Amid a rise in complaints, federal education officials are reminding schools across the nation about their obligation to provide compensatory services to students with disabilities.

The U.S. Department of Education’s Office for Civil Rights issued a new fact sheet last week doubling down on the responsibilities schools have under Section 504 of the Rehabilitation Act of 1973.

Even during the COVID-19 pandemic, the law requires that students with disabilities are provided appropriate evaluations and services, the guidance indicates, adding that the right to a free appropriate public education remains intact “regardless of the challenges schools face.”

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In circumstances where students do not receive the services they should, federal officials say that schools must convene a group to determine if compensatory services are required. This could mean making up for physical therapy that a child lost out on during school closures or services for a student who did not receive a timely evaluation, according to the fact sheet.

“Providing compensatory services to a student does not draw into question a school’s good faith efforts during these difficult circumstances,” the guidance indicates. “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.”

Decisions about whether compensatory services are warranted and to what degree should be made by people who are knowledgeable about the student, federal officials said. They ought to consider the frequency and duration of missed services, if the services that were provided were appropriate to the student’s individual needs as well as the child’s performance and rate of progress, among other factors.

An Education Department spokesperson told Disability Scoop that the agency was prompted to issue additional guidance after seeing an increase in complaints to the Office for Civil Rights alleging a failure to provide FAPE.

“The new fact sheet differs from previous guidance in that it directly addresses the requirement to offer compensatory services, acknowledging that these services may be necessary even when a school has acted in good faith in working with students and their families to provide equal access and FAPE,” the spokesperson said.

A survey of parents across the country released last fall by the Council of Parent Attorneys and Advocates, or COPAA, found that only 18% of students with disabilities had been offered compensatory services despite widespread concerns from families about learning loss, regression or slower than expected progress toward goals since the onset of the pandemic.

“We do continue to hear that families are struggling,” said Denise Marshall, CEO of COPAA, which works to advocate for the rights of students with disabilities and their families. “I certainly hope the guidance helps — and I urge families who don’t find that to be the case and are still struggling to submit OCR complaints.”

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