No Exhaustion Needed for IEP Students Seeking Compensatory Damages under the ADA law: Perez v. Sturgis Public Schools

What if your child attended school for several years with an IEP and you later discovered that one of the accommodations was provided in a fraudulent way all that time? For example, let's say your child was blind and was supposed to be taught Braille, but the school never provided a certified Braille teacher. Or, what if your child was deaf and used ASL to communicate, but the interpreter the school provided did not know ASL. Eventually, graduation day comes and you are told that your child will not graduate. The schools says it's because your child can't demonstrate the expected skills due to the lack of ability to read the content or communicate the answers. Would you have the right to file a lawsuit to seek compensatory damages from the school?

As of March 21, 2023, the answer is unanimous: YES!

The Supreme Court of the United States (SCOTUS) determined that in the case of Perez v. Sturgis Public Schools, 143 S. Ct. 859 (2023) a student with a disability does not have to exhaust the administrative due process procedures from the Individuals with Disabilities Education Act (“IDEA”) before filing a lawsuit for compensatory damages under the Americans with Disabilities Act (ADA) or other federal laws.  SCOTUS held that the statutory language of the IDEA expressly requires exhaustion through the due process hearing process for lawsuits brought under other federal laws if it seeks relief for what is available through the IDEA. It, however, does not require exhaustion for lawsuits through other federal laws that seek relief like compensatory damages which cannot be obtained through the IDEA process. SCOTUS stated its decision was consistent with Fry v. Napoleon Community Schools, 580 U.S. 154 (2017). In that case, SCOTUS determined that students may proceed with lawsuits without exhausting the IDEA administrative proceedings, only when the lawsuit does not seek relief for claims that essentially allege a denial of a free appropriate public education (FAPE). SCOTUS stated that the Perez and Fry decisions align, because a student does not have to exhaust administrative due process remedies when the IDEA “cannot supply what he seeks.”  See Perez, slip op. at 6.

How To Address Missed IEP Services

Originally published on August 17, 2021 to address lost IEP services due to the COVID-19 pandemic. The concepts addressed in this blog, however, can be applied to any situation in which a student loses or misses services due to various circumstances that could occur.

As we move forward as IEP teams to address lost and missed IEP services for students, there are 4 areas to consider as a student may need to have their S.M.A.R.T.E.R. Steps® goals addressed through make-up services, compensatory services, or covid-impact services.

The Four Areas to Consider:

1) Review concepts: Regression, Rebound, and Lack of Instruction/Intervention

2) Review techniques to determine impact of lost services

3) Create a framework for the future on how to address lost services

4) Determine next steps in collaborative partnerships with the IEP team for solutions

STEP ONE: Review Concepts

Concept 1: Regression: "A return to a former or less developed state."

-You were working on it
-You had it, then you lost it
-You are not progressing, you are steadily going backward or staying still
-How much time is of significance to note? 3-6 month

Concept 2: Rebound during Regression phase

  • Rebound means “bounce back”
  • You were working on it
  • You had it, then you lost it
  • You came back and made up for the lost ground and regained lost skills (recoupment)
  • How much time did it take you to make up for it?
  • Now, you start progressing

Concept 3: Lack of Instruction or Intervention

STEP TWO: Review Techniques to Determine Impact of Losses

First: Gather Student Data

Second: Analyze Data: Analysis after reinitiating services

Third: Discuss Data: After reviewing data and student’s academic and functional performance on goals:

STEP THREE: Create a Framework to Address Lost Services

Concepts to Consider for Compensatory Services:

In case of a dispute, this could be decided through other processes such as a Facilitated IEP meeting, State Child Complaint, Mediation, or Due Process Hearing

-Documentation of reasonable attempts: frequency and logical lay-out of attempt

-Documentation of changes to the IEP via meetings or addendum meetings

-Evidence of the alternative methods of instruction/programming provided and the progress data on the goals with that alternative delivery method

-Data reflective of regression, rebound, and/or lack of instruction/intervention

-Emails from district, school staff, and parents discussing concerns/successes

-Other factors: Variety of issues could be discussed example: Staff locked out of building: no access to student info, unable to reach parents, etc.

-Illnesses of staff, parent, students due to COVID-19 in timeframe

STEP FOUR: Moving Forward

It is important to distinguish between “could not” provide FAPE vs. “would not” provide FAPE in your documentation.

IEP teams should they consider what services {and supports} the student needs moving forward. Teams can identify, through the use of progress monitoring data, each student’s functional performance in relevant curriculum areas.

Then, IEP teams compare the student’s current performance to where they would expect it to be had there not been a loss of services.

