This blog post is the second post in a three-part series offering tips and information to support parents seeking compensatory education for their child because of the denial of a free appropriate public education (FAPE) during the COVID-19 pandemic.  Yesterday’s post provided tips and a template letter to request an IEP meeting to determine whether compensatory education is required.  Today’s blog post provides more information about compensatory education and tips for gathering useful data to share with the school to support a compensatory education request.

To the extent possible, students should be provided the special education services outlined in their IEPs as currently written. Any services that cannot be provided during school closures may need to be provided as compensatory education.

What is Compensatory Education?

Compensatory education refers to special education and related services that are provided to students with disabilities to make up for services they were denied because their school district or charter failed to provide them with FAPE under the Individuals with Disabilities Education Act (IDEA).  In a dispute, state education agencies and courts may award compensatory education services to students with disabilities in situations where a school failed to provide FAPE. However, parents and schools may agree that FAPE was denied for a specified time, develop a plan to provide compensatory education, and memorialize that plan in a Prior Written Notice (PWN) without proceeding to enforcement actions.

What is the Legal Standard?

Courts do not agree on the method for calculating how much compensatory education should be awarded. Some courts apply a “day-for-day” or “minute-for-minute” standard, in which a child is awarded an amount of special education and/or related services equal to the amount that the school failed to provide. For example, if a school district failed to provide 20 hours of speech therapy to a child when their speech therapist resigned, the child would be awarded exactly 20 hours of compensatory speech therapy.  However, Arizona is in the Ninth Circuit Court of Appeals and that jurisdiction does not follow the minute-for-minute method for calculating compensatory education. Instead, courts in Arizona determine the amount of compensatory education a student is owed using a fact-specific assessment of the unique needs of the student to determine the amount of service needed to correct the educational deficits resulting from the school’s failure to provide FAPE.

Eight Tips for Gathering Information to Support a Compensatory Education Request Following School Closures

1. Take advantage of any distance learning opportunities offered by the school district that your child can benefit from.  Refusing services during this time may make it harder to request compensatory services when schools reopen.
2. Look at your child’s IEP to determine how much special education and related services your child would have received if school had remained open, and compare that to the services your child receives during closures. The difference between the two will tell you how much special education your child has missed during this time. While Arizona courts do not follow the minute-for-minute standard when calculating compensatory education, this information will still be useful when performing an individualized assessment of what relief is needed to remedy the educational deficits resulting from the school’s failure to provide FAPE.
3. Keep a log of the amount and type of services your child did receive during school closure.  For example, record that the school provided one-on-one speech therapy through a videoconference application for 30 minutes per session for six sessions.
4. Note what was different about how services were provided to your child during school closures, and how you think the delivery method impacted your child’s learning. For example, if speech therapy was provided one-on-one via video conference during closures, but is normally provided in a small in-person group setting, did this allow for more individualized attention to your child and greater learning? Or did your child struggle to engage with therapy delivered through the computer instead of in-person, and was learning less effective as a result?
5. Look for baseline measures in homework or schoolwork your child completed just before schools closed, or from observations or measures at home from the beginning of the school closure based on your child’s grade-level standards or IEP goals. A similar measure can then be made when your child returns to school. The two measures can be compared to calculate regression.
6. Record observations, save your child’s work product, and consider taking photos or videos of your child during the school closure to help calculate how the lack of services affected your child’s progress towards IEP goals and objectives. For example, if your child was able to work on non-preferred academic tasks for 10 minutes or more during school but became unable to work on non-preferred activities during school closures, that is an area where progress was lost and regression occurred.
7. Share your observations and data on lack of progress and regression when you meet with the school to discuss compensatory education.
8. If you do not agree with decisions your child’s IEP team makes regarding compensatory education services, you may pursue dispute resolution.

A Word of Caution

There is no need for a student’s IEP to be amended to reflect that the student will be receiving different or reduced services during school closure. Distance learning opportunities can be provided without amending the IEP. IEPs should reflect what the child needs for FAPE based on their individualized needs, not what services are currently available from the school district. Rather than amending a student’s IEP, the IEP team should track what services are not being provided during the school closure, and should meet to discuss compensatory education once schools reopen. Reducing the services in your child’s IEP during school closures may impact your ability to seek compensatory education once schools reopen. If your child’s school proposes changing his or her IEP during the COVID-19 school closures, tell them you do not believe your child’s needs have changed and you would like the school to do its best to provide your child with what is in the current IEP and consider the need for compensatory education once schools reopen. If your child’s school amends the IEP despite your disagreement, ask for PWN of the change and consider filing an administrative state complaint with the Arizona Department of Education.

In our next blog post on this topic, we will discuss different methods of delivering compensatory education and how you can work with your child’s school to develop an appropriate compensatory education plan for your child.

DISCLAIMER:

THIS BLOG/WEB SITE IS MADE AVAILABLE BY ACDL AND ITS LEGAL STAFF FOR EDUCATIONAL PURPOSES TO GIVE YOU GENERAL INFORMATION AND A GENERAL UNDERSTANDING OF THE LAW, NOT TO PROVIDE SPECIFIC LEGAL ADVICE. BY USING THIS BLOG SITE, YOU UNDERSTAND THAT THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN YOU AND ACDL. THE GENERAL INFORMATION ON THE BLOG/WEBSITE SHOULD NOT BE USED AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE FROM A LICENSED PROFESSIONAL ATTORNEY IN YOUR STATE.