Updated: Nov 1, 2020
"Ask the Advocate" is our forum to bring you answers to questions that are timely and important to families of students with disabilities. Each month I will ask Lorraine Hightower, Dyslexia Advocate and Consultant, your top questions and bring her answers to YOU!
As we discuss compensatory education services, it is important to understand that Lorraine Hightower provides guidance and recommendations based on her experience, knowledge, and background. Advice given by Lorraine Hightower is not intended to substitute or serve as legal advice. Lorraine Hightower is representing herself in a non-attorney advocacy capacity and is not a licensed attorney in the State of Virginia.
I have heard that students with IEPs can receive compensatory education services. What does that mean?
Compensatory education services are services provided by the school district to fill a gap between where a student’s present level of performance is and where it would have been if they were given the services they required. Students with disabilities who have an IEP are legally required to receive a Free and Appropriate Public Education (FAPE). If they were denied that free and appropriate public education for any reason, including the changes in schooling due to Covid-19, they may be eligible for compensatory services. The US Department of Education has said, “Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services - IEP teams (as noted in the March 12, 2020 guidance) must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.”
If you receive a proposed amendment for your child’s IEP that includes language that may waive the school district’s responsibility to make up or provide compensatory services, do NOT sign it. You want
to be able to explore whether or not your child will need compensatory education services before you sign away your right to them. Do not worry that your child will not receive their already agreed upon IEP services and accommodations. Even if you choose not to sign the proposed IEP Amendment, your child will continue to be served by the last agreed upon IEP as IEPs do not expire from one year to the next.
How do I know if my child is a candidate for compensatory education services?
That is a great question, because not all students meet the criteria for compensatory services. In order to receive this compensatory education you must prove that your child was harmed by not receiving the services agreed upon in the IEP. (Note: If your child does not have an IEP, they cannot receive compensatory services. If you are concerned about their progress or academic performance, consider if you need to make a special education referral instead.)
For example, a child may not have received the reading remediation that was agreed upon in their IEP. However, they received intensive private tutoring in the last quarter and attended a special camp over the summer that strengthened their reading skills. Both the tutor that worked with the child and data from baseline assessments will attest that this child has made the progress that would have been made had they been receiving their in school services. That child will not be eligible for compensatory services as there doesn’t appear to be any harm to the child due to the school district not providing the intervention.
Meanwhile, another student who did not receive their reading remediation did not get any outside support. That child has not regressed in their reading levels, but did not make progress toward the goals that were outlined in the IEP. Baseline testing shows that this student has not made progress since the delivery of services ceased. This child may be eligible for compensatory services. This example is especially important, because you will notice the child did not regress. You need not prove regression to receive compensatory education, but rather lack of progress toward the agreed upon goals in the IEP.
You will notice in both of these examples that baseline data is critical to decision making. In order to prove a need for compensatory education you will need to have data proving the child’s levels when services stopped as well as their current present levels. The comparison of these levels will show if the child was harmed by the cessation of their services. Many school districts have recently stated that they need the first semester of school to collect this necessary baseline data. Parents should also continue to collect their own progress data during this time to include exactly which intervention services are provided to their child by the school district and those that have been reduced in time or not provided at all.
You may also want to consider consulting with an outside education expert regarding your child’s progress. An experienced tutor may have suggestions as to what services would be needed to fill the gap created since the cessation of services. A private clinician may be able to establish your child’s present levels and provide you with specific data for IEP team decision making. You do not have to engage a lawyer in order to request compensatory education. You can work with your child’s IEP team to make this determination. If your child’s team is not willing to discuss compensatory education services, you can pursue your other parental safeguards such as filing a state complaint, requesting mediation or considering due process. I recommend that all parents consult with a Special Education Attorney prior to submitting a due process claim.
If you notice that your child has experienced harm since the cessation of their services, but it is not necessarily a lack of progress, you may need to consider if your child now needs additional related services. For instance, a child suffering from anxiety or depression may benefit from counseling as an added service to their IEP.
In order to help you decide if you should pursue compensatory services, we have created a complimentary download “Is my child eligible for Compensatory Educational Services?” It will help you decide whether you should pursue compensatory services for your child.
If the team agrees that my child needs compensatory services, what might they look like?
Compensatory Education can look different for everyone and it should be individualized to meet your child’s needs. As a team of experts armed with data, your child’s special education team (that includes you!) should decide the best course of action to remediate achievement gaps. Compensatory education may be qualitative or quantitative. It does not have to be an hour for hour recoupment of lost services, it may be an increase in the intensity of instruction.
As I often say, special education teams must come up with creative solutions. Compensatory services do not need to come at the expense of an elective or another class of high interest. Teams have the flexibility not only to intensify instruction during the school day, but look at times outside of the school
day to offer this remediation. This can include after school sessions, before school sessions, weekend instruction, and instruction that takes place over the summer. The school district can provide an instructor to perform these services, or if they do not have the staff to cover it at these unorthodox times, they can consider reimbursing a parent for the cost of a private provider. You don’t have to “squeeze in” or deny your child the full spectrum of educational experiences because they require compensatory services!
What if I believe the data shows that my child has not made progress since March when their services stopped, but the team has denied my request for compensation? What do I do?
The first step is to be sure that you do not sign any documents that may waive the district’s responsibility to provide compensatory education.
Secondly, work collaboratively with your team. Offer your creative solutions, and listen to your team’s ideas. Remember that compensatory services may be qualitative and not quantitative. That means it may look like less, but may be intense enough to close the gap between where they are currently and where they should be, had services been rendered.
Thirdly, be aware of and use your procedural safeguards. If your request was denied, be sure to request a Prior Written Notice that documents the rationale for the decision to deny compensatory services. To help you understand more about Prior Written Notice, I have created this podcast for you. Remember, you have the right to file a state complaint, request mediation, and in the most egregious cases, consult with an attorney about filing due process.
I always want to leave parents feeling empowered! In even these most unprecedented of times, parents do have a voice in their child’s education. When armed with information and an understanding of the special education system, parents can work with schools to get the services to which their children are entitled.
We are entering a school year that is unprecedented. If you need support advocating for your child, please reach out. As a parent of a student with disabilities, I have also had to deal with life changing, unanticipated challenges. While it isn’t always easy, parents always have options. I offer complimentary “What Keeps You Up at Night” consultations (click the link to book a free consultation) so that we can discuss your child and what they need to access the curriculum and thrive in school. I would love to talk with you about how I might make a difference for your child and your family!