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​Free Appropriate Public Education (FAPE) — OSERS Guidance

On August 24 and September 30, 2021, the U.S. Department of Education's Office of Special Education and Rehabilitative Services (OSERS) issued new guidance interpreting requirements of the Individuals with Disabilities Education Act (IDEA) in light of the many challenges of the COVID-19 pandemic and as more schools and programs returned to in-person services for the 2021-2022 school year. Topics include meeting timelines, ensuring implementation of initial evaluation and reevaluation procedures, determining eligibility for special education and related services, and providing the full array of special education and related services that children with disabilities need in order to receive a free appropriate public education (FAPE).

August 24, 2021 Guidance: Child Find Under Part B of the Individuals with Disabilities Education Act

September 30, 2021 Guidance: Development and Implementation of Individualized Education Program in the Least Restrictive Environment Under the Individuals with Disabilities Education Act

OSERS further clarified that, no matter the method of service delivery provided during the COVID-19 pandemic, state educational agencies (SEAs) and local educational agencies (LEAs) remain responsible for ensuring that a free appropriate public education (FAPE) is available to all children with disabilities and for implementing IDEA Part B requirements.

The Pennsylvania Department of Education (PDE) Bureau of Special Education recognizes the challenges imposed by the COVID-19 pandemic and that some students with disabilities may not have been able to access FAPE in the same manner as they would prior to the pandemic.  As a result, COVID-19 compensatory services should continue to be a tool used if a student with disabilities has lost skills or has not made meaningful progress as a result of the impact of the pandemic.

COVID-19 COMPENSATORY SERVICES

What are COVID-19 Compensatory Services?
In this guidance document, COVID-19 Compensatory Services (CCS) refers to the LEA's proactive offer of services as determined by an Individualized Education Program team that is needed to remedy a student's skill and/or behavior loss and/or lack of progress that resulted from an LEA's inability to provide FAPE due to the COVID-19 pandemic. CCS should be considered only after the student receives services as set forth in their IEP for a period of time ("recoupment period"). This affords the student an opportunity to recoup the lost skills and/or behavior or to make progress to the level(s) determined appropriate prior to the extended lack of access to services that are due to impacts of the pandemic.

The IEP team may determine that CCS are necessary to mitigate the impact of disruptions and delays in providing appropriate services to a child or failure to provide FAPE over a given period of time.

If FAPE cannot be provided due to reason related to the COVID-19 pandemic such as student or class quarantine or transportation limitations, the IEP team should reconvene after normal instruction resumes within a reasonable timeframe, but no later than three months, to determine if the CCS are warranted. 

Are LEAs expected to apply CCS process for all students eligible under IDEA for the 2020-21 school year?
Due to unique community circumstances and transmission rates, Pennsylvania LEAs offered a variety of alternative learning models throughout the 2020-21 school year. Some LEAs conducted and provided CCS prior to the start of the 2021-22 school year, and some were unable to provide services due to continued pandemic barriers. The need to conduct the CCS process depends on each LEAs' ability to provide FAPE during the 2020-21 school year. LEAs should determine whether a CCS process needs to occur for the 2021-22 school year based on the LEA's unique circumstances and the unique needs of their students.

What factors and sources of data should an IEP team consider when determining if a student needs CCS?
The IEP team should consider the following factors and sources of data when determining a student's need for CCS:

    • Present levels of academic achievement and functional performance, in light of the anticipated levels of performance without service disruption due to the COVID-19 pandemic as well as concerns raised by parents, the student, and outside service providers.
    • Previous rates of progress.
    • Frequency and duration of special education and related services, which may be determined by reviewing the previously agreed upon IEP compared to the actual services provided while the IEP was in effect.
    • Services provided while the LEA was using alternative learning models due to the COVID-19 pandemic.
    • The student's ability to access remote learning opportunities and special education services while the LEA was using alternative learning models due to the COVID-19 pandemic.
    • The student's engagement in the learning process while the LEA was using alternative learning models due to the COVID-19 pandemic.
    • The amount of skill and/or behavior loss and/or lack of progress the student experienced while the LEAs were using alternative learning models due to the COVID-19 pandemic.
    • Historical data regarding the student's ability to recoup lost skills and/or behavior.
    • Data collected through progress monitoring and progress reports.
    • Results from informal and/or formal assessments.

How should an IEP team calculate CCS?
The IEP team should calculate CCS on an individualized basis. The IEP team should consider the student's loss of skills and/or behaviors and/or lack of progress due to an LEA's inability to provide FAPE due to circumstances imposed by the COVID-19 pandemic within a reasonable time period, but no later than three months, after resuming normal instructional practices. The IEP Team should consider if the child was impacted by using alternative learning models, class quarantines, transportation limitations, or other barriers of FAPE imposed by the COVID-19 pandemic. If the student was unable to recoup the lost skills and/or behaviors and/or to make meaningful progress during any period in which the student received services or there is any remaining loss in skills and/or behaviors and/or lack of progress after the recoupment period, the IEP team should determine whether and to what extent the student needs CCS. If the student needs CCS, the IEP team should determine the type and amount of CCS and how CCS will be delivered. CSS should not supplant the student's current IEP, and the IEP team should refrain from altering the least restrictive environment if CCS are offered during the school day.

Are LEAs required to provide transportation to and from CCS for students with disabilities?
It is recommended that LEAs offer transportation to and from CCS, within reason, to ensure students have access to those services. However, since CCS is not part of FAPE, transportation to and from CCS is only required if agreed upon by the student's LEA and parent. If it is agreed upon, it is the responsibility of LEA in which the child lost skills or did not make meaningful progress to provide the transportation.

May LEAs use ESSER funds to provide transportation to and from CCS?
LEAs may use ESSER funds to pay for transportation exclusively for CCS. If transportation is to access CCS and FAPE within the same trip, ESSER funds may not be used.