The Legal Brief: Addressing COVID-19 Compensatory Services in Annual ARD Meetings

Educators have many questions about how and when to address issues related to special education services provided during school closures that occurred during the 2019-2020 school year.  Guidance from TEA and from OSEP indicates compensatory services are owed in circumstances where services differed in substance from what was called for in the IEPs drafted for a typical school year.  How, then, should school districts address  the question of compensatory services during the 2020-2021 school-year, which promises to be anything but typical?

Although there has been some discussion regarding appropriate terminology for COVID-19-caused compensatory services, the term describing the services is irrelevant and will have no effect on the school district’s underlying obligation to provide FAPE:

Compensatory services are generally defined as educational services that a student needs to make up for skills lost because a school district did not provide the services required by the IEP. When it comes to compensatory services needed to make up for services that could not be provided because of the COVID-19 pandemic, the ARD committee’s determination should not be viewed as remedy for a failure on the part of the school district, but rather as a means to mitigate the impact of the loss of critical skills or learning that might have occurred as a result of  special education and related services that could not be provided during the pandemic.    

TEA Guidance Regarding Discussion of Compensatory Services During ARD Meetings

TEA recommends that the ARD committee review the special education and related services listed in the IEP and compare scheduled services with Service logs and temporary schedules to document missed services.

In order to analyze the need for compensatory services, the ARD committee should review the student’s past and current needs and consider any deprivation of special education and related services resulting from school closures.  In reviewing data, the ARD committee should discuss and weigh information from a variety of sources, such as the child’s present levels of academic achievement and functional performance documented in the IEP and make a comparison with the most current measures and observations. In conducting the analysis, progress monitoring by both the teacher and parent, work samples, teacher observations, and observations by parents during at home learning constitute suggested data that may be valuable. Finally, the ARD/IEP team should consider if the student needs a formal reevaluation if it is determined that it would provide missing data on the current performance level of the student.

If the student’s data shows the student has not regressed, or that the student will be able to make up for the lost progress in a short amount of time 2 and without the need for compensatory services, then the ARD committee could determine that the student does not need compensatory services.  Additionally, it should be remembered that the origin of compensatory services is as an equitable remedy, which considers the respective contributions (fault) of the parties that caused the deprivation.  In a situation where services were offered and there are documented contact attempts to provide instruction, but the parent did not make the student available for the special education and related services, there may be no obligation to provide compensatory services.  ARD personnel should exercise discretion regarding whether a potential legal dispute is more burdensome than providing some level of compensatory services.

If the student’s data shows the student lost progress and the student will not be able to make up for the lost progress in a short amount of time, then the ARD committee must consider and, as applicable, include in the student’s IEP the type, location, duration, and frequency of the services the student needs to make up for that lost progress. The decision must be made based on data regarding student progress and should not be misconstrued to necessarily require an hour for hour or minute for minute makeup in services.3

The ARD committee should keep the student and the family in mind when determining the duration and frequency of compensatory services and should not overload the student with compensatory. Scheduling services in a manner that removes a student from his/her routine settings, peers, and classes once school reopens in order to provide him/her with compensatory services may have a negative impact on the student’s social and educational progress. The ARD committee should consult with the parent and the student, as appropriate, about how and when to best to deliver compensatory services.

Following the ARD committee’s initial determination regarding compensatory services, personnel must monitor and revise, as appropriate, with the objective of reasonably returning the student to the levels he or she would have been without the disruption of school closure on account of COVID-19.4

Graduating Students 

As a general rule, a student’s eligibility to receive special education and related services ends when the student graduates with a regular high school diploma.  Therefore, the school district may not be required to provide compensatory services after graduation. However, the federal guidance requiring  school districts to consider a student’s potential need for compensatory services as a result of the COVID-19 pandemic closures did not specifically exclude students who graduated in the spring of 2020 or who may graduate in the spring of 2021, but who may have lost skills as a result of school districts’ inability to offer services during school closures.  Whether a student needs compensatory services should be considered prior to recommending graduation and the ARD should consider whether recommending graduation of the student is an appropriate recommendation for a student who shows regression and needs compensatory services.

Discussion During 2020-2021 Annual ARD/IEP Meetings

As annual ARD/IEP meetings occur throughout the school year, decisions regarding the determination of appropriate compensatory services may be premature.  2019-2020 was not a typical school year, and  2020-2021 may also be subject to instructional disruptions that would prevent in-person instruction and similarly prevent the provision of in-person compensatory services.

Many of the recommendations and informal evaluative criteria contained in the TEA guidance regarding compensatory services may not be achievable due to future class or school closures from COVID-19.  Optimally, teachers should be able to work with students directly and assess their performance and recoupment of skills for some reasonable period, while collecting measures and observations regarding present levels of academic achievement and functional performance. A reevaluation may be helpful, but offering a reevaluation when the ability to conduct an in-person evaluation is precluded by COVID-19 has limited utility in making a current decision regarding compensatory and is a reason why an ARD may wish to defer a compensatory decision.

Deferral of Compensatory Decisions to a Future ARD/IEP Meeting

It is recommended that schools engage in a continuing dialogue with parents regarding services, progress, or regression using the data recommended by TEA. Discuss and document scheduled services and services provided during closures in the minutes or by attaching contact logs to the minutes.  If data is inadequate or if further instructional disruptions are anticipated, it is recommended that a final decision regarding compensatory services be deferred to a later ARD, as the full extent of the compensatory obligation cannot be determined and may need to be revised if made prematurely.  An additional consideration is that even if a decision is made, future closures may require revision to compensatory determined by an ARD and there may be no current ability to begin providing the COVID-19 compensatory services.   Once schools return to uninterrupted in-person instruction, teachers will be able to work with students, evaluation personnel will be able to assess students and more comprehensive and reliable data underlying the decision regarding the need for compensatory services should be available.

A final consideration is that unless the parents agree, compensatory services are usually provided outside of regular instructional time, such as after school, on a weekend or during summertime when students are not otherwise receiving instruction from which they would be removed to receive compensatory services.

1 T.E.A., Considerations for Extended School Year and Compensatory Services for Students with Disabilities During and After Texas School Closures Due to COVID-19

2“Short amount of time in this guidance should be contrasted with “Reasonable period of time” contained in 19 TAC §89.1065(3) in reference to Extended Year Services.  Reasonable in the context of skills recoupment must not exceed eight weeks. It should be assumed that short is something less than 8 weeks.

3T.E.A. Considerations for Extended School Year and Compensatory Services for Students with Disabilities During and After Texas School Closures Due to COVID-19.

4This should not be interpreted as requiring the provision of more special education and related services than were specified in the IEP.  In some cases, as specified in the guidance, it may be less or it may be none, however, there is no authority requiring the provision of more services than the services specified in the IEP that a prior ARD determined provided a FAPE.

5 19 TAC § 89.1070(k).”For students who receive a diploma according to subsections (b)(2)(A), (B), or (C) or (g)(4)(A), (B), or (C) of this section, the ARD committee must determine needed educational services upon the request of the student or parent to resume services, as long as the student meets the age eligibility requirements.”

Written by Hans P. Graff.