The Office for Civil Rights in the Department of Education recently issued a new Fact Sheet. The Fact Sheet repeats prior guidance that “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.” Accordingly, the guidance provides that 504 teams should meet if needed to address changes in student needs related to the pandemic as well as 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 due to the pandemic.

The OCR guidance advises 504 teams to reconvene when needed to make individualized determinations about whether a student’s current services should be changed due to the effects of the pandemic, such as a loss of skills, new mental health and trauma concerns, or the health effects of long COVID. While not addressed by the Fact Sheet, teams may also need to reconvene for students with health needs who may need new or different accommodations as districts transition to mask optional policies.

The guidance also states that 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.” Like the OSERS guidance, the 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, which would likely be considerations in an equitable determination of compensatory education by a hearing officer or judge.

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. Finally, the Fact Sheet concludes that if a parent believes their child is not receiving or did not receive FAPE or equal access to the services provided by the school, they may seek a hearing under the Section 504 due process procedures or file a complaint with OCR.

While you are probably less likely to see compensatory education requests related to students with 504 plans than those with IEPs, the Fact Sheet is a good reminder of the continuing FAPE requirements under both Section 504 and IDEA and the need to continue working collaboratively with families to meet student needs during this challenging time.