Available Remedies in Educational Disputes
By Michael Gehring, Esq.
McAndrews Law Offices, P.C.
Both the Individuals with Disabilities Education Act, or IDEA, and Section 504 of the Rehabilitation Act of 1973, require school districts to provide eligible disabled students with a Free Appropriate Public Education, or FAPE. If the school district does not provide the student with a FAPE, or commits some other violation of IDEA or Section 504, the parents of a disabled student can bring a due process complaint against the school district in order to obtain relief for the school district’s violation.
This raises the question: What types of relief are available in a due process proceeding under IDEA and Section 504? In other words, if a parent institutes a due process proceeding against a school district, what will the end result of that hearing look like?
One common type of relief awarded by due process hearing officers is compensatory education. Compensatory education is typically awarded in the form of “hours” of services, which allows a student to purchase educational services, on an hourly basis, from private providers. Such services can include private tutoring, psychological counseling, social skills training, speech therapy, and other educational services. Sometimes the hearing officer, in awarding compensatory education, will put limits on both the maximum hourly rate for such services (sometimes expressed as the school district’s cost of providing such services), and/or the specific type of services that can be purchased. For instance, where a disabled student has proved at a due process hearing that a school district failed to provide the student with an appropriate reading program, the hearing officer may explicitly state that the hours awarded are to be used only to provide remedial reading services to the student.
The issue often arises as to the proper amount of compensatory education that should be awarded. Due process hearing officer and courts have often used an “hour-for-hour” approach, whereby the student will be awarded one hour of compensatory education for each hour that the student was not provided with an appropriate support inn the schools setting. For instance, if the hearing officer finds that a school should have provided a student with speech/language therapy twice per week for thirty minutes per session for a period of two school years, then the hearing officer could award the student with the amount of compensatory education hours (one hour per school week) that should have been provided. In certain cases, where a school district’s failures have affected a student’s functioning throughout the school day, hearing officers and courts have awarded “full days” of compensatory education, meaning approximately 6.5 hours of compensatory education per school day for the entire period of deprivation.
Some hearing officers and courts have advocated not using an “hour for hour” approach for calculating compensatory education, instead stating that the amount of compensatory education should be calculated to make the student “whole” or, in other words, to bring the student back to the educational level at which he or she would have been absent the school district’s violations. This is a far more subjective approach than the “hour-for-hour” approach and presents potential problems in calculation. For instance, if a student enrolled in a new school district and received a more appropriate education, thus making up for some of the “lost ground” attributable to the prior district’s failings, then the student may end up with a diminished compensatory education award, thereby benefitting the school district that caused the educational deprivation.
Another common remedy under IDEA., and sometimes Section 504, is private school tuition reimbursement. This remedy comes into play where parents remove their child from an inappropriate public school program, and enroll the student in a private school setting where the student receives an appropriate education. This can be a difficult remedy to obtain, and there are certain procedural steps that the parents must take to even have a chance of obtaining an award of tuition reimbursement. If parents are contemplating this option, they should consider consulting with an educational attorney who can guide them through the procedural traps and put the case in the best possible posture for a due process hearing.
Another remedy that is obtainable under IDEA is reimbursement for a private evaluation. If parents believe that a school district’s evaluation or reevaluation of their child is inappropriate, they can so inform the district and request that the district fund a private evaluation of their child. If the school district refuses, the district is required to file a due process complaint to defend the appropriateness of its evaluation. If a hearing officer finds that the evaluation was, in fact, not appropriate, then the hearing officer can order the school district to pay for a private evaluation of the student. Parents can also seek reimbursement for a private evaluation as additional relief in a due process hearing instituted by the parents.
Finally, parents can also obtain “prospective” relief. That is, parents can seek and obtain through a due process hearing an order that the school district must immediately develop and offer an appropriate program and placement to the student. If, for instance, a child’s present Individualized Educational Program (IEP) is inappropriate, parents can obtain not only relief for past violations in the form of compensatory education, but also an order that the district must offer an appropriate program to their child in the future. This relief can be valuable in that, if the district fails to comply by developing and offering an appropriate program, the parents can go back to the hearing officer that issued the order and seek compliance with the order. This provides school districts with a strong incentive to develop and offer an appropriate program to the child in the future.