On July 26, 2021, the Office for Civil Rights (“OCR”) and the Office of Special Education and Rehabilitative Services (“OSERS”) issued guidance regarding “long COVID.”

OCR is the U.S. Department of Education agency that enforces Section 504 of the Rehabilitation Act of 1973 (among other civil rights laws). OSERS provides guidance and support to students with disabilities and local educational agencies (“LEAs”) with respect to the Individuals with Disabilities Education Improvement Act (“IDEIA”).

In accordance with the U.S. Center for Disease Control and Prevention (“CDC”), OCR and OSERS defined “long COVID” in the July 26, 2021 guidance as “another term for post-COVID conditions” which “are 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.”

The guidance indicates that individuals experiencing long COVID could have any number of symptoms. For example, such symptoms could include but not necessarily be limited to, tiredness, difficulty thinking or concentrating (i.e. “brain fog”), headaches, difficulty breathing, sleep problems, changes in smell or taste, cough, mood changes, etc.

The purpose of the July 26, 2021 guidance is to remind LEAs that if a student within their jurisdiction is experiencing long COVID, the LEA must consider whether it has child find and evaluation responsibilities under Section 504 and/or the IDEIA.

As a reminder, to be eligible for a free appropriate public education (“FAPE”) under the IDEIA:

  • A student must meet eligibility criteria for one or more of the thirteen (13) specific impairments listed within the California Code of Regulations and IDEIA Regulations (e.g. Autism, Emotional Disturbance, Other Health Impairment, etc.);
  • The identified impairment(s) adversely affects the student’s educational performance; and,
  • As a result, the student needs special education and related services.

The guidance specifically identifies Other Health Impairment as one category under which a student experiencing long COVID could potentially qualify under the IDEIA. However, it is important to remember that an Individualized Education Program (“IEP”) team must make this determination after a comprehensive evaluation and IEP team discussion.

With respect to Section 504, to be eligible for a FAPE, a student must:

  • Have a physical or mental impairment
  • That substantially limits
  • One or more major life activities, without regard to the ameliorative effects of mitigating measures.

For example, a Section 504 team could determine that a student diagnosed with migraines as a symptom of long COVID has a physical or mental impairment that substantially limits the student’s major life activity of concentration, without regard to the ameliorative effects of a prescribed migraine medication.

Though coined “long COVID,” for some students, symptoms may actually be short term in nature. In such cases, LEAs should make individualized determinations and consider whether, the symptoms a student is experiencing are actually transitory and minor in nature, rather than rising to the level of a Section 504 or IDEIA disability. An impairment is transitory if it has an actual or expected duration of 6 months or less. Consultation and feedback from the diagnosing physician, through a release of information, will be important to make these determinations.