Updated: Aug 6
The U.S. Department of Education’s (Department) Office for Civil Rights (OCR) reminds us that elementary and secondary public schools have an obligation under Section 504 of the Rehabilitation Act of 1973 to provide appropriate evaluations and services to students with disabilities during the COVID-19 pandemic, including schools’ responsibility to provide compensatory services.
If a student with a disability did not receive appropriate evaluations or services, including the services that the school had previously determined they were entitled to, then the school must convene a group of persons knowledgeable about the student to make an individualized determination whether, and to what extent, compensatory services are required
Background: Section 504 of the Rehabilitation Act
Section 504 is a Federal law that prohibits disability discrimination and guarantees that students with disabilities have equal access to educational opportunities, including free appropriate public education (FAPE) in public elementary and secondary schools. FAPE under Section 504 is the provision of regular or special education and related aids and services that are designed to meet the individual educational needs of students with disabilities as adequately as the needs of non-disabled students are met.
Students with Disabilities Retain Their Right to FAPE During the COVID-19 Pandemic
Although the COVID-19 pandemic has created unique challenges for schools, students, and parents, the responsibility for schools to comply with Section 504 continues regardless of how schools provide education: virtually, in-person, or with a hybrid learning model. In ensuring eligible students with disabilities receive FAPE under Section 504, schools must make decisions that consider students' health, safety, and well-being.
When needed to ensure students with disabilities are receiving FAPE, schools must convene a group of persons knowledgeable about the student to make an individualized determination of whether a student’s current services should be changed due to the effects of the COVID-19 pandemic, such as the impact of loss of services on skills, mental health and trauma concerns, or the physical health effects of long COVID (post-COVID conditions). Regardless of the challenges schools face during the pandemic, students with disabilities retain their right to FAPE under Section 504.
Students with Disabilities Might Be Entitled to Compensatory Services if They Did Not Receive Appropriate Evaluations or Services During the COVID-19 Pandemic
If a student with a disability did not receive appropriate evaluations or services, including the services that the school had previously determined they were entitled to, then the school must convene a group of persons knowledgeable about the student to make an individualized determination whether and to what extent, compensatory services are required. Unlike the FAPE inquiry, which requires the group to determine appropriate services going forward, the compensatory services inquiry requires looking backward to determine the educational and other benefits that likely would have accrued from services the student should have received in the first place.
Compensatory services are required to remedy any educational or other deficits that result from the student with a disability not receiving the evaluations or services to which they were entitled. For example, a school may need to provide compensatory services for a student who did not receive physical therapy during school closures or for a student who did not receive a timely evaluation. Providing compensatory services to a student does not draw into question a school’s good faith efforts during these difficult circumstances. It is a remedy that recognizes the reality that students experience injury when they do not receive appropriate and timely initial evaluations, re-evaluations, or services, including the services that the school had previously determined they were entitled to, regardless of the reason.
In general, the individualized determinations of whether and to what extent compensatory services are required must be made by a group of persons knowledgeable about the student, including for example, school nurses, teachers, counselors, psychologists, school administrators, social workers, doctors and/or family members. The following factors may be relevant for the group of knowledgeable persons to consider in determining the appropriate type and amount of compensatory services:
the frequency and duration of missed instruction and related services;
whether special education and/or related services that were provided during the pandemic were appropriate based on the student’s individual needs;
a student’s present level of performance;
previous rates of progress;
the results of updated evaluations;
whether evaluations were delayed; and
any other relevant information.
Ideally, the team of knowledgeable persons will come to a mutually acceptable decision regarding compensatory services to mitigate the impact of the COVID‑19 pandemic on the child’s receipt of services.
Under Section 504, if a parent or guardian believes that their child has not received or is not receiving FAPE, does not have equal access to other services provided by the school, or did not receive or is not receiving appropriate compensatory services, they may seek a hearing under the school’s Section 504 due process procedures or file a complaint with OCR. A school’s agreement to provide compensatory services is one way OCR remedies disability compliance issues when appropriate.
For information on how to file a complaint with OCR, please see https://www2.ed.gov/about/offices/list/ocr/docs/howto.html.