When a Goal is NOT Addressed…

Determine next steps in collaborative partnerships with the IEP team for solutions

If it is determined that additional services are necessary, IEP teams develop IEPs that include services {and supports} designed to help the student bridge any gap in performance between where the student is and where the student was expected to be.

S.M.A.R.T.E.R. Steps®: Using Magic Recipes in On-line Therapy for IEP Goals

S.M.A.R.T.E.R. Steps® presents a video tutorial on how to use magic recipes during on-line therapy for IEP Goals. These recipes use "pretend cooking" tasks on-line to create an imaginary item that actually appears in their home. This task has the hidden motivator at the end of the session in order to keep the children engaged. You can address articulation, language structures, "wh" questions, descriptions, sequencing, and fine motor skills with this open-ended activity. This is a great way to address the "S" in S.M.A.R.T.E.R. Steps to IEP goals which stands for "specific". To learn more about how to develop "specific" goals, check out our blog:


Watch now and find out how!


Smarter Steps®: Using Sorting Tasks for Executive Functioning IEP Goals

Smarter Steps presents a video tutorial about using sorting tasks for executive functioning skills for IEP Goals. Parents can learn about the importance of a foundation executive functioning skill called "sorting" that is a major component of developing higher level organization frameworks. Children need lots of practice with sorting in order to build a framework about similarities and groupings in their brain. This teaches them the strategy that organization allows them to access things faster and locate items, concepts, or systems effectively.  Calendar skills, agenda skills, money skills, and same/similar concepts are discussed in this tutorial.

Watch now and find out how!


Smarter Steps®: Using Jenga® for IEP Goals

Smarter Steps has created a video tutorial on how to use Jenga® for IEP Goals. Parents who are working with their children at home due to the corona virus can use this task for making therapy at home fun. Learn how to take this game and to infuse practice for speech, language, sight words, vocabulary, math facts, fine motor, and gross motor skills. If you don't have the Jenga game, you can use regular blocks or recycled cardboard boxes to practice stacking. Finally, use a washcloth with a rubber band tied around it to knock down the tower at the end.

Watch now and find out how!


Smarter Steps: Using Mad Libs® for IEP Goals for Language Skills

Need a fun idea to work on language IEP goals? At Smarter Steps, we provide a tutorial video on how to use the tried and true activity of Mad Libs®. Children can learn about different parts of language in a humorous way. This activity can be done virtually with friends during the time of social distancing with the corona-virus, homebound, or home-schooling. You can adapt story books and use familiar narratives to teach children about language categories in a more natural way than diagramming sentences or drill worksheets.

Mad Libs for IEP Goals
Using Mad Libs for IEP Goals

Watch now and find out how! 


Using a Twister® Game for IEP Goal Activities

Twister game with spinner
Twister game with spinner

A tutorial video from SMARTER Steps for how to use the game of Twister® to address IEP Goals during home activities. This is a great idea for addressing sight words, math facts, vocabulary, and personal information. Game can be adapted to be played virtually during social distancing during COVID-19. Parents and siblings can play along. Game board can be taped up to the wall and adapted for children with physical differences. Parents can create their own game boards and spinners.

Watch now and find out how! 

Dynamic Duo behind SMARTER Steps to IEP Goals: Xceptional Leaders Podcast

Kelly Ott and Lara Wakefield, the Dynamic Duo Behind SMARTER Steps®, a Simple Acronym That Makes IEP Goal Setting Actionable and Attainable

Listen Now!

Coming together with a wealth of individual expertise and professional experiences, Kelly Ott and Lara Wakefield share their journey of their successful partnership as business partners, and … friends.

Although they are both speech-language pathologists, advocates, and educational consultants, their diverse professional experiences allowed them to provide a wider knowledge base and enrich their overall offerings.


  • Get feedback from your partner.
  • You have to be flexible.
  • Make a commitment to a long term relationship.
  • Have a sense of humor!

Is Your Team Addressing These Measurable IEP Goal Pain Points?

Colored pencils arranged in a circle to form a target

Annual IEP goals determine which services will be implemented to support the student’s progress during the school year.

If those goals can’t be easily measured, how will the team know if the student met them? (more…)

"More Therapy" versus "Relationship of Delivery to Outcome"

More Therapy versus Relationship of Delivery to Outcome

The outcome of therapy relies on more than the amount of therapy minutes provided. “More therapy” versus “relationship of delivery to outcome” has been a popular topic on social media professional discussion groups. Regrettably, this is a dilemma that comes up often in school based practices. During IEP meetings, parents and special education teams can sometimes have misunderstandings related to determining service intensity, frequency, and setting. These altering perspectives can lead to disputes. It is frustrating to parents when school staff insist on their traditional set times and delivery methods. It is stressful to school staff when parents demand more therapy or 1:1 intervention.  Such disagreements create a divide on the IEP team and rarely are resolved in a satisfactory manner to all.  In addition, the both sides of this argument may be disregarding the most important factor--the outcome of therapy.

