April 2022 — 

The MLO Minute: “New OCR Fact Sheet on Section 504” By Nancy Potter, Esq. — 

The Office for Civil Rights (OCR) in the Department of Education recently issued a Fact Sheet on the responsibility for schools to comply with Section 504 regardless of how schools provide education: virtually, in-person, or with a hybrid learning model. The guidance states that 504 teams should meet to address changes in student needs related to the pandemic and to determine whether compensatory services are warranted. The OCR Fact Sheet follows the Q&A issued by the Office of Special Education and Rehabilitative Services last fall, which also called for IEP teams to make compensatory services determinations for students who missed services during the pandemic.

If a student with a disability did not receive appropriate evaluations or services, the 504 team must convene to make an individualized determination whether, and to what extent, compensatory services are required. OCR explains that “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.” This OCR Fact Sheet provides for compensatory services based on a delay in evaluation or services, regardless of the school’s good faith efforts or the reasonableness of the team’s plan in light of the circumstances of the pandemic.

The OCR guidance provides factors that may be relevant to the compensatory services determination, including the frequency and duration of missed services, whether the services provided were appropriate based on the student’s needs, present level of performance, previous rates of progress, and results of evaluations.

The Fact Sheet is a good reminder of the continuing FAPE requirements under both Section 504 and IDEA. If you have questions or concerns about whether your child is entitled to compensatory services because of not receiving appropriate evaluations or services during the pandemic, you may contact us by clicking here.