The U.S. Department of Education’s (Department) Office for Civil Rights (OCR) issues this fact sheet to remind elementary and secondary public schools of their obligations 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.

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 a free appropriate public education (FAPE) in public elementary and secondary schools.¹ 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.²

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.³

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).⁴ Regardless of the challenges schools face during the pandemic, students with disabilities retain their right to FAPE under Section 504.

Students with Disabilities May 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.⁵ Unlike the FAPE inquiry, which requires the group to determine appropriate services going forward, the compensatory services inquiry requires looking backwards to determine the educational and other benefits that likely would have accrued from services the student should have received in the first place.⁶

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.⁷ 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.⁸ 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.⁹

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 procedures¹⁰ 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.

As reported by the Philadelphia Inquirer, on February 7, 2022, a federal judge ordered the Perkiomen Valley School District to keep masking in place, granting a preliminary injunction sought by parents of children with disabilities that put them at higher risk of serious complications from COVID-19. The decision effectively extends an earlier order for masking during the school day and has no end date.

The case centers on three children with medical conditions ranging from asthma to chronic bronchitis and pneumonia, that in some cases require taking immunosuppressant drugs. Those children are thus thought to be in increased danger during the COVID pandemic and benefit from such safety measures as universal masking. Optional masking was considered by the judge as preventing affected students form “meaningfully accessing” in-person education, which would be a violation of the Americans with Disabilities Act (ADA). The judge also opined that the students with disabilities could not be expected “to protect themselves from discriminatory practices” and that schools  must “make reasonable accommodations” to provide those students with meaningful access to their education since such students have been adversely affected by virtual learning and are protected under the ADA .

The order does not affect extracurricular activities

The Inquirer also reported that two cases challenging mask policies in western Pennsylvania school districts are pending before the Third Circuit Court of Appeals, which could issue a decision that would affect districts across Pennsylvania, New Jersey, and Delaware. Oral arguments are scheduled for March.

To read the excellent article from the Philadelphia Inquirer, click here.

On February 7, 2022, , the U.S. Department of Education (USDE) released updates to the College Scorecard that make the tool more useful for students and families weighing college options.  The tool also includes new and updated information that may be beneficial to school counselors, college access providers, researchers, and other critical stakeholders. The Department has improved the College Scorecard interactive web tool, in addition to restoring several metrics that help students gauge how their prospective institution compares to other colleges across costs, graduation rates, post-college earnings, and other metrics. The changes reflect the Department’s priority of supporting and encouraging inclusive, affordable postsecondary programs that provide strong career outcomes for students.

According to U.S. Secretary of Education Miguel Cardona, “For so many students and families, the college search process can be overwhelming. But easily accessible, high-quality information about higher education institutions can help students determine which college or university is the best fit for them. The updated and enhanced College Scorecard shines a spotlight on affordability, inclusivity, and outcomes, over exclusivity and colleges that leave students without good jobs and with mountains of debt.”
Updates to the College Scorecard also include an annual refresh of the cumulative loan debt of student borrowers at both the institution-level and by field of study within each institution, as well as federal student loan repayment rates for the institution.

For the first time since 2018, the Department is publishing—both in the data files and on the consumer site—institution-level earnings data, which provide an overall sense of the career outcomes for alumni of the institution. The Scorecard also includes additional information about graduates who are better off for having gone to the college, by showing the percentage of those earning more than the typical worker with only a high school diploma.  
College Scorecard data provide essential details for students and prospective students across all colleges, helping them to make informed decisions about their postsecondary education plans. The data also shine a spotlight on accessible colleges that are serving their students well, including by closing gaps in the completion rates among students of color compared with white students and by ensuring programs lead to positive career outcomes with manageable levels of debt. Examples include:

• University of Baltimore, a Predominantly Black Institution in Maryland, enrolls Black students as nearly half of its enrollment, charges much lower tuition than most four-year institutions, and saw median post-college earnings of more than $58,000.
• Valencia College, a community college in Florida, enrolls three in four of its undergraduate population as students of color and has narrowed its college completion rate gaps; today, 45% of white students and 41% of Hispanic students graduate from the program.

The College Scorecard includes many other examples of institutions that are inclusive, often under-resourced, and are working to improve their students’ outcomes and helps to address barriers to college completion, particularly for students from low-income backgrounds and students of color, and increase accountability for institutions of higher education. Secretary Cardona discussed these efforts as part of his vision for education from early childhood education through higher education and career pathways, which he laid out earlier this year. These efforts include:

• Launching the Institutional and Programmatic Eligibility negotiated rulemaking committee to develop strong rules to ensure career training programs lead to valuable credentials for their graduates;
• Establishing an Office of Enforcement within the office of Federal Student Aid to identify and address major problems across institutions that pose widespread risks to students and taxpayers;
• Providing billions in federal COVID relief funding for institutions that serve high populations of students of color and students from low-income backgrounds;
• Canceling more than $15 billion in student loan debt for 675,000 borrowers across the country; and
• Proposing expanded access through more funding for Pell Grants for students.

To view the USDE press release, click here.