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Court decision clarifies compensatory services for students

Parents may seek several years’ worth of special education services

A recent federal court decision on the statute of limitations for families to take legal action against schools sheds new light on compensatory services provided to special education students when IEP goals are missed.

Parents still must take legal action within two years, but they may seek several years’ worth of special education services, according to the U.S. Court of Appeals for the Third Circuit’s September ruling in G.L. v. Ligonier Valley School District in Pennsylvania.

For example, if parents take legal action when the student is in sixth grade, they may gain compensatory services for as far back as first grade. Prior to this ruling, there was no clear guideline regarding how many years of service a district has to make up.

Districts must provide remedies to students with special needs who have been denied services required in their IEP. If, for example, a student does not get the five weekly hours of speech therapy required by an IEP, the district must make up missed services outside of the school day or during a holiday break. Other common compensatory services include academic tutoring and occupational therapy.

Compensatory services may be warranted if an assessment demonstrates that the student needs a special service that was not included in the IEP. “The purpose is to put the student in the position they would have been in had the services been provided,” says Thomas S. Nelson, a special education attorney based in California.

Districts should also act quickly to fix the problem, Nelson says. For example, if an occupational therapist retires and no replacement is hired, the district should contract with an outside provider to ensure students receive the service.

The district should also hold an IEP meeting to tell parents what happened and what is being offered to the student, along with any services that need to be made up.

“Be proactive,” Nelson says. “Say ‘We’re sorry, here’s how we’re going to make up for it.’” Otherwise, if the parents learn on their own that services are not being offered as needed, they will often hire a lawyer. “It becomes an issue of distrust,” Nelson says.

Once a lawyer is involved, the district has to pay attorney fees for itself and the parents, should the parents win the case, Nelson says. Districts may also have less flexibility constructing the compensatory services: A court could make the district pay a certified agency to provide the services and transportation when it would be less costly to use school staff.

Stay mindful

In Washington, the Sunnyside Public Schools, a rural district of 6,500 students, faced a due process complaint from parents in spring 2014. It was the district’s second IEP case in the past 10 years, Director of Special Services Cody Gardiner says.

“In our two examples, the relationship broke down and the parents felt like they had nowhere else to go,” Gardiner says. “A huge part of it is making sure we’re mindful of parents’ thoughts and concerns.”

Outside of the court complaints, IEP problems occur most often in Sunnyside when a special ed student is placed in a general education setting—as is encouraged by the Individuals with Disabilities Education Act, Gardiner says. In such cases, the district must ensure the student’s curriculum is designed, supervised, evaluated and monitored by a special ed teacher, even if instruction is delivered by a paraprofessional or general education teacher.

Administrators should include special ed staff in planning meetings when building schedules or procedures change, so each child with an IEP receives the required services, Gardiner says.

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