The MLO Minute: By, Dennis McAndrews, Esq.
The right to a Free Appropriate Public Education (FAPE) did not disappear or take a vacation during the current pandemic. The United States Department of Education and the Pennsylvania Department of Education have expressly recognized that during the pandemic the right to FAPE has continued at all times, and further that children with disabilities have an entitlement to Compensatory Education for times that they did not receive FAPE. In many cases, these children may also have received less than full FAPE even prior to the pandemic, and researchers now recognize that the move to virtual instruction caused reading and math levels to drop for all children, and particularly for children with disabilities.
On June 30, 2020, the Pennsylvania Department of Education (PDE) expressly recognized that children with disabilities may require compensatory services due to the move to virtual instruction, as these children are particularly affected by the loss of in-person instruction. PDE has ordered school districts to take steps promptly upon the return of in-person instruction to assess the needs of children for compensatory services. School districts must gather baseline data regarding each student’s current educational levels, compare that data to progress monitoring in the prior school year, begin to provide “recoupment services” to affected children, track progress of each student receiving those recoupment services, and within three months review progress (if any) of the student using multiple data sources and determine the extent to which the student has not achieved meaningful progress and/or lost skills despite recruitment efforts. The school district and parents sitting as an IEP team must then determine the level of compensatory services which must be offered, and how those services are to be provided. This analysis is separate from any question concerning denials of FAPE prior to the pandemic, and children with disabilities who failed to make meaningful educational progress before schools shut down may be entitled to compensatory education services related to issues which arose before the pandemic; this distinct question involves a separate legal analysis which is based upon well-settled and frequently litigated principles apart from the Spring 2020 move to virtual instruction. Parents must be careful not to execute any waiver of the right to compensatory education which purports to address the move to virtual instruction, but nonetheless also eliminates rights to compensatory education prior to that time.
As this process unfolds, parents must be alert to the rights of children to compensatory education both before and during the pandemic and recognize that many alternatives exist to receive proper and complete compensatory education services. In the vast majority of cases we handle, a compensatory education agreement is negotiated whereby parents may access a fund to independently purchase educational or therapeutic services through certified or licensed providers, with such services taking place outside of the typical school day. Of course, the issue of a right to compensatory education for past denial of FAPE is separate and distinct from the child’s entitlement to an appropriate Individualized Education Plan (IEP) and the provision of such a Plan does not eliminate the right to compensatory education services. As always, our Special Education Department provides free consultations to parents of children with disabilities, and the vast majority of our cases are handled without retainer or parents paying hourly fees. We look forward to serving families at this difficult time.