In August, the Ohio Department of Education (“ODE”) issued Reset and Restart of the 2020-2021 School Year: Meeting the Needs of Students who Receive Special Education Services in K-12 (the “Restart Guidance”), which provided districts with guidance regarding when students are entitled to compensatory education services (“CES”) or recovery services due to school closures in spring 2020 as well as the difference between these services and extended school year services (“ESY”). Now that districts are well into the 2020-2021 school year, IEP teams should consider how to close gaps some students with disabilities may display due to the mandated school closure during the spring of 2020 (“Spring Closure”).
Compensatory Education Services
Generally, compensatory education services are a remedy under the IDEA provided to a student when the district fails to provide the student with a FAPE. The purpose of CES is to put the student with a disability in the same position the student would have been in if the district had not violated the IDEA. ODE specified in the Restart Guidance that in the spring “[s]chool districts did not fail to provide a FAPE because the district stopped implementing a student’s IEP; instead, the entire state moved to a remote education without choice.” As such, districts are not required to provide all students with CES for the Spring Closure. ODE noted in the Restart Guidance that if a school district refused to provide services to a student with a disability during the closure while other students were receiving services, then the student with a disability may be entitled to CES.
Even if a student is not entitled to CES due to the Spring Closure, a student still may be entitled to recovery services. ODE explained in the Restart Guidance that when schools reopened it is possible that some students who received special education and related services during the spring may not have made as much progress as expected during the Spring Closure or may otherwise display gaps in their learning. Accordingly, the term “recovery services” reflects services provided to students to recover from these educational gaps caused by the unexpected service delivery interruptions during the Spring Closure, and not due to the failure of the school district to provide a FAPE due to a violation of the IDEA.
The need for and amount of recovery services must be determined on a case-by-case basis. In the Restart Guidance, ODE advised that IEP teams should consider the following:
- Did the student make progress on his or her IEP goals and objectives prior to the Spring Closure?
- What were the student’s baseline measures on his or her IEP goals and objectives prior to the Spring Closure?
- Does the IEP team have documentation of the progress the student made during the Spring Closure in the form of progress reports and other documentation?
- Did the district provide a FAPE to the student during the Spring Closure?
- Was the student “accessible” during the Spring Closure for the district to provide services?
- Did the parent or guardian refuse services during the Spring Closure? If so, did the district document the refusal in a prior written notice?
- If the district provided a FAPE, did the student make progress?
- Did the student regress even with a FAPE provided during the Spring Closure?
If the IEP team determines that a student needs recovery services, the Restart Guidance requires that the IEP team document with specificity the amount, frequency, and type of services the student will receive. These services should be included in the “written notes” section of the IEP with an indication that these services are being provided due to the ordered school-building closure and that they are not ESY.
ODE’s Restart Guidance is specific to recovery services for missed services due to the mandated school closure during the 2019-2020 school year. As explained in our blog post “New ODE Guidance on Special Education Services”, IEP teams should discuss how they will address students’ specialized needs in the various learning environments that may be implemented during the 2020-2021 school year.
Extended School Year Services
A student’s need for ESY is separate from the need for recovery services and CES. ODE explained in the Restart Guidance that the purpose of ESY is to prevent severe skill regression when school is not in session and “is not to enhance the present levels of educational performance exhibited by children with disabilities at the end of the regular school year.” The determination of ESY is based on a student’s skill regression and ability for recoupment. Accordingly, students with disabilities will not automatically receive ESY because of the mandated school closure during the 2019-2020 school year. Instead, IEP teams will need to consider “[w]hether extended school year services are necessary to prevent significant regression of skills or knowledge retained by the child so as to seriously impede the child’s progress toward the child’s educational goals; and [w]hether extended school year services are necessary to avoid something more than adequately recoupable regression.” O.A.C. 3301-51-02(G)(1)(b).
As IEP teams meet during the 2020-2021 school year, they should consider whether students may need CES or recovery services due to the Spring Closure. IEP teams must remember that the purpose of ESY is different from that of recovery services or compensatory education. IEP teams should use the data available to them to make these determinations on a case-by-case basis and contact their legal counsel if they have questions.