With students returning to school and in-person instruction, whether hybrid or full time, parents of students with IEPs and 504 Plans have their work cut out for them, and many parents are asking about compensatory services after COVID school closures and missed services.
Compensatory Services for COVID-related Missed Services
“Compensatory Services” refer to the make-up service a school district is required to provide when they “miss” or do not provide services under a child’s IEP for one reason or another. This applies to services missed because of pandemic related school closures, since rights under the Individuals with Disabilities in Education Act (IDEA), the federal law that provides special education, were not put on hold during closures or distance learning. What that means is that your child had a right to receive all of their IEP services and service hours during school closures. If that didn’t happen, you should be thinking about compensatory services.
Compensatory services is not a new concept and has been around long before COVID school closures. There are well established principles and procedures for considering compensatory services, and those are the principles and procedures school districts must use now. The fact is that many, if not all, students with IEPs will be entitled to compensatory services.
DEADLINES (or the “statute of limitations”) on Compensatory Services Complaints
Many school districts are waiting to hold meetings to discuss compensatory services. This is a problem because if your school doesn’t offer appropriate compensatory services, and you need to file a “state complaint” or “IDEA complaint,” the state will only look back one year. So if you file on May 1, 2021, they will only “look back” to services missed starting May 1, 2020. Which means the time to file is yesterday, so unfortunately, you don’t have time to wait to see what your school might offer if you want to the maximum amount of compensatory services.
Q: Besides Complaints– What Else? A: Schedule An IEP Meeting
Schedule an IEP meeting to discuss your child’s “Present Levels of Performance.” “Present Levels” is a term used in the IEP document that means exactly what it says– it is documentation of how your child is doing right now. Your child’s present level of performance may be different now from what it was before distance learning. You and the IEP team should consider what information you have about how your child is doing, and whether your child needs any tests or assessments (formal or informal) to determine where they are after a year at home.
Present Levels of Performance – What Information Do You Already Have?
You are the expert on your child. I say that all the time. However, during school-at-home, you were also your child’s teacher, administrator, and tutor. Many parents are reporting that they know a whole lot more about their child as a learner than they did before school-at-home. You need to share what you know with the IEP team, and make sure they hear you. Make certain that they data you provide is recorded in the IEP or the “Prior Written Notice” document. Some teams may tell you that your data is only from home or doesn’t hold as much weight– that’s not true. Insist that they include any data you have in written documentation. If it’s not written down, it didn’t happen.
If you see a weakness that wasn’t previously identified, that weakness should be explored. Share data, notes you kept, work samples, and your experiences with your child during this time that reflect academic struggles and possible regression due to loss of instruction and supports. Ask for new assessments if you think they are needed, and don’t take no for an answer– you are an equal member of the team.
What New Information Do You need?
When was the last time your child was formally evaluated to determine their progress? Do they need a new assessment? This may apply to academic performance like reading or math, or to communication needs, occupational, or speech therapy progress, or behavior. School teams are required to reevaluate children with IEPs at least every three years, but can reevaluate any time the team agrees that it is needed. Three years is a minimum, not a maximum or a limit. After a year at home, when students are getting ready to return to school, most students with IEPs will need to be reevaluated in at least some of their specific areas of need. Consider whether you want to have these evaluations done by the school team (as is your right), or, whether you would prefer to go outside the school system to get private evaluations. Practically, although you will have to pay for them, private evaluations may be the most timely option at this point, given backlogs in public schools, and is often a good idea in order to get unbiased data anyway. There may be an opportunity to ask the school system to pay for the private evaluation if they cannot evaluate your child in a timely way due to the backlog.
New or Different Services or Supports
Based on the results of all this new information about your child’s present levels, including both formal assessments and informal information from you and your child’s teachers, your child may need new or different services than they had before. Since IEP services are based on “Present Levels of Performance,” if your child’s needs have changed, their services and supports should also change. Your son who was doing just fine in math before virtual learning may need more support now. Your daughter may need a more intensive level of services than before schools closed if she has not made progress in reading, or has fallen further behind.
This is not just about academics. Many, many students’ behavioral needs have changed in the last year. We are dealing with unprecedented levels of anxiety, especially among adolescents. Schools are required under the law to provide needed special education supports and services, including emotional and behavioral supports. Parents should consider what emotional supports or accommodations their child needs in order to manage the return to a school building. Does anything need to be added to the IEP or 504 plan? These are appropriate issues to discuss with the IEP team. As parents, you can then evaluate whether your child also needs emotional or mental health support outside the school system.
Whew! We sure are asking for a lot. That’s true. And we encourage parents to approach teachers and school staff with compassion and grace. But a kind approach does not mean putting aside your essential responsibility as a parent to protect your child. Just like you are the number one expert on your child, you are truly your child’s primary and most important advocate. Seek help and don’t give up. If you are being no on something you feel strongly about, it may be time to consult with a special education attorney or a parent advocate.
The difference between kids who overcome their struggles and challenges, and the ones who do not, is an adult who didn’t give up, who sought help when they needed it, and who absolutely demanded what they knew was right for that child. That’s it. That’s what makes the difference. If you’ve read this far, that person is you. Here are three(!) truly inspirational stories about just this: Amanda Gorman, Greta Thunberg, and this Human of New York. Get a tissue, you’re going to need it.
Lastly, as with distance learning itself, there is going to be some wicked inequality in how this all shakes out. If you can– if you are the parent of a child who survived remote learning pretty darn well, or a professional with resources to offer, consider helping other families. Share knowledge where you can. Get involved with disability specific advocacy groups or with organizations working on the systemic issues raised by this crisis. The education attorneys and parent advocates in our office will see you there.
Download our pdf on distance learning and compensatory services for additional information.
If you are worried about your child’s return to school, need for compensatory services, or are wondering if it’s time to get help schedule a free call to discuss how a special education attorney or parent advocate can help.
This blog post is for informational purposes only. It is not legal advice and does not create an attorney-client relationship.