August 2021 —

The MLO Minute: By Caitlin McAndrews, Esq. and Dennis McAndrews, Esq. — 

The current pandemic has created extraordinary challenges for children, families, and schools in meeting the needs of students at every level of their educational programs. Children with disabilities are particularly affected, and both federal and state educational agencies have clearly stated that children with disabilities are entitled to compensatory services to address a loss of educational opportunity/progress as a result of modified (or nonexistent) educational services, specially designed instruction, and related services during the current pandemic. In many cases, these compensatory services can also be supplemented by additional compensatory education to which the child might be entitled due to prior educational inadequacies.

Most recently, the United States Department of Education has issued a comprehensive policy statement with respect to the rights of children who are experiencing the long-term adverse health effects of COVID–19, sometimes referred to as “Long COVID.” This policy statement reminds school districts that both children previously identified with disabilities and other children may be adversely affected by this serious health issue and that specific educational services to address the child’s circumstances may be necessary under IDEA or Section 504. For children who were not previously identified as having a disability, but whose educational performance or access to educational benefits is impaired by Long COVID to the extent that they need specially designed instruction, the child may be eligible under the IDEA category of “Other Health Impaired.” Such students are entitled to an Individualized Education Program (IEP) to provide specially designed instruction and/or related services to allow the child to make meaningful educational progress. Furthermore, under Section 504 of the Rehabilitation Act, Long COVID can itself be a disability entitling the child to receive a Service Plan to obtain any necessary services or accommodations to allow the child to make meaningful educational progress so as to obtain a Free Appropriate Public Education, or FAPE. Both IDEA and Section 504 entitle children with disabilities to a FAPE.

Furthermore, the “child find” requirements of both federal statutes apply to children with Long COVID. Simply put, any child who is suspected of requiring special education, related services, or accommodations as a result of a disability, including Long COVID, is required to receive a comprehensive educational evaluation in order to identify the existence of a disability and the need for specially designed instruction, accommodations and/or related services under one or both of these two federal laws. Where inappropriate or inadequate educational services have been provided to a child, compensatory education may be available for deprivations during or before the pandemic.

A link to the entire policy statement can be found as follows: https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-504-20210726.pdf. We provide free consultations in all special education matters, and most cases are handled by our office without charge to families for our hourly fees. Please do not hesitate to reach out to us if you believe your child is entitled to compensatory services due to any educational deprivation.