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Two senators — a Democrat and a Republican — urge Betsy DeVos not to gut special-education law but provide ‘narrow’ flexibility to school districts

In this March 27, 2020, file photo, Education Secretary Betsy DeVos speaks about the coronavirus in the James Brady Press Briefing Room in Washington. (AP Photo/Alex Brandon, File)

Two senators — one Republican and one Democrat — are urging Education Secretary Betsy DeVos not to gut the federal special-education law during the coronavirus crisis but instead to grant “narrow and targeted” flexibility to school districts that are operating remotely.

Congress, in its recent $2 trillion economic stimulus package known as the Cares Act, included a requirement that DeVos report back by late April on whether she needs congressional approval to provide school districts with waivers to the Individuals With Disabilities Education Act during the pandemic. DeVos has not said publicly whether she will ask Congress for new authority to provide waivers from IDEA to school districts.

Some advocates for students with disabilities have written to DeVos, opposing providing any flexibility to IDEA, which requires that schools provide a fair and appropriate education for every student. They say it would be an unacceptable weakening of the law. But special-education administrators have asked Congress to allow some waivers because, they say, it is impossible to meet all requirements when school buildings are not open. Some districts have chosen not to provide remote education to any students, because they fear they will violate IDEA.

Sens. Chris Murphy (D-Conn.) and Bill Cassidy (R-La.) sent to DeVos a set of five principles that they argue should govern any decisions DeVos makes in terms of IDEA flexibility. They also said they would push for billions of dollars in targeted funding for special-education students in Congress’s next coronavirus relief measure.

“We believe any potential flexibilities included in the report concerning the Individuals with Disabilities Education Act (IDEA) must be narrow, targeted, temporary, and dedicated to the full provision of educational services for every student with a disability that is reasonably possible,” Cassidy and Murphy said in the letter, which was accompanied by a set of principles that they want to guide the granting of waivers. (See the five principles below.)

“While some extension and flexibility in timelines is warranted, requirements to provide a free appropriate public education (FAPE), to engage parents in the process, and to ensure due process rights to parents must remain,” the senators said. “We do not believe this requires broad flexibilities that would temporarily roll back rights for these students and their families. No matter the circumstance, we believe these core rights of IDEA must be upheld and reinforced.”

Cassidy said in an interview that it is clear that schools cannot now provide all of the services in the amount of time IDEA requires while students are doing remote learning from home. Noting that some schools are not educating any students out of fear of violating IDEA, he said: “You can’t do that. You want to give them a waiver” on some things.

“We are calling for the intent of the law to be adhered to, which as much as possible meets the needs of each student,” he said. “There has to be some sense of reality. But if you give a blanket waiver on everything, things that could be done will not be done.”

Murphy, in an interview, said that flexibility around timelines for meeting IDEA goals would be appropriate but not any relief from the responsibility of providing the academic and other services that special-education students receive.

The five principles that the senators want to see drive the granting of waivers note that advocates for students with disabilities have recommended that Congress appropriate $10 billion to help schools meet IDEA requirements during and immediately following the period of school closures, which Murphy called a “significant down payment” that schools will need.

He also said he and Cassidy “are not interested in backtracking on the basic commitments to students in IDEA.”

“There are some people on the prowl that want to use the crisis to roll back the requirements, the mandate in IDEA,” he said. “We are two senators from different sides of the aisle saying that while we acknowledge the need for flexibility, we do not think Congress or the administration should entertain broad rollbacks of the educational protections in IDEA.”

The Council of Administrators of Special Education and the National Association of State Directors of Special Education, in a recent letter to Congress, asked for flexibility on a number of IDEA timelines. They include when districts must provide an initial evaluation for a student’s Individualized Education Program (IEP) — a plan for academic and special services that each special-education student receives under IDEA — as well as when the IEPs should be reviewed. They also asked for flexibility with when they have to respond to legal complaints, with collecting required data and with a number of other things.

The letter said in part:

Local education agencies (LEAs) are facing a great deal of compliance challenges which are taking our focus from educating children with disabilities and shifting focusing our effort on paperwork. Without flexibility, we will generate endless cycles of reporting about how COVID-19 caused money to be unspent, evaluations to be delayed, and services and supports that are in IEPs that are not able to be implemented. We are concerned about requesting numerous meetings and activities of families who are already experiencing many stresses and challenges. For this reason, we are asking for temporary and targeted flexibilities in implementing IDEA during this pandemic so that we can keep our focus on collaborating with parents and families and on providing appropriate services to students with disabilities. In no other situation in our organizations’ history can we find a time where we have asked for limited flexibilities in implementing the IDEA.

But organizations advocating for students with disabilities said that DeVos does not need any more authority to provide waivers and that any flexibility will weaken IDEA and reduce the services that these students receive. For example, a coalition of groups, including the National Center for Learning Disabilities, the National Urban League and the Alliance for Excellent Education, issued a statement saying in part:

These are the bipartisan principles on which Cassidy and Murphy agreed:

Bipartisan Principles for Supporting Students with Disabilities During the COVID-19 National Emergency
Senators Bill Cassidy, M.D. (R-LA) and Christopher Murphy (D-CT)
The following are bipartisan principles that are essential to ensuring the full and equitable provision of educational services to students with disabilities throughout the COVID-19 National Emergency.
Principle 1: We must preserve the right to a Free Appropriate Public Education (FAPE), through providing essential and equitable services to students with disabilities throughout closures and through creative remedies to lost learning once schools reopen. No set of circumstances is too big to justify breaking this fundamental promise to students and families.
Principle 2: We believe that, while some extension and flexibility in timelines is warranted, other requirements to provide FAPE, to engage parents in the process, and to ensure due process rights to parents should remain. Any IDEA timeline flexibilities granted to states and districts must be narrow, targeted, and temporary. Now is not the time to renege on our commitment and responsibility to support students with disabilities and protect their rights by granting broad waivers.
Principle 3: Congress and the Department of Education must maintain our oversight and accountability functions related to the progress of students with disabilities. Even during this exceptional crisis, the legislative and executive branches must work together to make sure that schools continue to meet their obligations to serve all students to the best of their ability and to include parents fully in decisions about their child’s education.
Principle 4: Where current flexibilities exist, the Education Department must communicate them in a clear and timely manner through guidance and providing robust technical assistance, while speaking clearly to specific concerns. States and districts need certainty regarding the extent of the flexibility and their obligations during this time so there is no fear of losing federal funding, while parents need certainty that their children will continue to receive the services they are entitled to under law.
Principle 5: Congress must provide necessary supplemental funding to states and school districts so that they can maintain learning for students with disabilities as well as provide additional services when schools reopen. We note that advocates for students with disabilities have recommended Congress appropriate $10 billion to help schools meet IDEA requirements during and immediately following the period of school closures. Resources should be targeted toward ensuring students can fully access distance learning and virtual services that replicate students’ accommodations to the extent possible, in addition to supporting the school personnel necessary to provide an equitable education for students. Further, resources should support the planning and implementation of innovative strategies to get studen