Making Things Right: Rights of Recovery in Education Disputes

What are your rights of recovery when your child's educational rights have been violated? In general, compensatory services will be awarded. Compensatory services are designed to "make up for" services which a student missed or should have received due to the failure of an educational agency to provide them. The services may be educational or related services (such as speech therapy). They are an available remedy under the Individuals with Disabilities Education (IDEA) Act and under Section 504 of the Rehabilitation Act of 1973.

Compensatory services are provided in addition to services that a child is currently entitled to receive. They often take the form of additional service hours. They are for past violations of IDEA and/or Section 504 and should not be confused with services to provide a child appropriate services in current or future Individualized Education Programs or 504 Plans.

There are three common occurrences when a school may owe compensatory services: (1) when a school fails to timely evaluate a child with a disability; (2) when a school does not provide services contained within an IEP or 504 Plan; and (3) when a school does not offer an appropriate plan (for example, if the student is not offered appropriate service hours or an appropriate placement or if progress monitoring indicates the child has repeatedly not made progress towards IEP goals).

In general, the absence of services must have a negative impact on your child's progress for your child to receive compensatory services. Because of that, in general, compensatory services are not available for occasional missed service sessions due to staff illness or other infrequent absences. Additionally, the number of compensatory service hours will not always be the same as the number of service hours missed. In general, schools are given a "reasonable time" to realize that the provision of services was faulty.

Another remedy that may be available to your family is monetary reimbursement. It is occasionally available to families who pay for expenses which the family's school district should have paid in order to provide a child a Free and Appropriate Public Education (FAPE). Examples of things which parents have been reimbursed for include Independent Educational Evaluations, related services (for example, private speech therapy, occupational therapy, social skills groups, etc.), summer programming, tutoring, and even private school tuition. There are often many requirements associated with receiving reimbursement, however, which often vary by state or district. In general, it is a good idea to give your child's IEP team written notice at least ten days in advance of beginning private pay services for which you may seek reimbursement. Check with a special education attorney if you think monetary reimbursement is an option for your family.

It is extremely rare for a court to require a school or school district to make a cash payment to a family that is not a reimbursement of an expense paid by the family. Courts are split on whether money damages are even available as a remedy for a violation of IDEA; most courts have decided money damages are not an appropriate remedy. Because IDEA allows a family to pursue lawsuits brought alleging violations of other statutes, such as the Americans with Disabilities Act and the Civil Rights Act, some families have filed lawsuits alleging violations of multiple statutes in order to try to obtain money damages. A special education attorney can help you decide if this is a possibility for your family.

Recommended Link:

• CAR Resource Directory (Search For Advocacy)

Additional Resources:

• When Is Your Child With A Disability Entitled To Compensatory Educat