IDEA under attack because of provision in CARES Act

Post date: Apr 04, 2020 10:16:48 PM

The recently passed CARES Act (an economic stimulus act in response to the coronavirus pandemic) includes a hidden provision that says that the U.S. Secretary of Education, Betsy DeVos, must issue a report within 30 days of the signing of the Act, making recommendations for waivers to IDEA (the Individuals with Disabilities Education Act), Section 504, etc. that could be enacted by law to provide states with "limited flexibility" to meet the needs of students with disabilities.  The Act was signed on March 27, 2020, so the clock is ticking. . .

Unfortunately, "limited flexibility" is undefined, and two powerful national organizations of special education administrators just sent a letter to Secretary DeVos that makes recommendations for temporary waivers to IDEA that are unnecessary and that would be disastrous for children with disabilities.  

In their letter, the Council of Administrators of Special Education (CASE) and the National Association of State Directors of Special Education (NASDSE) assert that they are "fierce supporters" of IDEA, an important law that protects children with disabilities.  However, IDEA emphasizes the critical role of parents, who are experts on their children, in developing appropriate educational programs.  In stark contrast, the CASE/NASDSE letter argues for "flexibilities" that would potentially eliminate parent participation in the IDEA process for a period of months—possibly 7 months or longer in Connecticut--and create unnecessary delays in providing appropriate services to children.  

So what does the CASE/NASDSE letter say?

 CASE and NASDSE are proposing to pause IDEA timelines as of the date of school building closure and to not restart them until the school buildings reopen.  And to then get another 45 SCHOOL DAYS (yes, more than two months) to meet the "deadline."  So which deadlines do they want waived?

• Those for annual review PPTs (Planning and Placement Teams--what IEP meetings are called in Connecticut)

• PPTs to transition a child from Part C to Part B (the transition from early intervention services provided by Birth to Three to special education services provided by the public schools), 

• PPTs to review initial and triennial evaluations

• State complaints

• Due process hearings

For states like Connecticut where school buildings are closed now and are likely to remain closed until next fall, this translates to special education administrators potentially being able to limit/eliminate parent participation and to make unilateral decisions about a child's program for the next 7 months.

But aren’t health and safety the priority right now?  IDEA encourages PPTs to convene by telephone or video conference when needed.  Virtual PPTs present no risk to health or safety.  

But shouldn’t we be focusing on the provision of services rather than convening IEP meetings?  We need to do both.  School districts are always expected to do both.  IEP meetings are to ensure meaningful parent participation.  The pandemic has not changed that.  And certainly, with meaningful input of parents, who are experts on their children, services are more likely to be appropriate.

But don’t you understand, there is a pandemic?  For most of us, the main impact of the pandemic is that we are working in a different location.  Most of us are healthy.  We are not asking first responders or grocery store workers to participate in our IEP meetings.  Most Connecticut school staff are being paid to work right now.  And the U.S. Department of Education has issued several guidance documents related to waivers and flexibilities in response to disasters.  In those documents, two things are clear.  Timelines for annual reviews and most other timelines may not be postponed.  And parent participation may not be waived.  See here, here, and here. 

Another concern is that, if we do not convene PPTs now, we will not realistically be able to catch up in a reasonable period of time once school buildings re-open   March through June is the busiest time for PPTs, with many of the back-to-back meetings focusing on transitioning the child to the next grade, which brings new demands and requires revisions to IEPs to ensure appropriate programming is in place prior to the start of the school year.  Connecticut parents have let me know they are panicking because, even without any waivers from the federal government, many districts are already refusing to convene virtual PPTs and are saying that these meetings will not occur until the school buildings re-open.  Which could be in the fall.

Children who are turning three who require special education are supposed to receive services by the start of their third birthdays.  Again, two powerful organizations of special education administrators are advocating to permit school districts to unnecessarily refuse to do any planning for these students now but instead to extend timelines for over two months into the school year.

Due process hearings are needed to resolve disagreements between families and school teams regarding critical aspects of a child's program.  These are being done virtually in some states.  Delaying them is unnecessary.

The bottom line is that some school districts ARE convening virtual PPTs now, some are participating in virtual mediation, some are participating in virtual due process hearings. . . so we know it’s possible, despite the pandemic.  And there are school teams who are working with families in a meaningful way to provide appropriate programs during the school closures.  We can do this!

So what else is a concern?

The CASE/NASDSE letter also asks for "procedural flexibilities," recommending that “distance/continual learning plans” implemented during school closures not be part of the IEP, which means this would not require a PPT.  PPTs include parents as equal decision-makers, so doing this apart from the PPT is significant.  If the CASE/NASDSE proposal were passed through legislation, school districts  would be permitted to unilaterally make decisions about the child’s programming during the months of school closure.  Per CASE/NASDSE, parents would be “consulted” but would not be equal decision-makers with IDEA protections.  

CASE/NASDSE states their intention is to ensure that the IEP that was in place prior to school closure is the IEP that is in place once school buildings re-open.  This would be important in order to ensure that, in the event of a due process hearing, "stay put" is not homebound, distance learning.  (I suspect most families do not want "stay put" to be that either.)  However, the result of this proposal could be that districts will assert there is no need to obtain parent agreement about programming or to convene virtual PPTs at any time while the school buildings are closed.  

So what does the U.S. Department of Education (USDE) say?  In their 3/12/2020 guidance, the USDE proposed having a "contingency plan" as part of the IEP to address distance learning during school closure.  It says:

Question A-5:  May an IEP Team consider a distance learning plan in a child’s IEP as a contingency plan in the event of a COVID-19 outbreak that requires the school’s closure?

