As schools continue to navigate the whitewater rapids of COVID-19, the issue of compensatory services has steadily started gathering more attention both locally and nationwide. While not unexpected given the massive disruption the pandemic has, and continues to, wreak on the provision of special education services, discussions regarding compensatory services are rarely welcomed. This can be attributed to compensatory services being stigmatized as adversarial and punitive. In fact, they are neither.

Compensatory services is not expressly defined in IDEA.  Rather, the statute provides courts with the broad authority to “grant such relief as the court determines appropriate.”  Consequently, when a violation of IDEA occurs, compensatory education may be awarded.  It is very important that this be distinguished from some form of punitive damages.  The purpose of compensatory education is not to punish a school for doing something wrong, instead, the remedy is available to enable the student to be placed in the same position he or she would have been but for the school district’s violation of IDEA.

Due to the lack of statutory clarity, the actual means of achieving this restoration can be confusing in and of itself.  Generally speaking, courts are divided into two camps.  The first is a one-to-one or direct calculation method.  Under this scheme, the student is simply awarded the amount of service that has been denied.  For example, if a student’s IEP required the school to provide five twenty-minute sessions of speech therapy during the first six-weeks of a school year and the pandemic prevented all five sessions from being provided, a court could award the student 100 minutes of compensatory speech therapy.

While this direct calculation method is straightforward, it becomes confusing when applied to less concrete services such as inclusion support and burdensome when applied to instructional services.  Consequently, another doctrine has developed in which an attempt is made to calculate the actual amount of compensatory education needed to “right the wrong.” Importantly, this is the approach that the Texas Education Agency appeared to adopt in its May 2020 guidance “Considerations for Extended School Year and Compensatory Services for Students with Disabilities During and After Texas School Closures Due to COVID-19” (available here.)

In its guidance, TEA clarifies that compensatory services “should not be viewed as remedy for a failure on the part of the LEA, 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.”  Consequently, TEA advises ARD committees to make individualized decisions regarding each student’s need for compensatory services.  This requires a review of data regarding past and current needs to determine whether, and/or to what extent, a student may have lost progress. If the data shows that a student has not lost progress, or that a minimal loss can be made up in a short time, TEA advises that the “ARD committee might determine that the student does not need compensatory services.”

However, if the data does document lost progress, TEA’s guidance requires ARD committees to “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 the lost progress.”  Importantly, TEA’s guidance expressly warns that this decision “should not be misconstrued to necessarily require an hour for hour or minute for minute makeup in services.”

Given this information, there are a few important considerations districts should keep in mind regarding compensatory services:

• Given Due to the extent of the disruption caused by the pandemic, it is likely not a matter of “if”, but “when” a claim for compensatory services will be made.
• Compensatory services should be construed as remedial, not as some form of punishment.
• Compensatory services are not “one-size fits all.” By its very nature, each student with an Individualized Education Program (“IEP”) has unique needs and should be considered to have been impacted by the pandemic uniquely.
• The process for determining compensatory services is not necessarily adversarial. Rather, the best practice is to have the ARD committee work collaboratively to determine the need for and means of providing services.

Please do not hesitate to contact the attorneys at Leasor Crass, P.C. if you have additional concerns or questions regarding compensatory services.