Compensatory education is a well-established remedy for deprivations of special education services, recognized in Massachusetts at least since Pihl v. Massachusetts Dep’t of Educ., 9 F.3d 184 (1st Cir. 1993).  The purpose behind compensatory relief is to make the student whole by to providing services that place the student in the position that he or she would have occupied if the services been delivered in a timely manner.  The remedy is an equitable one that has been characterized as broad and flexible.  In some cases, school districts (or, when disputes occur, courts, administrative hearing officers, and state complaint agencies) have used a “one-for-one” approach, calculating the hours or days of services that the student missed and ensuring that the student receives compensatory services of the same type and in the same amount.  At other times, compensatory services may differ in type or amount from those the student missed, with the goal of redressing the deprivation by meeting the student’s current needs.

When COVID-19 forced the shutdown of schools, questions about compensatory services came to the fore.  From early in the pandemic, both the United States Department of Education (“USDOE”) and the Massachusetts Department of Elementary and Secondary Education (“DESE”) emphasized that IEP Teams would need to make individualized determinations about compensatory education services once schools reopen.  See, e.g., USDOE Supplemental Fact Sheet, “Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities” (March 17, 2020); DESE, “Coronavirus/Covid-19 Frequently Asked Questions For Schools and Districts Regarding Special Education” (March 26, 2020, updated May 15, 2020).  Now, DESE has issued “Coronavirus (COVID-19) Special Education Technical Assistance Advisory 2021-1: COVID-19 Compensatory Services and Recovery Support for Students with IEPs (August 17, 2020), which provides guidance to districts and parents as to how these determinations should be made.

What are “COVID-19 Compensatory Services”?  DESE’s guidance coins a new term, “COVID-19 Compensatory Services” (“CCS”), which DESE defines as “services that a student’s IEP Team determines are needed to remedy a student’s skill or knowledge loss or lack of effective progress that resulted from delayed, interrupted, suspended, or inaccessible IEP services because of the emergency suspension of in-person education related to the COVID-19 pandemic.”  Technical Assistance Advisory 2021-1, p. 3.  DESE has emphasized that its guidance relates only to COVID-related disruptions in education “and should not be relied on or referenced for compensatory claims based on alleged deprivations of FAPE [free appropriate public education] for other reasons.”  Id. at 2; see also id. at 17 n. 6.

DESE distinguishes CCS from two other types of services: “general education recovery support” and “new IEP services.”  They may be considered as points on a spectrum, with CCS falling between them.

• General education recovery support means “the general education support that all students, including students with disabilities, may need to recover from educational gaps in learning or loss of skill – or even the impact on students’ emotional well-being – caused by the unexpected suspension of in-person education.” Technical Assistance Advisory 2021-1, p. 3.  Such support may be provided through “core instruction” or “through the school’s or district’s Tiered System of Support or pursuant to the District Curriculum Accommodation Plan (DCAP).”    This type of support, by definition, does not constitute special education and need not be identified by the student’s Team or included in an IEP in order for the student to receive it.
• New IEP services are special education services that students may require “to address new areas of disability-related need, including mental health needs.” Technical Assistance Advisory 2021-1, p. 4.  The Team must use “an appropriate process to identify the new services required and amend the student’s IEP, including identifying and obtaining parental consent for assessments in areas not previously assessed.”  at 8.  Although the student’s new needs may be COVID-related (e.g., a student could develop an anxiety disorder triggered by concerns about the pandemic), services to address those needs “are not CCS, but rather new services to be added to the student’s IEP service delivery grid.”  Id.

CCS may be considered as falling between these two types of service because, like general education recovery supports and unlike new IEP services, they are based on a pre-existing plan, but like new IEP services and unlike general education recovery supports, they consist of special education.