Yes. IEP teams may, but are not required to, include distance learning plans in a child’s IEP that could be triggered and implemented during a selective closure due to a COVID-19 outbreak. Such contingent provisions may include the provision of special education and related services at an alternate location or the provision of online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, and may identify which special education and related services, if any, could be provided at the child’s home.

Creating a contingency plan before a COVID-19 outbreak occurs gives the child’s service providers and the child’s parents an opportunity to reach agreement as to what circumstances would trigger the use of the child’s distance learning plan and the services that would be provided during the dismissal.

In this case, since the contingency distance learning plan was to be in place only during school closure, it was not “stay put” once the school buildings re-opened.  This USDE guidance recommends going beyond the CASE/NASDSE proposal that districts merely “consult” with parents and instead recommends giving the child’s service providers and parents the opportunity to make decisions together.  Since IDEA permits the IEP to be revised through a written amendment, provided the parties agree, this change to the IEP might not require a PPT.   Alternatively, the district would need to convene a virtual PPT to consider school team and parent proposals for the distance learning plan.  

IDEA has been implemented successfully in previous disasters, and the above answer is the same as in USDE's 2009 Q&A related to the H1N1 influenza outbreak.  See Question A-4.

My opinion:  Under no circumstances, should the distance learning plan be unilaterally determined by the school team, with the parents having no decision-making ability and no recourse if the program is inappropriate.

What about the CASE/NASDSE request for "financial flexibility" regarding Maintenance of Effort?

This CANNOT happen.  

IDEA explicitly requires a local educational agency (LEA or school district) to expend from local and state funds at least as much in the current year as it expended in the preceding year, except as provided in a very limited number of circumstances.  This provision is known as the maintenance of effort (MOE) requirement, which school districts must follow In order to be eligible to receive any IDEA funds.  The MOE requirement is to ensure that local districts aren’t constantly reducing their spending on special education and to ensure that federal IDEA funds are not simply being used to supplant local spending.   

CASE/NASDE is proposing that MOE be waived for the 2019-2020 school year--which would mean that school districts could spend less--dramatically less--on special education this year and going forward.

Waiving MOE for this year means that school districts can lower special education funding this year and would then get to base next year’s education funding on the lower funding level.  This provides an incentive for districts to not commit sufficient money to meet the needs of students with disabilities now and is an incentive to continue with the lower spending levels going forward.

Districts need to allocate resources to special education as much now as they ever have.  We need to ensure students have access to virtual learning, which doesn’t apply to all students but applies to most.  Laying off teachers and others during the pandemic is counter to what we should be doing.  We need to maintain contracts with private special education schools and contractors to ensure continuity of services when school buildings re-open.  

In short, there is no reason for the Maintenance of Effort requirements in IDEA to be “flexible” now, as the immediate and long-term impacts would be devastating to students with disabilities.  

So what about the positives?  I am aware of many special education administrators who have been leaping tall buildings to continue virtual IEP meetings, to include parents in decision-making as equal members of their child's team, and to provide services to every child to the maximum extent possible.  Heroes exist!

But the CASE/NASDE proposals?  The result could very well be no IEP meetings or hearings during school closures and beyond--which is becoming the norm in many Connecticut districts--and potentially nothing for months after school buildings re-open.  In short, no parent participation required.

So what are the next steps?  Please write to and call your Senators and your Representative in Congress to let them know that most of the proposed temporary IDEA waivers are unnecessary, would be damaging to your child, and should not be included in any future legislation.  In case it's helpful, a sample letter I wrote to one of my Senators is here.  Please adapt as you wish!

My recommendations:  

1. No additional "flexibilities," temporary or otherwise, are needed for most situations, as IDEA already includes flexibility.  E.g., IEP teams already have the opportunity to convene meetings virtually and can even revise the IEP through written amendment without a meeting when all parties agree.  Right now, districts across the country are convening virtual IEP meetings and are engaging in virtual mediations and even due process hearings.  It can all be done.

The exception?  If there is an initial evaluation or triennial that has not yet been completed and that requires in-person assessment, that timeline could be paused from the time the school buildings were closed and should restart immediately once face-to-face contact can safely resume and/or when the school buildings re-open.  Why pause the timeline at all? Because some protocols for standardized testing may require face-to-face assessment to ensure validity.  Check with the test publisher to find out what they are recommending.  

In addition, if the above exception applies to a child transitioning from Part C to Part B, the evaluation timeline could be paused, and Part C services could continue past the child's third birthday through the PPT to determine eligibility for Part B.  (Thank you to Andy Feinstein for that great suggestion!)

2.  Any temporary "distance/continuous learning plan" must be incorporated into the IEP as a contingency plan, remaining in effect while the school buildings are closed and not to be "stay put" once school buildings re-open.  Most contingency plans could be done through written amendment to the IEP--with parent and school district agreement.  Alternatively, a virtual IEP meeting could be convened. 

3.  There must be no "flexibility" with Maintenance of Effort requirements.  We need to continue contracts with school staff, private special education schools, and contractors to ensure continuity of services once schools re-open.

Consistent with IDEA and USDE guidance, parent involvement in the development of their child's individualized plan is not optional, and it is critical that children not lose IDEA protections while school buildings are closed.

The Council of Parent Attorneys and Advocates wrote their own letter to Secretary Devos, recommending no IDEA waivers, temporary or otherwise, here.