A recent decision by the United States Sixth Circuit Court of Appeals underscored the importance of monitoring and ensuring the progress of special education students under their Individualized Education Plans (“IEP”), and revising such plans accordingly. If this is not done, a district risks litigation and a finding that the IEP did not appropriately address a student’s needs, along with an award of compensatory education and attorney fees.
On November 6, 2018, the Sixth Circuit, whose decisions are binding in Michigan, affirmed a district court’s compensatory education award of 1,200 hours as an appropriate remedy for a denial of a free appropriate public education (“FAPE”).
The parent of a student with autism filed a due process hearing request against a Michigan school district alleging a denial of a FAPE. Following an administrative due process hearing, the Administrative Law Judge (“ALJ”) identified a number of violations that she believed constituted denials of a FAPE to the student. The ALJ did not, however, order the district to provide the student with compensatory education as a result of the denial of FAPE. Rather, the ALJ ordered the district to convene an IEP team meeting and to develop an appropriate program for the student. The parents appealed the ALJ’s decision not to award compensatory education for the district’s denial of FAPE.
On appeal, the district court granted the parent’s request for compensatory education. The district court held that, while the prospective modifications ordered by the ALJ were designed to prevent future harm to the student, they did not make up for defects in the IEP at issue. The district court ordered the district to pay for the student to receive 1,200 hours of private tutoring and one year of postsecondary transition services as a compensatory education award. Both the district and the parent appealed the district court’s compensatory education award. The district argued that the district court abused its discretion in issuing a compensatory education award. The parent argued that the 1,200-hour compensatory education award was inadequate.
The Sixth Circuit Court of Appeals found that the parent was unable to show that an award of 1,200 hours of compensatory education was inadequate to address the school’s failure to develop and implement appropriate IEPs. In doing so, the Court of Appeals held that the “appropriate benefit” standard established by the recent U.S. Supreme Court decision in Endrew F. only applies when evaluating a school’s offer of a FAPE. However, when calculating the amount of compensatory education needed to remedy a denial of FAPE, a court may consider whether the student made “some advancement” in evaluating the number of services needed to make the student whole. In distinguishing the case from Endrew F., the Court noted that “[t]he Endrew F. standard has no application to this task because the issue, in that case, was whether an IEP complied with IDEA ("Individuals with Disabilities Education Act"), not whether a student was entitled to compensatory education.”
IDEA entitles parents of students with disabilities to an array of procedural safeguards. These procedural safeguards include the ability to file a State Complaint or to initiate a Due Process Hearing with respect to any matter related to the identification, evaluation or educational placement of the child or the provision of FAPE. As a result of either process, a school may be ordered to provide compensatory education. The purpose of compensatory education is not to punish districts for denying the student a FAPE but rather to place the student in the position he/she would have been had the district provided the appropriate services in the first place.
IDEA does not guarantee any particular level of education or educational outcome for a student. School districts must offer an IEP that is reasonably calculated to enable a child to make adequate progress that is appropriate in light of the child’s circumstances. There is no bright-line rule or test regarding what it means to make adequate progress. Most often schools will look to whether a student is advancing from grade to grade or making passing grades when evaluating whether they are providing a student with a FAPE. While these are certainly important factors, overreliance can prove fatal to a district in the event of a FAPE dispute. That is why progress monitoring is so important. Regular assessment and review of student data will not only ensure that staff are implementing IEPs with fidelity but will also identify when it is necessary to make adjustments to a student’s IEP before the annual review date. Not tackling and appropriately responding to such issues early on can prove costly for a district.