Oakland Student Gets Compensatory Ed After District Drops the Ball on ESY Services

What Happened

Student is a nine-year-old boy eligible for special education under the categories of emotional disturbance and specific learning disability. His IEP placed him at Tobinworld II, a non-public school. Beginning in approximately February 2014, while a prior due process case was pending over transportation concerns, Student's guardians kept him out of Tobinworld. After signing and returning the amended IEP on April 21, 2014, the guardians expected Student to return to school by April 24. Oakland arranged transportation for that date, but Tobinworld — which had not been given advance notice of the exact return date — asked for a few extra days to prepare and requested that Student return on April 28 instead. When Student's advocate called Tobinworld on April 23 to push back on the delay, the conversation went poorly enough that Tobinworld issued a notice to terminate Student's enrollment entirely. Oakland was then left without a placement for Student.

Student's guardians filed this due process case on April 24, 2014, arguing that Oakland denied Student a free appropriate public education (FAPE) by failing to transport him to school and by failing to provide instructional days going forward. Oakland admitted it had no placement for Student from April 28 through May 14, 2014 — a gap of 13 school days. Oakland then arranged home/hospital instruction beginning May 15, 2014, which continued through the end of the regular school year on June 12, 2014. However, Oakland also admitted it completely failed to provide the home/hospital instruction that was scheduled during the extended school year (ESY) period from June 23 to July 19, 2014 — a loss of 19 school days. Oakland's own compliance coordinator called it a "complete dropped ball."

What the ALJ Found

The ALJ split the decision. On the first issue — whether Oakland failed Student by not providing transportation on April 24 — the ALJ ruled in Oakland's favor. Oakland had in fact arranged transportation for that date; it was Tobinworld that requested the delay. The ALJ found that a two-day delay, after Student had already been out of school for two months, did not rise to the level of a meaningful (or "material") failure to implement the IEP. The ALJ also found that Oakland could not force a private non-public school to accept a student it had chosen to disenroll, and noted that it would not have served Student's interests to transport him to a school that would not let him in.

On the second issue, the ALJ ruled in Student's favor. Oakland had no placement for Student for 13 school days between April 28 and May 14, 2014, and it failed to provide any ESY instruction for 19 school days between June 23 and July 19, 2014. Both failures constituted a denial of FAPE, and compensatory education was warranted. The ALJ rejected Student's claim for thousands of hours of compensation based on a superseded November 2013 IEP, finding instead that the controlling document was the May 2014 IEP amendment — which called for one hour per day of home/hospital instruction, not a full school day. The ALJ calculated that Student lost 32 total hours of instruction (13 + 19) and ordered exactly that amount in compensatory services.

What Was Ordered

1. Oakland must provide Student with 32 hours of direct, one-to-one instruction as compensatory education, delivered by a credentialed special education teacher.
2. Oakland may use teachers from its own staff, from Student's current non-public school, or from a non-public agency — at its sole discretion.
3. Within 30 days of the decision's effective date, Oakland must contact the guardians to begin scheduling the compensatory sessions at mutually agreeable times.
4. If compensatory education is provided at a location other than Student's home, Oakland must provide transportation to and from that location.
5. Any unused compensatory education hours expire one year after the effective date of the decision.

Why This Matters for Parents

1. The IEP that is currently in effect controls — not an older, more favorable one. When Student's placement changed to home/hospital instruction in May 2014, that amendment became the governing document. Parents should understand that if they agree to a temporary or reduced placement, the services promised in that new IEP become the baseline for any future remedy calculation — not the higher level of services in a prior IEP.

2. Districts can be held accountable for ESY failures, even when the regular school year went fine. Oakland admitted it simply forgot to arrange ESY home/hospital instruction. The ALJ found this was a clear FAPE denial. Parents should track whether ESY services are actually delivered and follow up in writing immediately if they are not.

3. Compensatory education does not have to match the exact hours of school missed. The law allows ALJs to award what is "reasonably calculated" to restore lost educational benefits — not necessarily a full school day for every missed day. In this case, one hour of direct one-to-one instruction was found sufficient to compensate for each missed school day.

4. How advocates communicate with a school or non-public school can have real consequences for the student. The ALJ noted that the phone call between Student's advocate and Tobinworld's staff led directly to the school terminating Student's placement. While the ALJ declined to assign legal fault to the guardians, the sequence of events is a reminder that the tone and content of communications with placement providers can affect a student's access to services.

5. A school district cannot be ordered to force a private school to accept a student. If a non-public school refuses to enroll or re-enroll a student, the district's obligation is to find an alternative placement — not to compel the private school to comply. Parents should ask the district for an emergency IEP meeting and a new placement offer as quickly as possible when a non-public school terminates services.