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MDE Releases “Recovery Services” Guidance


August 10th, 2020

On July 7, 2020, the Michigan Department of Education Office of Special Education (MDE) issued Guidance to Address Foregone Learning for Students with IEPs as a Result of the COVID-19 Pandemic, which encourages schools to consider whether to provide IDEA-eligible students “recovery services” to address “foregone learning” resulting from the COVID-19 school closure. MDE’s FAQ-style document is non-binding and is not intended to provide legal advice. The guidance is available at:

https://www.michigan.gov/documents/mde/RecoveryServices_695362_7.pdf

The Guidance defines “foregone learning” as “learning which could have occurred in the absence of the COVID-19 Pandemic.” While all students likely experienced “foregone learning” during the COVID-19 school closure, the Guidance addresses those situations when a school may not have been able to provide certain types of special education, related services, and supplementary aids to students with disabilities. The purpose of recovery services, according to the Guidance, is to address the impact of those lost instructional opportunities on the individual student. Recovery services should supplement but not supplant the school’s offer of FAPE, support the student’s annual IEP goals, and allow the student to make progress in the general curriculum “without further delay.”

MDE’s “proactive approach” to addressing the impact of the COVID-19 school closure on individual students with disabilities, however, is not without controversy. The Guidance emphasizes that schools are not required to provide recovery services but if they do, the services should be addressed at an IEP Team meeting and included in the student’s IEP, with all recovery services determinations being made as soon as possible but not later than December 31, 2020.

Commonly Asked Questions about Recovery Services

  1. What are recovery services?

Recovery services are supplemental services designed to address the impact of the COVID-19 school closure on each individual student with a disability. The services must align with the student’s IEP and are intended to support the student’s annual goal achievement and progress in the general curriculum.

  1. Are schools required to provide recovery services?

No. Nothing within the IDEA or the Michigan Administrative Rules for Special Education (MARSE) requires schools to provide recovery services. The Guidance states that the provision of recovery services is optional.

  1. Are recovery services the same as compensatory education or extended school year services (ESY)?

No. Recovery services are not synonymous with compensatory education services or ESY and are likely not a substitute for any compensatory education a student may be entitled to receive as a result of a FAPE denial during the COVID-19 closure or for any IEP-required ESY.

  1. What if the parent and school disagree about recovery services?

The Guidance states that parents have no legal remedy if they disagree with the school’s decision on recovery services because recovery services are not required under the IDEA or MARSE. But, if a parent believes that a student has been denied a FAPE as a result of the school’s decision on recovery services, there is nothing in the IDEA or MARSE that prohibits a parent from filing a state or due process complaint.

  1. If a school provides recovery services, is a student still entitled to compensatory education for services not provided during the COVID-19 school closure?

Most Likely. Although MDE envisions that the provision of recovery services may mitigate the need for IDEA remedies, recovery services are not the same as compensatory education. A parent could still seek compensatory education even if a school provides a student recovery services to address the impact of the COVID-19 school closure. While the school may argue that its provision of recovery services should be considered when determining whether a student is entitled to compensatory education, there is no guarantee that state or federal authorities will do so.

  1. If our school includes recovery services in the IEP, are we then required to provide those services?

Yes. The Guidance states that the decision to provide recovery services should be made by the student’s IEP Team and documented in the IEP. Failure to implement the IEP as written, including any recovery services documented in the IEP, could result in a state or due process complaint.

  1. If recovery services are optional, what can our school do to address the impact of the COVID-19 school closure on our special education students?

There is no doubt that the spring COVID-19 school closure impacted all students’ learning to some degree. For those special education students who were more significantly impacted by the closure, we encourage schools to be proactive and schedule IEP team meetings as soon as possible to discuss student needs resulting from the closure. As with any IEP, a student’s present level of functioning drives the IEP. Depending on the closure’s impact on the student, the IEP Team may determine that new or additional goals, programs, or ser­vices are needed to provide the student a FAPE, including to address any regression or lost educational benefit the student experienced due to the school closure. While we recommend this more organic approach for addressing the impact of the COVID-19 school closure, school officials understandably may prefer to follow MDE’s Guidance.

We encourage school officials to contact their special education attorney with any additional questions related to the Guidance.