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Health Care
Students With Special Education Needs May Be Entitled to COVID-Related Compensatory Education
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All students were impacted by COVID-19, but for students with special education needs, the impact was significantly greater. They may be entitled to COVID-19-related compensatory education. This article applies to students eligible for special education, including those placed in public or charter schools, or those placed in a private out-of-district school by their public or charter school.

What is compensatory education?

Compensatory education is a form of relief (requested to amend a wrongdoing) for violations of a student’s special education rights. It includes educational programming or services that should be given after a school district fails to provide a free and appropriate public education (FAPE) to a student who is eligible for special education. This can mean either that a student’s individualized education program (IEP) is not being implemented or that the IEP does not meet the student’s individual needs.

Students with disabilities may be entitled to compensatory education if their IEP was not fully implemented during COVID-19 or they were unable to participate or benefit from virtual instruction. This article focuses only on COVID-19-related compensatory education.

Do all students with an IEP get COVID-19-related compensatory education?

It depends on the individual case. If a student’s IEP was fully implemented and brought the same benefit delivered virtually as would have been the case in-person, the student may not receive compensatory education.

How can a student get COVID-19-related compensatory education?

You must write a letter to your child’s special education case manager, asking for a meeting to discuss compensatory education due to COVID-19. The meeting must be held within 20 calendar days.

At the meeting, the IEP team (which includes you, the student’s parent/legal guardian), will discuss whether your child is eligible to receive COVID-19-related compensatory education. If all agree that your child is eligible, you should discuss the form of compensatory education. For example, a child who missed 10 physical therapy sessions, should receive 10 make-up physical therapy sessions. This is called a 1:1 ratio approach, but there are other approaches as well.

Compensatory education should be included in the student’s IEP. Either an updated IEP should be created or a new document attached to the IEP as a modification or amendment. It is important that details of the compensatory education are included, such as the type, amount, schedule, and location.

How can I prepare for the meeting?

Be prepared to discuss the specific reasons COVID-19-related compensatory education is required. Was the student’s IEP fully implemented? Did they miss any virtual instruction due to a lack of access—for example, a working computer or internet connection? Did they miss any related services? Were new evaluations or assessments needed but not conducted? Was an annual IEP review done? Did the student make appropriate progress in his or her goals during the school shut down? If programming or services were provided virtually, did the student benefit from them?

Bring someone with you, if you can—therapists, services providers, other trusted professionals, friends, or family members. Consider asking treating doctors and other service providers for letters supporting the need for COVID-19-related compensatory education. If possible, send the letters to the special education case manager before the meeting.

If the IEP team disagrees, ask them to explain their reasons. Reasons like funding, lack of staffing, or not having a program or service within the school district are not permissible.

IEP meetings can be recorded but you must let the team know in advance.

What if we don’t come to an agreement?

After the meeting, the school district or charter school must send you a letter explaining the decision.

If the request for COVID-19-related compensatory education is denied or you do not agree with the implementation plan, you can file a due process or mediation request. (The forms needed can be found at www.nj.gov/education/specialed/policy/disputeresolution/. See What to Do When You Disagree With a Special Education Decision for more information on how to file a special education appeal.

I sent a letter and no one responded. What should I do?

File a due process or mediation request. Before doing so, consider contacting the school’s director or supervisor of special education, the superintendent, or even the county superintendent. Contact information can be found at www.nj.gov/education/about/counties.

Is there a deadline for requesting COVID-19-related compensatory education?

In general, a due process request must be filed within two years from the date you knew, or should have known, there was an issue. For example, if you knew your child’s IEP was not being implemented on March 18, 2020, you would have had to file a due process request by March 18, 2022 to ask for COVID-19 compensatory education starting from March 18, 2020. Because of the special circumstances of COVID-19, the law has been changed to extend the deadline to September 1, 2023. This means that through September 1, 2023 you can still file a due process request that includes a request for COVID-19-related compensatory education going back to March 18, 2020.

For more information, or questions about your child’s rights, contact LSNJ LAWSM, Legal Services of New Jersey’s statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529). You may also apply for services through our online intake, https://lsnjlawhotline.org. If you are not eligible for assistance from Legal Services, the hotline will refer you to other possible resources.​​​

4/26/2022