Which students will be prioritized for CCS?  Whether a student requires CCS and, if so, what form those services should take are Team determinations in the first instance (unless parents and district agree to a different process, as discussed below).  In most districts, it is highly likely that there will be many special education students who did not receive all of their IEP services during the spring of 2020 and who will be seeking CCS.  To help districts to perform triage when faced with a flood of meeting requests at the start of the school year, DESE recommends that four categories of students be given priority:

• Students with disabilities who “did not receive or were unable to access any special education services” during the suspension of in-person education, Technical Assistance Advisory 2021-1, p. 3;
• Students with “complex and significant needs,” consisting of:
  • Students already identified as “high needs” through the IEP process on the “Primary Disability/Level of Need-PL 3” form;
  • Students who “could not engage in remote learning due to their disability-related needs or lack of technology,” at 4 (note that this category appears to be a subset of the category of students “who did not receive or were unable to access any special education services,” discussed above, as this category describes two of many reasons why students may not have received or been unable to access special education services);
  • Students who primarily use aided and augmentative communication;
  • Homeless students;
  • Students in foster care or congregate care; and
  • Students dually identified as English Learners;
• Preschool-aged children whose eligibility evaluations or start of preschool special education services were delayed or interrupted; and
• Transition-aged students who turned 22 during the suspension of in-person education or who will turn 22 during the first three months of the 2020-21 school year, and whose transition programs were interrupted or suspended before they aged out.

Technical Assistance Advisory 2021-1, pp. 3-5.  Note that DESE’s definition of students with complex and significant needs who should be prioritized for CCS determinations is virtually identical to its definition of students with such needs to be prioritized for in-person services once school reopens in the fall.  See Comprehensive Special Education Guidance for the 2020-21 School Year (July 9, 2020), p. 3.  The same memorandum urges prioritization of preschool students for in-person services during the school year.  Id. at 1, 3, 4, 6, 10.

When should CCS determinations be made?  For students within the priority populations described above, DESE recommends that CCS determinations be made “as soon as possible but not later than December 15, 2020.”  Technical Assistance Advisory 2021-1, p. 4.  (Note that this deadline refers only to the determination as to what CCS the student will receive.  It is not a deadline by which CCS need to be provided.)  Parents of children who fall within the priority populations should expect their districts to contact them regarding CCS soon after the school year starts, and should not hesitate to get in touch with their districts if they do not hear from them.

DESE has not recommended any deadline for CCS determinations for students who are not within the priority populations.  Deadlines for students who are not within the priority populations may therefore be set locally and may vary by district.  Determinations for the non-priority students, DESE states, “will be informed by a period of initial observation, a period of re-acclimation to learning, and a review of data on recovery of learning loss and progress,” Technical Assistance Advisory 2021-1, p. 4 – in other words, the time frame will be longer.  Parents of children who fall within this category should not expect that CCS determinations will take place soon after the school year starts.  Parents of such students may wish, however, to follow up with their Team chair at intervals to make sure that the determination occurs within a reasonable time after those for the priority populations have occurred.

Note that CCS, as conceived of in the Advisory, appears to relate to a student’s failure to receive or inability to access special education services from the closure of schools on March 17, 2020 through the end of the 2019-2020 school year.  Many districts, however, are beginning the 2020-2021 school year using either a fully remote or a hybrid plan of instruction.  This may give rise to CCS claims for the 2020-2021 school year as well, which will presumably need to be determined at a later date, using the same process outlined in the Advisory and discussed in this post.

Who makes the CCS determination?  DESE’s guidance, like USDOE’s, contemplates that the Team will convene to determine whether the student requires CCS and, if so, what compensatory services he or she will receive.  Of course, parents are members of the Team.  DESE emphasizes that, “[b]ecause most students have spent several months in the full-time company of their families and caregivers, schools and districts should prioritize collecting data and information from families and caregivers. Families and caregivers can provide observational and other data about a student’s access to learning, engagement, attention, behavior, progress, and skills, as well as information about students’ home experiences and the effect of the COVID-19 pandemic on them.”  Technical Assistance Advisory 2021-1, p. 5; see also id. at 2, 3, 5, 6 (“the IEP Team must consider all information and data from parents about the student’s ability to access remote learning and their child’s progress during school closure”).

