Within the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Congress requested a report from U.S. Education Secretary Betsy DeVos on recommended waiver authority for the Department of Education to provide State and local educational agencies flexibility to meet the needs of students with disabilities during the public health emergency. Secretary DeVos issued the highly anticipated report to Congress on April 27, 2020. Ultimately, Secretary DeVos’ recommended waivers were very limited, such that most requirements will remain in place.
In her cover letter to the report, Secretary DeVos acknowledged that services typically provided in person must occur differently during the public health emergency. However, she reiterated that learning must continue for all students, including students with disabilities, and that the Department based its decisions regarding waivers on the best interests of students rather than the education system.
Not surprisingly, Secretary DeVos did not recommend any waivers to the free appropriate public education (“FAPE”) and least restrictive environment (“LRE”) core principals of the Individuals with Disabilities Education Act (“IDEA”).
Additionally, Secretary DeVos did not recommend waivers of most procedural timelines provided under the IDEA. For instance, Secretary DeVos did not recommend waivers for IDEA’s procedural timelines for completing evaluations and reevaluations, drafting initial individualized education programs (“IEP”), or convening annual IEP meetings.
Further, Secretary DeVos also did not address waivers for school district level maintenance of effort requirements that will likely be impacted by reduced spending on special education and related services during the school closures.
One of the few exceptions was Secretary DeVos’ recommendation to authorize waivers for school districts to complete evaluations before a child transitions from IDEA Part C (birth to three) to Part B (school age). Secretary DeVos recommended that Congress authorize waivers to begin counting the timeline to evaluate a child for eligibility under IDEA Part B when the current public health emergency allows face-to-face meetings to resume. The recommendation also would extend eligibility for Part C services beyond a toddler’s third birthday until a Part B evaluation is completed.
Although Secretary DeVos did not recommend waivers for most IDEA procedural timelines, the Wisconsin Department of Public Instruction continues to interpret procedural requirements broadly to give school districts as much flexibility as possible to comply with state and federal procedural timelines. School districts should make reasonable efforts to meet procedural timelines despite the public health emergency and document circumstances that may prevent them from doing so.
Secretary DeVos’ report to Congress is clear. The Department of Education expects school districts to be creative and innovative to continue educating all students during the public health emergency. School districts should not expect relief from most substantive or procedural requirements under the IDEA.
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Chad P. Wade
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