When schools closed in March 2020, both the United States Department of Education (US DOE) and the New Jersey Department of Education (NJ DOE) issued initial guidance on supports for students with disabilities during the closures. The early federal guidance indicated that if a special education student was impacted by school closures, “a school must make an individualized determination whether and to what extent compensatory services may be needed.” See US DOE Questions and Answers on Providing Services to Children with Disabilities During a COVID-19 Outbreak,” Question A-2. New Jersey’s early guidance, “Updates and Frequently Asked Questions Related to COVID-19 School Closures,” echoed the federal guidance, and tasked IEP teams with making compensatory services decisions. It stated: “IEP teams may need to consider compensatory services when students return to school and IEPs may need to be adjusted accordingly. The IEP team should determine the amount of compensatory related services students with IEPs may require, on a case-by-case basis, when school resumes.” (See pg. 7).
Since March, the NJ DOE has continued to direct IEP teams to assess students’ needs for “compensatory services” on a case-by-case basis. As a result, there is a growing debate in the education community about the differences between “compensatory education,” a well-established legal remedy awarded in IDEA litigation, and “COVID compensatory services,” the concept involving compensatory services a student may need/ be entitled to as determined by an IEP team. This blog will examine compensatory education, COVID “compensatory services,” the existing federal and New Jersey guidance, and four practical tips for IEP teams to consider.
What is “Compensatory Education” under the Individuals with Disabilities Education Act (IDEA)?
Under the IDEA, students who are denied a “Free Appropriate Public Education,” (FAPE”) may be entitled to receive a remedy called “compensatory education.” Typically, compensatory education is awarded through one of the IDEA’s dispute resolution pathways – an administrative special education due process hearing, litigation or perhaps following a state complaint investigation.
As explained in one recent New Jersey Special Education Due Process hearing decision:
“The IDEA provides a comprehensive remedial scheme for children who have been deprived of a free, appropriate public education. A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 803 (3d. Cir. 2007). Compensatory education, a judicially created remedy, “is crucial to achieve that goal, and the courts, in the exercise of their broad discretion, may award it to whatever extent necessary to make up for the child’s loss of progress and to restore the child to the educational path he or she would have traveled but for the deprivation.” G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 625 (3d Cir. 2015); D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 496 (3d Cir. 2012). “A disabled student’s right to compensatory education accrues when the school knows or should know that the student is receiving an inappropriate education.” D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d. Cir. 2012) (citing P.P. v. W. Chester Area Sch. Dist., 585 F.3d 727 (3d. Cir. 2009)). A child who has been deprived of a FAPE is “entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.”
Notably, the legal remedy of “compensatory education,” is, generally speaking, not determined by an IEP team.
What does current NJ guidance say about “COVID Compensatory Services”?
The latest federal and state (New Jersey) guidance tasks IEP teams, including parent-members, with making determinations about “COVID-19 compensatory services.” Yet, there is no official, regulatory or judicial definition for “COVID-19 compensatory services.” While we have general policy guidance from the state, we do not yet have specific guidance, data points or required timelines for IEP teams making compensatory service decisions. Watch here for updates!
Here is what New Jersey’s state level guidance does say about COVID-19 compensatory services:
As noted above, compensatory services were first mentioned in NJ DOE’s March 23, 2020 guidance, stating that IEP teams may need to assess a student’s need for compensatory services when school resumes. The same language appears on the main NJ DOE webpage providing COVID guidance.
The NJ DOE’s April 30, 2020 Broadcast, prohibiting school districts from requiring parents to sign waivers of rights in exchange for the provision of remote special education services, states: “School districts should begin now to consider how the extended school closures may affect students’ progress toward IEP goals to determine whether compensatory services are needed.”
In the June 12, 2020 Broadcast “Guidance for Summer Learning Programs,” the New Jersey Division of Student Services states: “With regard to ESY services for students with disabilities, school districts must implement services to the greatest extent possible, including related services, in accordance with guidance from the United States Department of Education (USDE). School districts may consider including students with disabilities who typically do not have ESY in their IEPs in new summer programs designed for all students to address learning loss that may have resulted from the extended school closures due to COVID-19.” So, if your child was NOT deemed eligible for ESY (Extended School Year) previously, but was offered ESY later this school year, it may be part of COVID compensatory services.
