School aged children lost much in the pandemic, including critical learning time in the classroom, social development, mental health, extracurricular activities, and much more. According to a 2023 study published in the journal Nature Human Behavior, the pandemic caused 95% of children to lose in-person instruction time due to school closures. Students, in many cases, were forced to adjust to learning over video calls and working through schoolwork independently on family computers. For students with disabilities who may have individualized educational needs, the loss of in-person instruction was often even more impactful.
Students with disabilities are entitled to a free, appropriate public education or “FAPE,” pursuant to a federal law entitled the Individuals with Disabilities Education Act, or “IDEA.” At the height of government action during the pandemic, the federal Office for Special Education Programs had taken the position that school districts would not be required to provide IEP services to children with disabilities during school closures and other emergency measures. Now, students and parents need ways to address the delays and gaps resulting from school closures and other educational disruptions and their impact on students’ learning progress.
COVID-19’s Unprecedented Impact on Students with Disabilities
The pandemic is not the first historic event to cause learning disruption and resultant delays for school-aged children. Prior studies have examined education-disrupting events, such as the impact of Ebola outbreaks in Sierra Leone and Guinea, earthquakes in Pakistan, teacher strikes in Argentina and Belgium, as well as World War II-era disruptions. Those studies have revealed that learning deficits caused by educational disruptions, in any form, are difficult to remediate and tend to endure long-term. Disabled students facing COVID-19 school closures and digital learning were even more likely to be disadvantaged with respect to their adaptability to digital learning technology and the loss of specialized learning support they require from teachers and intervention specialists while learning in school.
One long-term data review showed that 9-year-old students scored 5 points lower in reading and 7 points lower in math, on average, in 2022 than did their pre-pandemic peers in 2020. These declines are the largest drops in decades, and reading losses were even greater for students with disabilities. Graduation rates during and following the pandemic have also plummeted, with the greatest impact felt by underprivileged students with disabilities. Most schools surveyed by the American Institutes for Research revealed that they struggled to provide IDEA services during the pandemic, with 58% of districts surveyed indicating it was “more or substantially more difficult” to comply with the law.
Compensatory vs. Recovery Services
The IDEA provides remedies to bridge gaps and close deficits in students’ educational attainment under IDEA. These remedies can take the form of both “compensatory” and “recovery” services.
Compensatory Education Services Address the Failure to Implement a Student’s IEP.
Compensatory education services are provided to a student because their school district did not provide the special education services provided in the student’s IEP. Compensatory services are provided as a remedy under the IDEA. They may be ordered following a formal complaint investigation report or following a due process hearing when there is a finding that the school failed to provide a student with a FAPE. Sometimes, a school willingly will offer compensatory services when it discovers an unintentional failure to provide services required by a specific student’s IEP. In each of these situations, the purpose of compensatory services is to put the child in the same position he or she would have been if the school had not violated the law.
Recovery Education Services Specifically Concern Learning Gaps and Deficits
Recovery services do not concern the school’s failure to provide services as much as they concern a comprehensive approach to help students “recover” from disruptions in the delivery of services. Although the IDEA does not define the term “recovery services,” separately, the term is used by educators, in addition to compensatory services, in response to the impact COVID-19 has had on schools and student learning.
Recovery services are intended to address educational gaps in learning. In particularly severe cases, remediation may take the form of extended school year (ESY) services. The need for ESY can be shown through analysis of a skill regression assessment. An extended school year may be provided when a child may regress in a critical skill to such an extent that recoupment of the skill loss would require an extended recovery period or where the skill loss would make it unlikely or impossible to recoup the child’s prior level of educational performance, more broadly. The determination to provide recovery services to students with disabilities is done on a case-by-case basis.
Is my Child Entitled to Compensatory or Recovery Services Under IDEA?
Both recovery and compensatory educational services are additional services that are based on individual student assessments, needs and IEP progress documentation. If your child is demonstrating learning delays, gaps, or otherwise demonstrating that their IEP is either ineffective or is not being followed at school, it is important to act quickly to address these issues before they worsen.
The following are questions promulgated by the Ohio Office for Exceptional Children for parents to consider when determining if additional services should be provided to a student who receives special education services.
- Did the student make progress on his or her IEP goals and objectives? What were the student’s baseline measures on his or her IEP goals and objectives?
- Does the IEP team have documentation of the progress the student made in the form of progress reports and other documentation?
- Did the district provide a FAPE to the student ?
- Was the student “accessible” for the district to provide services?
- Did the parent or guardian refuse services ? 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 ?
If you are concerned about your child’s educational services under IDEA, the attorneys in our Student & Athlete Defense practice group can help. For more information, or to discuss further, please contact Susan Stone (SCS@kjk.com; 216.736.7220), Kristina Supler (KWS@kjk.com; 216.736.7217), or Anna Bullock (AEB@kjk.com; 216.736.7223).