, compensatory services are just not an option for us, as there are only so many hours in a day and he needs downtime too. If you are given either services or funds for services, when will they take place? Will more “specials” and free time and extracurriculars have to be missed? It’s important to find balance.
How do I get Comp Ed for my child?
More often than not, Compensatory Education Funding is 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:
- Technology
- Internet access at home
- Transportation to community college and tutoring
- Vocational Evaluations
- Therapy
- Tutoring
Items that are not usually included:
- College Tuition
- Vehicles
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.
Gag Orders
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.
