On May 6, 2022, the U.S. Department of Education announced its Intent to Strengthen and Protect Rights for Students with Disabilities by Amending Regulations Implementing Section 504, the landmark disability civil rights law prohibiting discrimination on the basis of disability in schools and postsecondary institutions. The U.S. Department of Education’s Office for Civil Rights (“OCR”) plans to gather public input on possible amendments to Section 504 to determine how to best improve current regulations to assist students with disabilities. As part of Mental Health Awareness Month and in accordance with President Biden’s strategy to address our nation’s mental health crisis, OCR will also gather input from individuals with disabilities who have mental health needs and their advocates.
With the federal government and state and local governments lifting mask requirements, it feels like we may be coming to the end of a two-year masking nightmare in schools. As cases begin to decline, schools across the country are allowing staff and students to come to school mask-free. When it comes to medically-fragile students, however, the risks of COVID-19 may continue for a long time after the rest of the world has moved on from the virus. What responsibilities remain for schools to require masking in the school environment to protect students with disabilities?
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.