Back to School with Distance Learning Part II: Compensatory Ed

As we begin our virtual fall semester, we’ve launched a Back to School series to bring you actionable information and help get the year off to a strong start. Earlier in the week, our legal consultant and special education lawyer, Grace Clark, took a look at what we need to do to prepare for day 1. Here, she tackles a subject that’s been on our minds since the pandemic began: compensatory education.

What’s the deal with compensatory ed? How is it going to work this year?

There is currently no reason to believe that compensatory education will work differently this year than it has in the past. Compensatory education is an appropriate remedy for students who have been deprived of FAPE. Compensatory education should provide a student with the educational benefit they would have received had they not been deprived of FAPE. The ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. There must be evidence regarding the child’s specific education deficits and the specific compensatory measures required to correct them.

Compensatory education awards must do more than provide some educational benefit; they must compensate. It is a qualitative standard based on individual assessments of the student. Although the school closures resulting from COVID-19 will likely place schools in a position to award more compensatory education than they typically would have, the principles behind compensatory education should remain the same.

Compensatory ed is being thrown around aggressively, partly because so many kids received little to no instruction or therapies in the spring. Should parents start the year thinking about compensatory education, or is there another way they should reframe their expectations?

Rather than thinking about compensatory education, parents should really consider whether their child is being provided with FAPE, and how this should be determined considering the school’s new format. One difficulty many schools now face is the inability to determine FAPE if they are not performing academic assessments. Many schools are not providing either initial special education assessments or triennial assessments due to school closures. Without an updated assessment, it is very difficult to determine a student’s present levels of functioning, or what special education and related services would be necessary to provide FAPE. Remember, compensatory education is a remedy for students who have been deprived of FAPE, so establishing a deprivation of FAPE is the first step to obtaining compensatory education.

A key component to providing FAPE is to determine a student’s present level of functioning. From there, it becomes apparent what services or therapies a student needs in order to close the gap between them and their peers, or to grow and learn at a rate appropriate to them. Many districts are not performing psychoeducational testing due to the COVID health crisis. State law mandates that psychoeducational testing be administered in person, and that the examiner perform a classroom observation. Neither of these requirements can be met during the school closures. We will delve into these issues, as well as the risks and benefits of virtual assessments, later on in this series.

It’s possible that some districts will accept a parent’s data to determine a student’s present level of functioning. If a parent has been working with their child and closely monitoring their progress, this data could be used in place of more formal educational assessments to establish present levels of functioning during the interim time until the school resumes testing. However, for this to work, it would be necessary for the IEP team to agree to this approach.

Should parents consider compensatory ed if their child requires 1:1 assistance and other measures that are impossible via distance learning?

While there are multiple class action lawsuits across the country where families of children with disabilities are suing school districts for their failure to provide FAPE during the spring of 2020, there may also be reasons to wait before pursuing a claim for compensatory education. First, with the coronavirus still heavily infiltrating many parts of California, it is not possible to obtain many of the therapies lost due to the school closures, even privately. Second, your child may still be in the middle of a block of time in which their progress is less than ideal. Waiting until school resumes in full puts your child in a better position to recoup all lost learning. Third, many schools have developed more dynamic education plans this fall that differ from what was offered last spring. Waiting to request compensatory education until schools open and resume normal functioning may result in a more accurate award that can be immediately put to use to compensate for lost learning. Waiting might also mean you won’t need compensatory ed at all.

A few additional considerations: California has a two-year statute of limitations, so this also needs to be considered when figuring out the right time to pursue a claim for compensatory education. Also, the remedy of compensatory education for a denial of FAPE requires that you first “exhaust administrative remedies” prior to filing suit in court. That means before you file a lawsuit, you must attempt to resolve the matter with the district by filing for due process.