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Special education refresher: The difference between compensatory services and compensatory education

July 19, 2021

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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).”

Questions

  1. What is the relationship between the guidance provision for compensatory services (CS) and the traditional remedy of compensatory education (CE)?
  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

 

  1. What are recommendations for CS that may alleviate the current confusion?
    • First, use a much more clearly distinguishable term for CS, such as “COVID-19 recovery services.” Second, be careful not to over-do the analogy to CE, which can result in not only saddling IEP teams with the role of hearing officers but also over-saturating the student with services beyond the school day.
  2. What are related overall considerations?
    • First, recognize that the latest CARES legislation provides short-term funding for addressing “learning loss” for students generally, including but not limited to those in special education. Second, realize that whatever the district does for CS does not immunize its potential liability for CE but may serve as a deduction from any CE award, depending on the specific facts of the case and the ultimate determination of the complaint investigator or adjudicator.
  3. Will further guidance be forthcoming?
    • Yes! In a recent FAQ, USDE’s Office for Civil Rights (2021) announced: “The Department is aware of important questions regarding compensatory services for students with disabilities and plans to address those in a separate guidance document” (p. *7).
  4. What specific steps are suggested for districts to consider? Local school authorities, with their legal counsel, should consider
    • (a) whether the federal guidance and any applicable state guidance may serve as the jurisdictional basis for the IDEA’s investigative or adjudicative procedures, and, if so, whether they are likely to be persuasive?;
    • (b) if the district decides to follow the federal guidance, whether the majority approach for the determination, which primarily relies on regression- recoupment, is most suitable for IEP teams?; and
    • (c) is the better alternative is to have IEP teams meet promptly upon resumption of full-in person services to examine progress data, including any recoupment updates, and revise the IEP to address the child’s individual needs without any separate and supplemental CS? Exemplifying this final alternative, a recent state complaint investigation decision concluded that the federal guidance “may have raised expectations and caused some to believe that ‘compensatory services’ were mandated after COVID-19 school closures, [but] that is not the case.” Instead, distinguishing the remedy of compensatory education, this decision interpreted the federal guidance as “best . . . understood as consistent with the school’s duty to monitor student progress and revise the IEP, as appropriate” (Student with a Disability, 2021, p. *15).

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.

Kaleva Law

At Kaleva Law Office you receive the experienced, practical advice of a large firm with the responsive, efficient, top-notch support of a small firm. We take care of the legal questions so you can focus on education.

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