Are Compensatory Educational Services in Order?

During these past months of COVID-19 school closures and remote instruction, students with disabilities have received special education instruction and related services using varying degrees of remote telepractice. The U.S. Department of Education has advised that special education services need to be provided equitably compared to that instruction provided to students without a disability. Nevertheless, there will be claims that students with IEPs were denied a Free Appropriate Public Education (FAPE) during the COVID closure and that the school is required to provide additional services to make up for that loss.

What is Compensatory Education?

Compensatory services are special education and/or related services intended to put a student in the same position with respect to IEP goals as if instruction were provided according to the IEP, understanding that in this instance no students received instruction during the closure the same as when instruction was in person. There is no obligation to make up missed sessions on a 1:1 basis. Rather, the CSE must determine the extent that additional services are needed to make the student whole. The determination is made on an individual student basis, keeping in mind the student’s level of performance with respect to IEP goals, data maintained of services provided during the closure, data indicating the student’s level of performance at the end of the school year, and prior data indicating the student’s actual and anticipated rate of progress. In some cases, there will be no need for additional instruction; in other cases, the CSE must determine the level of additional instruction or service needed and how to provide it in a meaningful way.

Pointers

Key to the above analysis is data! The second key is that the CSE review the data, make the analysis on an individual basis as to whether compensatory services are needed and, if so, to what extent, and document the factors relevant to its analysis. We do not recommend indicating compensatory services on the IEP since they are supplemental to the services needed to provide a FAPE. We do recommend that the services be indicated on the Prior Written Notice, including the reasons for determining that services are or are not needed, and their extent.

There are no bright lines in this analysis. Much will be left to the judgment of the CSE. If there are any questions evaluating data and the need for compensatory services, we are available to discuss these with you.