May 01, 2020

Secretary DeVos Affirms Key Provisions of the IDEA to Remain in Place Despite Coronavirus

On April 27, 2020, U.S. Education Secretary Betsy DeVos issued much awaited recommendations to Congress regarding the effect of the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) on America’s education system, and in particular, special education. Educators, parents and advocates have eagerly awaited Secretary DeVos’ submission since the signing of the CARES Act one month ago. In particular, Section 3511 of the CARES Act authorized Secretary DeVos to recommend to Congress that certain provisions of the Individuals with Disabilities in Education Act (“IDEA”) be waived in light of the ongoing public health emergency associated with the Coronavirus. While Congress’ response to Sec. Devos’ report remains to be seen, it does provide a strong indication of how the CARES Act will ultimately affect special education in America.

Critically, Sec. DeVos declined the opportunity to recommend that key provisions of the statute be amended. She instead affirmed that local educational agencies are required to continue providing a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”). The guidance applauded efforts by LEAs to “find solutions for their students” in light of the challenges posed by the Coronavirus and affirmed that schools must continue to provide services to disabled students, including when “creative and innovative approaches” are required to do so.

After confirming the core tenets of the IDEA should remain unchanged, the Secretary recommended very limited waivers. The first acknowledges the difficulty in administering evaluations given the Coronavirus by allowing students receiving early intervention services to continue to do so past age three and until an evaluation can be completed to determine eligibility for continued services. The Secretary also recommended a waiver that would afford IDEA personnel preparation grant recipients more time to complete the employment requirements of the program.

Parents and disability advocates are breathing a collective sigh of relief given the conservative approach taken by the Department, and the continued effect of the IDEA. Local educational agencies, however, may be at a loss about how to implement key provisions of the statute, without waivers in place. Eastburn and Gray’s Education Law practice group is tracking Congressional action on these issues and is available to address concerns.

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