OCR Addresses COVID-19 Compensatory Education Services
By William J. Zee & Megan E. Bomba
February 18, 2022
The U.S. Department of Education Office for Civil Rights (OCR) released a new fact sheet addressing compensatory services for denial of a free appropriate public education (FAPE) in connection with the COVID-19 pandemic.
The fact sheet details the obligation of local education agencies (LEAs) to provide FAPE under Section 504 despite the challenges caused by the pandemic. Whether providing education virtually, in person, or via a hybrid learning model, OCR has indicated that an LEA’s obligation to comply with Section 504 remains.
Where FAPE was denied due to pandemic challenges, the fact sheet directs LEAs to convene a group of persons knowledgeable about the student to determine whether compensatory services are required. OCR notes that the process will require looking backward to determine the educational and other benefits that would have accrued from services the student missed.
The fact sheet indicates that “[p]roviding compensatory services to a student does not draw into question a school’s good faith efforts during these difficult circumstances. It is a remedy that recognizes the reality that students experience injury when they do not receive appropriate and timely initial evaluations, re-evaluations, or services, including the services that the school had previously determined they were entitled to, regardless of the reason.”
OCR lists factors that may be relevant for determining when compensatory services are necessary:
- Frequency and duration of missed instruction
- Whether special education and services provided during the pandemic were appropriate
- The student’s present performance level
- Previous rate of progress
- Results of updated evaluations
- Whether evaluations were delayed
LEAs are required to consider all relevant information when determining what compensatory services are necessary to mitigate the impact of COVID-19 pandemic on a student’s education. Of course, should a parent believe that their student has not received FAPE or appropriate compensatory services, they may utilize the procedural safeguards afforded under Section 504, including the due process procedures or initiating a complaint with OCR.
Should you have any questions regarding the fact sheet or any other student service-related questions, please do not hesitate to contact William J. Zee or any of the attorneys in the Appel, Yost & Zee Education Group.