Compensatory Minutes are designed to help students regain what was lost due to their having been deprived of special education and related services. The exact nature of that compensatory education is highly specific, as it is tailored to meet the individual student’s current performance and executing the path to realizing his/her particular goals.

The Individuals with Disabilities Education Act (IDEA) requires school districts to provide students with disabilities a Free Appropriate Public Education (FAPE) by crafting for each eligible student an Individualized Educational Program (IEP), a program designed to meet that student’s unique needs.

Providing children with compensatory minutes is the equitable way to remedy the loss of a FAPE for a period of time. Its objective is to provide “services prospectively to compensate for a past deficient program.” If successful, such awards “should place children in the position they would have been in but for the violation of the Act.”

Awarding a child compensatory minutes does not presume that the school district was either negligent or at fault in any way. Rather, these compensatory minutes merely recognize the child’s loss of special education services regardless of the cause and seek to remedy that loss.

Consequently, the loss of special education services due to school closures as a result of COVID-19 clearly entitles students to compensatory minutes, as the U.S. Department of Education has made clear.

From the standpoint of legal precedent, it must be noted that every federal Circuit Court of Appeals has acknowledged that compensatory minutes are the appropriate remedy for a school district’s inability to provide FAPE.

In other words, thus far the courts have stated very simply that there is a right to compensatory minutes if a student is denied a free appropriate public education. This means that, if a school completely stopped services during the pandemic, those compensatory services must be awarded.

However, if a school did what it could to provide appropriate services, and yet the services were not precisely what the IEP called for, it’s still uncertain whether or not the student will be awarded compensatory minutes. This will become clearer as the courts adjudicate more cases.

Courts have measured compensatory minutes differently. Initially, courts leaned towards taking a “quantitative approach,” which meant simply that the court obligates the school to provide an hour for hour replacement of services lost, irrespective of whether or not this would be sufficient to compensate for the child’s loss.

However, more recently, courts have swung towards the “qualitative approach,” first articulated by a D.C. Circuit. Whereas the quantitative approach looks at services lost, the qualitative approach is focused on the educational benefit lost.

Explaining this change, the court said, “this cookie-cutter approach [quantitative] runs counter to both the ‘broad discretion’ afforded by IDEA’s remedial provision and the substantive FAPE standards that provision is meant to enforce.”

In the qualitative model, compensatory minutes should be based on individualized assessments, potentially leading to different results in relation to the differing needs of students.

The court concluded: “the inquiry must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.”

In attempting to limit their culpability, it is very likely that school districts will argue that it is wrong to focus on students with special needs when in fact all students suffered from a loss of educational services.

Even though there are those amongst the general student body who require special education, students with special needs are first and foremost students receiving a general education. So, why single them out? Certainly, once the remedial education that will be planned for all students is implemented, this supplemental education will compensate those students with special needs as well.

However, this argument is only partially accurate. IDEA and FAPE are quite clear that, while the objective is to provide an “equal educational experience” for all students, not all students are created equal. Some require more to realize that objective. So, equality isn’t in what is being provided, but rather in the desired result.

A student with an IEP has certain goals and objectives to meet within the duration of the IEP. What’s more, customized services are provided to the student in the IEP (i.e., reading intervention). Notwithstanding that general remedial services will be helpful for everyone, they are in no way an adequate replacement for the compensatory education that is needed by these students due to the COVID-19 closures and remote learning.

The short answer is, “No.” This is because there are children who may have made adequate progress through remote learning during the school closures. Alternatively, some of those students who would be entitled to services were high school seniors who would prefer to begin college or go to work, forgoing additional services from their school districts.

Determining which children are entitled to compensatory minutes won’t begin until school reconvenes. At that point, the child’s IEP team will need to meet and evaluate current levels of performance as a baseline in crafting a compensatory program.

If it is determined that the student’s performance is lower than it was on the day schools closed for the COVID-19 pandemic, the IEP Team will be obligated to arrange for services over and above those provided in the initial IEP.

