Support For Waivers For IDEA And Section 504

Tuesday, March 24, 2020

Ensuring a high-quality education for all children is critical for our nation. Schools must be a welcoming place for all children, including special needs children. Our country is facing a public health crisis of global reach that is unprecedented. This crisis has closed school districts across the country. Many of these districts were unprepared for the sudden closure.

Many states and districts have been forced to provide distance learning, including online. Many assert that the same rules which apply for brick and mortar should apply to the distance learning that districts are now being forced to utilize during the COVID-19 outbreak. Unfortunately, most public schools are not equipped to provide equity for all students at this time, such as special education students or those who speak English as a second language. Many of our students also commonly lack computers or internet access.

Discussions are currently underway in Congress to provide an additional stimulus package in response to the COVID-19 outbreak. Currently included in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) is a provision that permits increased waiver authority by the Department of Education for a specified time. It also directs Secretary DeVos to report back to Congress within 30 days on the waivers needed under the Individuals with Disabilities Education Act (IDEA) and the Rehabilitation Act of 1973 (Section 504). This is essential for students, parents, educators, and taxpayers.

Our public schools are resilient enough to come back from the toughest of times, including the COVID-19 outbreak. We know that states and districts are more than happy to serve all students to the greatest extent possible, as long as they know they will be "held harmless" if they cannot live up to every legal mandate under federal education law that our schools are held to under normal circumstances. This fear is why some states are and districts are now opting not to provide any education to any child, which is not the right action to take either.

Many states and districts simply lack the infrastructure to ensure students are developing as usual, and can’t fully meet the special learning needs of students with disabilities. By law, schools have a duty to continue evaluating and reevaluating students to determine their eligibility for special education services and/or 504 accommodations. These require both access to the students to evaluate them and then ability to convene meetings. This is a difficult, if not impossible, task.

Without a waiver, unless a district provides services exactly as written in the IEP in terms of frequency, duration, and location, they are likely in violation. Amending those IEPs would be extremely labor intensive for urban and rural districts alike. Districts are already being inundated with due process requests, OCR complaints, and even federal lawsuits. Without a waiver, costly litigation could most certainly occur against states and districts who operate in good faith to provide services. States and districts cannot afford unnecessary legal action during a crisis. Legal action takes away from all students and teachers. It is fiscally irresponsible to not protect our states and districts from potential frivolous lawsuits against those states and districts that inadvertently fail to meet obligations. Statistics reveal that IDEA is the 4th most litigated federal civil statute in the United States.
 
That is why Professional Educators of Tennessee encourages Congress to “allow the U.S. Department of Education to modify its guidelines for a limited time granting states flexibility under the Individuals with Disabilities Education Act (IDEA) and the Rehabilitation Act of 1973 (Section 504) to allow an unprecedented response during this international health crisis. However, we would oppose any extended permanent time period, past this crisis.”

The proposed CARES Act also affords the Secretary of Education broad waiver authority over the Higher Education Act (HEA), the Elementary and Secondary Education Act (ESEA), and Carl D. Perkins education laws. The COVID-19 outbreak has placed a tremendous and unprecedented strain on schools and districts across Tennessee. Critics of this provision argue that a reprieve, even temporary, will abandon and damage our special needs children. In reality, it allows for states and districts time to build capacity to better serve ALL children, especially those served by IDEA and Section 504.

Secretary DeVos currently lacks the necessary flexibility under current law to allow for state waivers in these areas. These waivers are not about allowing schools and districts to abdicate their responsibility under IDEA and Section 504. It is about giving states time to implement proper protocols given the current situation facing states and our nation. In addition, many students lack computers and essential wi-fi access.

Many districts and schools lack staffing and proper support to deliver IDEA and 504 services during the COVID-19 outbreak. LEAs should endeavor to provide service when and where available. However, districts cannot guarantee access and equity at this time. This alone justifies providing Secretary DeVos the needed authority to waive key provisions of IDEA and Section 504 for a brief period while state and local education leaders are seeking genuine solutions to help all of our students.

Most school districts and states have shut down to slow the spread of the virus and minimize deaths. Distance learning, as a temporary measure during school closures, will never be an alternative for an in-person relationship which makes for a school community, and likely will not meet the needs of students served under IDEA and the Rehabilitation Act of 1973 (Section 504). Should closures continue, states and districts must work toward compliance, and build the needed infrastructure to serve all students, including our special needs children appropriately.

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JC Bowman
Executive Director of Professional Educators of Tennessee


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