By Jeffrey L. Forte, Esq. | Forte Law Group LLC
A Special Education Attorney & Certified Child Advocacy Law Practice
As we all come to grips with the new temporary norms across our country due to the COVID-19 pandemic, it is critical that we understand and fully appreciate the impact this outbreak is having on special education and related services to our students with disabilities and their families. It is absolutely essential that families make informed decisions about the educational wellbeing of their children with disabilities by consulting with their local education agency. It is also equally important that families know their child’s rights under the Individuals with Disabilities Education Act (IDEA) during this crisis situation, including their potential rights to compensatory education (“comp ed”).
What is Compensatory Education?
Under the IDEA, local educational agencies (LEAs) are legally obligated to provide all children eligible to receive special education and related services with a free appropriate public education (FAPE). If your LEA does not give your child the special education and related services they are supposed to be providing as forth in your child’s IEP, your child may be eligible to receive compensatory education. Compensatory education is a compensation fund so to speak that helps your child catch up on lost time, hours and related services for the duration of when your child was denied a FAPE. The amount of time and services that your child missed is referred to as compensatory education.
Is Your School District Closed, Open or Available for E-Learning?
If your LEA is closed and is not providing any educational opportunities to the general student population during the COVID-19 outbreak (i.e., school closure similar to a snow day), then your LEA is not legally required to provide services to children with disabilities during the same timeframe. The problem arises, however, when your LEA decides to offer online learning or e-learning alternatives to the general student population, even if voluntary, while not offering the same opportunities for specialized instruction and related services to students with disabilities pursuant to their IEP or 504 plan. In essence, your LEA, despite its best intentions, is providing educational opportunities to “some” students, but not others and therefore is not legally compliant.
Just this week, the United States Department of Education (USDOE) issued guidance to LEAs on how to appropriately handle providing special education and release services to children with disabilities during the Coronavirus Disease 2019 (“COVID-19”) outbreak.[1] The USDOE provides guidance that your LEA “must ensure that, to the greatest extent possible” each student with a disability be provided the special education and related services set forth in the student’s IEP or 504 Plan. The present concern that parents should inquire about is how their LEA is going to ensure that a student with a disability receives their IEP or 504 special education and related services “to the greatest extent possible” during the school closure. I anticipate this is where a plethora of compensatory education claims will need to be examined and provided once schools are back in session. The anticipated issues will include to what extent and amount of compensatory education will legally need to be provided.
How is Compensatory Education Calculated?
Generally speaking, the starting point in determining any compensatory education award is by showing when a parent knew or should have known about their child’s denial of a FAPE. To put this into context, if your child’s LEA decides to remain closed, but starts to offer e-learning programming for general education students, but not the same to children with disabilities, you should mark and enter that date down in a journal.
Next, you need to look at what educational benefits would have accrued during your child’s denial of a FAPE period. This requires you to examine both the qualitative and quantitative benefits your child would have received had your child been offered a FAPE. There is no “cookie-cutter” approach to this analysis since your child’s education is specialized and uniquely designed to meet his or her needs.
Lastly, it is critical that you keep and maintain a sufficient record of your child’s right to claims of compensatory education. An impartial hearing officer cannot appropriately determine the amount of your child’s compensatory education claim unless you as a parent are able to provide the hearing officer or mediator with sufficient insight as to the precise type of educational and related services your child missed in order further to promote your child’s progress as set forth in your child’s IEP goals and objectives and service hours.
My firm and I are actively monitoring updates from the USDOE as well as following how LEAs are offering educational programming to students with disabilities in order to ensure our children are being appropriately education to the greatest extent possible during COVID-19 outbreak.