SB 89 and the IEP Supplement….

As you review IEPs and fill out the IEP Supplement that is now required as a result of SB 89, the COVID-19 Special Education Recovery Act, pay attention to the verbs.  The Act requires the school to answer three questions pertaining to students you served in special education in either or both of the last two school years. Question One asks about those students for whom the initial evaluation was done in the last two years. Was it done on time?  Question Two is also about those students—was the initial IEP done on time?    

Question Three must be asked with regard to all students, and this is the one where you should study the verbs.  The Act asks you if special services for the student were “interrupted, reduced, delayed, suspended, or discontinued.”  Notice that all of those verbs are about the school.  None are about the student or the parent.  The question is whether the school district delivered the services that the student was supposed to get as per the IEP.  The question is not about whether or not the student achieved the goals set out in the IEP.  Of course the answer to that question is important also, but it will help if you take matters up in proper sequence. 

Consider:  If services were never “interrupted, reduced, delayed, suspended, or discontinued” then it is unlikely that the school would owe any compensatory services.  I’m guessing, though, that for most students there was at least some amount of delay or interruption. 

After you have answered the three questions, you go on to Question Four: “whether compensatory educational services are appropriate for the child based on the information” derived from the first three questions “or any other factors.”

Hypotheticals: The services for Carlos were never “interrupted, reduced, delayed, suspended, or discontinued.” The district delivered every bit of what the IEP promised, on time and without any interruption. It’s hard to see why Carlos would qualify for compensatory services.

Alicia had her speech therapy interrupted for a while when COVID first hit in March 2020, but the district was able to make up for it later.  Did the interruption have an adverse impact on Alicia?  Did she achieve the goals we had for her in speech? Those would be relevant questions to ask.

We had bigger problems providing services to Jamaal, whose IEP called for a lot of hands-on direct instruction along with considerable OT and PT.  His services were not only interrupted and delayed, they were reduced. Although we did our best, we simply could not provide the amount or quality of services that his IEP called for.  It wasn’t our fault. It was COVID.  I’d say that Jamaal is a strong candidate for compensatory services. Again, the school should ask how he did. Did he achieve the goals set out in his IEP? If not, how badly did he miss them?  What does this year’s IEP look like?  Those are some of the “other factors” to be taken into account. 

Prior to COVID, “compensatory services” were awarded only when the school district was at fault in some way.  Compensatory services could only be awarded if there was a finding that the district failed to provide the Free Appropriate Public Education that the law requires.  The COVID-19 Special Education Recovery Act is not concerned with fault. Its focus is on the impact of the pandemic on student progress.   

Let us know if the lawyers at Walsh Gallegos can help you navigate these issues. 


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