It is without question that the COVID-19 pandemic will have a lasting impact on education, how students learn, and how school laws are interpreted and applied to schools.
Since the pandemic began, the U.S. Department of Education’s Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) have issued numerous guidance documents regarding the enforcement of the Individuals with Disabilities Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504).
On July 26, OCR and OSERS issued a new resource: Long COVID under Section 504 and the IDEA: A Resource to Support Children, Students, Educators, Schools, Service Providers, and Families. In this guidance document, the term long COVID was identified as a post-COVID-19 condition that may be a recognized disability under Section 504 and the IDEA. Post-COVID conditions are defined by the U.S. Centers for Disease Control and Prevention (CDC) as “a wide range of new, returning, or ongoing health problems people can experience more than four weeks after first being infected with the virus that causes COVID-19.”
Long COVID is a term we will start hearing frequently and will become part of our standard vocabulary this school year.
In this guidance, OCR identified long covid as a potential disability under the Americans with Disabilities Act and Section 504. Accordingly, a student experiencing long COVID may be eligible for special education and related services under the IDEA and/or may be entitled to protections and services under Section 504. Please note, however, that not all students who previously tested positive for COVID-19 are students with disabilities as hopefully, in most cases, the COVID-19 symptoms and their impact are temporary.
However, for students experiencing long-term effects of COVID (generally more than four weeks of lingering symptoms), these students may be eligible under Section 504, if their symptoms are substantially limiting a major life activity (such as concentrating, breathing, etc.). For these students, proceed through a Section 504 evaluation based on your procedures to examine eligibility and any required accommodations and modifications needed.
Also, not all students who are experiencing long COVID will be eligible under the IDEA, if they do not otherwise demonstrate an adverse educational impact, need specialized instruction, and otherwise meet the requirements of IDEA eligibility in your state and the federal regulations. The standard procedures and requirements for eligibility under Section 504 and the IDEA have not been changed by this guidance. However, this resource document reminds schools to be aware of long COVID, its potential to lead to a Section 504 or IDEA eligible disability, and to be mindful of our child-find obligations under both laws. Child find under the IDEA (and a similar standard applies under Section 504) is the “affirmative, ongoing obligation of states and local districts to identify, locate, and evaluate all children with disabilities residing within the jurisdiction who are in need of special education and related services.”
As detailed in the guidance, a student who has had COVID-19 and who continues to have difficulty concentrating may require an evaluation to determine if the student has a disability and needs special education or related services such as additional time to finish classwork and tests. In the transportation world, students who continue to have health issues post-COVID may require additional assistance and accommodations on the bus.
Long COVID will heighten the need for the conscientious sharing of information between special education and transportation departments about health plans and emergency measures for students who continue to experience issues with shortness of breath, heart palpitations, or other lasting symptoms of long COVID. Remember that the Family Educational Rights and Privacy Act provides that student information may be shared with those school officials (including those schools contract with) who have a legitimate educational interest in that information. Always share student health information in the most secure, respectful, and confidential way possible, but providing information to those who need the information to keep students safe is key, particularly in this constantly changing environment.
Betsey Helfrich of the Law Office of Betsey Helfrich, LLC, provides general counsel and special education services to schools. Betsey also conducts local and national training and professional development on all areas of the IDEA and Section 504 of the Rehabilitation Act of 1973. She returns to the TSD Conference in Frisco, Texas on Nov. 18 as a keynote speaker on the impact of COVID-19 on student transportation services.