Since COVID-19 first reared its ugly head, we have been discussing when and to what extent schools would be required to provide students with disabilities compensatory services due to the pandemic. On February 16, 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) released a fact sheet reminding schools that the responsibility to provide compensatory services also applies to students receiving services under Section 504. OCR recognizes that a school’s provision of compensatory services to a student does not devalue the school’s good faith efforts to educate students with disabilities during these difficult circumstances. Instead, OCR describes compensatory services as a remedy to address the unfortunate reality that unavoidable interruptions caused by the COVID-19 pandemic may have harmed many students with disabilities.  

The fact sheet also reminds schools of the responsibility to continue providing FAPE as the COVID-19 pandemic lingers. Notably, the fact sheet recommends that when considering whether changes in services are necessary to provide a student FAPE, Section 504 teams should consider not only the impact of the loss of services on skills and any mental health and trauma concerns but also any physical health effects of “long COVID.” Keep reading for more analysis of this new resource. 

Duty to Provide FAPE 

In the “Fact Sheet on Providing Students with Disabilities Free Appropriate Public Education During the COVID-19 Pandemic and Addressing the Need for Compensatory Services Under Section 504,” OCR reiterates that schools must continue to provide FAPE to students served under Section 504 despite the unique challenges COVID-19 causes for schools, students, and parents. Schools must provide FAPE whether students attend school virtually, in person, or through a hybrid learning model.  

As such, a student’s Section 504 team should meet to make an individualized determination of whether they should change the student’s current services due to the effects of the pandemic. Teams should consider issues such as the impact of any loss of services on skills and any mental health and trauma concerns. However, the fact sheet also suggests that Section 504 teams should consider any physical health effects post-COVID conditions, commonly referred to as “long COVID.”  

Compensatory Services Considerations 

The fact sheet emphasizes that 504 teams must determine whether and to what extent compensatory services are owed to students. As part of the analysis, Section 504 teams should determine what educational and other benefits likely would have accrued from services the student should have received had the pandemic not occurred.  

Section 504 teams should consider the following relevant factors:  

• The frequency and duration of missed instruction and related services 
• Whether services that were provided during the pandemic were appropriate based on the student’s present level of performance 
• Previous rates of progress 
• The results of updated evaluations 

• Whether evaluations were delayed, and  
• Any other relevant information. 

The fact sheet reminds school districts that a parent may seek a hearing under the district’s Section 504 due process procedures or file a complaint with OCR if the parent believes that their student has been denied FAPE or has not received appropriate compensatory services.  

Remember that teams must analyze whether a student is receiving FAPE or needs comp services based on the facts specific to a student’s case. These are individualized determinations and must be made on a case-by-case basis. If you have any questions about the provision of FAPE or compensatory services in the COVID era or need assistance with a Section 504 grievance or OCR complaint, please contact the author of this post or any other member of the Thompson & Horton special education team.