On September 28, the Department of Education Office for Civil Rights (OCR) published thirteen questions and answers pertaining to public schools in the current COVID-19 environment. While this document is not legally binding, it gives insight into the OCR’s position on various new topics.

The OCR references the newest CDC guidance which encourages local communities to “make every effort to support the reopening of schools safely for in-person learning in the fall” and states that it is the Department of Education’s “expectation that any phase-in plans designed and implemented by school districts will provided the full benefit of educational opportunities for all students and will meet the requirements of Federal civil rights laws. With those goals in mind, the guidance addresses various topics.

The OCR addresses in Question 2 whether a school district is required by Section 504 to prioritize a return to in-person learning for students with disabilities. The answer depends on the individual student’s “educational and disability-related needs, and whether providing in-person instruction or services would be a reasonable modification to a reopening policy that is necessary to provide a student a FAPE or otherwise to avoid discrimination on the basis of disability.” The guidance also discusses a school district’s obligation to provide services to students who have been advised by their medical provider to stay at home due to COVID-19.

In Question 3, the OCR addresses when a face covering requirement must be waived for a student with a disability. The guidance acknowledges that it can be difficult for students with disabilities, especially those with extreme sensory issues, to tolerate wearing a mask. If students are not allowed to come to the school building because they cannot wear a mask, it may make it difficult for those students to receive the FAPE to which they are entitled. For that reason, the OCR encourages school districts to “make reasonable modifications in their policies, practices or procedures . . . where those modifications can be made consistent with the health, safety, and well-being of all students and staff,” and additionally where such modifications are necessary to avoid discrimination on the basis of disability. This balance of interests may require creativity, and we recommend that decisions regarding in-person services, appropriate PPE, and alternative mitigation measures be made in consultation with local health departments and medical experts.

Next, the Q&A discusses evaluations in Questions 6 and 7. Section 504 requires evaluations to be conducted in a timely manner for “any student who needs or is believed to need special education or related services.” At the same time, schools have an obligation to protect the health and safety of students and staff and comply with any local or state orders in effect. If a particular evaluation or reevaluation requires an in-person administration of an assessment tool or instrument, the school should make a “good faith effort to conduct assessments virtually or via other comparable methods.”

Finally, in Question 8, OCR addressed whether Section 504 plans must be revised if a school transitions to distance learning. The guidance states, “Placement decisions and educational settings in effect at the time that a school suspends in-person instruction in response to concerns over COVID-19 do not need to be changed or updated solely to reflect a temporary shift to distance learning. However, State and local decisions that require schools to limit or suspend in-person instruction do not relieve school districts of the obligation to provide a FAPE to students with a disability.” Not providing services or accommodations/modifications in current 504 Plans could result in a denial of FAPE and a violation of Section 504. Therefore, school districts should consider whether individual 504 Plans need to be revised to ensure FAPE is provided, “including by identifying how the special education or related aids and services called for by a student’s IEP or Section 504 plan may be provided through a variety of instructional methods and settings.”

Please keep in mind that the OCR Q&A and this Legal Update focus specifically on obligations of school districts under Section 504. For DPI guidance on a school district’s obligations under the IDEA and Chapter 115 of the Wisconsin Statutes, please refer to the most recent DPI guidance available here.