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Michigan’s pandemic-era special education guidance under U.S. investigation

two students raise their hands in the foreground while sitting at a desk while in the background a teacher stands in front of a whiteboard

When students with disabilities don’t receive services specified in their education plans, they have a legal right to make-up services.

Maskot / Getty Images

Federal officials are investigating a complaint alleging that Michigan provided illegal guidance to districts about serving students with disabilities during the pandemic.

The November 2020 guidance specifically concerned students who lost access to special education services — such as tutoring or physical therapy — during pandemic-caused school shutdowns, and the districts’ obligation to make up for those losses later through so-called compensatory services.

In its guidance, the Michigan Department of Education said compensatory services “may be awarded as a result of a finding from a state complaint, due process hearing, or monitoring activity.” 

Critics said this language implied that districts didn’t need to provide compensatory services unless a parent filed a successful complaint through official channels, an often complex process that may require a lawyer or paid advocate to navigate. 

“Districts have been terrible about providing compensatory education, and they all cite the MDE guidance,” said Marcie Lipsitt, an advocate who asked federal officials to look into the guidance.

Districts struggled this year to help all students recover learning lost during the pandemic, and limit the long-term negative impacts of COVID on children’s education. The stakes of this effort were especially high for students with disabilities, many of whom missed out on services that were guaranteed under federal disability law.

Lipsitt said the MDE should have directed districts to work with parents to ensure that students’ civil rights were protected despite the pandemic.

The pandemic created lapses in special education services nationwide, which led to large backups in claims for compensatory services. From New York City to Denver, families have struggled to make up for the education students missed when classrooms shut down in the first year of the pandemic.

In Michigan, districts’ approaches to compensatory services vary widely, advocates say: Some districts willingly provide funding for compensatory services, while others require parents to file a formal complaint with the state or request a hearing.

The decision to investigate the MDE’s guidance doesn’t mean the department did anything wrong, according to a letter announcing the investigation from the U.S. Department of Education’s Office of Civil Rights.

An MDE spokesperson said the department is cooperating with the investigation and declined to comment further.

When schools recognize a student as disabled, they work with parents to identify the additional services the student needs to get an adequate education and develop a plan to provide them. For instance, a student struggling with speech might get expert help forming sounds into words. Under federal law, schools that don’t supply services according to students’ education plans must provide make-up services later.

States offer schools and districts guidance on how to meet the requirements of state and federal law. In Michigan, the education department’s guidance is not binding on districts, but it may influence their approach to negotiations with parents of students with disabilities.

Sharon Kelso, a Detroit-based special education advocate, said the MDE’s 2020 guidance suggests that districts don’t owe students compensatory services unless families demand them.

It made districts think “they have wiggle room around providing services, but they don’t have any wiggle room,” Kelso said.

Kelso filed a state complaint last year saying that her nephew, a high-schooler at Detroit’s virtual school, did not receive 35 hours of compensatory services that state officials determined he was owed because of education he missed between September and December 2020. The district said it didn’t have the staff to provide the services at that time. After the state ruled in Kelso’s favor, the district created a plan to provide the services this summer.

Such disputes may be less likely if federal officials require the state to change its guidance and push districts to provide compensatory services voluntarily.

In Denver, for example, the district took a proactive approach, evaluating students to see if they qualify for compensatory services rather than waiting for parents to file complaints. Denver set aside $12 million in federal COVID relief dollars to cover the costs.

Lipsitt hopes federal officials will go further and require Michigan to evaluate all of its roughly 194,500 students with disabilities to determine what compensatory services they deserve.

Koby Levin is a reporter for Chalkbeat Detroit covering K-12 schools and early childhood education. Contact Koby at klevin@chalkbeat.org.

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