But what if there was a preventative way to resolve this dispute before it begins? IEP teams can use a structured 5 step process to assist with understanding the outcome of therapy. Consequently, resolutions can be achieved as part of the process rather than through disputes.  This is working S.M.A.R.T.E.R., not harder.

Outcome Decisions on therapy delivery can be made by reviewing these 5 steps:

Most often, we ask, “Does my child/student need more therapy minutes?”.  Instead, teams should be asking themselves, “What is the relationship of service delivery to the student outcome?”.

Relationship of therapy delivery and student outcomes means that teams should look back at the IEP goal. The IEP goal IS the desired outcome (or should be).  This is addressed in our S.M.A.R.T.E.R. Step method of writing specific goals.  Specific goals address the underlying discrete skill set needed for student success.

Step 1:  Review of a Child’s Previous Assessments and Progress Reports:

First, teams should review assessment and progress data related to the specific skill set or behavior. This information will provide valuable information as well as a rough estimate of what outcome a student can accomplish annually. For example, if a child progressed from 50% baseline to 70% in a skill set with one hour of therapy per week, then there is evidence that this child can progress about 20% in 36 hours of intervention (based on 36 weeks of school). So, with other goals in that skill set range, it would be reasonable to expect a 20% improvement in 36 hours. If that is the desired outcome, then this would be an adequate level to set in a goal.

Rule of thumb:  Most schools have 36 weeks of school. One hour of therapy a week is 36 hours. Therefore, ask yourselves:  What outcome can be reasonably accomplished in 36 hours for this child?  Also, keep in mind that if the delivery model is pull-out method, then the child is missing 36 hours of instruction in the classroom. Therefore, a balance of academic and therapeutic needs should be considered.

Step 2:  Review of Legal Mandates:

  1. If the child is making adequate progress on his/her goals, then the intensity, frequency, and setting are probably appropriate to meet the desired outcome. IF the child has unmet goals at the end of the IEP cycle, then the therapy delivery should be reviewed or the goals may need to be revised. SLPs may need to increase in minutes, or the minutes may need to be provided in shorter duration but more frequently in the week.
  2. The least restrictive environment must be considered. School-based therapy is federally mandated to offer the general education curriculum with non-disabled peers to the maximum extent possible.  Outcomes must be pointed towards functioning in the classroom setting and all other educational environments.  Schools are under pressure to do this by law or they can risk losing federal funding.

Rule of Thumb:  If you see that a child is not progressing in a goal by the fist reporting period, it would be wise to review the underlying reasons and address those sooner rather than later.  School staff set themselves up for a bad situation at the end of the IEP cycle when they present a series of unmet goals to the team. Parents can be extremely upset when a lack of progress is reported at the end of the IEP cycle.  Teams can prevent this however, by creating a red flag list in the first reporting period and discussing it with parents at that time.

Step 3:  Review of the Evidence-Base in Research:

In 2010, the ASHA NOMS survey (published 2011) was conducted to determine functional outcomes for students related to service delivery.  Grades pre-K through 12 were reviewed.  There were 2,016 pre-k students’ data submitted by 179 SLPs from 47 school systems across 25 states.  There were 14,000 k-12 students’ data submitted by 597 SLPs surveyed from 106 school districts in 37 states.

This article highlights an example using “speech services”.

The SLPs used a functional communication measure scale for pre-testing and post-testing students over the school year. This allowed them to measure progress in a consistent way across all the groups.  The predominant delivery model was 2 times per week for an average of 21-30 minutes in small group pull-out therapy (average of 30 hours per year).

The outcomes of this service delivery model were calculated for the three most common areas of the SLP caseload:  1. Speech Sound Production; 2. Spoken Language Comprehension; 3. Spoken Language Production.

Results indicated that 25% of students with speech sound production did not progress. 40% of students with spoken language comprehension did not progress.  Likewise, 40% of students with spoken language production did not progress.  The concern here is that ¼ to 2/5 of the caseload were not achieving progress with this service delivery model.  So, SLPs need to examine this model closely if they see that a student is not progressing within the first reporting period. This allows the team to make changes as soon as possible to improve outcomes.  The data show that certain students will NOT progress with this model although the survey research did not provide detailed information on demographics or other reasons as to why these students were not progressing.

Other pertinent research that shows alternatives to consider to the typical two times a week for 30-minute small group pull-out model:

Preschoolers with language delay received Speech Language therapy 26 hours for intervention with a parent training program component. This model resulted in progression and positive outcomes for preschool children.  Parent and/or teacher training can significantly improve outcomes by enhancing carry-over throughout the child’s day and across language settings.

