The policies embraced by school districts during the pandemic created an overall disaster for public education. Tragically, it was the most vulnerable children who suffered the most: the seven million students with disabilities whose needs were neglected by their school districts during the pandemic. 

While it could be argued that public schools across the country are indebted to all students and families for two years of school closures and pitiful remote instruction, federal law has special protections in place for students with disabilities, many of whom require repetitive, hands-on, physical support based on personalized education plans. 

Laws governing education were not suspended during the pandemic, so children with unique learning needs maintained their right to a specialized education as outlined by their federally-mandated education plans. If during the pandemic, a school did not provide the education and services previously deemed appropriate for the student in their plan, the school is obligated to proactively reach out to families to provide individualized educational services to the child based on his or her individual needs.

The Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act protect the educational rights of children with disabilities. Under IDEA, school districts must provide a free appropriate public education (FAPE) to students with disabilities in the least restrictive environment (LRE). Districts are required by IDEA to find and evaluate students who may need additional support and services and to provide each qualified student with an individualized education plan (IEP) that details the specialized instruction, related services, and accommodations the child requires. 

Section 504 “prohibits disability discrimination and guarantees that students with disabilities have equal access to educational opportunities, including a free appropriate public education.” Under Section 504, qualified students receive a “504 plan” that details the accommodations the students will receive. 

The U.S. Department of Education recently reminded school districts that free appropriate public education of students with disabilities must be met as “adequately as the needs of non-disabled students”—even during Covid-era school closures.  Students with disabilities may be entitled to compensatory services—additional instruction or related services offered when a district fails to comply with the student’s IEP or 504 plan—if school districts did not provide evaluations or services during the pandemic. That means that districts must offer millions of students academic tutoring, speech therapy, physical therapy, occupational therapy, and other related services or therapies. 

Compensatory services must be evaluated on a case-by-case basis. Persons knowledgeable about the students, including family members, will come to “a mutually acceptable decision regarding compensatory services to mitigate the impact of the COVID‑19 pandemic on the child’s receipt of services.” As the ones who know the child best, family members play a critical role in this determination.

It is important to note that compensatory services are based only on whether students received services or evaluations they were due based on their existing IEP or 504 plan. They cannot account for what was lost during the pandemic, such as declines in previously acquired skills or other forms of learning loss. In this way, the compensation is backward-looking, based on what students should have received in the first place, rather than what they need at present.

Categorical compensation, such as offering a standard compensatory service to all children, or to all children with a particular disability is not how children will be evaluated. School districts must offer compensation that is individually tailored to the child. Compensatory services are more parent-directed than typical special education programs; parents arrange for services to be provided by approved tutors and therapists. The parents either pay for the services and request district reimbursement or the school district pays the provider directly. The arrangement allows the funding to follow the child, and for education dollars to fund students, not systems. In February, the U.S. Department of Education’s Office for Civil Rights (OCR) published a reminder to school districts outlining their responsibilities to their students with disabilities. In July, they hosted a webinar with over 2,700 registered participants, many of whom were parents. The webinar, which featured speakers from the Office for Civil Rights and Office of Special Education and Rehabilitative Services at the U.S. Department of Education reviewed the guidelines for providing students with compensatory education and can be found online here

Parents of children with disabilities need to be informed that their district has to offer them individual, compensatory services after serving them poorly during the pandemic. A “good faith effort” by the school district during the pandemic does not eliminate the responsibility to the child. According to the Department, offering compensatory services recognizes “the reality that students experience injury when they do not receive appropriate and timely initial evaluations, re-evaluations, or services, including the services that the school had previously determined they were entitled to, regardless of the reason.”

Although the Department webinar made it clear that districts must proactively reach out and offer compensatory services to qualified students, parents need to hold districts accountable. If the district does not proactively reach out, families can file a complaint with the Department of Education’s Office of Civil Rights. 

As students struggle with the effects of pandemic-era learning loss, it’s clear that virtual schooling, especially for students with disabilities, was wholly inadequate and demands reparation. Thankfully, leftover COVID relief funds provide ample resources for districts to use as they remedy injuries that students and families have endured after not receiving proper care and attention during the pandemic. With the federal government requiring funding to follow millions of students to compensatory services, school districts are being held accountable for their failure to educate our nation’s most vulnerable students.