On April 27, 2020, U.S. Education Secretary Betsy DeVos announced that she was declining to waive any significant aspects of the Individuals with Disabilities Education Act (“IDEA”) during the current pandemic. She stated that “learning must continue for all students during the COVID-19 national emergency.” Secretary DeVos explained that “[w]hile the Department [of Education] has provided extensive flexibility to help schools transition, there is no reason for Congress to waive any provision designed to keep students learning.”
As such, schools must continue to comply with federal special education laws during school building closures. However, Secretary DeVos recommended a few small changes to the IDEA during this time, including a waiver of the deadlines for transition from early childhood programs to elementary schools. While school buildings remain closed, the recommendation is for students to continue to receive early childhood services until schools are able to conduct face-to-face assessments for placement.
The invitation to the Secretary of Education to submit waiver requests came from Congress. Congress must still decide whether or not to accept Secretary DeVos’ recommendations. It has the authority to make further changes to federal education laws if it chooses to do so. Nevertheless, until and unless Congress changes or slackens rules that are impact students with disabilities, schools should continue to make every possible effort to comply with all provisions of the IDEA.
To the extent schools are unable to implement some IDEA-mandated services during school building closures, schools should be contemplating deferring such services now and providing them as compensatory services once school buildings reopen. Schools should be especially conscious of certain parts of the IDEA that may be more difficult during distance learning, such as deadlines for parent meetings, timelines for assessments, and individual therapy.
The Secretary did recommend several modest waiver authorities relating to other federal laws impacting education, including the Perkins Act, the Adult Education and Family Literacy Act, and the Rehabilitation Act of 1973. For a complete list of waiver recommendations and to access the full Recommendation of Waiver Authority report to Congress, click here.
For more information
If you have questions about compliance in Rhode Island or Massachusetts, please contact Rita E. Nerney or Matthew R. Plain, at 888.273.9903. For New York schools, please reach out to our New York office at 212.792.6246 or to Paul O’Neill, Jaime Fernand, or Lisa Holtzmuller.
About Barton Gilman
Barton Gilman provides the full scope of legal services to education clients – including traditional and non-traditional public schools, charter schools, charter management organizations, private schools, education advocacy organizations and other education-related organizations – throughout Massachusetts, Rhode Island and New York. For more information, please click here.