However, not every student with an IEP will require remedial services. Some children will have progressed adequately, while others will have experienced significant regression. Regardless, it is the responsibility of the IEP team to closely examine each and every student to determine how that particular child was impacted by the closure.

Like so many things in life, this is ultimately going to boil down to money. Take Texas for example. The governor and the state education agency have earmarked $30 million in federal COVID-19 Aid, Relief, and Economic Security Act funds to provide one-time grants of up to $1,500 for families to be used for therapy, tutoring, and other services.

But the Texas plan, which is known as the Supplementary Special Education Services program, merely scratches the surface of the potential need in that state. It has been designed to supplement—not replace—lost services that have been outlined in the students’ IEP.

Texas has nearly 600,000 students with disabilities in K-12 schools. Under the current plan, no more than 60,000 families would be eligible for some support. And even that 10 percent of the student population who qualify would only receive a partial amount of what they need.

And don’t think that this is just a problem for Texas. The situation there lays bare a cold calculus: There are millions of children with disabilities across the country who probably suffered significant learning loss and skill regression as a result of the school closures brought on by the pandemic, but there isn’t enough money to go around to help all of them remedy those losses.

Understandably, the rollout of the plan in Texas has been criticized by disability rights groups for its narrow scope and focus on so-called low-incidence disabilities. Low-incidence disabilities refer essentially to those students who are deaf, blind or have significant cognitive impairment.

“I’m not clear that there’s any reason to believe that students with low-incidence disabilities need services more than any other students in special education,” said Dustin Rynders, the supervising attorney of the education team at Disability Rights Texas.

It has been projected that even the narrowed focus on quality over quantity has the potential to bust district and state budgets. Providing a $1,500 grant for every student in Texas with an IEP would carry a price tag of nearly $900 million. And this cost is at a time when many states and districts have already tapped out their reserves for other COVID-19 education-related expenses.

“It would break the system of public education if we tried to compensate for everything that everyone has lost,” said Phyllis Wolfram, the executive director of the Council of Administrators of Special Education, which represents district-level officials.

What this means is that many students will inevitably be denied receiving much-needed services, exposing many schools to facing costly, time-consuming lawsuits due to their failure to meet the demands of FAPE. According to Wolfram, school districts around the country are now bracing for an onslaught of lawsuits.

“Nobody is going to hold a school district responsible for doing the impossible,” said Andrew Feinstein, a Connecticut-based lawyer who represents children with disabilities and their families. “But that is far different from holding the district responsible for failing to provide an appropriate education because it was inconvenient or expensive.”

“The supplemental support offered to families in Texas and other states is a concession or temporary fix that could help ward off legal action while states make decisions on compensatory services,” said John Eisenberg, the executive director of the National Association of State Directors of Special Education.

“We know, no matter what, there are going to be kids who just cannot make progress online, even with the best of online instruction,” Eisenberg said. “It makes sense to get more services in the hands of kids who might have fallen further behind so that you might avoid due process hearings.”

“Schools are telling us that they’re stretched thin and that students across all [special education] categories are struggling right now and need help,” said Rynders, the supervising attorney of the education team at Disability Rights Texas. “So, we would just advocate for a more comprehensive approach.”

But the problem with all of this is that it isn’t as if the schools don’t want to help. They would love to if they only could. But current fiscal realities have their hands tied.

And yet according to the legislation, the schools are on the hook.

Because even if the schools argue that they have a reduced funding environment that makes it difficult to provide FAPE due to the financial complications of COVID, the right of a student with a disability to a free appropriate public education (FAPE) is an entitlement under federal law.

The bottom line is that shortage of funds is not a valid legal excuse for failing to provide a FAPE for every student. So it is the districts and schools that will be forced into seeking new streams of revenue and funding in order to fulfill their legal obligations to the students who qualify for compensatory minutes.

It remains to be seen just exactly how they will be able to do that.