OCR recently published a Q&A document providing expectations for compliance with civil rights laws during the pandemic. While OCR is not responsible for enforcing the IDEA, it is responsible for Section 504. Because students with IEPs are generally also protected by Section 504, the new guidance is applicable to students both with Section 504 plans and with IEPs. At the same time, OSEP published a Q&A document providing guidance specifically related to the IDEA. Much of the guidance will sound familiar, but you may find a few surprises.


  • Return to in-person instruction.

OCR advises there may be circumstances where a District would be allowed, or even required, to give priority to a student with a disability when phasing in the use of physical facilities for in-person learning.

Note that OCR is not requiring in-person instruction for students with 504 plans and IEPs or advising districts to ignore current health and safety risks and necessary precautions. Instead, OCR provides that individualized determinations need to be made with respect to whether providing in-person instruction would be a reasonable modification to a reopening policy that is necessary to provide FAPE or avoid discrimination on the basis of disability.

  • Remote instruction for isolated and quarantining students. Special education and related services should be provided to students who are required or advised to stay home for an extended period of time by public health authorities or school officials because of COVID-19. If a student is not personally ill and unable to participate, rather than counting such absences as sick days, remote services should be provided so the student can continue to access their instruction.
  • Masks. If requiring a child with a disability to wear a face covering would impede the child’s ability to receive a free appropriate public education (FAPE), reasonable modifications should be made if they can be made consistent with the health, safety, and well-being of all students and staff, and are necessary to avoid discrimination on the basis of disability. As you know, ISBE has also advised that a student who is unable to wear a face covering or shield may not be denied access to in-person instruction if provided to other students at the school. We read both directives to point to making individualized determinations through the 504 or IEP team to determine what accommodations and modifications can be put in place to maintain safety and appropriate education.
  • Reducing services. OCR advises that state-wide or district-wide policies that reduce or limit services specifically for students with disabilities, without regard to reasonable modifications or services that may be necessary to meet the individualized needs of the students, violate Section 504. Not a big surprise here, districts should avoid directives to cut all services by a given percentage; like always, teams should make individualized determinations for each student.
  • Implementing IEPs and 504 Plans.

Schools that provide distance learning still must comply with Section 504 and Title II, including providing services required by an IEP or Section 504 plan.

Helpfully, OCR explains that an implementation failure could deny a student FAPE but is not a per se denial.

OCR “will continue to take into consideration all relevant circumstances when evaluating a school district’s implementation of an IEP or Section 504, including the impact that any discrepancies from an IEP or Section 504 plan have on the student’s ability to participate in or benefit from the school district’s services, programs, and activities.” Check out this recent post regarding hearing officer and state determinations related to complaints alleging an IEP implementation failure.

  • Evaluations and reevaluations. Under Section 504, evaluations must take place within a reasonable timeline under the current circumstances. OCR typically looks to the timelines set by IDEA and State law, but parents and school personnel can agree to extend governing timelines. Remember that IDEA timelines continue to apply for IDEA evaluations, though parents and districts can mutually agree on an extension of time. OCR also advises that if social distancing measures and other restrictions due to COVID-19 make in-person evaluations impracticable, schools should make “good-faith efforts” to conduct assessments virtually or via other comparable methods. OCR also notes that parents and school personnel can mutually agree to use a diagnostic placement for a student with a suspected disability while postponing the evaluation until it can be conducted safely. While diagnostic placements are not specifically provided for in Section 504 or the IDEA, they can be a useful tool in difficult circumstances.
  • Remote learning is not a placement.

“Placement decisions and educational settings … do not need to be changed or updated solely to reflect a temporary shift to distance learning.”

But districts must continue to provide FAPE to students with disabilities and failing to implement an IEP or 504 plan may be a denial of FAPE. Accordingly, individualized determinations must be made to with respect to whether to revise an IEP or 504 plan, including identifying how the services and accommodations may be provided through a variety of instructional methods and settings. This statement may be helpful in pushing back against arguments that remote learning is a change of placement or that stay-put can be invoked to maintain in-person instruction.

  • No Waivers. A school district may not require parents to sign waivers of their Section 504 (or IDEA) rights before delivering online services to a student with a disability.


  • Continued obligation to provide FAPE, regardless of the delivery model.

OSEP acknowledges that decisions about how and when educational services are provided are made by State and local officials based on both educational and safety considerations. OSEP goes on to emphasize that

“no matter what primary instructional delivery approach is chosen, SEAs, LEAs, and IEP Teams remain responsible for ensuring that a free appropriate public education (FAPE) is provided to all children with disabilities.”

  • Remote Learning Plans. OSEP states that “IEP teams should identify how the special education and related services included in a child’s IEP will be provided and should consider a variety of instructional methods and settings.” The guidance continues that IEP teams can discuss how a child’s IEP will be implemented in circumstances require remote or hybrid models of learning. OSEP does not go so far as to require remote learning plans, as the document is intended to provide clarity around existing law and does not create new binding requirements. But the implication is clear that teams, including parents, should be thinking through these issues and documenting their contingency plans.
  • IEP Amendments. OSEP reminds teams that amendments can be used to make changes to IEPs without an IEP meeting if the district and parent agree. Two points to keep in mind: amendments cannot take the place of an annual IEP meeting and the district must provide the parent prior written notice of changes made through an amendment.
  • Extended School Year. OSEP advises that if a district was unable to provide ESY services over the summer, IEP teams should consider providing additional services to students during the school year or during school breaks. Most districts provided ESY services remotely this year, but this recommendation seems in line with prior guidance that teams should review if missed services or remote services have met a student’s needs and, if not, what additional services can be provided to support the student moving forward.
  • Initial Evaluations. OSEP notes that none of the exceptions to the timeline for initial evaluations is applicable based on school closures or health restrictions preventing face-to-face meetings, but that state regulations may provide additional exceptions. Illinois law does not include any applicable exceptions either, though ISBE has advised that districts and parents can mutually agree to an extension of the timeline.
  • Reevaluations. The guidance acknowledges that “during the pandemic, social distancing measures and each child’s individual disability-related needs may make administering some in-person evaluations impracticable and may place limitations on how evaluations and reevaluations are conducted under IDEA.” The Department encourages districts to investigate appropriate assessment instruments and tools and determine if some can be administered remotely. At the same time, the Department reminds districts that tests and other evaluation materials must be used for the purposes for which the assessments or measures are valid and reliable and administrated by trained and knowledgeable personnel in accordance with any instructions provided by the assessment producer. A reevaluation based solely on a review of existing data is permissible if sufficiently comprehensive to determine whether the child continues to have a disability and the educational needs of the child.

As always, reach out to our Special Education Team with questions.