Posted on April 15, 2021
On March 3, 2021, the New Jersey Department of Education (DOE) issued new guidance regarding the responsibility of school districts to provide compensatory education to students with disabilities as a result of COVID-19, as well as explaining the parent’s rights to appeal any decisions. However, aspects of the guidance remain unclear, and can lead to a potential educational gap in the future, leaving children to endure the consequences. Parents may want to consider speaking to a knowledgeable special education advocate for to help.
What must school districts do under the new guidance?
- Individualized Education Program (IEP) teams must use the next IEP meeting, whether virtual, in-person or when schools reopen, to consider whether compensatory education is required.
- IEP teams must review formal and informal assessment data, services that were missed and goals and objectives that were not reached to determine a decision.
- Proper written notice must be provided to the parent and/or guardian if a change to the IEP is proposed, including the type, frequency and location of the compensatory education services.
Parents/guardians who disagree with any aspect of the IEP team’s decision may seek mediation and/or due process.
Aside from compensatory education services, students with disabilities are entitled to additional services that every student is entitled to as a result of learning loss such as accelerated learning programs, tutoring outside of normal school hours, summer enrichment programs.
Some aspects of the guidance remain unclear.
- The guidance does not clearly explain when an IEP team can decide a student does not need compensatory education to meet the IEP goals and objectives.
- The guidance states that districts are not required to follow a “1:1 ratio” when calculating how much compensatory education is owed to the student. However, while federal and state regulations do not mention compensatory education at all, this right is actually based upon judicial decisions.
- According to the Third Circuit Court, which governs New Jersey, missed services that are listed in the IEP must be made up on a 1:1 basis. This means that when a student fails to receive an IEP service, the parent only needs to keep track of the services the district did not provide, preferably in writing. The parent may then make a written demand to make up the services, if the district does not offer to provide them first.
There is no deadline to schedule the IEP meeting to discuss compensatory education.
Parents who have already attended their annual IEP meeting or do not realize they can ask for an IEP meeting, may not receive a chance to discuss compensatory education until the 2021-2022 year. This would result in delays of compensatory services, widening the achievement gap for their children.
If you have questions or concerns about a student’s rights to compensatory education or services to address learning loss, you may contact Nina Peckman, Staff Attorney, at npeckman@acnj.org or 973-643-3876, ext. 226.
