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Hertog Education Law, PC

Compensatory Education:
Making-up for what your
child lost

Special Education in the time of Covid-19


May 4, 2021
About Me
Allison Hertog, Esq, MA
• Began as a special education
teacher.
• Drawn to field because I’ve
overcome learning disabilities
• Practicing Law for over 20 years
• Passionate and Detail-Oriented
• Won or Settled every due
process case I’ve filed

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COVID-19: What Just Happened to Us?!!
The COVID-19 pandemic has
interrupted the livelihoods, health,
education, childcare, and financial
stability of millions.

Students are experiencing the painful


loss of connection with their peers,
teachers and school staff, and serious
loss of learning that will have life-long
consequences if not addressed.

Students with Disabilities (SWD) are


among the hardest hit.
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Federal Law Helps SWD
Make Up the Learning Loss
• No pandemic exception to the Federal IDEA act. Parents have never
lost their right to a FAPE (Free Appropriate Public Education).
• March 2020, U.S. Department of Education issued this guidance:
• “The LEA [Local Education Agency] must make every effort to
provide special education and related services to the child in
accordance with the child’s individualized education program
(IEP)”
• “. . . a school must make an individualized determination
whether and to what extent compensatory services may be
needed . . . “
• Under a pre-pandemic US Supreme Court decision: a child’s IEP
must be “reasonably calculated” to be effective under the
child’s circumstances. Endrew F.
• Based on recent national cases the “child’s circumstances” include the effects of the
pandemic.

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School Districts All Over the Country Are Expecting
an Influx of Demands for Compensatory Services

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What is Compensatory
Education?
• COMP ED is a legal remedy to compensate for
what a student lost when they were deprived of
a FAPE.
• Meant to put your child in the position they
would have been in if they were not deprived of a
FAPE.
• Key: How do you calculate that?!!
• Decades of comp ed legal standards to determine
what position your child would have been in.

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Compensatory
Education due to
COVID
Q.
What triggers a parent’s claim
to Comp Ed services?

A.
The loss of a FAPE due to
school closures should entitle
students to compensatory
education.

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Making the Case for
Comp Ed.
o Show What Your Child Received During the Pandemic
o Level of Daily Engagement in Learning
o Caregiver Observations
o Official Attendance
o Logging into Schoology – low level
o Submission of assignments – higher level
o Posting messages – higher level
o Type of Instruction
o Asynchronous
o Synchronous
o Therapy Sessions
o Supplemental Support
o Show How Your Child is Performing Now
o Did they meet their IEP goals?
o Including social/emotional
o Should their IEP goals change because they regressed?
o Did they progress as much as they did during 2019-2020?
o What is their performance today vs. March 2020? – REQUEST EVALUATION

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School Districts May Offer Other Things, But
You May be Entitled to Comp Ed.
Other Post-COVID Service Options Compensatory Education Services
• Calculated without any established standards. • Calculated based on decades of IDEA law. Focus
May not be individualized. is on your individual child.
• Calculated without adherence to a parent’s legal • Calculated with reference to a parent’s legal
rights under the IDEA rights under the IDEA
→ Parents have little leverage → Parents have more leverage.
• Amount of services may be arbitrary. • Amount is based on how much of the IEP was
implemented and/or assessments of your child’s
• Provided at IEP meeting or afterwards at the progress or regression
regional center • Usually provided after IEP meeting by filing due
• Alternative dispute resolution at regional center. process
mediator may not be knowledgeable about students • Most cases settle. Attorneys get reimbursed from
with disabilities or the IDEA the school district

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STEP 1: Call an IEP Meeting

Find out if your child is entitled to comp ed by advocating at IEP


meeting(s):
a) Before the meeting document how much of your child’s IEP was
implemented distance learning. Remember the federal guideline
“greatest extent possible.”
b) Ask for standardized assessment for progress or regression in all
areas,
b) Compare how much they progressed during 2019-2020 versus 2020- COMP ED!
2021,
c) Get present levels of performance based on the assessments,
d) If they: i) progressed slowly compared with the prior year, ii)
regressed, iii) need additional services because of distance
learning, or iv) their IEP wasn’t significantly implemented, then

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Pending CA Bills Impacting Students

APRIL 15, 2021, ASSEMBLY APRIL 15, 2021, ASSEMBLY APRIL 14, 2021, ASSEMBLY
BILL 967 WOULD ADD A BILL 104 WOULD ALLOW BILL 285 WOULD ADD SCHOOL
SPECIAL ED COVID FUND FOR NURSE CONSULTANTS TO HELP
ALL PARENTS TO REQUEST
USE IN ALTERNATIVE DISPUTE SCHOOLS RETURN SAFELY TO
RESOLUTION THROUGH THE HOLD BACK THEIR CHILD IN-PERSON INSTRUCTION.
REGIONAL CENTERS. APPEARS A GRADE LEVEL OR HAVE ASSEMBLY BILL 815 WOULD
TO BE GEARED TOWARDS HS LETTER GRADES ALLOW SCHOOL DISTRICTS TO
PARENTS WITH ENGLISH NOT CHANGED TO “PASS” OR DEVELOP THEIR OWN NURSE
NATIVE LANGUAGE. “DON’T PASS” CREDENTIALING PROGRAMS
TO EASE THE NURSING
SHORTAGE

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Disclaimer: The contents of the seminar is provided for general


information purposes only. This seminar does not give legal advice and
does not create an attorney-client relationship.
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Allison Hertog, Esq, MA
Hertog Education Law, PC

Thank You!
Allison@MakingSchoolWork.com
213- 290- 3137
© 2021 Hertog Education Law, PC

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