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What is “Long Covid” and How Does it Relate to Section 504 and the IDEA?

On July 26, 2021, the U.S. Department of Education’s Office for Civil Rights (OCR) and the Office of Special Education and Rehabilitative Services (OSERS) jointly issued a resource (found here) to provide information about “long COVID” as a disability and about schools’ responsibilities relative to the provision of services and reasonable modifications to students for whom “long COVID” is a disability. As we all know, the COVID-19 pandemic has created many barriers for schools to overcome in meeting the needs of its students. Unfortunately, these barriers and challenges will continue as schools strive to ensure equity and support for students experiencing the lasting adverse health effects of COVID-19, referred to as “long COVID.”

So, what is “long COVID,” exactly? Katherine Neas, Acting Assistant Secretary for the OSERS, states “long COVID is an emerging issue that may affect many children (and educators) across the country….” The U.S. Centers for Disease Control and Prevention (CDC) has identified “long COVID” as another reference for post-COVID conditions. According to the CDC, post-COVID conditions “are a wide range of new, returning, or ongoing health problems people can experience more than four (4) weeks after first being infected with the virus that causes COVID-19. Even people who did not have symptoms when they were infected can have post-COVID conditions. The Departments of Justice and Health and Human Services have made clear that “long COVID” can be a disability under the Americans with Disabilities Act as well as Section 504 of the Rehabilitation Act of 1973 (Section 504).

A student experiencing “long COVID” may be eligible for special education and related services under the Individuals with Disabilities Education Act (IDEA) and/or may be entitled to protections and services under Section 504. In relation to eligibility under Section 504, for example, if a student’s “long COVID” substantially limits one or more major life activities (breathing and concentrating as well as major bodily functions such as functions of the immune system), the student would have a disability under Section 504. In relation to eligibility under Part B of the IDEA, a student may be eligible for special education and related services based on having an “other health impairment” if the child has limited strength, vitality, or alertness due to a chronic or acute health problem (e.g., “long COVID” or multisystem inflammatory syndrome, known as MIS-C) that adversely affects the student’s educational performance. To be eligible for early intervention services under IDEA Part C, an infant or toddler must receive a comprehensive evaluation. To illustrate, infants with severe post-COVID conditions could, based on evaluation data, have developmental delays that make them eligible for early intervention services. It is apparent that “long COVID” affects students in a variety of ways.

Schools will need to keep a watchful eye out for student behavior that may be a result of “long COVID” such as difficulty concentrating and anxiety symptoms. If it is determined that a student may be suffering from “long COVID” they may need to receive special education and related services and supplementary aids and services in order to improve their academic engagement during instruction, school counseling services to address anxiety, and a plan for behavioral interventions and supports in order to promote on-task behaviors and adaptive responses to stress triggers. As stated by Suzanne B. Goldberg, Acting Assistant Secretary for OCR, “students with disabilities—including those whose long COVID is a disability—have a right to be free from discrimination in school.”

As always, the School Group at Stock and Leader is monitoring all developments in the special education sphere. Members of our group are ready to discuss concerns, answer questions, and provide counsel on any of your school district’s issues relating to special education.

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