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Hot Topic: Compensatory Services and Education

The IDEA allows parents to seek compensatory education or services in two circumstances: 1) the education or services offered in the child's IEP weren't appropriate. Remember, appropriate is a loaded, legal term or 2) services weren't delivered - the IEP wasn't implemented. Remember that claims must be brought within 2 years from when the parenat knew or should have known that the child was denied a Free, Appropriate Public Education (FAPE), with certain exceptions. Those students in New York whose IEPs were not implemented during COVID have until November 3, 2022.

If you are claiming that your child's IEP wasn't implemented, you need to provide evidence that the services weren't delivered and you have to propose a solution. Experts are essential here. It's possible that your child regressed because of the failure to provide an appropriate program (IEP) in the first instance or because of the failure to deliver the services detailed in the child's IEP. That has to be measured through an appropirate evaluation.

Impementation failure example:

Sam's IEP provided for physical therapy 3x a week, but the child got none

of that for the period between March of 2020 and March of 2021.

The District would owe the hours that weren't given.

But Sam had certain skills in March, 2020 - let's say he could skip. By March of 2021, he couldn't do that anymore. The compensatory services award would have to include additional time to help Sam regain the lost skills.

FAPE denial example:

Jane is two years behind in reading in the 3rd grade. An independent evaluation determines that she is dyslexic, but her IEP never provided for specialized reading instruction. Jane's parents bring a Due Process claim that their child was denied a FAPE for the past 2 school years and, with their expert's evaluation and evidence, assert that Jane should have been provided with specialized reading instruction. They want compensatory instruction to help Jane gain the skills she should have developed in the first place during the past two school years.

Complicated, right? You will definitely need an evaluation and an expert. So, this relief is available, but you will need a team to help you get your child the help they need.

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