When Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) on March 27, 2020, it included a section that allowed the U.S. Secretary of Education to request waivers of portions of the special education laws based on COVID-19. On Monday, Secretary Betsy DeVos issued a Report to Congress of her recommendations on what waiver authority the Department of Education will need to address COVID-19.
Ultimately, the Secretary did not recommend waiver authority for any of the major elements of the IDEA or Section 504. The Report specifically noted that there was no recommendation for waiver authority related to the free appropriate public education (FAPE) requirement in the least restrictive environment (LRE). Further, no additional waivers were recommended related to the requirements in the Elementary and Secondary Education Act (ESEA). Secretary DeVos stated that “while the Department has provided extensive flexibility to help schools transition, there is no reason for Congress to waive any provision designed to keep students learning.”
There is a recommendation to grant authority to the Department of Education to extend the IDEA Part B transition evaluation timelines, so that the timeline begins “no later than the day on which health and safety factors allow for face-to-face meetings to resume and the toddler is able to be evaluated.” The Department is also seeking waiver authority to authorize Part C services to continue during the delayed Part B transition evaluation timelines, 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 is made. This ensures that there is not a gap in services because a Part B evaluation cannot be completed, since, as the law is currently written, Part B funds cannot be used for a child not yet eligible for Part B services and Part C funds cannot be used for a child who has aged out of Part C.
The Report does not affect any prior guidance from the Department of Education, or stated flexibility in such guidance, related to special education distance learning. But this does provide the most definitive answer from the Department of Education regarding what will be done at the federal level with respect to special education requirements.