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Update: Good News – No Additional Special Education Waiver Requests Made by Secretary of Education – by Alison Morris, Esq.

Posted on May 4, 2020

On March 27, 2020, the President signed a stimulus bill to counteract the economic effects of COVID-19, called the CARES Act (Coronavirus Aid, Relief, and Economic Security Act). As part of the bill, the Secretary of Education, Besty DeVos, was ordered to provide, within thirty (30) days:

recommendations on any additional waivers under the Individuals with Disabilities Education Act [“IDEA”] (20 U.S.C. 1401 et seq.), the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.), and the Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C. 2301 et seq.) the Secretary believes are necessary to be enacted into law to provide limited flexibility to States and local educational agencies to meet the needs of students during the emergency … with respect to the Coronavirus Disease 2019 (COVID–19).

On April 27, 2020, Secretary of Education DeVos presented her report to Congress, where she did not recommend any additional waivers to special education regulations under the IDEA or the Rehabilitation Act of 1973 that would negatively impact students with special needs. Secretary DeVos stated:

The Department is not requesting waiver authority for any of the core tenets of the IDEA or Section 504 of the Rehabilitation Act of 1973, most notably a free appropriate public education (FAPE) in the least restrictive environment (LRE). The Department’s position is based on the principles that:

  • Schools can, and must, provide education to all students, including children with disabilities; …
  • Services typically provided in person may now need to be provided through alternative methods, requiring creative and innovative approaches

The only additional waiver Secretary DeVos recommended was to extend the timeline for when services for infants and toddlers with disabilities can be provided, because these individuals need to be evaluated to determine their eligibility to continue to receive special education services once they turn three (3). However, evaluations that require face-to-face observation or assessment have been put on hold until schools re-open. Therefore, Secretary DeVos recommended, in order for these toddlers with disabilities to continue to receive their necessary special education services:

explicit authorization for Part C services to continue during the delayed Part B transition evaluation timeline so that a toddler may continue to receive Part C services after his or her third birthday and until a Part B evaluation is completed and an eligibility determination made.

Therefore, right now, if you have a child with special needs, there is nothing telling school districts that they do not have to provide your child with the services and instruction they need. In fact, Secretary DeVos has reiterated “[s]chools can, and must, provide education to all students, including children with disabilities.” At this time, the only waivers schools have been authorized to proceed with is an extension of the timeline for evaluations of students with disabilities, as evaluations that require face-to-face observation or assessment cannot be conducted until schools re-open. Individualized education program meetings can and should still be taking place, and schools must be providing services and instruction so that your child can make meaningful progress.

We understand how frustrating this time is. We encourage all families to keep track of the instruction and services their children are and are not receiving, and to keep their school district informed of any issues. If you have any questions during this time, we at the Cuddy Law Firm are here to assist you in any way possible.

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