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Let’s Not Talk “Comp Ed” Generally for COVID-19 Closure

Posted By Administration, Friday, April 24, 2020

By Andrew Feinstein, Esq.  

Let's not rely on compensatory education to remedy the damage done to our kids during the period of COVID-19 school closure.  “Comp Ed” are fighting words.  By talking that language, we are creating a confrontational posture with school districts and we are misleading our clients.  Compensatory education is not the right analytic framework for this situation.

 

School districts and courts generally regard compensatory education as a remedy for a denial of a free appropriate public education, either in the design of the educational program or in its implementation.  The term is freighted with notions of fault and wrongdoing.  Although the statutory basis for compensatory education does not support this connotation, it clearly exists.

 

Most attempts to argue or demonstrate that a school district was at fault for failing to provide certain services during the period of COVID-19 closure will almost certainly fail.  It is hard to imagine a hearing officer or a judge blaming a school district for not providing in-person services or for providing fewer hours of other services.  And, to the extent that negligence is the test, school districts will argue contributory negligence of the parents.  We certainly do not want the educational skills of parents to be subjected to school district scrutiny.  Only in extreme cases, such as where the district refuses to provide any education to students with a disability while providing distance learning to all other students, would a strong claim for compensatory education likely be successful.

 

This is really a matter of terminology.  When school reconvenes, the child's IEP Team will need to meet and determine present levels of performance as a prerequisite to designing a program and placement.  Parents, who have been carefully tracking performance during the period of distance learning, should have a significant voice in setting the current level of performance.  If the student's performance is below where it was on the day schools closed for the COVID-19 pandemic, the IEP Team will be obliged to provide more intense services than those provided in the prior IEP.

 

Not every student will need remedial services. Some students will progress appropriately in the at-home program.  Others will experience significant regression.  In each case, the IEP team must, after the closure ends, closely examine the student’s progress or regression, craft accurate present levels of performance, and provide services based on the needs established by the data.

 

Indeed, under Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005), the standard for compensatory education is not an hour for hour calculation.  Rather, "In every case, however, the inquiry must be fact-specific and, to accomplish IDEA’s purposes, 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."  401 F.3d at 524.  It is a qualitative standard based on individual assessments of the student.

           

The approach we should be advocating in this case is exactly the one outlined in Reid.  The district needs to accurately assess the student and then design a program to provide the educational benefit that likely would have accrued from the services the district would have provided but for the closure.

           

picture of Andrew Feinstein, man with grey hair and wearing suit, smiling

 

Andy Feinstein has represented children with disabilities and their families pursuing appropriate educational programs for the past twenty years, and is currently the owner of Feinstein Education Law Group, LLC in Connecticut. He serves as co-chair of the Government Relations Committee for the Council of Parent Attorneys and Advocates (COPAA).

 

 

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Tags:  COVID-19 

Permalink | Comments (11)
 

Comments on this post...

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Samantha Williams says...
Posted Friday, April 24, 2020
I completely agree! Districts know that they won't be held accountable to the requirements in their students current IEP's during this unprecendented time. It's reasonable to look at PL's and go from there once school reconvenes. I feel for the parents juggling the progress of their kid/s with special needs, which is inherently a full time job, while also managing to keep up with their other full time job that pays the bills.
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Charmaine Thaner (Miller) says...
Posted Friday, April 24, 2020
Thank you for sharing this perspective.
Can we share this blog post?
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Rev. Heather D. Rogero (Harrington) MA PGC says...
Posted Saturday, April 25, 2020
The material issue is when a district denies 1:1 paraprofessional support services and the full IEP is in tact without a COVID addendum, and the district fails to provide a legal basis for denial of 1:1 in the home during COVID, the action is violating the child and parents civil rights by benign neglect.

Children who have a 1:1 parapro in the IEP require this personalized assistance to “equally access” the online instruction and related services. When full IEP’s are in effect, a “recommended” amount of AMI is irrelevant to a child with an IEP.

Moreover, some states do not have a stay in place, allow gatherings of 10 or less with CDC guidelines. USDOE OCR on March 16 and 20 provided guidance that instruction, services, and supports could be provided in the child’s home when interpreting federal law. When a district denies this request without a legal basis, they are violating Section 504, jeopardizing federal funds, and providing substantive due process to parents, especially when they fail to issue any PWR and allude to compensatory and deny appropriate and required services in the IEP. The 504 Regulations are clear it can’t be denied, and a distinction between participate in online learning and equal access to participate in online learning when off-site school is open.

