A Brief Overview
- Students with disabilities who have not been fully served during years of the COVID-19 pandemic may have the right to additional school-based services to help them get back on track. These additional services may be called Recovery or Compensatory Services.
- Read on for information, including guidance from the federal government. A family-friendly, printable handout from the Office for Civil Rights (OCR) is a place to begin.
- Whether a student with disabilities is served through a Section 504 Plan or an Individualized Education Program (IEP), decisions about Recovery/Compensatory Services are made by a collaborative team that includes family participants.
- Federal money is available to help schools provide additional services to students with disabilities.
- Section 504 and IEP teams are responsible to make collaborative, student-centered decisions about Compensatory Services: Schools may not take a one-size-fits-all approach.
Schools, students, and families face a unique set of challenges as doors reopen with ongoing impacts from the COVID-19 pandemic. Students with disabilities may have been impacted more than their non-disabled peers and may be eligible for additional services to help them get back on track with their learning and development.
Additional services may be called Recovery Services or Compensatory Services. Under either name, schools are responsible for working with families to determine where there are learning gaps and how to ensure students get the support and services they need to make appropriate progress in all areas of their education, including areas related to student well-being and social emotional learning (SEL).
The US Department of Education’s Office for Civil Rights (OCR) provides a family-friendly, printable 4-page handout that explains a student’s right to Compensatory Services under Section 504 of the Rehabilitation Act of 1973. This law protects the civil rights of all students with disabilities, including those with Section 504 Plans and those with Individualized Education Programs (IEPs). All students with disabilities that significantly impact how they access school have the right to a Free Appropriate Public Education (FAPE).
FAPE right are protected by Section 504 of the Rehabilitation Act and the Individuals with Disabilities Act (IDEA). IDEA is the federal law that provides a grant entitlement for students who receive special education through an IEP.
Section 504 and the IDEA require that students with known or suspected disabilities be evaluated to determine eligibility for services and to gather data for an individualized plan or program. Students who were not identified for services because of COVID-related logistics may be among those who are entitled to additional services.
Recovery/Compensatory Services are based on a student’s right to FAPE
Compensatory Services are sometimes awarded as the result of a complaint investigation but do not have to be linked to dispute resolution: Schools and families can design a plan for these services in ways that are collaborative and not adversarial. Whether a student is entitled to Recovery/Compensatory Services is a question related to FAPE rights and not a question of whether the school tried in good faith to serve the student, according to OCR.
OCR states that “Schools must convene a group of persons knowledgeable about the student to make an individualized determination of whether a student’s current services should be changed due to the effects of the COVID-19 pandemic, such as the impact of loss of services on skills, mental health and trauma concerns, or the physical health effects of long COVID (post-COVID conditions).”
OCR also includes these statements in its handout for families:
- “Compensatory Services are required to remedy any educational or other deficits that result from the student with a disability not receiving the evaluations or services to which they were entitled.
- “For example, a school may need to provide Compensatory Services for a student who did not receive physical therapy during school closures or for a student who did not receive a timely evaluation.
- “Providing Compensatory Services to a student does not draw into question a school’s good faith efforts during these difficult circumstances. It is a remedy that recognizes the reality that students experience injury when they do not receive appropriate and timely initial evaluations, re-evaluations, or services, including the services that the school had previously determined they were entitled to, regardless of the reason.”
Families participate in decision-making
Whether a student with disabilities is served through a Section 504 Plan or an Individualized Education Program (IEP), decisions about Compensatory Services are made by a collaborative team that includes family participants and anyone else with knowledge of the student, including (but not limited to) school nurses, teachers, counselors, psychologists, school administrators, social workers, doctors and/or other providers within or outside of school. Note that IEP teams have specific requirements about who must attend meetings unless a parent signs consent for an absence (WAC 392-172A-03095).
OCR lists factors for a team of people knowledgeable about a student to consider when making decisions about Compensatory Services:
- The frequency and duration of missed instruction and related services
- Whether special education and/or related services that were provided during the pandemic were appropriate based on the student’s individual needs
- A student’s present level of performance
- Previous [pre-pandemic] rates of progress
- Results of updated evaluations
- Whether evaluations were delayed
- Any other relevant information
OCR investigates complaints and impacted change in Los Angeles
Under Section 504, if a parent or guardian believes that their child has not received a Free Appropriate Public Education (FAPE) or has been denied equitable access to educational opportunities, they may seek a hearing under the school’s Section 504 Due Process procedures or file a complaint with the federal Office for Civil Rights.
OCR complaints can also be filed at the state level; the Office of Superintendent of Public Instruction (OSPI) provides guidance about civil rights complaint options in Washington State.
OCR investigated the Los Angeles Unified school district and found infractions related to Compensatory Services. In a document describing OCR’s resolution with Los Angeles schools, there is a list of what the schools did wrong. For example, OCR found that during remote learning, the district:
- Limited the services provided to students with disabilities based on considerations other than individual educational needs
- Failed to accurately or sufficiently track services provided to students with disabilities
- Directed district service providers to include attempts to communicate with students and parents—including emails and phone calls—as the provision of services, documenting such on students’ service records
- Informed staff that the district was not responsible for providing Compensatory education to students with disabilities who did not receive FAPE during the COVID-19 school closure period because the district was not at fault for the closure
- Failed to develop and implement a plan adequate to remedy the instances in which students with disabilities were not provided a FAPE during remote learning
The Los Angeles district agreed to resolve these violations by creating and implementing a comprehensive plan to address the Compensatory education needs of students with disabilities due to the COVID-19 pandemic.
