Secretary of Education Recommends Minimal IDEA Flexibility and Waivers

Secretary of Education Recommends Minimal IDEA Flexibility and Waivers

By April 29, 2020 News No Comments

On April 27, 2020, U.S. Secretary of Education Betsy DeVos provided her Report to Congress on recommended waiver authority under the CARES Act. As you may recall, under the CARES Act, passed on March 27, 2020, Congress requested Secretary DeVos provide a report with her recommendations on waiver authority for the Carl D. Perkins Career and Technical Act of 2006, the Adult Education and Family Literacy Act, the Elementary and Secondary Education Act of 1965, the Individuals with Disabilities Education Act (“IDEA”), and the Rehabilitation Act of 1973. School districts across the country were particularly eager to hear the Secretary’s recommendations for waiver authority under IDEA.

As expected, Secretary DeVos recommended only very minimal waiver authority under IDEA. Specifically, DeVos recommended Congress grant her the authority to extend the IDEA Part B transition evaluation timelines for early childhood students. This waiver would allow school districts additional time to evaluate early childhood students transitioning to Part B to allow for in-person evaluations upon the return to in-person instruction. If Congress grants this waiver, students will be allowed to continue to receive Part C services after their third birthday until the school district can complete an evaluation and determine eligibility under Part B. Congress will consider Secretary DeVos’ report and determine whether to issue waivers to extend the Part B timelines.

Notably, DeVos did not recommend any waivers for other Part B timelines or requirements, including the 60-school-day evaluation timeline, the triennial re-evaluation timelines, school districts’ obligations to hold annual review meetings, or school districts’ obligation to provide FAPE. Therefore, all school-day timelines and requirements set forth in IDEA, other than those timelines for early childhood transition, will likely remain in full force and effect despite the extended school closures due to COVID-19. Currently, no waivers exist under IDEA, including the Part B transition evaluation timeline, and school districts should continue following all mandatory timelines and requirements set forth in IDEA until further action from Congress.

Please contact any attorney in our Students/Special Education Practice Group with questions regarding the requested waiver authority under IDEA.

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