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By: Lily Crespo Esq.
Quick Takeaway: Districts should proactively seek to provide compensatory services to make up for special education services they were unable to provide during COVID-19 school closures to students with disabilities. Decisions concerning whether a specific student needs compensatory services and the amount and types of services needed must be made by IEP teams and 504 teams based on the student’s individual circumstances. Properly memorializing the decision-making process can help avoid future disputes by demonstrating that the district’s decisions were individualized and based on information from people knowledgeable about the student, including the parent.
What are the rules? To help schools navigate uncharted waters, the US Department of Education (DOE) Office of Special Education Programs was quick to issue COVID-19 guidance in mid-March of 2020. With respect to services during school closures, the guidance stated that, “to the greatest extent possible, schools need to implement the services that are identified in students’ IEPs under IDEA or in Section 504 plans.”
In turn, the Department of Education’s Office for Civil Rights (OCR) issued its guidance in September 2020. Basically, to avoid the risk of not providing FAPE (Free and Appropriate Public Education), OCR reminded schools they couldn’t just give a standard set of services or accommodations to all students under Section 504. They must focus on the individualized needs of every student with a 504 plan. In addition, parents could not be asked to sign waivers of their children’s rights to FAPE under IDEA or Section 504 in exchange for getting the online services.
Compensatory services versus compensatory education: The confusion centers on the failure to sufficiently differentiate this proactive response to learning loss referred to as “compensatory services” from the adjudicative remedy for denial of FAPE referred to often as “compensatory education” but sometimes synonymously as compensatory services.
“[B]oth the United States and Pennsylvania Department of Education have explicitly recognized that many, if not most, children with disabilities are entitled to some level of compensatory education to address the almost- inevitable diminishment of educational opportunities and meaningful programming during the pandemic. Skilled advocacy is more essential than ever in ensuring that appropriate compensatory education is provided to address any inadequate programming both pre-pandemic and during the pandemic (McAndrews & Connolly, 2021).”
|Compensatory Services||Compensatory Education|
|Context||specific to COVID-19||not exclusive to COVID-19|
|Nature||system-wide proactive procedure||third-party remedial order|
|Basis||learning loss||denial of FAPE|
|Majority Approach||regression-recoupment||qualitative or hybrid|
Bottomline: Compensatory services are generally defined as educational services that a student needs to make up for skills lost because a school district did not provide the services required by the IEP. When it comes to compensatory services needed to make up for services that could not be provided because of the COVID-19 pandemic, the IEP/Section 504 team’s determination should not be viewed as remedy for a failure on the part of the school district, but rather as a means to mitigate the impact of the loss of critical skills or learning that might have occurred as a result of special education and related services that could not be provided during the pandemic
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.