Since the beginning of the COVID-19 pandemic, no formal flexibility has been granted to schools to deviate from State and federal special education requirements. However, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) gave the U.S. Secretary of Education Betsy DeVos the power to appeal to Congress if she believes that waivers should be made to provide flexibility regarding the Individuals with Disabilities Education Act (IDEA). Earlier this week, Secretary DeVos made her recommendations to Congress, declining to seek significant flexibility for IDEA provisions. Secretary DeVos only requested limited waivers related to pre-k evaluations.

In her report, the one area where Secretary DeVos requests waiver authority is to extend transition evaluation timelines to accommodate for delays while in-person evaluations are not feasible. The result would be a delay in the obligation to evaluate students under three years of age until in-person meetings and assessments are allowed. This waiver authority would also allow toddlers to continue receiving early childhood services, even after their third birthdays, until an evaluation can be completed and an eligibility determination made.

Notably, Secretary DeVos did not recommend any other waivers for IDEA or Section 504 of the Rehabilitation Act. The report states that she is not moving forward with any waivers that would alter or impede the core tenants of the IDEA, such as providing a FAPE in the least restrictive environment. In a statement, DeVos explained that “there is no reason for Congress to waive any provision designed to keep students learning.” Adding that “with ingenuity, innovation, and grit, I know this nation’s educators and schools can continue to faithfully educate every one of its students.” However, the lack of flexibility and minimal direction provided regarding both State and federal requirements for special education has many schools and school districts understandably concerned about potential liability for attempts to evaluate students and implement IEPs during mandated remote learning.

Secretary DeVos’s waiver requests must be approved by Congress. For now, schools have not been granted any flexibility to deviate from federal requirements regarding special education and it is increasingly unlikely that additional waiver requests relaxing IDEA requirements will be forthcoming. Given that IDEA is a federal law, at the State-level, we have also seen very limited flexibility, as discussed in a previous post.

We will continue to bring you updates regarding the status of Secretary DeVos’ waiver request as it relates to early childhood transition evaluation timelines. And as always, your Franczek attorneys are here to answer any questions you have regarding special education concerns during the suspension of in-person instruction.