Cabo Verdean Creole
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.
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:
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:
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:
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.
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.
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:
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.
With Tim Sindelar Esq. & Constance Hilton Esq.
Tuesday Evening, September 15th
School building closures in 2020 resulted in cessation of services and remote learning services that proved to be inappropriate, and inadequate for many students with disabilities. Many of these students will require some form of compensatory services. This webinar will provide both the theoretical and practical basis for presenting these claims.
Registration closes on Sunday September 13th. Walk-in/late registrations please email firstname.lastname@example.org for availability.
(current Members have joined in the past 12 months)
Tim Sindelar, Esq.
Tim Sindelar has been a practicing attorney for more than 43 years with a practice specializing in disability and education issues for the last 25 years. After spending 25 years in public interest law, he started a solo practice in Newton, where he represents students and their families and adults with disabilities. He has had the pleasure of working on a wide range of matters, representing 100s of families at the BSEA and in state and federal courts.
Constance Hilton, Esq.
Connie Hilton has recently retired from private practice after more than thirty years representing children with disabilities and their families in special education cases and other school related matters. Connie also served as a guardian ad litem in probate court and juvenile court cases. Connie previously served as a hearing officer for the Bureau of Special Education Appeals (BSEA) and as a staff attorney with the Massachusetts Office for Children (OFC).
Thursday, August 13, 2020
Zoom: https://bit.ly/2PqdmWn Meeting ID: 999 2061 9783
They are recruiting students (age 16 and up) for their July 21-26 program at Boston College…financial aid may be available.