If parents are able to show that the school district did not follow an IEP, the most common consequence is some amount of public-funded compensatory education. Compensatory education is tutoring hours that is intended to make up for the student's educational loss caused by the school district not following an IEP. However, not every failure to follow an IEP will result in a legal claim in which compensatory education is warranted.

The Legal Standard:

The legal standard used by the California Office of Administrative Hearings ("OAH"), the administrative body with jurisdiction to hear and resolve select educational disputes, is failure to implement the IEP. In order prove that the school district failed to implement the IEP, parents must show that school district materially deviated from the IEP. This means that minor deviations from the IEP will not be considered a failure to implement.

Here are two examples to help you contextualize the concept:

Example 1: Johnny's IEP calls for 30 minutes per week of speech and language services. Parents learn that Johnny's speech pathologist cut a session short by 7 minutes because she had a family emergency that she needed to attend to.

Example 2: Johnny's IEP calls for 30 minutes per week of speech and language services. Parents learn that Johnny hasn't received speech and language services for 12 weeks because the school's speech pathologist took another position and the school/school district hasn't found a replacement yet. 

In Example 1, OAH would likely find that missing 7 minutes of speech and language is a minor deviation that doesn't constitute a failure to implement an IEP and no compensatory education is warranted.

In Example 2, OAH would likely find that missing 12 weeks, or, put differently 6 hours, of speech and language is a material deviation constituting a failure to implement an IEP. Consequently, OAH likely would order some amount of compensatory education. 

Who Provides the Compensatory Education? 

Compensatory education can be provided by school district staff or a third-party provider who doesn't work for the school district. Who provides the compensatory education is negotiable. While it sometimes makes sense to allow the school district staff to provide the compensatory education, I most often advise my clients to have the school district pay a third-party provider. This gives parents more control over the process. If the school district directly provides the compensatory education, it will generally choose which staff member will provide the service, when it's provided, the duration, and what is being worked on. On the other hand, if parents have the school district pay a third-party, parents can choose who will provide the service (with some limitations), when it's provided, the duration, and what is being worked on.

What Areas Can Compensatory Education Be Provided In?

Compensatory education can be provided in many areas. Below are a few of those areas:

• Core Academics (reading, writing, and math);
• Speech and Language;
• Occupational Therapy;
• Adapted Physical Education;
• Physical Therapy; 
• Mental Health Services; and
• Behavioral Services (e.g., ABA).

Do I Have to Go To Due Process Hearing to Get Compensatory Education? 

Not necessarily. Compensatory education is among the remedies that the California Office of Administrative Hearings ("OAH") can order following a due process hearing. However, if parents present a strong case to the school district through the settlement phase of due process (i.e., resolution session or mediation), it's possible to get the school district to agree to fund compensatory education without having to attend a due process hearing. 

How Do I Know How Much Compensatory Education to Ask For?

You want to have an understanding of what OAH orders in situations like yours. You don't want to ask for less than what's reasonable because you'll inadvertently shortchange your child. But you also don't want to ask for more than what's reasonable because you may be opening yourself up to a lengthy disagreement with the school district that may end with a due process hearing and an adverse ruling against you.

It's best to speak with an experienced special education attorney to determine whether you have a strong claim and, if so, what is a reasonable request for compensatory education.