Is Your Child Entitled to Compensatory Special Education and Related Services Due to the Pandemic?

As virtual learning remains in effect in many of New Jersey’s public schools, parents of children with special needs are justifiably concerned about how it has affected their child’s special education program and related services. The emergence of challenging behaviors and skills regression are becoming the new norm for this population of children. Many lost in-person services overnight and then experienced a slow transition to virtual services.

Making matters worse, the transition to virtual services is proving to be an abysmal failure for a growing number of children because many of the services they were receiving are not effectively provided by virtual instruction. For example, children who were previously receiving in-school physical therapy, obviously requiring a hands-on approach by a physical therapist, are now left with the option of having a physical therapist virtually explain to their parents, most of whom have no training in physical therapy, how to perform complex therapeutic manipulations. In other instances, children who found it difficult to sit in class and focus on their lessons without the benefit of accommodations are now being required to sit though hours of instruction through a computer screen without any accommodations. Even the parents of children who have autism spectrum disorder are now being asked by some school districts to implement discrete trial teaching at home and record data despite having absolutely no training in this complex instructional method.

Children with special needs in New Jersey are regressing at an alarming rate and parents are left wondering if there is anything they can do about it. Many are under the impression that they have no recourse but this is incorrect. Public school districts in New Jersey were ordered to continue to maintain education programming and services for all students with special needs. If your child has regressed during the Pandemic due to your school district’s failure to provide your child with a free appropriate public education (FAPE), your child may be entitled to a legal reward known as “compensatory education”.

FAPE and COVID-19

According to the guidance provided last year by the United States Department of Education (USDOE) and the New Jersey Department of Education (NJDOE), if a student with special needs is required to stay home because of a school closure or illness due to COVID-19, a school district is required to maintain the special education program and services of the student.

This guidance remains unchanged as confirmed by the NJDOE’s most recent guidance issued on March 3, 2021. The NJDOE reaffirmed that school districts must ensure that students with disabilities are provided a FAPE during the Pandemic. If not, compensatory special education and related services may be available to retroactively make up for the past deprivation of FAPE.

Both the USDOE and NJDOE recognize that there may be exceptions that affect how a particular service is provided. Nonetheless, this does not excuse a school district from the responsibility to provide services indefinitely. If a student does not receive services for an extended period of time, the student’s IEP team, or the Section 504 planning team, must make an individualized determination whether and to what extent compensatory services are needed. This also applies to cases where services and programming were provided but did not confer a FAPE upon a student.

What is Compensatory Education?

Compensatory education consists of services that are awarded to special needs students to make up (i.e., compensate) for services and programming they lost and address the accompanying regression of skills. This can happen when the appropriate services and program were not provided in a timely manner or at all. It can also occur when the manner in which the services or education program are provided is ineffective. Services and programming would be made up in a way that meets the student’s individual needs such as adding extra hours to a weekly service. Services may also be made up at a later date.

On March 3, 2021, the NJDOE issued a memorandum with additional guidance from last year on how compensatory education due to COVID-19 should be determined and provided. The NJDOE noted that it is the role of the IEP team, of which parents and guardians are members, “to determine the need, type, amount, frequency, duration, and location of compensatory education necessary to address lack of progress toward IEP goals and objectives resulting from missed services.” The NJDOE also acknowledged that parents may disagree with their school district’s decision of what compensatory services are appropriate. It further reassured parents that mediation and due process remain viable options to resolve any disputes.

The statute of limitations on compensatory education claims in New Jersey is two years. This means that parents have only two years to file a due process petition if they have a legal claim for compensatory education services.

What Can You Do To Ensure Your Child Receives Compensatory Education?

Below you will find a list of some of the actions you can take to document your child’s need for compensatory education:

• Make a list of the dates and times that the school district failed to provide services and special education programming.

• Make sure to have a clear outline of what services were appropriately provided online during the closure, and which ones may need to be addressed through compensatory services once school is resumed.

• Take note of any regression by recording any loss of skills during the school closure.

• Keep plenty of notes. Keep logs such as a notebook, excel document, or video recordings on a smartphone. Parents can use a behavior log to record their observations.

• Be specific and be sure to address behavioral, social, speech, self-help, and vocational skills and any physical needs as well as academics.

• Ask your child’s teacher to also note any loss of skills.

• Be sure to note which of your child’s goals and objectives are not being met.

• Maintain all correspondence, including emails, that you have sent to school personnel and any responses.

• Keep a phone log of any calls you have made, including to whom you spoke, date, time, and summary of the subject matter of the conversation.

• Focus on significant loss of skills and your child's difficulty regaining the skills.

• Review any patterns of regression that emerge from previous IEPs and other documentation.

• If you hire private service providers or instructors to address your child's regression, keep all of the receipts and invoices evidencing your out-of-pocket expenses.

• Request letters from private therapists, service providers, psychologists, and medical doctors that describe your child’s regression and need for compensatory education.

If you need assistance in obtaining compensatory education for your child, please contact the Law Office of Joseph D. Castellucci, Jr. today. We possess decades of experience in handling all school law and special education matters. We are a boutique law firm practicing in Morristown, New Jersey with a focus on providing our clients with personalized and compassionate representation with driven results. Contact our office today to schedule a consultation: (973) 285-3253.