CSE Must Determine COVID-19 Related Compensatory Services In First Instance

Compensatory services related to school closures and/or remote learning during the pandemic are still a relevant issue. Recent Office of State Review decisions dealt with claims from parents seeking compensatory services due to the closure of schools from March – June 2020. Parents had sought relief in the form of compensatory services from the Impartial Hearing Officer (“IHO”) and, on appeal, from the State Review Officer (“SRO”). In each case, the SRO refused to determine the need for compensatory services. Rather, the SRO stated that is it up to the Committee on Special Education (“CSE”), which includes parents, to determine whether a student requires compensatory services and if so, what compensatory services are appropriate.

There is no doubt that during the closure from March – June 2020 and during the 2020-2021 school year, some students did not receive appropriate supports and services to enable them to make progress on their goals. Understanding this predicament, the federal government and NYSED’s Office of Special Education issued guidance directing districts to convene CSE meetings to “make individualized decisions about each child’s present levels of academic achievement and functional performance and determine whether, and to what extent, compensatory services may be necessary to mitigate the impact of the COVID-19 pandemic on the child’s receipt of appropriate services”.

Pursuant to the guidance, we advised that CSE annual reviews conducted in the 2020-2021 school year should, where appropriate, discuss the need for compensatory services. Where the CSE determines a need, the CSE will then determine the type, frequency and duration of compensatory services to be delivered. This guidance still holds true. As we come upon the time for annual review meetings, CSEs should continue to consider the need for compensatory services related to the delivery of special education during the COVID-19 pandemic.

The recent SRO decisions stressed that if parents disagree with the CSE’s determination regarding compensatory services (either that a student does not need them or the type and durations of the services) parents may, at that time, commence a due process action challenging the CSE’s compensatory services decision, or they may file a State complaint with NYSED or request mediation. The recent decisions make it clear that seeking COVID-19 related compensatory services as a remedy in a due process action and/or subsequent appeal to an SRO, without a discussion regarding the need for same at a CSE meeting, is premature. Equally clear is that annual reviews this school year should include a discussion of the need for compensatory services. If you have any questions about these issues, please contact the firm.