Comp Ed Agreements: More of What You Need to Know

COMPENSATORY EDUCATION PROPOSALS

Determinations Must be Individualized.

Think about when will compensatory education be provided? • It should not be delivered when the child is involved in other learning opportunities.
       •    It should not feel like a punishment.

• When will it be convenient for the child and family?
• When will it be convenient for the school and providers?
• Will it impact the child’s need for transportation to and from school?
• When will your child be most able to focus – before or after school?
• Would adding more academic hours to the school day result in cognitive fatigue and negative behaviors – during the day or in the afternoon?
• Will it take away from free time or extra curriculars – can you find a balance?
• How does your child learn best - in one-on-one or small group, 1 hour or 30 min sessions, small or longer sessions, spread out or close together?
• School must provide services outside of regular school day - over the summer, on weekends, or before or after school.
• Consider a School provider or Private provider/program.
• Will it take away from free time or extra curriculars – can you find a balance?
• How does your child learn best - in one-on-one or small group, 1 hour or 30 min sessions, small or longer sessions, spread out or close together?
• School must provide services outside of regular school day - over the summer, on weekends, or before or after school.
• Consider a School provider or Private provider/program.

COMPENSATORY EDUCATION FUNDS

Comp. Ed. Funds are Often Settlement Agreements.

• A Compensatory education fund - if provided - needs to be flexible, and the value of the flexibility might mean you are willing to accept more administrative hassle.
  • Consider negotiating the increase in cost per year in tuition and provider fees and UCR of current providers.

• Up to what age- 24-25?
• Reimbursement through who? Schools often now use agencies that appear professional that are not! I have had nothing but complaints about them. I have listened to conversations as they talk to families, and they are profoundly unprofessional. They make up policies on the fly and say very unprofessional and threatening things to parents, despite being hired to be independent administrators.
• How quickly will you be reimbursed? – 30, 60, 90 days (90 days is unreasonable)
• How quickly and by what date will tuition be funded for each year.
• Can you send in the invoice/bill and it be reimbursed?

o Of course, you can! When they say no – just send it back and say yes you can!

• List all items that the funds can be used for.

o Literally 2 pages of items! They have to be listed!!!!!!!!!

• Ask for all policies and procedures for submissions prior to signing the agreement from the agency you are agreeing to work with and that they be attached as an addendum.
• If you don’t use the money in one year, will it flip to the next year if it is tuition? What is the date of the flip – is ESY included in this? Is the tutoring included in this?
• What are the qualifications of providers?
• What are the qualifications of transition vocational providers? – often not teachers
• If funds are not paid in a timely manner what are the penalties to the agency?

o When the agency is not doing their job how do they want you to handle it?

• Do the Attorney Fees take a percentage – up to 30% - of all comp ed funds from parents in addition to their fees - Don’t let this catch you by surprise. I had one client unable to pay the tuition to the school despite getting a 3-year agreement for out of school placement because of this.
• There are 10-15 more items that I now have my clients ask their lawyers about in their agreements, so they do not get screwed!
• Please don’t use lawyers and advocates who don’t know how to protect you and include language for all these questions and a lot more!

Were barriers of access addressed?

Were barriers to attendance addressed?

Were barriers to engagement addressed?

Instructional Design Models

Traditional Instruction– In-person instruction

Hybrid Instruction       – A mix of in-person and non- traditional instruction

Non-Traditional (NTI)  – Virtual Instruction

Self-Paced Instruction – Work sent home and completed with minimal or no teacher    involvement

CONSIDERATIONS

• Any offer should be made in writing.
• Do you know the difference between offers and why it matters? ASK!

• Even if agreement cannot be reached on the amount of compensatory services, be sure to confirm the school’s proposed offer of services in writing.
  • How long has the concern existed? What exactly went wrong? When did the first mistake occur?
  • In comp ed, the 2005 Reid case and the 2008 Draper case, called the – “The Poor Man’s Burlington” case set the stage for other comp. ed. cases.

• Services are to make the student “whole” again. Services designed to ensure that the student benefits from his/her special education program.
• Special ed evolved through the opinions of the U. S. Courts of Appeal.
• The IEP Team should not control the determination about comp ed.
• Was there just a procedural violation, or a substantive violation, of the child’s rights?
• What documentation supports the comp. ed. request?

COVID 19 COMPENSATORY SERVICE DETERMINATION

Students with disabilities who do not receive the services included in their IEPs may be entitled to compensatory education if it is determined that the failure to provide those services caused a denial of the student’s right to a free and appropriate public education (FAPE).

o The goal of compensatory education is to remedy the knowledge and skill deficits that result when missed services are determined to have caused a denial of FAPE.

o Determining the need for compensatory education must be made on an individual basis by the student’s Individualized Education Program (IEP) team. The IEP team consists of the student, the student’s parent(s)/guardian(s), the student’s teachers, related service providers and other representatives from the student’s school district.

o The State’s special education regulations do not require a 1:1 ratio when calculating the amount of compensatory education to be awarded to a student with a disability.

o It is the role of the IEP team 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.

IEP Team Meetings

IEP teams should discuss:
o services that have not been provided during remote or hybrid instruction
o consider the impact of missed services on student progress towards meeting IEP goals and objectives
o determine the need for compensatory education.

If it is determined that compensatory education is required:
o The IEP team may agree to develop a written document to amend or modify the student’s IEP.
o Districts must ensure proper written notice is provided to the student’s parent(s)/guardian(s) if the IEP team proposes changes to the student’s IEP, including the type, frequency, and location of compensatory education to be provided to the student.

o Proper written notice also includes the right of parents/guardians to seek compensatory education by requesting a special education mediation conference or due process hearing.

Determining the Need for Compensatory Education

The IEP team is to determine if compensatory education is required as a result of the disruption to services caused by the pandemic by:

o Review formative and sumative, formal and informal assessment data to determine progress toward each student’s IEP goals and objectives during the period of remote and hybrid instruction.

o Determine what services were missed and what goals and objectives the student was expected to achieve but did not achieve due to the absence of services.

o Determine if compensatory education is required to ensure that the student has the opportunity to achieve those goals and objectives.

o The IEP team must determine the nature, frequency, and duration of those services and document them in the student’s IEP. A student’s placement in general education environments should not be changed due to the need for compensatory education.

o IEP teams should consider additional inclusive learning loss and recovery services, such as accelerated learning programs, tutoring programs outside normal school hours, summer enrichment programs, and other opportunities designed to address learning loss that are available to all students. These programs may provide additional opportunities for compensatory education.

o Funding for compensatory education is not limited to the district’s IDEA grant. Districts may use funds awarded under the CARES Act Elementary and Secondary School Emergency Relief Fund (ESSER Fund) to provide compensatory education and/or recovery services to students with disabilities.

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