COVID Compensatory Services – Questions, Flaws, and What Every Parent Needs to Know

Apr 26, 2021 by Yolanda Fontanez-Coleman | Learning Resources, Online Tutoring, Tutoring

When the pandemic began in earnest in March, 2020, all schools across the state of PA were ordered closed by the governor.  Many schools have now opened, at least on a part-time hybrid basis, but some schools have still remained closed.  The pandemic’s closures, whether temporary or ongoing, have done great educational harm to children across the state.  Perhaps no children have suffered more harm than those who were already among the most vulnerable, that being children with special education needs.  

Recognizing the likelihood that children with IEPs would regress without regular brick & mortar schooling, the Pennsylvania Department of Education (“PDE”) has put out guidance for how schools should look to remedy regression.  

To state PDE’s guidance briefly: no later than the first two weeks of resuming normal operations, the school is to gather baseline data on each student’s current educational levels, compare that data to progress data on file from prior to the pandemic, and determine if there has been regression.  If there has been regression, within three months of the date of resumption of normal operations, the school is to determine if the student was able to recoup losses.  In the event the answer is “no”, then the school is to provide COVID Compensatory Services (“CCS”).  CCS is to be calculated by the IEP team on an individualized basis.  

Though seemingly straightforward, PDE’s CCS guidance is littered with holes, problems, and flaws.  I will bullet-point some of those flaws below:

  • The PDE language talks about what a school “should” do, rather than what a school “must” do.  As such, there does not appear to be any legal requirement that a school provide CCS to a student, whether owed or not.  

 

  • The right to a FAPE (“Free Appropriate Public Education”) has not  been waived as a result of the COVID-19 pandemic, either at the federal level or in the state of Pennsylvania.  As such, schools still were required to have “appropriate” programs in place for children during pandemic related closures.  “Appropriate” programs are those that allow a child to make “meaningful progress.”  CCS, therefore, is designed purely to get a child back to where they were before the start of the pandemic.  Many schools will not “resume normal operations” (presumably, five day per week in-person instruction) until September, 2021, at the earliest.   Getting a child who has regressed back to where they were prior to the pandemic means, plainly, that if a child made no gains in approximately one and a half years, CCS guidance fails to obligate a school to make up for the total loss of progress.  

 

  • Parents are members of a child’s IEP team.  As such, a child’s parents are instrumental in determining what is meaningful CCS.  A school cannot simply dictate to parents what is being offered.  

 

  • CCS, by definition, may only be provided where reliable progress data existed prior to the COVID-19 pandemic.  What if such data does not exist?  Further, what if there appears to have been regression in areas that were not in fact areas of concern prior to the pandemic?  For example, what if a learning-disabled child who was emotionally stable prior to the pandemic suffered emotional trauma as a result of the pandemic, school failed to program for the harm over the course of the pandemic, and now the child is showing severe emotional difficulties.  What obligation does the school have to make up for the emotional toll that the pandemic has had on the student?

 

For better or worse, as of this writing, there are no answers from PDE to the issues raised here.  It is also important to remember that while PDE is an important governmental agency, it is not a legislative body.  As such, PDE does not write laws.  Only the United States Congress and/or the PA State Legislature can truly decide whether there are to be new legal requirements surrounding special education loss as a result of school closures due to the pandemic.  Short of that, only judges can interpret what should happen given existing laws that were on the books prior to COVID-19.  

That said, what appears clear is that if CCS is going to be used as an effective remedy for regression that occurred over the course of the pandemic, several things must happen moving forward:

First and foremost, given that a school has no apparent obligation to provide CCS under current PDE guidance, where a family believes that a child has suffered pandemic-related regression, the family may want to ask if the school is prepared to offer CCS.  If so, an IEP team meeting should be held to discuss what CCS would look like for the child, how many hours of support are believed to be necessary, and how those hours of support are to be delivered.  (Assuming, of course, “hours” are how CCS is to be delivered).  Whether the school is prepared to offer CCS or not, it is also important for the family to determine if the child has received a FAPE over the course of the pandemic.  

Where it is believed that a child’s right to a FAPE has been violated, the law has long recognized the remedy is compensatory education hours in order to remediate such harm.  Whether the child has regressed or not is the question addressed by CCS.  Progress, not regression, is the question addressed by compensatory education hours.  It is inappropriate for schools to lump regression and FAPE issues together in granting  CCS  when determining harm suffered by a child over the course of COVID-19 closures.  To demonstrate, let me present a simple example:

A child, “Junior”, a 3rd grader attending a PA public elementary school, had an IEP prior to the start of the pandemic as the result of a specific learning disability in reading.  Due to his learning disability, Junior reads at a 1st grade level.  Prior to the pandemic, though Junior was behind, it was believed that Junior was making progress toward meeting his IEP goals and it was believed he was receiving a FAPE.  Prior to the school closures due to the pandemic,  Junior’s education was believed to have been appropriate.  Once the pandemic hit and school went virtual, Junior’s special education reading teacher stopped providing him with special education reading instruction, in clear violation of his IEP.  Junior’s special education reading instruction did not resume until Junior’s school reopened their brick & mortar building in March, 2021.  At the time Junior’s school reopened, the school conducted baseline testing of Junior’s March, 2021, performance and compared it to his March, 2020, performance.  While Junior did not regress, Junior in fact plateaued.  Junior was reading at the exact same level in March, 2021, as he was in March, 2020.  Problem:  Junior is now a 4th grader reading at a 1st grade level, rather than a 3rd grader reading at a 1st grade level.  By definition, Junior is not owed CCS.  Junior should be owed compensatory education hours for the failure of the school to provide a FAPE during the course of the pandemic.  

To slightly modify the example, let’s say that Junior in fact did show regression, and that regression remained in place over the course of the three-month review period provided by PDE, but such regression was slight.  Let’s say that, reasonably, with 15 hours of one-on-one reading tutoring, it is believed that Junior would get back to where he was in March, 2020.  Does it therefore make sense that providing Junior with 15 hours of one-on-one CCS based tutoring not only makes up for Junior’s regression, but that it also prevents Junior’s parents from being able to remediate the loss of a year’s worth of special education support and a year’s lack of educational progress?  In this instance, the school should provide compensatory education hours.  However, it is possible that given PDE guidance a school will see things differently, thereby offering 15 hours of CCS to make up for the entire deprivation in full.  It may be the case that a hearing officer will have to determine how to resolve such a conflict.  

Given the inherent flaws in determining CCS and the many questions that have and will continue to be raised, it is my belief that rather than considering only whether there has been regression resulting in a CCS award,  the better question is whether there has been progress over the course of the pandemic.  If not, consideration should be given as to whether compensatory education hours are owed.  In the event you believe that your child did not receive an appropriate education over the course of the pandemic, the best course of action may very well be to reach out to an educational attorney to discuss your individual situation.  

 

  • Daniel B. Cooper Esq. 

About the Author: Daniel B. Cooper is managing attorney of the Law Offices of Kenneth S. Cooper, a parent-side special education firm based in suburban Philadelphia.  The Law Offices of Kenneth S. Cooper represent their clients free of charge.  If you have questions or concerns, or believe you have a situation Daniel may be able to help with, please reach out to Daniel directly by phone at 610-608-6185 or by email at dcooper.ed.law@gmail.com   To find out more, visit the Law Offices of Kenneth S. Cooper online at philadelphiaspecialeducationattorney.com

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