The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), signed into law on March 27, 2020, contains a provision allowing the U.S. Secretary of Education, Betsy DeVos, to recommend that Congress waive certain requirements during the COVID-19 pandemic, including requirements under the Individuals with Disabilities Education Act (“IDEA”).  Many attorneys and advocates for students with disabilities feared that the Secretary would seek congressional approval to excuse school districts from complying with all of IDEA’s provisions during the current crisis.  Such approval, if granted, could have relaxed IDEA’s substantive obligations, such as the requirement that school districts provide a free appropriate public education (“FAPE”) to students with disabilities, during periods of school closure and/or could have tolled or extended IDEA’s procedural obligations, such as the requirements that district perform evaluations and re-evaluations within specific timeframes.

On April 27, 2020, Secretary DeVos submitted her recommendations to Congress.  To the pleased surprise of many, the Secretary did not seek widespread waivers of IDEA’s substantive or procedural requirements.  As she stated:

“The Department is not requesting waiver authority for any of the core tenets of the IDEA or Section 504 of the Rehabilitation Act of 1973, most notably a free appropriate public education (FAPE) in the least restrictive environment (LRE). The Department’s position is based on the principles that:

• Schools can, and must, provide education to all students, including children with disabilities;
• The health and safety of children, students, educators, and service providers must be the first consideration;
• The needs and best interests of the individual student, not any system, should guide decisions and expenditures;
• Parents or recipients of services must be informed of, and involved in, decisions relating to the provision of services; and
• Services typically provided in person may now need to be provided through alternative methods, requiring creative and innovative approaches.”

Report to Congress of U.S. Secretary of Education Betsy DeVos, p. 11 (emphasis added).  The Secretary sought waivers only for children who are turning three and making the transition from Early Intervention to special education (discussed below) and for several minor provisions.

Overall, this is excellent news for students with disabilities.  It means, as discussed in our blog posts of March 22, 2020 and March 27, 2020, that students with disabilities remain entitled to FAPE and that districts must continue to provide them with FAPE, despite the changes in circumstances caused by the pandemic.  It also means that IDEA’s timelines, such as the requirements for completion of evaluations and re-evaluations, convening of Team meetings, development of IEPs, annual reviews, and so on, remain in effect.

On May 1, 2020, The Massachusetts Department of Elementary and Secondary Education (“DESE”) echoed the U.S. Department of Education’s position.  In a presentation to special education directors, Senior Associate Commissioner and State Director of Special Education Russell Johnston, Ph.D., emphasized that districts must continue to comply with IDEA’s requirements, including timelines.  Beyond that, he stated, adherence to federal timelines also means adherence to state statutory and regulatory timelines: “All three levels are connected and without flexibility at federal level, we do not have flexibility at state level.”  DESE PowerPoint, May 1, 2020, Slide 13.  A district’s good-faith efforts to adhere to timelines will not insulate a district from liability from procedural violations, he explained. See Slide 14.  Rather, the DESE is advising districts to:

“Continue to treat timelines as if they are in effect and make efforts to meet them.  For example,

• Attempt to agree with parents on extending any deadlines
• IEP meetings may be held using alternative means of participation, e.g., video conferences, conference calls
• Reevaluations may be conducted through a review of existing evaluation data, unless additional evaluations are needed
• If some assessments cannot be conducted remotely, plan to complete them when school reopens.”

DESE PowerPoint, May 1, 2020, Slide 15 (emphases in original).  Associate Commissioner Johnston went on to recommend that districts take a “student-centered approach to timelines instead of district-wide approach”  – in other words, districts should not make blanket statements as to how they are treating timelines during school closure.  Id., Slide 16.  (Thus, statements such as “We are not holding Team meetings until school reopens” are impermissible.)  He also advised that districts engage in clear communication with parents and that they document such communications.  Id.

With regard to children turning three and thus aging out of Early Intervention, Secretary DeVos is asking Congress to extend the timelines for initial special education evaluations, so that the timeline is suspended during school closure and resumes “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 Secretary is also seeking congressional authorization for Early Intervention services to continue during this period, so that a child may continue to receive Early Intervention services after his or her third birthday, with such services continuing until a special education evaluation is completed and the child’s eligibility for special education is determined.

Associate Commissioner Johnston’s May 1 presentation addressed this topic as well.  He reminded districts that evaluation options for children turning three include:

• “Accept existing EI assessments
• Use existing [district] assessments (if you have them)
• Conduct virtual assessments if possible; wait for schools to re-open to finish all other assessments
• Interview families and others”

DESE PowerPoint, May 1, 2020, Slide 10.  Associate Commissioner Johnston stated that, if Teams have sufficient information, they can determine eligibility now for children turning three; otherwise, if face-to-face assessment is required, the determination would need to wait (during which time, under the U.S. Department of Education proposal, the child would continue receiving Early Intervention (“EI”) services).  Id.  For children turning three who are found eligible, he explained, Teams have at least three options:

1. “Continue the IFSP [Individualized Family Service Plan, an EI document]
   • Districts can contract with EI providers to provide services and to support EC [Early Childhood] transition
2. Write an IEP
   • [District] staff can provide services or
   • School district and EI staff can collaboratively provide services to support EC transition
3. Write a partial IEP and conduct an extended evaluation”

DESE PowerPoint, May 1, 2020, Slide 11.

The DESE is in the process of developing more formal guidance on the topic of timelines, which it hopes to publish soon.  DESE PowerPoint, May 1, 2020, Slide 17.  In the meantime, the DESE’s informal May 1 guidance is very useful for parents and districts.  We are heartened by the U.S. DOE’s (and DESE’s) focus on the “needs and best interests of the individual student, not any system.”  We encourage parents, while being mindful of the difficulties schools face, to continue advocating in a collaborative and creative spirit so that school districts meet the needs of their children with disabilities.

Eileen M. Hagerty is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.