Frequently Asked Questions

The following recommendations acknowledge that students who are eligible for specially designed instruction (through IDEA eligibility; who have IEPs) are entitled to a Free Appropriate Public Education (FAPE) and that students, families, and schools have had to adapt to meet new and changing circumstances due to the COVID-19 pandemic.

Schools can, and must, provide education to all students, including children with disabilities (those who have IEPs).

The health and safety of children, students, educators, and service providers must be the first consideration;
The needs and best interests of the individual student, not the school system, should guide decisions and expenditures;
Parents or recipients of services must be informed of and involved in, decisions relating to the provision of services; and
Services typically provided in-person require creative and innovative approaches through alternative delivery methods in emergencies.

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What are compensatory education services?

Compensatory education is an equitable remedy designed to repair educational and functional deficits which may have resulted from a denial of FAPE. In determining compensatory education services, the Maryland School for the Deaf (MSD) is employing a qualitative (whole-child) approach that is intended to help return the student to the same position they would have been in if FAPE had been provided. Awards of compensatory services are not an exact one-for-one replacement of service as identified on the Individualized Education Program (IEP) for areas identified as having negatively impacted the student by a loss of FAPE.

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Why might compensatory education services be required as a result of COVID-19 related school closures or suspension of in-person instruction?

In addition to the traditional use of the term "compensatory education services" to describe services required to remedy a violation of IDEA that resulted in a denial of FAPE, this term is also used by the U.S. Department of Education (USDOE) to describe services that may be required to remedy the loss of skills/regression as a result of extended school closures and disruptions to in-person instruction, circumstances caused by the pandemic that are beyond the control of schools. Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus 2019 Outbreak (OSEP 3/2020).

During this unprecedented, national emergency, schools must prioritize, above all else, the safety of students, staff, and communities. Consistent with this priority, schools must also ensure that—to the greatest extent practicable—students with disabilities are provided the special education and related services identified on the IEP. Because FAPE must now be provided consistent with the need to protect health and safety, there may be disruptions, delays, and/or changes in how services are provided, resulting in a student losing skills. Schools must therefore make an individualized determination whether and to what extent compensatory education services may be needed to make up for any skills that may have been lost as a result of COVID-related disruptions to the provision of FAPE.

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Are all IDEA-eligible students entitled to compensatory education services as a result of COVID-19 related school closures or suspension of in-person learning?

No, not all students will be eligible for compensatory education services. School districts must ensure that individualized determinations are made as to whether and to what extent a student may require compensatory education services to remediate a loss/regression in skills as a result of the inability to provide services during COVID-related disruptions, such as the suspension of in-person instruction.

MSD considers the following factors to be relevant when determining whether a student requires compensatory education services as a result of COVID-19 related disruptions to the provision of FAPE:

Rate of progress on IEP goals before closure/disruption;
Difference between IEP progress monitoring data preceding the closure/disruption and IEP progress monitoring data collected a reasonable time after the return to in-person instruction;
Difference between services identified on the IEP and services offered during closure/disruption, including amount, frequency, duration, type, and delivery model;
Accessibility of services offered to the student during closure/disruption, including attendance during virtual learning;
Changes in the general education curriculum, as well as level and type of instruction for all students during closure/disruption;
Input and information from parents concerning student performance during closure/disruption;
Difference between assessment data preceding the closure/disruption and assessment data collected a reasonable time after the return to in-person instruction;
- Comparison of individual assessment data preceding the closure/disruption with school-wide student data preceding the closure/disruption to identify curriculum/instruction trends versus individual needs.

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Should a school district provide summer school and/or extended school year (ESY) services for all students with disabilities as a way to address a potential need for compensatory education services resulting from COVID-19 related closures or suspension of in-person learning?

No. Compensatory education services and ESY services are not interchangeable, and a particular student may be entitled to one, both, or neither depending on individual circumstances. Although appropriate and effective ESY services may help a student maintain skills, schools must ensure that individualized determination are made for ESY eligibility/services and compensatory education services. Schools should not create blanket rules offering ESY to all students.

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When should schools evaluate the need for compensatory education services?

Although compensatory education services may most be appropriately determined when schools return to normal operations, MSD is beginning these decisions this Spring to ensure appropriate determinations are made for the senior who are exiting or graduating so that services are considered before their departure, and provided quickly. Further, MSD will continue to address discussions as circumstances evolve and we begin to phase in more services.

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How should schools determine the need for compensatory education services related to COVID-19?

All schools must make an individualized determination that includes input and involvement from parents as to whether a student needs compensatory education services as a result of disruptions to in-person instruction. Compensatory educational services should be determined by collecting and examining student-specific data, including information from parents, to determine if the student lost skills or regressed on IEP goals as a result of COVID-related disruptions in instructional and related services or the inability to provide FAPE. In making this individualized determination, schools should consider a variety of information, including but not limited to: services provided to all students during the suspension of in-person instruction, the ability of the student to access services provided, regression in skills, and progress or lack of progress made on IEP goals. Parental input will also be useful for evaluating student performance during the suspension of in-person instruction and the need, amount, and delivery of compensatory education services.

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How should schools calculate the amount of compensatory education services related to COVID-19?

Schools should offer the compensatory educational services sufficient to allow the student to recoup lost skills and continue to make progress on IEP goals. Parents and schools are encouraged to consider creative and innovative ways to address regression or loss of skills that carefully consider a student's individual circumstances, including strengths, the impact of disability on learning, and stamina. For example, providing targeted, one-on-one tutoring or instruction, combined with adjustments based on frequent progress monitoring, may allow a student to recover lost skills and make progress in less time.

This does not preclude the IEP team from recommending more intensive services for a student, even if the need may be related entirely or partially to disruptions of in-person instruction resulting from COVID-19.

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When can schools provide compensatory education services?

Compensatory educational services may be provided during the regular school day, over school breaks, in intensive, targeted, individualized programs, one-on-one instruction/tutoring, and by outside service providers. If compensatory educational services are provided during the school day, the provision of these services may not be provided in a manner that changes the least restrictive environment or reduces service minutes on a student's current IEP, unless agreed to by the IEP team, including parents.

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What happens if a parent disagrees with the school district's offer of compensatory education services?

Parents are still entitled to IDEA's procedural safeguards when they disagree with a school's provision of FAPE, including a disagreement about compensatory educational services offered to address COVID-related interruptions or loss in services. Therefore, parents may use IDEA's dispute resolution processes, mediation, state complaint, and/or due process complaint to challenge a decision about compensatory education services.

Whether a parent agrees or disagrees, school districts should issue a prior written notice (PWN) to inform parents about determinations regarding compensatory education services. In addition to the required content, the PWN should explain why the school district is making/or refusing to make the offer and describe the information that served as the basis for this determination in sufficient detail.

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What happens if a parent refused services that were provided during the period of a school closure? Does the school district still have to make a determination as to the need for compensatory educational services or make an offer of compensatory educational services?

School districts should regularly make and document attempts to provide services, including contact and communication with parents and students. A parent's refusal of services may excuse the school district from its obligation to consider or provide compensatory educational services, depending on the individualized circumstances. The inability to access the services offered, however, would not be considered a refusal. Similarly, the student's inability to benefit from the services would not be considered a refusal.

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Tara Holloway

Director of Curriculum and Instruction

[email protected]