By: Ana Saragoza

On March 16, 2020, the United States Department of Education (“ED”) issued boilerplate policy guidance in response to the COVID-19 pandemic, stating briefly that the Individualized Education Program (“IEP”) Team, in addition to the personnel responsible for providing a free appropriate public education (“FAPE”) to a student under Section 504, would be required to make a determination as to whether compensatory services were needed on a case by case basis when students with IEPs or 504 plans return to in-person instruction.[1] Further policy guidance reminded state education agencies (“SEA”) that a provision of FAPE requires schools to provide special education and related services virtually, online, or telephonically.[2]

Washington, D.C.’s state education agency, the Office of the State Superintendent of Education’s (“OSSE”) interpretation of the ED’s guidance demonstrates how SEAs are failing to provide students with IEPs a FAPE by choosing to wait until students can return to in-person instruction to calculate compensatory education.[3] OSSE provides an example where a student that would normally receive one to one services from a teacher assistant, or a paraprofessional, during in-person instruction is only entitled to periodic check-ins during virtual instruction.[4] This example is given to show OSSE can allegedly continue to provide FAPE.[5] However, the difference between having a one to one paraprofessional assist a student all day long during in-person instruction and having paraprofessional periodically check in during the day is extreme and fails to provide a student with disabilities equitable access to educational opportunities provided by the SEA.[6] The ED requests that SEAs make every effort to continue to provide students with disabilities with special education and related services that are appropriate to the student’s needs to the “greatest extent possible.”[7] Yet, OSSE’s interpretation constitutes a fundamental failure to provide a FAPE and calls for an equitable remedy of compensatory education.[8] OSSE is not alone in attempting to implement and interpret the ED’s rushed policy guidance; school districts across the country have relied on the ED’s policy guidance regarding IEP implementation failures and compensatory education.[9]

When SEAs across the country misinterpret ED policy guidance, they hold themselves liable for due process complaints with compensatory education claims as an equitable remedy.[10] Initial determinations of compensatory education awards should be determined based on the number of service minutes a student has lost during virtual instruction, or the one for one standard.[11] Holding otherwise would be a disservice to students because IEP teams might incorrectly make a determination based off the educational benefit the student would have received during virtual instruction as opposed to in-person instruction.[12] The ED guidance has unquestionably acknowledged that in-person instruction is more valuable than virtual instruction; the ED guidance directs IEP Teams to determine compensatory services once students return to in-person instruction.[13]

Due process complaints for failure to implement a FAPE during virtual instruction with requests for compensatory education as an equitable remedy can be expected to increase when students return to in-person instruction in the future.[14] Recent cases show that IDEA hearing officers are likely to find an SEA liable for an IDEA violation when SEAs made instructional materials available but failed to provide necessary accommodations or supports.[15] Yet, SEAs that utilized alternative delivery methods to provide a FAPE were more likely to be found in compliance with IDEA.[16]

The previous Secretary of Education, Betsy DeVos, stated that she would not recommend to Congress that Congress pass any waiver authority concerning the provision of FAPE and the maintenance of least restrictive environments during the COVID-19 pandemic.[17]  It is imperative that President Biden’s pick for Secretary of Education, Miguel Cardona, issue improved guidance that incorporates the needs of students with IEPs and 504 plans when students return to the classroom.[18]

[1] Compare U.S. Dep’t of Educ., Questions and Answers on Providing Services to Children with Disabilities During the COVID-19 Outbreak (Mar. 16, 2020), [hereinafter Providing Services to Children with Disabilities]; with U.S. Dep’t of Educ., Non-Regulatory Guidance on Flexibility and Waivers for Grantees and Program Participants Impacted by Federally Declared Disasters (Sept. 17, 2017), (issuing conspicuously similar requirements after Hurricanes Harvey, Irma, and Maria), and Stephanie Smith Lee, Key IDEA Part B Provisions and Waiver Requests, National Down Syndrome Congress (Apr. 8, 2020), (analyzing comparing COVID-19 guidance to IDEA Part B provisions and waiver requests included in Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, Pub. L. No. 109-148, 119 Stat. 2680 (2006)).

[2] See U.S. Dep’t of Educ., Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities 15 (Mar. 21, 2020),

[3] See Office of the State Superintendent of Education, Overview of IDEA Part B Guidance Documents: Continuous Learning for Students with Disabilities in Washington, DC and Beyond,, at 3.

[4] See id.

[5] See id. (interpreting the ED’s guidance).

[6] See id. (stating that students with IEPs should be given special considerations to ensure that they can equitably access the educational opportunities provided to all students with general education).

[7] See Providing Services to Children with Disabilities, supra note 1 at 2

[8] See Office of the State Superintendent of Education, Overview of IDEA Part B Guidance Documents: Continuous Learning for Students with Disabilities in Washington, DC and Beyond, supra note 3.

[9] See 120 LRP 29273, Colorado State Educational Agency, 20 (Sept. 11, 2020) (holding that the school district’s failure to implement the student’s IEP during the COVID-19 pandemic constituted only a short gap in services and thus, was not a material violation and denial of FAPE); but see 120 LRP 29271, Colorado State Educational Agency, 12, 14 (Sept. 18, 2020) (holding that even if a student misses a “seemingly small amount of services” during COVID-19-related school closures, per the ED’s guidance, the failure to provide services can result in a denial of FAPE when the failure amounts to a significant percentage of the services the student is entitled to receive).

[10] See 34 C.F.R. § 300.508(b)(6) (stating that the due process complaint must include a proposed resolution of the problem to the extent known)

[11] See Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (explaining that the independent hearing officer initially awarded a student 810 hours of compensatory education for each day in the 4.5 years the student was denied a FAPE).

[12] See id. at 524 (holding that an ultimate award of compensatory education must be reasonably calculated to provide the educational benefit the student would have received had the student received special education services in the first place).

[13] See Providing Services to Children with Disabilities, supra note 1.

[14] See Implementation tops list of FAPE concerns during COVID-19 pandemic, Special Ed Connection (Oct. 28, 2020), (finding that almost one-third of IDEA administrative decisions address SEAs’ alleged failures to implement students’ IEPs during the COVID-19 pandemic).

[15] See id.

[16] See id.

[17] See Secretary DeVos Reiterates Learning Must Continue for All Students, Declines to Seek Congressional Waivers to FAPE, LRE Requirements of IDEA, U.S. Dep’t of Educ. (Apr. 27, 2020),

[18] See Evie Blad & Andrew Ujifusa, Who is Miguel Cardona? Education Secretary Pick Has Roots in Classroom, Principal’s Office, EdWeek, (Jan. 14, 2021), (providing background on President Biden’s pick for Secretary of Education).

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