“Under IDEA, courts have recognized compensatory services as an equitable remedy to prospectively address the past failure or inability of the LEA (local education agency - i.e. school district) to provide appropriate services, including those that were identified on the child’s IEP Individualized Education Program].”1 However, the timeline to request compensatory services for those lost services is expiring soon. The exact deadline for requesting compensatory services varies by state. Families in New Jersey, for example, have until March 18, 2022, but those in Maryland have until March 31, 2022.
Who is Eligible for Compensatory Special Education Services?
Eligibility for compensatory special education services varies based on the needs and experience of the individual child, much like the IEP or 504 plan, and is an IEP team decision. Parents are equal members of the IEP team along with the professional members. Federal law gives families two-year statute of limitations from the date they knew or should have known their child was not receiving FAPE to file a due process complaint. In making a determination regarding eligibility for, and the contents of, compensatory services, IEP teams should consider:
- Present Levels of Academic Achievement and Functional Performance (PLAAF)
- Previous (pre-pandemic) rates of progress
- Frequency/duration of special education and related services
- Type and amount of lost services (Note: In states covered by the Third Circuit Court of Appeals, including Delaware, New Jersey, Pennsylvania, and the US Virgin Islands), students should receive compensatory services in the amount of lost services starting from when the district knew or should have known that the student’s IEP was not being implemented).
The U.S. Department of Education created guidelines on compensatory services in a Frequently Asked Questions document which covers addressing the impact of the pandemic, revising IEP goals, how to determine compensatory services, using data, etc. (See Resources). They also issued guidance on provision of services during the pandemic as well as a supplementary sheet stating, “To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction.”2 Thus, simply because IEP services were delivered remotely does not mean that students are entitled to compensatory services for those services.
How Can Families Request Compensatory Services?
Compensatory services are not a given for all students with IEPs. For example, if students were provided with the services on their IEP via remote instruction and related services, and they were able to participate in and benefit from those services, it is unlikely that compensatory services would be needed. However, for children who did not receive some or all of their IEP services, or for whom virtual services were not effective or appropriate, the IEP team should discuss the need for compensatory services. Families, as part of the IEP process, can request these services if they believe that their child needs them. Tracking services and student progress can provide needed data to identify the lost services and their impact on student learning. For students of transition age, critical transition to adult life services may not have been able to be delivered remotely. For example, many transition age students were adversely impacted by not receiving Structured Learning Experience (SLE) or Community Based Instruction (CBI) needed to transition to adult life.
For families who are concerned that their child may need compensatory services, there are various sample letters for parents to use to request compensatory services, especially if they tracked services, or have a transition age student. Some states, like New Jersey, are even allowing a “make-up” year beyond the typical transition age. This provides a temporary one-year extension of special education and related services to students with disabilities, who exceed or will exceed the current age of eligibility in 2020-21,2021-22, or 2022-23. Again, this would be following a determination from the IEP Team that such services are necessary. In case the district disagrees, parents have the right to file for a due process hearing. If families have questions regarding compensatory services in their state, they can contact their Parent Center.
The COVID-19 pandemic most negatively affected student with disabilities. Families can help address these losses by requesting compensatory services from their child study team.•
Making It Up : Resources on Compensatory and Related Services
Parent Training and Information Centers
U.S. Department of Education
Return to School Roadmap: Development and Implementation of Individualized Education Programs in the Least Restrictive Environment under the Individuals with Disabilities Education Act;
See section D “Determining Appropriate Measurable Annual Goals & Considering the Child’s Need for Compensatory Services
Implementation of IDEA Part B Provision of Services in the COVID-19 environment
Supplemental Fact Sheet: Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities
https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/Supple Fact Sheet 3.21.20 FINAL.pdf
SPAN Parent Advocacy Network COVID Resource Page
The IEP Process During the COVID-19 Crisis
Tracking Special Education Services Log
Sample Letter For Compensatory Services
Sample Letter Requesting Meeting to Discuss Compensatory Education Services-with chart
Sample Letter to Request a Meeting re: Compensatory Services –Transition to Adult Life
ABOUT THE AUTHOR:
Lauren Agoratus, M.A. is the NJ Coordinator for Family Voices, NJ Regional Coordinator for the Family-to-Family Health Information Center, and Product Development Coordinator for RAISE (Resources for Advocacy, Independence, Self-Determination, and Employment). She also serves as NJ representative for the Caregiver Community Action Network as a volunteer. Nationally, Lauren has served on the Center for Dignity in Healthcare for People with Disabilities transplant committee (antidiscrimination), Center for Health Care Strategies Medicaid Workgroup on Family Engagement, Family Advisor for Children & Youth with Special Health Care Needs National Research Network,National Quality Forum-Pediatric Measures Steering Committee, and Population Health for Children with Medical Complexity Project-UCLA. She has written blogs and articles nationally, including publications in 2 academic journals (https://pubmed.ncbi.nlm.nih.gov/?term=agoratus+l). Lauren was recently named a Hero Advocate by Exceptional Parent Magazine (https://reader.mediawiremobile.com/epmagazine/issues/207207/viewer?page=18).
Read the article here.