Rights of Recovery in Early Intervention

When your child has been denied an appropriate Early Intervention (EI) program, what are your rights? In general, compensatory services will be awarded. Compensatory services are designed to “make up for” services which a child has missed or should have received due to the failure of the EI program to provide them.

Compensatory services are received 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 the Individuals with Disabilities Education Act (IDEA) and should not be confused with services to provide a child appropriate services in a current or future Individualized Family Service Plan (IFSP).

There are three common occurrences when an EI agency may owe compensatory services: (1) when an EI agency fails to timely evaluate a child with a disability; (2) when an EI agency does not provide services contained within an IFSP; and (3) when an EI agency does not offer an appropriate IFSP (for example, if the child is not offered appropriate service hours or if progress monitoring indicates the child has repeatedly not made progress towards IFSP 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, EI agencies are given a “reasonable time” to realize that the provision of services was faulty.

Monetary reimbursement is occasionally available to families who pay for expenses which the EI agency should have paid in order to provide a child an appropriate program. Examples of things which parents have been reimbursed for include Independent Educational Evaluations and related services (for example, private speech therapy, occupational therapy, behavior therapy, etc.). There are often many requirements associated with receiving reimbursement, however, which often vary by state or EI agency. In general, it is a good idea to give your child's IFSP 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 an EI agency 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 the IDEA; most courts have decided that 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 (Select Advocacy)

Additional Resources:

• When is Your Child with a Disability Entitled to Compensatory Education