MDE recently issued guidance on compensatory education, available here. We note MDE clearly and correctly states compensatory education is not available unless a FAPE violation “… had a direct and negative impact on the student’s progress.” Similarly, the guidance clearly and correctly states compensatory education is not based any formula, but is designed to “… place children in the position they would have been but for the [FAPE]violation ….”
MDE’s guidance lacks clarity on the burden of proof. The courts, however, have been very clear. The parent has the burden of proving a student’s entitlement to compensatory education. See, e.g., Schaffer v Weast, 546 US 49 (2005) and T.J. v Winton Wood City Sch Dist, 2013 US Dist LEXIS 36213, at *27 (SD Ohio 2013). Thus, considering MDE’s guidance and the manner in which courts have interpreted IDEA, the compensatory education should not be awarded unless parents carry the burden of proving: a FAPE violation, which had a direct and negative impact on the student’s progress; and, compensatory education is necessary to correct the direct and negative impact of the FAPE violation.
Unfortunately, MDE’s guidance does not address the current school closure at all. This may be because the guidance was in the process of development before the school closure began. Nevertheless, we remind readers that, pursuant to guidance from the US Department of Education, school districts are not required to provide FAPE during the school closure unless they are providing instructional services to general education students. School districts that are not providing instructional services, but are providing enrichment activities, are simply required to provide students with disabilities equal access to those enrichment activities. Thus, we believe MDE should make clear that school districts that are not providing instruction to general education students during the closure are not subject to compensatory education awards for services that were not provided during the school closure.
We also believe MDE should publish clear guidance to help school districts determine: what “FAPE” looks like for students attending school districts that are providing instructional opportunities for general education students; and, what “equal access” is for students attending school districts that are only providing enrichment activities during the school closure. The lack of a common understanding about these terms, in these unprecedented times, is, at best, making FAPE decisions very difficult, if not impossible; and, at worst, discouraging school districts from moving from providing general education students with instruction as opposed to enrichment activities. The special education tail appears to be wagging the general education dog in this regard. MDE could, and should, provide the guidance necessary to address these issues; particularly as it appears the school closure may be in effect for the rest of this school year. We trust none of these concerns will keep our clients from doing their best to provide educational services during the school closure. Our students deserve our best efforts, even in the face of uncertainty. Moreover, readers may anticipate that, pursuant to the federal CARES Act, the US Department of Education and Congress will be making and considering waivers to address the thorniest issues we are facing.