Guidance from OSERS
The federal Office of Special Education and Rehabilitative Services (OSERS) included guidance related to Compensatory services as part of its Return to School Roadmap, published September 30, 2021. Included is a question (D-6) about when Compensatory Services may be necessary and this multi-part answer:
“A child’s IEP Team may determine that compensatory services are necessary to mitigate the impact of disruptions and delays in providing appropriate services to the child. Some examples of situations that might require consideration of whether, and what, Compensatory Services are necessary include:
- If the initial evaluation, eligibility determination, and identification, development and implementation of the IEP for an eligible child were delayed
- If the special education and related services that were provided during the pandemic through virtual, hybrid, or in-person instruction were not appropriate to meet the child’s needs
- If some or all of the child’s IEP could not be implemented using the methods of service delivery available during the pandemic (for example, if the physical therapy and behavioral intervention strategies included in the child’s IEP could not be provided through virtual means)
- If meaningful services to facilitate the transition from secondary school to activities such as postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation were not provided due to the pandemic
OSERS goes on to say: “These examples are not meant to be exhaustive and are provided to illustrate various situations that could require consideration of whether, and to what extent, Compensatory Services are needed to address the child’s needs and mitigate the adverse impact of the COVID-19 pandemic.”
Government money is available to fund additional special education services
Federal money is available to help schools provide additional services to students with disabilities, including students who may be aging out of IEP services at 21 but have not yet earned a diploma or accessed all the transition services they need to be prepared for further education, employment, and independent living. See PAVE’s article, Support for Youth Whose Post-High School Plans were Impacted by COVID-19.
The US Office of Elementary and Secondary Education in December published a resource focused on allowable uses of funding from various sources, including the Elementary and Secondary School Emergency Relief Fund (ESSER) and the Governor’s Emergency Education Relief fund (GEER) and the American Rescue Plan. The FAQ specifically highlights:
- Providing educational and related services under Section 504, including, but not limited to, providing [Compensatory Services] to students with disabilities… to make up for any skills that might have been lost if it is individually determined that the student was unable to receive a FAPE as a result of school closure or other COVID disruption
- Supporting students with disabilities under the IDEA [Individuals with Disabilities Education Act/federal special education law], including by eliminating evaluation backlogs and providing support and direct services, such as technical assistance, personnel preparation, and professional development and training
School districts are required to incorporate stakeholder input into their plans for use of federal funds. Information about these requirements is described in a publication from Washington’s State Educational Agency/OSPI: Academic and Student Well-Being Recovery Plan: Planning Guide 2021 For School Districts, Tribal Compact Schools, and Charter Schools.
For additional state information related to the pandemic, and to access content in languages other than English, visit OSPI’s website: Novel Coronavirus (COVID-19) Guidance & Resources.
IEP teams also can discuss ESY
The fall return to school is a good time for IEP teams to consider whether a student experienced learning losses during summer break. By tracking how long it takes to recover a skill, the IEP team can discuss whether the student might need Extended School Year (ESY), typically provided next summer. ESY is a unique process for students with IEPs, and ESY services are determined based on a specific discussion about regression and recoupment. To better understand those terms and how ESY is determined, see PAVE’s article: ESY Helps Students Who Struggle to Maintain Skills and Access FAPE.
IEP teams can discuss Recovery Services, Compensatory Services, and Extended School Year in determining what a student may need to recover learning that was unavailable or inaccessible due to the pandemic or a student’s unique circumstances.
Checklist to get ready to talk about additional services
- Note whether the student is due for an educational evaluation, required every three years. Family can request a new evaluation any time there are concerns that information about the student is outdated or inaccurate.
- Read each IEP goal carefully. Goals are written to establish whether a teacher’s Specially Designed Instruction (SDI) is effectively helping a child learn a needed skill or concept.
- Consider whether there are questions about how instruction is specifically designed to meet a need or teach a skill, so the learning is accessible to the student.
- Reach out to the IEP team case manager or to individual teachers/service providers to request documentation about progress made toward each IEP goal.
- If progress wasn’t monitored, make a note to discuss this lack of progress monitoring with the IEP team.
- Write down and prepare to share family/student observations about what worked or didn’t work during alternative school delivery during the pandemic. Reflect on this question: Was the learning accessible?
- Request an IEP team meeting within a time frame that makes sense. Some teams will want to meet before the school year begins, while others may wait until the school year is underway or until an annual review date later in the school year.
- Consider inviting district special education staff into the meeting if additional expertise or problem-solving support is needed.
- At the meeting, ask for family/student concerns to be included in the Prior Written Notice (PWN), a required document generated each time an official IEP team meets to discuss a student’s program and services.
- Prepare to discuss transportation needs for access to Compensatory/Recovery Services. Transportation options may include district transportation; regional, shared agreements; private transportation; or parent reimbursement for travel costs. Transportation is part of FAPE delivery.
- For students near the end of high school or who graduated or turned 21 during the pandemic without achieving or receiving everything that was expected, Transition Recovery Services may be available. See PAVE’s article: Support for Youth Whose Post-High School Plans were Impacted by COVID-19.
- Consider a student’s strengths and how Recovery Services build on those strengths to support student resilience and well-being. Will the services instill a sense of pride, belonging, and accomplishment? Ensure that the student’s emotional well-being is honored and that the extra help does not feel like punishment.
PAVE’s Parent Training and Information (PTI) staff can help with questions about school-based services. For questions related to health and wellness, insurance, and access to medical services, PAVE’s Family-to-Family Health Information Center (F2F) provides assistance. Click Get Help from our home page at wapave.org to request individualized support.
Here’s a resource with a video training and links to some documents included in this article and more: Lessons from the Field – Providing Required Compensatory Services That Help Students with Disabilities in Response to the COVID-19 Pandemic.