Department of Education Declines to Seek Waivers of FAPE and LRE Requirements under IDEA

May 7, 2020

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On April 27, 2020, U.S. Secretary of Education Betsy DeVos issued a report to Congress regarding her recommended waiver authority under The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Congress, through the CARES Act, had requested that Secretary DeVos provide recommendations concerning waiver authority under various acts, including the Individuals with Disabilities Education Act (“IDEA”). The purpose of this request was to provide flexibility to States and local educational agencies (“LEAs”) in meeting the needs of students with disabilities during the COVID-19 national emergency. 

Secretary DeVos did not recommend that Congress pass any waiver authority concerning the FAPE and LRE requirements of the IDEA. She determined that a student’s access to FAPE can continue during remote learning. The Secretary did, however, recommend that toddlers who turn three continue to receive Part C early intervention services until face-to-face school district evaluations can occur. This flexibility prevents a toddler from losing access to services once he or she turns three years old. The Secretary did explain, however, that the funding mechanisms still must be addressed, as Part B funds cannot be used for a child who is not yet eligible for Part B services and Part C funds cannot be used for a child who has aged out of Part C. Therefore, CARES Act funds or other Federal education funds should be used to provide such services. 

Congress and President Trump still need to formally approve these recommendations from Secretary DeVos. For further details regarding Secretary DeVos’ recommended waiver authority, the full report can be accessed here.