80% Not Enough: ALJ Rules That 20% Shortfall Entitled Student to Compensatory Education


On October 12, 2020, the Office of Administrative Hearings ruled that a California school district denied a high school student a Free Appropriate Public Education (FAPE) when the district provided the student only 80% of the student’s IEP-required specialized education.   (Long Beach Unified School District, 120 LRP 33840.)


Student qualified for special education under the category of “intellectually disabled.” Student’s Individualized Educational Program (IEP) included five hours of specialized academic instruction.  Like most California schools, the district closed its schools on March 16, 2020 due to the COVID-19 pandemic.  On April 23, 2020, District began offering students 3-4 hours per day of blended teacher-directed learning and self-directed learning.

However, from the date of closure until March 22, 2020, District did not provide Student, or any other student, with any instruction.  From March 23, 2020 until April 9, 2020, District provided Student with some distance learning but that did not include any direct teaching or any related services from Student’s IEP.

The blended learning eventually provided to student consisted of 3-4 hours per day of direct online instruction and self-directed learning.  Of which, 1.5 hours were dedicated to direct teacher instruction from the Student’s moderate to severe special day class curriculum, and the rest of the time the student would complete activities and work assigned by the teacher.  The provided services represented about 80% of the amount of services required by Student’s IEP.  The Administrative Law Judge (ALJ) also pointed out that the District did not begin implementing Student’s IEP until the 19th day of distance learning.


Generally only material failures to implement an IEP constitute an IDEA violation.   (Van Duyn v. Baker School Dist. (2007) 502 F. 3d 811, 822.)  “A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child’s IEP.” (Id.) “The materiality standard does not require that the child suffer demonstrable educational harm in order to prevail.” (Id.)

Here, the ALJ was not convinced by District’s arguments that COVID-19 related challenges prevented the District from implementing the IEP in its entirety.  Instead, the ALJ ruled that providing 80% of the required services represented a material failure to follow Student’s IEP.  Notably, the ALJ determined that the alternative delivery model which included both teacher-directed and self-directed learning was appropriate for Student, it just was not enough. As such, the ALJ awarded Student compensatory education.


All Local Educational Agencies (LEA) have faced challenges regarding providing special education and related services to students without being able to provide in-person instruction.  However, as this case suggests, relying on those challenges to excuse IEP implementation may come at the risk of violating a student’s right to FAPE.  Specifically, the ALJ noted “while unavoidable circumstances prevented [District] from fully implementing [Student’s]…IEP, the IDEA included no exceptions to implementation for school closures caused by pandemics or governmental directives.”

It should be noted that the ALJ specifically looked at the number of hours required in Student’s IEP compared to what was being provided by the District during distance learning and considered both synchronous and asynchronous delivery models.  LEAs should take from this that every effort should be made to provide students with disabilities with the services specifically required an IEP and have evidence to support that any alternative delivery models are providing the services as required.