In its June 12, 2020 guidance on “Providing Additional Services for Students with Disabilities Who Will Graduate or Exceed Eligibility for Special Education Services,” the NJ Division of Student Services again encourages district level IEP teams to determine compensatory services for students who were denied needed transition services. The guidance states: “Whether a student was due to graduate or reach the age of 21 by June 30, 2020, the NJDOE encourages IEP teams to convene virtual or in-person meetings to discuss the services that were not provided to students and to determine the need for additional services.” The guidance goes further to state: “Proactive steps on the part of the district to provide additional services can eliminate the need for a future claim for compensatory services.”
The Road Back Plan, released by the Governor and NJ DOE on June 26, 2020, states, “IEP teams should review student data/student progress to determine whether critical skills were lost during the period in which remote instruction was being provided to students and determine the need for additional services to address learning loss. IEP teams should consider the impact of missed services on student progress towards meeting IEP goals and objectives, and determine if additional or compensatory services are needed to address regression and recoupment of skills within a reasonable length of time.”
Given current guidance, how should NJ IEP teams handle requests for “COVID compensatory services”?
As of July 20 2020, we do not have any final, legal decisions or revised regulations on “Covid Compensatory Services.” For now, we must use the existing federal and state guidance.[i]
Here are 4 tips for IEP teams:
#1 As stated in The Road Back Plan:
“IEP teams should review student data/student progress to determine whether critical skills were lost during the period in which remote instruction was being provided to students and determine the need for additional services to address learning loss. IEP teams should consider the impact of missed services on student progress towards meeting IEP goals and objectives, and determine if additional or compensatory services are needed to address regression and recoupment of skills within a reasonable length of time.”
#2 As discussed in our Advo-Kids Blog, COVID-19 Brings a New Type of FAPE, for now…, focused IEP team communication and data sharing has never been more important. IEP teams must be sure that students’ IEPs are updated before school resumes, whatever format school takes.
#3 While the initial state guidance suggested that compensatory services must be discussed when school resumes, more recent statements directed consideration of compensatory supports over the summer. Nothing in the guidance prevents a team from discussing a need for compensatory services before school resumes. If an IEP team meeting is requested, the school district must respond and convene a meeting within 20 calendar days. N.J.A.C. 14-2.3(h)(5).
#4 If a school district and parent cannot agree on a student’s need for “compensatory services,” it leaves parents to contact the NJ Office for Special Education, file a state complaint, and/or follow the other established dispute resolution options available under special education laws. This is discussed in a recent update to the federal post-COVID guidance: https://sites.ed.gov/idea/idea-files/part-b-dispute-resolution-in-covid-19-environment-q-a-document-june-22-2020/.
Right now each and every stakeholder involved in education faces unprecedented stress and challenges. We hope teams will use shared data as a starting point for discussion. The Advo-Kids team is here to help parents execute their best advocacy and can assist IEP teams to resolve disputes early and effectively.
Have comments, questions or concerns about this topic? Contact us at email@example.com! We welcome your feedback!
 Many states have issued specific guidelines to give local school districts and parents a framework and guidance on how to approach these complex IEP team decisions. As a point of reference, you can review Pennsylvania’s, “Guidance and Answers to FAQs on COVID-19 Compensatory Services,” issued on June 30, 2020, or the Colorado Department of Education’s guidance. Education organizations and advocacy groups are also weighing in on the debate, of course. The Council of Parent Advocates and Attorneys (COPAA) recently released it’s "Position Statement on Covid compensatory services," stating: “Districts and parents must work together to determine what each student needs upon the reconvening of school. The student’s IEP team will need to meet and determine present levels of performance as a prerequisite to designing an appropriate program and placement. Parents should have a significant voice in specifying the student's current level of performance. If the student's performance is below where it was on the day schools closed for the COVID-19 pandemic, or if the achievement gap has widened due to the closure, the IEP team is obliged to provide more intense services than those provided in the prior IEP.”
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This material is for educational purposes only; it does not provide legal advice. Please be advised that there is no attorney-client relationship between you and Advo-Kids or this author. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.