CAS Speech Therapy:  Childhood Apraxia of Speech.  Research from Thomas Campbell on 1:1 therapy hours revealed that min-moderately impaired children with CAS needed an average of 21.75 hours of 1:1 therapy in a year.  This was an average of 29 sessions of 45 minutes which totals 1,305 minutes to affect change in benchmarks and increase overall intelligibility.

For severely impaired CAS (nonverbal to minimally verbal) students, an average of 151 sessions of 45 minutes was needed to show improvements. This totals 131.25 hours of 1:1 therapy. This would be difficult to implement solely in a school setting due to the hours of instruction needed. That would be a lot of missed classroom time. One way of addressing the needed hours would be through a team approach utilizing coordinated efforts between outside therapists, paras, SLPs or assistants, volunteers, etc.

Session Length factors:

Sessions should be long enough to allow for the amount of practice needed for the individual child’s ability and goal targets (Rose, 1997, Schmidt, 1988, 1991).  Professionals should consider such factors as:  attention span, age, developmental ability or expectations.

Distributed vs. mass practice for motor learning:

Fletcher (1992) discussed that “distributed practice” will yield better results for speech motor learning.  This means that children benefit from frequently distributed, shorter bursts of practice over the school week rather than longer “mass practice” sessions only 1-2 times per week.

So in summary, children with CAS would most likely benefit from 1:1 therapy for about 10-15 minutes 4-5 times per week.  Additionally, they would benefit from some carry-over practice of these skills into smaller group or large group therapy 1-2 times per week in order to work toward least restrictive environment (LRE).

Rule of Thumb:  Certain diagnoses such as CAS, ASD, Down Syndrome, Cranio-facial anomalies, Cerebral Palsy, Rare incident/low incident genetic differences will all most likely require a different type of service delivery model than the traditional 2/week for 30 minute sessions in small group pull-out.

Step 4:  Parent Input:

Parents have unique knowledge of their child and can share valuable information about “what works” and “what does not work” for their child. They are privy to preferences and triggers that can save us valuable time and effort. School staff should validate and review parental input with seriousness and sincerity.  At the same time, parents should understand that increasing direct speech language therapy minutes does not necessarily result in better outcomes or faster goal attainment.  The team needs to determine collaboratively: 1. If an appropriate goal has been established; 2. If the interventions can be reasonably addressed without the student losing time in the LRE; 3.  If indirect services would be of benefit to add to the IEP (teacher in-services, para training, parent training, etc.); 4. If accommodations and modifications can assist with areas of need rather than an increase in direct minutes.

Rule of Thumb:  Parents need to be validated. Carefully considering parent requests and input can improve the overall outcomes of your students.

Step 5:  Professional Judgment: 

SLPs have experience and knowledge about typical progression and what is reasonable to expect.  Also, SLPs can take other factors into consideration to discuss such as: chronic absences or lack of motivation.  Increasing therapy minutes on the IEP is not going to help a child who is chronically absent have better outcomes.  Students who lack motivation are not going to miraculously do better on their goals by increasing therapy minutes.  The motivation and chronic absences will need to be addressed and resolved.  SLPs have specific knowledge about different diagnoses and recognize that certain speech and language impairments are more severe and persistent in nature.  They know that these students may need more frequent practice of shorter intervals over the week.  So five 10 minute sessions instead of two 25 minute sessions may improve that student’s outcomes by the end of the IEP cycle.

Rule of Thumb:  Attendance, motivation, severity of disability, cognitive disability, attention span, developmental expectations, and health status are important factors that the SLP has expertise to consider when determining service delivery options.

Remember: “Keeping track of the client’s functional outcomes, instead of reporting more trivial changes in discrete communication skills or comparing scaled scores on a pre- and post-test, demonstrates that the speech language pathologist is using resources wisely”, Moore and Montgomery, (2008).


Kelly Ott, MEd, MHS, CCC-SLP Co-Owner, SMARTER Steps:  With over 20 years experience as a licensed Speech Language Pathologist, consultant, educator and administrator, Kelly has served children and adults with a diverse range of speech, language, swallowing, learning, and communication needs. She has provided direct speech pathology services, specialized tutoring services, educator professional development training, business communication and presentation training. Kelly is dedicated to providing students, educators, and parents with specialized strategies for achievement.

Lara Wakefield, MHS, PhD, CCC-SLP Co-Owner, SMARTER Steps: Lara has over 20 years of experience as a Speech-Language Pathologist and Parent Advocate with a focus on children with special needs being socially competent with their peers. Lara has conducted research in the areas of educator collaboration for classroom-based services. Lara assists families and professionals with exploring the research behind evidence-based practices and determining the various educational options available for each child.