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Dear School and District Leaders,
This message is intended to provide some additional context and clarity related to accommodations for face covering requirements during the 2021-22 school year. Within the public education context, accommodations are a protection guaranteed to students experiencing disability to afford them access to their education. Accommodations are not merely a matter of parent/student choice or comfort. It is inappropriate to misuse civil rights protections for individuals with disabilities in an attempt to circumvent public health requirements. In order to be entitled to accommodations, a student must be eligible for either a Section 504 Plan (under the Rehabilitation Act of 1973) or an Individualized Education Program (IEP) (under the Individuals with Disabilities Education Act). An appropriate initial evaluation, designed to assess all suspected areas of need, must be conducted prior to a team considering initial eligibility for support under Section 504 or the IDEA.
In addition to this information, ODE will further review these requirements at the following dates and times:
- RSSL Office Hours for Superintendents and Principals, August 30, 2021, 3:00 - 4:00 PM
- Webinar for Special Education Directors, August 27, 2021, 9:00 AM - 10:00 AM (link to register)
Every child who requires an accommodation related to face coverings due to their disability and/or medical circumstances should receive it. However, in line with the vast majority of medical experts, the Department agrees that face coverings “can be safely worn by all children 2 years of age and older, including the vast majority of children with underlying health conditions, with rare exception” (AAP, 2021). Accordingly, the Department believes that accommodations to face covering requirements should be rare and provided only as required by the unique needs that arise from a student's disability or medical circumstances.
Evaluation and Eligibility
Section 504 of the Rehabilitation Act of 1973
A student must be eligible to receive support under Section 504 of the Rehabilitation Act of 1973 before a team may determine whether and what accommodations are required. Under 34 CFR § 104.35, at the elementary and secondary school level, determining whether a child is a qualified disabled student under Section 504 begins with the evaluation process. Section 504 requires informed parental permission for initial evaluations.
In public elementary and secondary schools, unless a student actually has an impairment that substantially limits a major life activity, the mere fact that a student has a “record of” or is “regarded as” disabled is insufficient, in itself, to trigger those Section 504 protections that require the provision of a free appropriate public education (FAPE). Section 504 requires the use of evaluation procedures that ensure that children are not misclassified, unnecessarily labeled as having a disability, or incorrectly placed, based on inappropriate selection, administration, or interpretation of evaluation materials.
School districts must establish standards and procedures for initial evaluations and periodic re-evaluations of students who need or are believed to need special education and/or related services because of disability. Tests used for this purpose must be selected and administered so as best to ensure that the test results accurately reflect the student's aptitude or achievement or other factor being measured rather than reflect the student's disability, except where those are the factors being measured. Section 504 also requires that tests and other evaluation materials include those tailored to evaluate the specific areas of educational need and not merely those designed to provide a single intelligence quotient. The tests and other evaluation materials must be validated for the specific purpose for which they are used and appropriately administered by trained personnel.
The evaluation should provide the team information about: 1) the physical or mental impairment at issue, 2) the major life activity or bodily function impacted by the impairment, and 3) the degree to which the impairment substantially limits the major life activity (or activities). This information is critical to the determination of whether the student has a qualifying disability and whether the student needs a Section 504 plan in order to have their educational needs met as adequately as those of nondisabled peers.
Once an evaluation has been completed, the Section 504 regulatory provision at 34 CFR § 104.35(c)(3) requires that school districts ensure that the eligibility determination be made by a group of persons, including persons knowledgeable about the meaning of the evaluation data and knowledgeable about the placement options. The determination of whether a student has a physical or mental impairment that substantially limits a major life activity must be made on the basis of an individual inquiry.
Individuals with Disabilities Education Act
Eligibility for special education is governed by OAR Chapter 581, Division 15.
Once determined eligible, accommodations must be based on the unique needs that arise from a child’s disability.
Requirement for Accommodation
Under the various Federal laws that protect students experiencing disability (e.g., the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the Individuals with Disabilities Education Act):
- Public entities must make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity (28 CFR § 35.130), and;
- For students eligible to receive support under the IDEA, accommodations must be provided when required to enable the child to advance appropriately toward attaining the annual goals; to be involved in and make progress in the general education curriculum in accordance with paragraph (a)(1) of this section, and to participate in extracurricular and other nonacademic activities; and to be educated and participate with other children with disabilities and nondisabled children in their education. (34 CFR § 300.320)
ODE is working to update the Considering Reasonable Accommodation of Face Covering Requirements guidance to more clearly delineate the connection between accommodations and needs that arise from a disability or medical condition.
Accommodations are not required because a parent has concerns about the efficacy, implications, or potential harm of face covering requirements. Rather, accommodations are required only when necessary to enable access to education and prevent discrimination on the basis of disability. Oregon prohibits discrimination in its K-12 education system (OAR 581-021-0045). Under that rule, discrimination is defined as “any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on age, disability, national origin, race, color, marital status, religion, sex or sexual orientation.” A values-based belief regarding the use of face coverings in schools is not sufficient reason to grant an accommodation from the face covering requirement.
This statement is not meant to imply, in any way, that appropriate accommodations should not be provided, nor that parents should be excluded from the decision-making process related to their children. The Department deeply values collaboration between parents and educators to make plans that meet the needs of every Oregon student. Parents must be afforded the opportunity to meaningfully participate in decision-making related to accommodations. However, a team determines the specific accommodations, including accommodations related to face covering requirements, that are required for the child.
Therefore, school districts are not required to provide an accommodation or exemption from face covering requirements because a parent or guardian asks for it. Rather, when a parent indicates that such an accommodation is desired, the appropriate team should meet, consider the child’s individual circumstances, and ensure access to a free appropriate public education (FAPE). For some students, when their disability or medical condition requires it, this could include accommodations to the face mask requirements established by OAR 333-019-1015.
School districts should also be reminded that a comprehensive, individual evaluation must be completed prior to determining eligibility for accommodation under Section 504 of the Rehabilitation Act or eligibility under the IDEA. It would be inappropriate to develop an IEP or 504 Plan for any student prior to an evaluation and eligibility determination.
The Department is available to support school districts as they work to implement appropriate accommodations for face covering requirements. Please reach out to your special education County Contact, our Directors, or me with questions.
Sincerely,
Tenneal Wetherell
Assistant Superintendent
Office of Enhancing Student Opportunities
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