COVID-19-Related Compensatory Services Under Section 504

Unexpected school closures happened so quickly in the early days of the pandemic. Managers of Section 504 programs faced — and still face — a great deal of uncertainty because closures and hybrid learning don’t change the fact that schools are responsible for preventing discrimination and providing the appropriate supports for students with disabilities to ensure they enjoy equal opportunity to access education. However, making sure students receive the services they’re entitled to during a global pandemic isn’t easy and introduces a lot of questions from a compliance perspective.

Are districts at fault for lack of progress or skill regression? Will compensatory services be required? How much do you owe, and when is it due?

Jose Martín, an expert on laws regarding students with disabilities in public schools, recently shared the latest guidance and legal concerns about COVID-19-related compensatory services under Section 504.

What are the rules?

To help schools navigate the uncharted waters, the US Department of Education (DOE) Office of Special Education Programs was quick to issue COVID-19 guidance in mid-March of 2020. With respect to services during school closures, the guidance stated that, “to the greatest extent possible, schools need to implement the services that are identified in students’ IEPs under IDEA or in Section 504 plans.”

In turn, the Department of Education’s Office for Civil Rights (OCR) issued its guidance in September 2020. Basically, to avoid the risk of not providing FAPE (Free and Appropriate Public Education), OCR reminded schools they couldn’t just give a standard set of services or accommodations to all students under Section 504. They must focus on the individualized needs of every student with a 504 plan. In addition, parents could not be asked to sign waivers of their children’s rights to FAPE under IDEA or Section 504 in exchange for getting the online services.

The law on the effect of remote learning during the pandemic to comply with the provisions of an IEP remains unsettled. We’ve never encountered a situation where districts had to quickly shift from full-time live school services to online instruction. To what degree online teaching can substitute for FAPE in the live instructional world remains to be seen. It will likely be different for each student depending on their needs and may be determined by future court cases.

What are compensatory services?

Even reasonable attempts to provide online instruction might not be fully compliant with the FAPE obligation, so you still might owe compensatory services. Compensatory education is kind of like back taxes. It’s FAPE that you should have provided to a child, and you didn’t, which now you have to double up on to catch up.

So, if you didn’t pay your 2016 taxes, you currently owe your 2020 taxes plus your 2016 taxes. Those 2016 taxes, those back taxes, that’s the compensatory education. You’re going to owe a student his regular FAPE, plus the back FAPE, the compensatory services.

Whose fault is it, anyway?

Online learning doesn’t work for every student. That’s a given. But districts have to try hard to meet the needs of all students. If a student has an IEP or 504 plan, parents can take legal action against them for not providing FAPE during school closures.

Martín calls it COVID comp. Some states are even giving it a different name altogether, such as recovery services or supplemental school closure services. Giving this remedy another name highlights that we had to close the schools and switch to online instructional options, not because we wanted to, but because we were forced to. If there was an inability to provide a full FAPE to students in the online environment, it was not because of any negligence on the school district’s part.

What if a parent is not engaging with the school or is not involved with making sure their child participates? Guidance implies that even if the parent is not responding, the LEA may still maintain a responsibility to provide FAPE. Certainly, schools must make every effort to communicate with such parents and try to determine the source of the problem to attempt to address it. To the federal courts, though, a parent’s conduct in refusing services can affect the compensatory services calculation, and it may mean they’re not entitled to compensatory services at all if they unreasonably failed to take advantage of available services.

Remember, document everything! And try harder. Teachers should not only send emails but try text messages, follow-up emails, and phone calls to show they made significant efforts. Those persistent attempts to contact parents demonstrate the school’s efforts to do everything it could.

Sometimes the issue might be the student’s conduct. In one case, the court felt that while the district had denied the student FAPE, parents also failed to take advantage of services. The student didn’t want to go to school, and the parent avoided IEP meetings. So the court did not award compensatory services.

There is another complicating factor. Certain students in Section 504, say those with severe to moderate ADHD, who exhibit lots of off-task behavior, may have multiple challenges participating in an online program. Even with live instruction, those children can be resistant or off task. If a child’s disabilities make them a poor fit for online instruction, should they be penalized for not participating? Likely not.

What if parents seek reimbursement for private services that they got on their own during a COVID-19 school closure? Is the ability to seek reimbursement for private services during a closure the same in the context of no-fault COVID comp? It’s likely that condensed online services aren’t as effective as live services. We don’t know if the courts will find there is reduced expectation during school closure periods.

Early in the pandemic, the DOE determined that no waivers were necessary with respect to FAPE because schools could provide access to FAPE through at-home services. Schools are expected to get the students back to the place they would have been had there not been a school closure.

Another unanticipated twist

Martín notes a difference in his interpretation of online instruction vs. distance learning. He describes online instruction as condensed prerecorded lessons. Distance learning is when a student participates at home on a computer while the teacher is teaching other kids in the classroom.

As schools start to reopen, parents in some states have an option not to send their children to school in person, but rather to continue with some form of distance learning. If the parent voluntarily declines the face-to-face services and chooses distance learning, does that make a difference in the COVID comp analysis?

The answer is that it’s unclear. When parents opt for distance learning, school districts should make sure parents understand that, due to the inherent nature of distance learning, the student might not make the same amount of progress. It’s possible that the courts will say the parents waived full FAPE by opting for distance learning when they were aware it might not have been of equal benefit.

But another way that the courts could view this is that parents shouldn’t have to compromise their child’s safety to get full FAPE. In that case, the full comp may still be owed. It would be wise for schools to take action if a child is struggling in the distance learning environment. The 504 team should contact parents and request a meeting to discuss concerns and possible changes to the accommodations during distance learning. The team may consider urging the parent to reconsider sending the student to school based on the data.

How much do you owe, and when is it due?

If you determine that a child is owed COVID comp, the next issue to decide is how much. How are you going to structure it? When are you going to provide it? How fast are you going to discharge this obligation? The 504 team is responsible for those decisions.

A major challenge shared by every school district in the United States is to provide compensatory services after school closures end. If schools don’t do it right, there’s going to be a wave of litigation on compensatory services.

Unintended consequences

COVID comp is not a remedy for failure on the part of the school district. OSEP recognizes that school districts were unable to provide certain services because of COVID-19-related issues, not because of their negligence. OSEP acknowledges the unprecedented nature of the pandemic and the immense challenge placed on schools.

Suppose there is a lack of expected reading progress during the school closure period. Parents might see it as evidence that the school’s reading program is not working and then want to refer the child for special education evaluation. An important message to parents should be that a lack of reading progress during school closure probably has to do with a shift from face-to-face instruction to at-home instruction. It’s the most likely reason because it’s what happened most recently. That’s the part that’s really different, not the program itself.

It is important not to encourage, pressure or coerce parents into giving up on their compensatory services. School staff should instead offer comp services and encourage parents to take advantage of them. Some parents might say that their child is stressed and overloaded, and they don’t want the comp services. That’s understandable. But you can, still offer to provide the compensatory services in ways that won’t burden the child.

If parents want reading services made up immediately, they should be cautioned not to overload a child with so many services too quickly. You want the child to get the full benefit of the compensatory services, even if it takes a little bit more time.

The goal is to return the student to the levels of performance they should have been at if there hadn’t been a school closure. This reflects the full FAPE standard applicable under IDEA. It’s not so clear that this applies to 504 FAPE to the same degree, but schools should aim to follow the same standards.

The districts that invested more time, thought, energy, and resources in their online services are the ones that are going to have to do less comp. Districts that didn’t do as well with online instruction and support will have a bigger job getting out of the compensatory services hole.