04.20.2020

This document provides responses to the top five frequently asked questions regarding implementation of Section 504 of the Rehabilitation Act of 1973 (“Section 504”) during COVID-19 school closures.

1. What are a school district’s legal obligations to continue to provide a free appropriate public education to students with existing Section 504 plans?

A free appropriate public education (“FAPE”) under Section 504 is the provision of regular or special education and related aids and services that are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met. In other words, FAPE under Section 504 is the provision of equal access to the educational environment.  During COVID-19 school closures, the educational environment is the provision of your district’s distance learning program(s)^[1], consistent with the student’s approved Section 504 plan and adjusted appropriately for a COVID-19 school day.  Thus, students with existing Section 504 plans are entitled to regular or special education, related aids, services, accommodations, and/or support that will allow for equal access to the provision of distance learning.

2. Do we need to communicate with the parents of students with Section 504 plans regarding implementation of individual Section 504 plans? If so, in what format?

Yes.  Each school site Section 504 coordinator or Section 504 case manager should review their assigned students’ existing Section 504 plans and, in collaboration with each student’s teacher(s), determine which listed accommodations or supports continue to be applicable/make sense within the distance learning format the teacher(s) are utilizing.  

For those accommodations or supports that are not applicable, or do not make sense within the assigned distance learning or other format, the Section 504 coordinator or case manager, in collaboration with the student’s teacher(s), should determine whether different accommodation(s) or support(s) are necessary for equal access.

For example, neither the accommodation of a separate seating area during lunch for a student with a peanut allergy nor the accommodation of preferential seating close to the point of instruction for a student with ADHD, will be applicable during the school closures.  Parents should be notified in writing that these accommodations will not be implemented.  On the other hand, if a student has an accommodation related to chunking assignments, and the student’s teacher’(s’) distance learning format is to provide work packets to be turned each week, that accommodation could still be implemented by giving the student daily, rather than weekly, assignments.

The decisions regarding continued implementation or non-implementation of individual accommodations/supports should be communicated to each student’s parents via a Notice of Action. Please contact us if you would like a sample form.  

The Notice of Action should be accompanied by a copy of your district’s Section 504 procedural safeguards, and a note to Parents that they may request a virtual or telephonic Section 504 meeting to discuss concerns related to distance learning.

Finally, any Section 504 related services (e.g., mental health counseling, assistive technology services, etc.) that are embedded within a student’s Section 504 plan should be implemented to the extent feasible, using a video-conference or other format during COVID-19 school closures.  If such services cannot be implemented virtually, the student’s Section 504 team will need to determine whether to provide the related services through alternate means, or if there is no feasible alternative, issue a Notice of Action indicating why the service cannot be provided during school closures, and convene a Section 504 meeting when school resumes, to discuss the need for compensatory services.

3. What are a school district’s obligations to students who have previously been determined to meet Section 504 eligibility criteria, but prior to the COVID-19 school closures did not require provision of any accommodations or supports beyond those provided to all students in general education (i.e., “technically eligible” students)?

These students, though only “technically eligible”, are still entitled to equal access to the educational environment. The school site Section 504 coordinator or case manager, should collaborate with these students’ teacher(s) and determine whether the student is now demonstrating a need for accommodations or supports that are not available to all general education students during the school closures.  If so, the coordinator or case manager should schedule a virtual Section 504 meeting with the student’s parents to discuss these issues.

4. What should we do if a parent requests an initial Section 504 evaluation during COVID-19 school closures or a student is due for a Section 504 re-evaluation?

There are no specific timelines for initial evaluations or re-evaluations contained within the federal Section 504 regulations.  Instead, 34 C.F.R. 104.35(b) states that districts “shall establish standards and procedures for the evaluation of students with disabilities.”  Accordingly, your school district should have Board policies or internal Section 504 procedures that provide specific timelines for initial and re-evaluations. 

The federal government has not explicitly tolled or otherwise modified any timelines related to assessment of students with disabilities.   In most cases, a Section 504 evaluation can consist of just a review of existing data and a team based eligibility decision.  Formal, in person assessments are often not necessary under Section 504 to determine or re-determine eligibility.  These types of evaluations can therefore be easily conducted virtually and initial and re-evaluation 504 team meetings should be held in accordance with your district’s current Board policy or internal Section 504 procedures, absent written parent agreement to delay the evaluation until school resumes. 

We recommend having a conversation with parents about the pros/cons of delaying initial evaluations and re-evaluations until schools re-open on a case by case basis.

In addition, it is important to note that California SB 117 waived all California timelines associated with the development and submission of a proposed special education assessment plan to a parent or guardian “if a school is closed due to the coronavirus.”  The new legislation makes clear that COVID-19 school closure days shall be deemed “as days between a pupil’s regular school session, up until the school reopens and the regular school session reconvenes”— thereby extending the timelines for special education evaluations.  Given SB 117, it would be reasonable under the current circumstances, for California school districts to modify existing Board policy or internal Section 504 procedures to also delay Section 504 initial or re- evaluations during COVID-19 school closures or alternatively, issue a Notice of Action in affected individual cases.  However, unless those steps are taken affirmatively, districts must continue to follow their existing Section 504 evaluation policies/procedures.

5. What should we do if our district’s Section 504 policies or procedures specify annual reviews for Section 504 plans and the annual due date falls during COVID-19 school closures?

As noted above, Section 504 related timelines are dictated by your district’s Board policies or Section 504 procedures.  Section 504 teams should continue to convene 504 team meetings in accordance with those policies and procedures, absent parent agreement to postpone.   Meetings can be held virtually or telephonically.  It is anticipated that school districts will have much to grapple with when schools re-open.  Thus, to the extent a Section 504 annual review meeting is expected to be relatively uneventful and significant adjustments to a student’s Section 504 Plan are unanticipated, districts should aim to convene annual review meetings now, in a virtual or telephonic format, rather than delay them to the fall. 

COVID-19 school closure related accommodations or supports can be discussed (and documented via a Notice of Action) but the Section 504 Plan should be drafted as applicable to the student’s regular school environment, and not with respect to the student’s current distance learning format.

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^[1]  For purposes of this Alert, “distance learning” should read broadly to include video-conference, telephone pre-recorded lessons, mailed packets, etc.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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