As with any Team meeting, the parents have the right to have the full Team present.  Districts have been instructed to use the Notice of Proposed School District Action/N1 Form to request CCS-related meetings and to inform parents of their right to have all Team members present.  The parents and district may agree, however, to excuse the attendance of one or more Team members, with or without written input by such individual(s), as set forth in 20 U.S.C. § 1414(d)(1)(C) and 34 C.F.R. § 300.321(e).  The parents and district may also agree to proceed without a Team meeting and to use an informal process instead, such as telephone and e-mail communications, which (as DESE points out) may allow determinations to be made more quickly.  Any agreement to depart from the normal Team process should be memorialized in writing.  Technical Assistance Advisory 2021-1, pp. 8-9.

What information should the Team consider?  DESE states that the Team (or the participants in a less formal process, if the parents have agreed to such) should start by collecting and considering data regarding the student’s “skills and progress toward meeting IEP goals during the period of unexpected suspension of in-person education due to COVID-19,” Technical Assistance Advisory 2021-1, p. 5, including “the student’s loss of skills or lack of effective progress because of their inability to access or participate in services during the period of unexpected suspension of in-person education.”  Id. at 7.  As discussed above, data and information provided by the parents will be of utmost importance.  DESE states that the data to be collected and considered by the Team may include:

• Information regarding the “instructional and special education services provided to the student during the period of suspension of in-person education, including whether particular services were not provided or could not be accessed by the student.”
  • Any records that the parents have regarding the amounts of services actually provided will be useful, as will information about the student’ ability to attend to and participate in the instruction offered.
• “Any barriers to the student’s access during the period of unexpected remote instruction.”
  • This could include practical barriers, such as lack of technology or lack of a quiet space within the home.  It could also include disability-related factors such as the student’s inability to attend, concentrate, participate, regulate his/her behaviors, etc.
• The student’s “levels of academic and functional performance, including levels of performance on all IEP goals prior to the unexpected suspension of in-person education in March 2020, as compared to the student’s current level of performance,” as well as information about the student’s “expected growth through the end of the 2019-20 school year.”
  • The student’s last IEP progress report before the shutdown of schools will presumably be relevant to prior levels of performance, as will any recent independent evaluations, district evaluations, and district-wide assessments.  The student’s IEP goals and objectives will in many cases be relevant to expected progress through the end of the school year.
• “Data collection or progress monitoring during spring 2020, and also summer 2020 for students receiving extended school year (ESY) services,” including “information and observations from parents, caregivers and other family members, teachers, related services providers, provider agencies.”
  • Parents’ observational data, such as the amount of time it took for the student to complete assignments and the amount of assistance the student required, will be relevant.  The parents’ observations may relate to behavior, social skills, emotional issues, etc., as well as to academic performance.
• “Student data from previous school years indicating the student’s ability to recoup lost skills or make effective progress after extended breaks in instruction, such as during the summer.”
  • DESE has stated that the ESY analysis differs from the CCS analysis, however, in that the former predicts whether the student is likely to regress without summer services, whereas the CCS analysis considers “the actual impact of the suspension of in-person education on the student’s skills or ability to make effective progress toward their IEPs [sic] goals and in the general education curriculum.”  Technical Assistance Advisory 2021-1, p. 8 (emphasis in original).

See generally Technical Assistance Advisory 2021-1, pp. 5-6, 8, 12-13.

What analysis should the Team use?  DESE states that the Team, after collecting and considering the information discussed above, should consider the following questions to determine whether the student requires CCS:

1. “Are there services in the student’s IEP that were not offered or that the student could not access during the period of suspended in-person education?”

• • If so, the Team should “[d]iscuss the impact of the absence of services on the student’s skills and/or behaviors” (see questions 2 and 3 below).
  • A question has arisen whether, if remote services were offered in the spring but the parent chose not to have the student participate, the student is considered to have been unable to access remote learning. DESE’s Senior Associate Commissioner and State Director of Special Education, Russell Johnston, Ph.D., has answered that question in the affirmative, stating that the Team should examine the impact of the lack of services on the student, regardless of the cause.  We agree with this approach, as it would be inequitable to blame the student (and further deprive him/her of services) due to a parental decision that may have been based on various factors.

2. “To what extent has the student demonstrated regression in skills?”
3. “Has the student failed to make effective progress towards their IEP goals and in the general curriculum?”

