Recently the Office of Superintendent of Public Instructions announced a Roadmap for Special Education Recovery Services. WAA disagrees with the overall approach of the draft Roadmap. Key concerns are briefly
summarized below and were submitted to OSPI on May 3, 2021.

Wrong concept

First, as various advocates have said since the outset of the COVID-19 pandemic, invention of the term “recovery services” is confusing and inconsistent with Washington’s obligations as a recipient of federal special education funds. Before the pandemic, OSPI and school districts used the term “compensatory services” to describe those services provided outside the regular school day to make up for missing or deficient services required under the Individuals with Disabilities in Education Act (IDEA). Such compensatory services are owed whenever a district fails to implement a student’s Individualized Education Plan (IEP) or otherwise denies a free appropriate public education. They are designed to place the student in the same position as if the education had been adequate. There has been no change of law making such services optional or discretionary. When students with disabilities suffer educational deprivations for any reason, including pandemic-related restrictions, compensatory services are the remedy.¹ It does not matter if there is a “dispute” or not.

OSPI nevertheless has shied away from using the well-understood term “compensatory services” to address the massive educational deprivations during the pandemic. Instead, OSPI introduced the squishy concept of “recovery services” to let districts off the hook. This term blurs the distinction between compensatory services and ongoing IEP obligations, ignoring the fact that the IDEA already requires increased IEP services when a student has not made expected progress. See WAC 392-172A-03110(3)(b)(1). Treating such school-day programming as something extra is a cheat on students and a scam on taxpayers. Only services outside the school day can make up for lost services in the past. Tellingly, OSPI merely “recommends” and does not require that “recovery services” occur outside the school day, negating the very purpose and defining characteristic of compensatory services. In order to comply with its enforcement obligations under the IDEA, OSPI must revise the draft guidance to clearly require adequate “compensatory services” for every student whose IEP services were not implemented in-person or who could not access or benefit from remote services during the pandemic.

Wrong decision-maker

A student’s IEP team is absolutely the wrong decision-maker regarding how to cure service lapses and other deficiencies in the student’s education. The student’s IEP team members are the same people who allowed the deficiencies in the first place. They can be defensive or misguided when it comes to recognizing the resulting harms. OSPI’s process puts the foxes in charge of the henhouse, putting many parents and students in an untenable position.

Moreover, school members of IEP teams are ill-suited to make decisions about services outside the school day. As a practical matter, compensatory services are usually performed by parent-hired private providers whose fees are reimbursed by the district. Most IEP team members are district-employed teachers and therapists who have no reason to know what private services are available or what they cost or what the district can afford. For that reason, and because it is not their job to devise legal remedies, IEP teams should not decide the nature or amount of services needed to make up for pandemic-era deprivations.

Of critical importance, compensatory services are – by definition – not part of the IEP. The IEP lays out the locations, providers and types of services that the student must receive each minute, hour and day of the school year in order to make meaningful progress.

Compensatory services must be in addition to that full school program. Otherwise, they are merely supplanting services which the student is entitled to receive anyway. Because compensatory services are not part of the IEP, the IEP team has no business deciding what they should consist of.

Before the pandemic IEP teams appropriately were not expected to, and generally did not, make compensatory service decisions. Rather, OSPI or its administrative law judges would order a particular amount of compensatory services to be delivered to the student or, when voluntary resolution was possible, families negotiated the nature and amount of services with

districts’ headquarters.² OSPI’s pandemic-era deference to IEP teams regarding these decisions is an unwelcome and legally unwarranted development which promotes conflict, confusion and delay. In fact, the draft guidance encourages the filing of due process complaints by indicating that a “dispute” is necessary to avoid the deferential and misdirected “recovery services” process.

Wrong criteria

The draft guidance places too much emphasis on a single criterion – whether the student made progress on IEP goals – to determine if “recovery services” are owed. That approach is extremely dangerous and legally unsupported. For one thing, it ignores the “free” and “public” prongs of the “free appropriate public education” requirement. Many parents were forced to use their own resources to prevent their children from regressing emotionally, behaviorally and/or academically. Some had to stop working, hire aides or tutors or pay for private classes to keep their children safe and engaged. OSPI would punish these efforts by denying compensatory services simply because the students made minimal progress on goals despite a lack of school support. Furthermore, progress on IEP goals has never been the sole factor in determining educational adequacy. For example, failure to maintain the least restrictive environment and failure to implement a behavior intervention plan are actionable under the IDEA – warranting compensatory services even if they cause regression or stagnation primarily in general education. OSPI’s focus on goal progress also ignores the reality that too often, IEP goals are not appropriately ambitious to begin with. If a goal has been carried over from one year to the next, for example, districts should not evade accountability when the student’s “progress” is months (or even a year) overdue.

WAA supports offering compensatory services to all students (not just special education students) this summer, in addition to whatever services are individually required under traditional standards of compensatory education. The only truly equitable way to make amends for the systemic deprivations allowed by OSPI is to offer, at a minimum, summer services on a statewide basis to all who want them. WAA is not aware of any test that can measure learning loss from reduced services. No set of IEP goals can fully gauge the ramifications of closed classrooms, distance from people, reduced instruction and loss of routine. It is fundamentally unfair to limit relief to those students whose IEP teams identify a numeric impact through testing or progress data.

In any case OSPI should at least require adequate compensatory services for every student who did not receive IEP-mandated services to any extent, without requiring testing and notwithstanding what the IEP team might think about it. Also, every student who could not access or benefit from remote learning must receive enough compensatory services to place the student in the same position as if an appropriate education was received. In sum, the guidance should be overhauled to conform to IDEA policies and OSPI’s enforcement obligations.

¹ For example, if a student missed speech services because a school therapist quit or died, the school district would provide compensatory services even though the circumstances were beyond its control. The purpose of compensatory services is not to assign blame. It is to make the student whole.

² Compensatory services are typically worked out through lawyers when families have legal representation.