Coronavirus and Schools: “Compensatory Services” in a Post-Pandemic World
We have begun to receive a number of questions concerning “compensatory services” for students with disabilities who suffered or will suffer some loss of educational benefit as a result of the school closures caused by the COVID-19 pandemic.
The phrase—compensatory services—is the invention of the United States Department of Education and is somewhat misleading. Implicit in the use of the word “compensatory” is the idea that the services in question are intended to redress some wrongdoing or error on the part of the LEA. We tend to think of “compensatory education” as a remedy that a hearing officer or court awards to a child and his or her parents when it finds something lacking in the LEA’s program or placement for the child—either in its original design or in the lack of progress it enabled the child to realize once implemented.
That is not the meaning of the phrase as USDE uses it to describe our potential post-pandemic obligations to students with disabilities. The purpose of “compensatory services” is not to remedy a problem in the child’s FAPE but rather to ensure that the child remains where he or she would have been educationally but for the interruption and disruption caused by the pandemic-related closure of schools. To this end, we have likened the determination of whether a child requires “compensatory services,” and what those services will consist of, to an ESY determination. When an IEP team considers whether a child needs ESY, and what type and how much he or she needs, it essentially looks to three factors: (a) whether the summer break will cause regression from previously-attained levels in one or more goal areas; (b) whether the break will cause the child not to realize the ‘meaningful progress’ toward his or her annual goals that the team expected; or (c) whether the break will cause such disengagement from the learning process for the child that services are required to maintain engagement over the summer. In addressing the need for post-closure “compensatory services,” IEP teams will have to ask similar questions retrospectively about the effect, if any, the closure had on the child:
- Did the child regress during the closure from previously-attained skills levels targeted in his or her goals?
- Has the child failed to progress enough to realize “meaningful progress” toward his or her annual goals by the conclusion of the year for which the current IEP was written?
- Did the child, during the break, become so disengaged from the learning process that he or she requires additional programming or supports to re-engage?
An affirmative answer to any of these questions very likely will entitle the child to some form of “compensatory service.” Not every child, however, will need such services. The answers to these questions will hinge in part on the child’s capacity to learn virtually during the closure period and in part, of course, on the level and quality of virtual programming offered by each LEA. The more robust the special education and related services are under the LEA’s “continuity of education” plan, the less (hopefully) will be required to “compensate” for the effects of the closures.
Many of you have questioned why children with disabilities would be entitled to compensatory services when all children are essentially in the same boat. Every child is suffering the absence of school-based learning and every child must endure the inadequacies of learning entirely online. While this argument is true enough, it overlooks that the IDEA is not intended simply to ensure equality of service delivery. It is, rather, an “affirmative mandate,” premised on the notion that more vulnerable learners might require more services and more protections than their less-vulnerable peers to obtain an education that is, in the end, equally “meaningful.” Thus, the IDEA entitles students with disabilities to a legally-enforceable written annual plan that ensures the attainment of child-specific meaningful outcomes; to transition planning that targets measurable post-secondary goals; to special protections related to discipline; and, of course, to an extended school year, week, or day when the conventional time allotted to all other learners is insufficient to ensure a “meaningful” outcome. No non-disabled peer can lay claim to any of these things.
Others of you have asked whether the ruling the United States Supreme Court in Endrew F. v. Douglas County School Dist. might affect the consideration of “compensatory services.” In its decision in Endrew F., after all, the court ruled that the “meaningful progress” we can expect for any one child must be calibrated in light of “the child’s circumstances.” Would the pandemic-related school closures not constitute a “circumstance” that might excuse the need to realize the same level of progress the child would have realized otherwise? Underlying this question is the notion that “circumstances” must be conditions that are beyond the control of the child—and certainly COVID-19 is that. So, however, are the 180-day school year, the level and pace of the general curriculum, and the size of a typical regular education classroom—all of which the IDEA requires be adapted to meet the needs of the child with disabilities. The “circumstances” that the court in Endrew F. allows us to consider when determining the amount of progress child should meaningfully make are circumstances that are innate to the particular child. This conclusion is evident in the court’s discussion of “circumstances”:
A focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “[i]ndividualized education program.” §§1401(29), (14) (emphasis added). An IEP is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth. §§1414(d)(1)(A)(i)(I)–(IV),(d)(3)(A)(i)–(iv). As we observed in Rowley, the IDEA “requires participating States to educate a wide spectrum of handicapped children,” and “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between.” 458 U. S., at 202.
Thus, while we doubt that we can use the closure of schools as a “circumstance” that might limit the amount of “compensatory services” owed a child once schools reopen, we are hopeful that those who will judge us after-the-fact on the adequacy of our “compensatory” offers—hearing officers, judges, compliance investigators—will be mindful of the extraordinary circumstances we are all enduring. In judging between the claims of two parties, sympathy is not a one-way street.
Many of you have also asked whether you will have to convene IEP team meeting immediately upon the reopening of school to consider the need for “compensatory services” for every child with a disability. No, you will not. The IEP teams for all children eventually will, however, have to address this issue when they next convene after the reopening. (Convening teams to address this issue before reopening makes little sense, by the way, as the full duration of the closure, the level and type of “continuity of education” programming students will eventually receive, and the effects of both on any individual child, are yet unknown.)
As a general rule, teams should address the issue of “compensatory services” as part of the routine meeting agenda as each IEP falls due for annual revision over the course of the 2020-2021 school term. Some triage, however, will be necessary. For students who have evidently regressed or suffered disengagement, teams will need to convene more rapidly. For students whose parents insist on a meeting sooner rather than later, moreover, teams will need to oblige.
Unlike “compensatory education” that is often awarded for some shortcoming in the child’s FAPE (or agreed to in a settlement), “compensatory services” should not differ from the services already identified in the child’s existing IEP. (One exception might be “compensatory services” for the child who has become disengaged from the learning process, for whom counseling or other emotional supports might be required even though the existing IEP does not include them). If, for example, the existing IEP of the child required a particular form of direct, explicit decoding and fluency instruction, “compensatory services” should typically look like that instruction, although offered with greater frequency or duration than the current IEP requires. All “compensatory services” must supplement—not supplant—the child’s existing program. This “supplement, not supplant” rule will create logistical problems, as it will be difficult to schedule time for these services that does not disrupt the child’s existing program without using extended school days or weeks, or an extended school year (which, for students who are already eligible for ESY, would have to be offered in addition to those services). While some “compensatory” services might fit within the regular school day, we suggest that LEAs begin to think about “staffing up” for service delivery during the summer of 2021 that goes beyond time typically dedicated to ESY programming.
Documentation of “compensatory services” can come through the NOREP or in the IEP, in the form of spate items of specially-designed instruction that are conspicuously labeled as “compensatory services.” We will have more on documenting these services in future posts. We’ve all just barely begun with “continuity of education” and need to remain focused on other things—our own health and well-being not the least of these.