On July 19, 2022, the U.S. Department of Education announced the release of new guidance from its Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) discussing public elementary and secondary schools’ responsibilities in meeting the needs of students with disabilities and avoiding discriminatory use of student discipline under Section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act (IDEA). The Department’s press release notes that these guidance documents are “the most comprehensive guidance on the civil rights of students with disabilities concerning student discipline and build on the Department’s continued efforts to support students and schools through pandemic recovery.”
On May 24, 2022, the U.S. Department of Education’s Office for Civil Rights (“OCR”) announced that it resolved a compliance review of a South Carolina school district’s use of restraint and seclusion of students with disabilities. The investigation highlights OCR’s position that frequent or improper restraint and seclusion may deny students with disabilities a free, appropriate public education. As we prepare for the 2022-2023 school year, school districts should conduct a thorough review of their policies and procedures regarding the use of restraint and seclusion to ensure that they are clear, current, and compliant.
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.