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Compensatory services related to COVID-19. . . don't assume this is automatic.

posted May 2, 2020, 7:21 AM by Diane Willcutts   [ updated May 22, 2020, 7:02 AM ]
Disclaimer:  I am not an attorney, and this is not legal advice.

Many families believe that, because districts aren't currently providing all the services in the child's IEP, the district will automatically agree to make up those services once school buildings re-open.  This isn't necessarily true.  

In fact, some school board attorneys are telling districts that, as long as they offer some sort of distance learning and document those efforts to provide a Free and Appropriate Public Education (FAPE), the district should not have to provide compensatory services to most children with disabilities.  

What????  

Part of the problem is that some school board attorneys and district administrators erroneously believe that compensatory services are provided only when the district was to blame for not providing FAPE.  And oh by the way, there is a pandemic, and that's certainly a big contributing factor to why many districts aren't providing FAPE right now.  In many cases, the lack of FAPE right now is truly not the district's' fault.

However, the idea that compensatory services are owed only when a district is to blame is a faulty analysis.  The U.S. Department of Education's 3/21/2020 guidance states:

Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services - IEP teams. . . must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.

According to the guidance, the standard for providing or not providing compensatory services isn't "did the district attempt to offer FAPE as best they could, given the pandemic?"  Instead, the standard is "did the services offered during the pandemic actually provide FAPE for the child?"  Because it's possible that there might simply have been an inevitable delay in providing FAPE that might trigger the need for compensatory services.

The guidance assumes that some students simply aren't going to be able to benefit from distance learning.  Some students require in-person engagement, hand-over-hand support, assistance with using manipulatives that school staff simply cannot offer virtually.  Some transition-focused IEPs are designed to enable students to gain or generalize skills at job sites or in the community, which also isn't possible to do virtually.  The guidance assumes that the IEP might not be able to be implemented during school closure--that there may be an inevitable delay--and that we may need to provide those services once the school buildings re-open.  In short:  compensatory services are not necessarily about blaming the adults; compensatory services are about meeting the needs of the child.

School board attorneys are advising district staff to document offers of FAPE1 and document that parents agreed to the services   So it's critical for parents to document when the services are not appropriate, although understanding that it may not be possible for the district to provide appropriate services right now. 

This parent documentation can ensure clear communication with the school district and could trigger the IEP team to brainstorm alternative solutions that might be more likely to provide FAPE during school closure.  And if the district doesn't provide FAPE for whatever reason and later resists providing needed compensatory services, that parent documentation may be critical evidence in a due process hearing to resolve the disagreement.

So what might parents write if they believe the district is not providing FAPE in a situation where the district is doing all they can right now?

Dear special education teacher and special education director:

I appreciate that the district is attempting to provide distance learning to my child while school buildings are closed.  Unfortunately, this is not working.  Since my child does not benefit from distance learning and requires in-person services, I understand that providing an appropriate program for my child is simply not possible right now and that there may be an inevitable delay due to the pandemic.  I'm open to a discussion about what compensatory services may be needed once the school buildings re-open.  I hope you are doing well!

Sincerely, 

Parent

And of course, other situations may require different documentation, but this is just to give you an idea. 

When writing your emails and/or letters to the district, keep in mind that special-ed-ese is very black-and-white.  A program is appropriate, or it's not.  Writing in special-ed-ese can be hard for parents, as they may worry about hurting staff's feelings by being blunt.  But keep in mind that, if you say to the teacher, "you are doing a great job," that translates in special-ed-ese to "the program is appropriate."  If you truly meant to say that the program is appropriate, then it's fine to give blanket compliments.  But if you are feeling like the program isn't working, you need to say what you mean more precisely, "Although the program is not appropriate, I appreciate your efforts."

Good luck, and stay safe!

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1Note that current Connecticut guidance says that "continued educational opportunities" or distance learning plans are not part of the IEP.  And if there is no IEP, by definition, there is no offer of FAPE.  As a result of this, many Connecticut school districts may end up being liable for providing compensatory education to all students with disabilities, simply because they didn't offer FAPE.  Districts in some other states are complying with IDEA by documenting continued educational opportunities in IEPs and working in conjunction with parents to make decisions.  So it is possible!  My analysis of the state's 4/24/2020 guidance is here.  



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