• • Regression is only one way of demonstrating the student’s need for CCS. Unlike the ESY standard, failure to make effective progress can also demonstrate the need for CCS.
  • The question has arisen whether effective progress is to be measured with reference to regular education students (many of whom may not have made the expected amount of progress during spring 2020 due to the suspension of in-person instruction), or to the amount of progress that the individual special education student had been expected to make by the end of the school year. Johnston, the State Director of Special Education, has stated that the individual student is to be measured against his or her own expected progress (e.g., as set out in IEP goals and objectives), not against the rate of progress that may actually have been made by regular education students.  We agree that this is the correct approach, as it is consistent with USDOE’s and DESE’s directives that special education students are not merely entitled to the same access to education that regular education students receive during the pandemic; rather, they are entitled to continue receiving FAPE.  Please see our previous writings on this subject, including those from March 22, 2020 and March 27, 2020.
  • As noted under #1 above, the Team should consider the student’s regression or lack of effective progress even when it is due to a parent’s declination of remote services during the spring.

4. “Does the school or district have available general education recovery support that will support the student in recovering from educational gaps in learning or loss of skill, or the impact on student’s emotional well-being, caused by the unexpected suspension of in-person education?”

• • DESE states that, if general education recovery supports will be sufficient to meet the student’s needs arising from the suspension of in-person education, then the student will not require CCS. Technical Assistance Advisory 2021-1, p. 13.  We believe that Teams should think long and hard before deciding that general education recovery support can take the place of missed special education services, and that such cases should be rare.

5. “ What COVID-19 Compensatory Services are necessary to address the student’s special education needs arising from the suspension of in-person education?”

• • If the Team determines that the student needs CCS, the Team “should then discuss which services are required to address the documented regression of skills or failure to make effective progress so the student can make appropriate progress given their unique circumstances, and how those services will be provided, including the amount, type, duration, and progress monitoring of CCS.” Technical Assistance Advisory 2021-1, p. 8.
  • CCS are special education services. They may, but need not, correspond 1:1 to the services that the student missed.  Technical Assistance Advisory 2021-1, pp. 4, 7, 13, 15.
  • The advisory does not set any deadline by which the provision of CCS must be completed. This is a matter for the Team to determine.
  • Although CCS are intended to compensate for deprivations that occurred during the period of remote instruction, CCS themselves may be provided remotely.

See generally Technical Assistance Advisory 2021-1, pp.6-8, 13-14.

How are CCS determinations documented?  The decision as to the student’s need for CCS and, if the student is found to need CCS, the determinations as to the amount, type, duration, and progress monitoring of such services, should be documented using the Notice of Proposed School District Action/N1 Form.  Technical Assistance Advisory 2021-1, p. 9.  An IEP amendment should not be used for this purpose.

• The N1 Form might state, for example:
  • The type of CCS to be provided (g., speech-language therapy);
  • The amount of CCS to be provided (g., one 30-minute session per week for 12 weeks);
  • How the CCS will be provided (g., remotely or in person; 1:1 or small group);
  • By whom the CCS will be provided (g., by a speech-language pathologist; if the district will be contracting with another entity to provide the CCS, then that entity should be specified); and
  • How the student’s progress related to CCS will be monitored.
• We note that the N1 Form does not include a request for parental consent, nor does the Advisory address the issue of consent. If parents disagree with the CCS determination or with the CCS offered, we recommend that parents document their position in a letter or e-mail to the district in response to the N1.  In appropriate cases, the response could include an acceptance in part/rejection in part, agreeing that the student requires CCS and agreeing to some or all of the CCS offered, but rejecting the absence of additional CCS that the parent believes the student needs in order to address his/her failure to make effective progress during the period of remote instruction.

If a student has or may have developed new disability-related needs and may require new IEP services as a result, then these services are not CCS.  The Team should use an IEP amendment to document any new needs and services.  Technical Assistance Advisory 2021-1, p. 9. The Team should also consider “whether a student presenting with new needs may warrant a re-evaluation or a new evaluation if the student has not yet been evaluated in that area of suspected disability.”  Id.