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April J. Bucknell says...
Posted Saturday, April 25, 2020
I agree that Comp Ed might not be appropriate for all children when school resumes. What worked in our district was filing a 10-day notice the day school closed, when the director of special education said that all IEPs would be canceled and in a followup conversation said my son would also lose his daily 1:1 aide-let reading tutoring. In the following days I received handouts from all of the specialists working with my son, while gen ed students had virtual classes and regular homework. This will differ from district to district, but do you agree that gen ed and special ed must be as parallel as possible during this strange time? Many dyslexia schools continue full speed ahead virtually. I understand that a due process hearing might not be won because of Covid, but my filing of the notice was the nudge my district needed to fully start special ed back up again. It's important to note that my district is paying all teachers and aides and even the lunch ladies and playground helpers, so they are all available and being utilized to the extent needed to provide aide support in virtual classes. Some aides cannot repicate what was provided in school in the virtual setting, but to the extent they can - and continue to be paid to do so - that should be expected and provided. The district is also providing online programs to assist students (Everyday Speech, Lexia PowerUp and Core5, Typing Club), but in addition to the Zoom support from specialists only (not as replacement services).
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Denise Marshall, COPAA says...
Posted Saturday, April 25, 2020
Yes, this is a public link. Feel free to share.
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Keith Peck says...
Posted Saturday, April 25, 2020
I am trying to be as respectful as possible in this post. I disagree. Also, I disagree about being aggressive. We must zealously represent the interests of our clients. They are the families, not the schools. Comp. Ed. is not about fault at all. I have gotten comp. ed. when an SLP was unavailable due to illness. Show me where fault is part of the prima fascia case. The key is loss. In Hawaii, student's were being provided educational services, except for IEP kids. That is discrimination. So, you may play nice with schools, but I don't. My clients are signing contract with private providers, spending money to mitigate loss and bringing hearings now. I have one master and that is my clients' rights. I am helping the school district. Instead of 30k IEP/504 mtgs. where they will try to cheat my clients, they will settle on presumptive calculations and determine fair procedures. Being aggressive is what the job takes.
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Keith Peck says...
Posted Saturday, April 25, 2020
Anyone with Chutzpah, call me.
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David Warner says...
Posted Saturday, April 25, 2020
I totally disagree. I think this isn’t the time to let off the gas.
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Jamie Lynch says...
Posted Sunday, April 26, 2020
The following blog post by school-side law firm, Sweet, Stevens largely agrees with the above perspective and states that schools need prepare to "staff up" to provide more intensive services for students who missed services during school. closures.

I do find this following quote disturbing as it is forgetting that the outcome of the child's education is on the line - and this is not just a business decision, "Thus, while we doubt that we can use the closure of schools as a “circumstance” that might limit the amount of “compensatory services” owed a child once schools reopen, we are hopeful that those who will judge us after-the-fact on the adequacy of our “compensatory” offers—hearing officers, judges, compliance investigators—will be mindful of the extraordinary circumstances we are all enduring. In judging between the claims of two parties, sympathy is not a one-way street."

I found this interesting, "Many of you have questioned why children with disabilities would be entitled to compensatory services when all children are essentially in the same boat. Every child is suffering the absence of school-based learning and every child must endure the inadequacies of learning entirely online. While this argument is true enough, it overlooks that the IDEA is not intended simply to ensure equality of service delivery. It is, rather, an “affirmative mandate,” premised on the notion that more vulnerable learners might require more services and more protections than their less-vulnerable peers to obtain an education that is, in the end, equally “meaningful.” Thus, the IDEA entitles students with disabilities to a legally-enforceable written annual plan that ensures the attainment of child-specific meaningful outcomes; to transition planning that targets measurable post-secondary goals; to special protections related to discipline; and, of course, to an extended school year, week, or day when the conventional time allotted to all other learners is insufficient to ensure a “meaningful” outcome. No non-disabled peer can lay claim to any of these things.

Others of you have asked whether the ruling the United States Supreme Court in Endrew F. v. Douglas County School Dist. might affect the consideration of “compensatory services.” In its decision in Endrew F., after all, the court ruled that the “meaningful progress” we can expect for any one child must be calibrated in light of “the child’s circumstances.” Would the pandemic-related school closures not constitute a “circumstance” that might excuse the need to realize the same level of progress the child would have realized otherwise? Underlying this question is the notion that “circumstances” must be conditions that are beyond the control of the child—and certainly COVID-19 is that. So, however, are the 180-day school year, the level and pace of the general curriculum, and the size of a typical regular education classroom—all of which the IDEA requires be adapted to meet the needs of the child with disabilities. The “circumstances” that the court in Endrew F. allows us to consider when determining the amount of progress child should meaningfully make are circumstances that are innate to the particular child. "
http://www.sweetstevens.com/newsroom/coronavirus-and-schools-compensatory-services-in-a-post-pandemic-world
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Melissa Alexander (Pine) says...
Posted Monday, April 27, 2020
I agree. In most (all) cases, it's the word choice that either keeps the conversation going or shuts it down. For families who can't afford paid representation, this is crucial to understand. And apply.
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Kim Lemburg says...
Posted Wednesday, April 29, 2020
How do you reconcile not using the term "compensatory" when it is used repeatedly in the OSERS Coronavirus Q & A?
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