Compensatory Education, Part I: What is Compensatory Education?

The United States Department of Education (USDOE) defines compensatory services as services that “are required to remedy any educational or other deficits that result from the student with a disability not receiving the evaluations or services to which they were entitled.” This could include a school’s failure to provide appropriate and/or timely initial evaluations, re-evaluations, and/or services.

In its fact sheet, titled “Providing Students with Disabilities Free Appropriate Public Education During the COVID-19 Pandemic and Addressing the Need for Compensatory Services Under Section 504,” USDOE Office for Civil Rights (OCR) cited 34 C.F.R. § 104.6(a) and Barnes v. Gorman, 536 U.S. 181, 189 (2002) in support of the above definition.

Barnes v. Gorman, 536 U.S. 181, 189 states the following:

When a federal-funds recipient violates conditions of Spending Clause legislation, the wrong done is the failure to provide what the contractual obligation requires; and that wrong is “made good” when the recipient compensates the Federal Government or a third-party beneficiary (as in this case) for the loss caused by that failure. 

Public schools are federal-funds recipients and, as such, have certain contractual obligations. Provision of a Free Appropriate Public Education (FAPE) is one obligation. Failure to provide FAPE equates to failure to “provide what the contractual obligation requires”. Hence, the remedy for such a failure is compensatory damages.

In the fact sheet cited above, USDOE OCR makes the important point that provision of compensatory services “does not draw into question a school’s good faith efforts”. However, regardless of the intent (whether the intent is based on good faith efforts or is based on bad faith efforts)—or if ignorance instead of intent drove the action/s—students whose IEPs or 504 Plans aren’t implemented in full end up being harmed. As USDOE OCR said, “It is a remedy that recognizes the reality that students experience injury when they do not receive appropriate and timely initial evaluations, re-evaluations, or services, including the services that the school had previously determined they were entitled to, regardless of the reason.”

34 C.F.R. § 104.6(a) states the following:

(a) Remedial action.

(1) If the Assistant Secretary finds that a recipient has discriminated against persons on the basis of handicap in violation of section 504 or this part, the recipient shall take such remedial action as the Assistant Secretary deems necessary to overcome the effects of the discrimination.

(2) Where a recipient is found to have discriminated against persons on the basis of handicap in violation of section 504 or this part and where another recipient exercises control over the recipient that has discriminated, the Assistant Secretary, where appropriate, may require either or both recipients to take remedial action.

(3) The Assistant Secretary may, where necessary to overcome the effects of discrimination in violation of section 504 or this part, require a recipient to take remedial action (i) with respect to handicapped persons who are no longer participants in the recipient’s program or activity but who were participants in the program or activity when such discrimination occurred or (ii) with respect to handicapped persons who would have been participants in the program or activity had the discrimination not occurred.

Pay special attention to 34 C.F.R. § 104.6(a)(3). This applies to students who graduated, military dependents who moved, and/or anyone else who is no longer a participant in the program, but was a participant at the time of the discrimination. In addition, it includes students who should have been participants, but who were denied participation due to the discriminatory actions.

One example of this can be found in Fairfax County Public Schools (FCPS), which USDOE OCR found at fault for massive, systemic noncompliance during April 2020–June 2022. During this period, students were refused timely and appropriate evaluations and services. Following its investigation, USDOE OCR tasked FCPS with remedying this noncompliance. Due to 34 C.F.R. § 104.6(a)(3), this includes addressing graduates, military dependents who have moved, and anyone else who is no longer enrolled in FCPS, but who was during the 2020–2022 time period identified by OCR, as well as students who should have received services during the 2020-2022 period, but who didn’t due to FCPS’s discrimination. (Additional Reading: OCR’s letter of findings and OCR’s resolution agreement with FCPS.)