Based upon the Centers for Disease Control (“CDC”) Guidance for Administrators of U.S. Childcare Programs and K-12 Schools to Plan, Prepare, and Respond to Coronavirus Disease 2019, most recently updated March 19, 2020, the U.S. Department of Education developed a document entitled, Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak dated March 12, 2020.  It must be noted that both the CDC and U.S. Department of Education documents were drafted prior to the determination by local education agencies (“LEA”) in California to close schools for the remainder of the current school year.

Compensatory education services are generally an award of educational services, above and beyond those that are normally due to a student under their state's law, in order to place the Student in the position they would be in but for a school district's violation of the Individuals with Disabilities Education Act (“IDEA”) or an otherwise previously inadequate program. Such services may be offered or awarded upon the determination by an IEP team, Section 504 team, or hearing officer that a student is entitled to such services.

In regard to the possible entitlement to compensatory education services that may be required due to school closures related to COVID-19, the U.S. Department of Education (“ED”) stated in a Q & A document that if a student misses school as a result of the coronavirus outbreak, IEP and Section 504 teams must make an individualized determination, once the Student returns, as to whether they require compensatory education services.

Although the IDEA, Section 504 and Title II of the Americans with Disabilities Act (“ADA”) do not specifically address a situation in which a school is closed for an extended period due to a pandemic, ED states that school districts must ensure IEP teams make individualized determinations regarding whether and the extent to which a Student requires compensatory education due to the impact of the school closure, and must not create blanket rules offering a specific amount of compensatory services to all or to subsets of students.

The ED guidance was drafted prior to the determination of school districts to remain closed through the end of the school year and to provide distance learning opportunities for all students.  Thus, ED's suggestion to include distance learning plans in students' IEPs as a “prudent step in view of the potential for future school closures” seems irrelevant given the current situation.  Instead, more updated guidance from local school districts and county offices of education focus on the recommendations that school districts (1) document their efforts to provide distance learning opportunities to students with disabilities that are comparable to those offered to the general education population, and (2) document student progress with regard to those goals that may be addressed through distance learning.  Such documentation will inform the IEP and Section 504 teams as to the impact of the school closure on the student's progress and, thus, whether the student r

equires compensatory education services.  In any event, there is no requirement for school districts to determine whether any student requires compensatory education services until such time as schools reopen.

A further consideration regarding compensatory education services pertains to the status of District assessments.  During the period of school closure and social distancing, it is unlikely that a school district will have the ability to complete an appropriate, defensible assessment as many require physical proximity of the assessor to the student such as observations of the student in their educational setting.  Should the District provide the Parents with an incomplete report, the parents' right to request an independent educational evaluation (“IEE”) is triggered.  Upon receipt of a parent's request for an IEE, the District is obligated to either grant the request, or file for a due process hearing to defend its assessment which is, due to the school closure, inappropriate.  However, the District may consider the option of completing the portion of the assessment that may be appropriately conducted in the current circumstances, deferring those portions of the assessment that may not be appropriately conducted, and allowing the timeline for assessment to expire.

It is suggested that the District notify the parents for the purpose of explaining the delay due to school closure, as well as the proposed completion of the assessment.  It is further suggested that the District notify the parents that, should it be determined by the student's IEP team that the extended timeline resulted in a delay in providing services to the student, services may be made up through compensatory services as determined by the IEP team.  Because the extension of assessment timelines may be considered a procedural violation of the IDEA, an ALJ would have to find that such a violation either denied the Student educational opportunity or that the parents were deprived of the opportunity to meaningfully participate in the development of the student's IEP in order for the student to be entitled to a remedy.  By offering to consider the need for compensatory services, and documenting the team's discussion, including the input of the parents, the school district will have evidence that may be taken into consideration by an ALJ, thereby limiting the school district's exposure.

Given the unprecedented nature of the current school closures, it will not be clear how school districts' actions will be interpreted by ALJ's in future due process proceedings.  However, when called upon to defend the actions taken during this period, school districts will require documentation reflecting their best efforts to provide appropriate services to special education students comparable to those provided to the general education population, as well as documentation of the participation and progress of students with regard to their goals, and documentation of appropriate and timely notifications to and solicitation of input from the parents of students with disabilities in the conduct of assessments and development of IEPs and Section 504 plans.