On March 31, 2020, state and local special education administration organizations recommended temporary relief for certain IDEA provisions due to the school closures resulting from the COVID-19 pandemic. 

The organizations involved in drafting the recommendations include the National Association of State Directors of Special Education (NASDSE) and the Counsel of Administrators of Special Education (CASE).  In addition, 31 state CASE affiliates sent the same letter which included said recommendations to OSERS.   

The letter from CASE and NASDSE contains the following recommendations:     

1. A recommendation that timelines for annual IEP reviews, complaints, Part C to Part B transitions, and the 60 school day initial evaluation and re-evaluation due dates be paused from the day schools closed due to the pandemic and last until no more than 45 school days after the regular school year in-person student instruction has resumed.  As you know, Pennsylvania’s timeline for completion of evaluation reports is 60 calendar days. However, to date, this Pennsylvania regulation has not been suspended to provide some additional flexibility to Pennsylvania schools to complete evaluations within 60 school days, rather than 60 calendar days.
2. A recommendation that IEPs written before school closed be maintained and additional distance learning plans be documented if needed, rather than changing every student’s placement because of the extended school closures beyond 10 days.
3. A recommendation that data collection and corrective action plan requirements be temporarily adjusted because some of the data cannot be captured now, including data elements for Annual Performance Reports and State Systemic Improvement Plans.
4. Due to the extended school closures and announcements by some states that schools will remain closed through the end of the 2019-2020 school year, a recommendation that the requirement for MOE to be waived for the 2019-2020 school year and that unspent Coordinated Early Intervening Services proportionate share dollars be carried over to the 2020-2021 school year.

These recommendations were prepared in anticipation of a report the U.S. Education Secretary Betsy DeVos will submit to Congress by the end of April as required by the CARES Act, which does not provide waiver authority regarding the IDEA to the Secretary of Education.  However, it does require her to submit a report to Congress within thirty (30) days of passage of the CARES Act indicating which waivers may be needed to help States and Districts comply with IDEA.

The NASDSE and CASE are not the only District-supported organizations to make recommendations to the U.S. Education Secretary. For example, the AASA, the School Superintendents Association, has asked the USDOE to consider waivers from timelines for evaluating students and for relief from stringent rules for adjusting a student’s IEP.  It has also asked for flexibility from rules that govern how schools must respond to due process complaints that parents file against districts for a failure to provide a FAPE.

On the other side, more than 70 national organizations representing disability, advocacy and civil rights organizations sent their own letter to Ms. Devos and OSERS Acting Assistant Secretary Mark Schultz in which they objected to any additional waivers to the IDEA or Section 504 as a result of the pandemic.

Bottom Line for Schools

The IDEA and its regulations were not drafted to address the issues schools are facing as a result of the COVID-19 pandemic. There is no legal precedent or standard that is applicable to the circumstances as these are unprecedented times.  To a certain extent, this was recognized by USDOE in its March 21 guidance. 

As per USDOE, “school districts must provide a FAPE consistent with the need to protect the health and safety of disabled students and those individuals providing education, specialized instruction and related services to disabled students. In this unique and ever-changing environment, OCR and OSERS recognize that these exceptional circumstances may affect how all educational and related services and supports are provided and the Department will offer flexibility where possible. . .  The determination of how FAPE is to be provided may be different in this time of unprecedented national emergency.”   

Providing that the Secretary of Education does in fact, recommend waivers of IDEA due to the pandemic to Congress, there is a light at the end of the tunnel – that Congress would authorize the recommended waivers.  However, the current school year may be close to over by the time such authorization is given and waivers are implemented. In order to put districts in the best position, the recommended waivers, if authorized, would need to be effective from the date of mandated school closures.  This will not only protect the districts moving forward, but also will protect the districts for any past violations of mandatory IDEA timelines during the school closure period.     

If you have a question, please contact your legal counsel or one of the special education attorneys at KingSpry.

School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.