• Note that it is possible for a student to require both CCS and new IEP services. In that instance, CCS would be documented using the N1 Form and new IEP services would be documented via an IEP amendment.
• If a student requires CCS but also needs an evaluation to determine new needs, CCS should be provided without delay. Services to meet the new needs can be discussed in a separate meeting once the evaluation is completed.

What happens if parents and districts disagree about the student’s need for CCS or about the amount, type, or duration of CCS to be provided?  All of the dispute resolution option available through the Bureau of Special Education Appeals (“BSEA”) are available for CCS disputes.  These include mediation, due process hearings, and facilitated Team meetings.  A parent may also file a complaint with DESE’s Problem Resolution System (“PRS”).  Of course, it is almost always worth attempting to resolve the dispute informally with the district first, as this will eliminate the need for formal dispute resolution measures if successful.

A few notes about special circumstances:

• For special education students moving from one district to another, the district in which they are enrolled as of fall 2020 is responsible for convening the Team meeting to consider CCS (or obtaining the parents’ consent to an alternate procedure), although the new district must invite a representative of the former district to participate. The former district remains financially responsible for the cost of CCS that the student needs because of the suspension of in-person instruction during spring of the 2019-2020 school year.  Technical Assistance Advisory 2021-1, p. 10.
  • This applies to students who, between the end of the 2019-2020 school year and the start of the 2020-2021 school year:
    • Change their residence;
    • Move from a public school district to a “program school” (charter school, vocational school, school choice school, Metco school, or Commonwealth of Massachusetts virtual school), or vice versa; or
    • By virtue of moving from one grade to another, move to a different school district (g., from a K-8 district to a regional high school district).

• For special education students enrolled by their districts in approved private special education schools or educational collaboratives, the district is responsible for convening the Team (or obtaining the parents’ consent to an alternate procedure) and must invite a representative of the out-of-district placement to participate. “In general,” DESE states, “it is likely that the educational collaborative or approved private special education school will have the primary role in providing necessary recovery support and CCS” to a student who requires such services.  Technical Assistance Advisory 2021-1, p. 11.
• Special education students turning 22 between March 17 and December 23, 2020 are the subject of Appendix B to DESE’s advisory. Such students will be entitled to CCS if they failed to receive or access special education services before their 22nd birthdays and otherwise satisfy the criteria described above, even though the CCS may be delivered after the 22nd birthday.  (This does not have the effect of extending eligibility beyond the 22nd birthday, as the services are merely compensating for deprivations that occurred before that birthday.)  Districts are required to convene Team meetings (or obtain parents’ consent to alternate procedures) for such students.  CCS for such students may include transition-related services such as community-based instruction, prevocational and employment support services, job coaching and training, social skills instruction, travel training, and preparation for college and/or other postsecondary training.  Technical Assistance Advisory 2021-1, pp. 14-17.
• Parentally placed private school students, including homeschooled students, who receive special education services. Although DESE’s advisory does not address this category of students directly, there would seem to be no reason why such students should not receive CCS from their districts of residence if they have IEPs from those districts and otherwise meet the criteria outlined above.
  • In the case of parentally-placed private school students with disabilities who should have received but did not receive equitable services (under a services plan, not an IEP) during the spring of 2020 from the district in which the private school is located, presumably the unspent funds would be carried over to the next fiscal year’s proportionate share obligation and would be the subject of consultation among the private school representatives, parent representatives, and the district in accordance with 20 U.S.C. § 1412(a)(10)(A)(iii).

• Students on Section 504 plans are outside the scope of the DESE’s advisory. The advisory recognizes, however, that USDOE has referred to a requirement of compensatory services for students on Section 504 plans.  Technical Assistance Advisory 2021-1, p. 17 n. 7, citing USDOE, Office for Civil Rights, Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students (March 16, 2020), at 3.

The landscape for Massachusetts schools is changing almost daily, even before the school year starts.  Although many details remain to be worked out, CCS will be part of that picture.  We look forward to further guidance from DESE as families and districts continue to navigate this uncharted territory.  Watch this space for future commentary!  As always, parents are advised to consult an experienced special education attorney or advocate about their child’s particular situation.

Eileen M. Hagerty is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.