CEC Response CARES Act

March 31, 2020

Mark Schultz, Acting Assistant Secretary
Office of Special Education and Rehabilitative Services Programs
U.S. Department of Education
400 Maryland Ave., SW
Washington, DC 20202-7100

Laurie VanderPloeg, Director
Office of Special Education
U.S. Department of Education
400 Maryland Ave., SW
Washington, DC 20202-7100


Dear Acting Assistant Secretary Schultz and Director VanderPloeg:

We are writing to recommend how the CARES Act as it relates to the Department might be implemented. The Council for Exceptional Children (CEC) and its members are fierce and dedicated supporters of children and youth with disabilities as mandated by the Individuals with Disabilities Education Act (IDEA), the implementation of accompanying regulations, Section 504 of the Rehabilitation Act, and Title II of the Americans with Disabilities Act. We believe that all children and youth with disabilities have the right to a free appropriate public education (FAPE) in the least restrictive environment (LRE) with strong protections for all parties involved. When parents and families collaborate with schools and states, outstanding outcomes are possible.

There has been no other situation in our organization’s history in which we have asked for these limited flexibilities described below. To be clear, we expect that these flexibilities should only be granted during the COVID-19 pandemic and that state and local education agencies, parents, and families should continue to work together in the interests of children and youth with disabilities. However, now more than ever, schools need to be focused on what is important - providing an appropriate, accessible, accommodated educational program to all students in light of their current circumstances.

CEC recognizes the considerable challenges that have been created in our schools due to widespread school closings as a result of the COVID-19 pandemic. CEC in, partnerships with other organizations, continues to advocate on behalf of the many special education and early intervention professionals who continue to be on the forefront of delivering the special education supports and services that form the foundation of the IDEA.

CEC has long been committed to protecting and supporting the Congressional mandate that each child with a disability is entitled to a FAPE. This is the foundation of the 1975 Education of All Handicapped Children’s Act and has been affirmed in subsequent reauthorizations of the law, including the most recent, the 2004 Individuals with Disabilities Education Improvement Act (the Act). The entitlement to FAPE has been defined in the statute and regulations through a number of procedures and timelines. However, CEC recognizes that no provisions of the Act nor its regulations anticipated a global pandemic and how local education agencies (LEAs) and the many educators teaching our students should act during the national crisis that we face today.

CEC members, in this new reality, are committed to working with all of our educational partners to find ways to continue to support all children with exceptionalities during this challenging time. With this in mind, Congress ratified, and the President signed, the CARES Act on March 27, 2020. The CARES Act requires that Secretary of Education DeVos submit a report to Congress regarding the flexibility that may be necessary during the COVID-19 pandemic. Given your roles as the principal advisors to the Secretary on matters related to special education students, CEC recommends the following:

Timeline Flexibilities
A core principle of the IDEA is the procedural safeguards that, over time, have been defined in terms of specific timelines and processes. Whereas CEC recognizes the principle that eligible students with disabilities cannot be denied their right to a FAPE, we also agree that these specific timelines are among some of the most challenging aspects of IDEA for school systems and schools to adhere to at this time. For this genuine and pressing issue, CEC recommends that a timeline requirement should be calculated from the day schools closed due to the pandemic and extended for not more than 45-school days after regular school year in-person instruction has resumed. This includes:

  • 60-day initial evaluation timelines and re-evaluation triennial due dates [34 C.F.R. § 300.301(c); 34 C.F.R. § 300.303(b)(2)].
    In some situations, a student who was being evaluated for special education and related services prior to the pandemic may be experiencing new needs now as a result of the pandemic and their learning situation (e.g., new mental health needs, parents/guardians who have lost a job, food insecurity). Additionally, testing protocols are not easily administered or manipulated virtually, and the results of the evaluations could be questionable. These are the kinds of circumstances that require flexibility when completing an evaluation under IDEA and making a determination about whether a child should become eligible for services or what those services should entail.

  • Annual IEP review timelines [34 C.F.R. §300.324(b)(1)].
    The IEP meeting is meant to be a collaborative process between parents/ guardians and school personnel. Even in the best of circumstances, nuances around the language and vocabulary of special education services can result in misunderstandings between the parties. It is for this reason, that IEP annual review timelines should be relaxed, and LEAs and families should be given the opportunity and flexibility to convene, at the request of the parent or the LEA, at a time when appropriate for all parties.

  • IEP Meetings [34 C.F.R. §300.328].
    According to §300.328 of the regulations to the IDEA, IEP meetings may be held via alternative means of participation (e.g., virtual meetings, conference calls, video conferencing) if the parent and agency agree. Many rural LEAs use these alternate means of participation as the primary mechanism for conducting IEP meetings; however, the majority of LEAs continue to engage in face-to-face meetings. In the current pandemic, alternative means for conducting meetings may be useful in place of face to face meetings and could be scheduled when everyone can participate.

  • Complaint Timelines [34 C.F.R. §300.508; 34 C.F.R. § 300.510(a) and (c); 34 C.F.R. § 300.515(a) and (c)].
    In the rare instances where parents and local education agencies find themselves in a dispute, IDEA provides state education agencies the responsibility to have a system of impartial hearing officers and state complaints. These complaint systems are necessary components, but with state education agencies being shuttered, hearing officers, attorneys, parents, and others working from home, and additional stressors being put on an already challenging process, flexibility in the timeline to resolve these complaints without necessary corrective actions is necessary. However, existing state complaints, mediations, resolution sessions, or hearings should be initiated as soon as possible when conditions permit.

  • Part C to Part B Transition Timelines [34 C.F.R. § 300.124].
    Flexibility of early childhood transition from Part C to Part B is another important consideration necessary to ensure that the IEPs written at such a critical time in a child’s life are well developed and situated in the context of high-quality early education, rather than a pandemic where everyone is homebound. Specifically, the component of the law requiring children to be identified on or before their third birthday should be considered for flexibility.

CEC believes that it is more important than ever for schools and teachers to continue to work together on behalf of children with disabilities to meet the requirements of the IDEA to the extent possible. However, CEC asks the Department of Education to recognize the unprecedented circumstances, and that it may not be possible to achieve the requirements, and, it is for this reason, that we support the extension of timelines.

Flexibility in Delivering FAPE
In addition to timeline requirements, the IDEA requires a number of procedures that are meant to ensure that a child receives FAPE as defined by an Individualized Education Program (IEP). Among these procedures is the requirement that parents and school personnel collaborate in developing a student’s IEP. Other elements of an IEP include the specification of the special education and other support services that are designed to enable a student with a disability to access and progress in the general education curriculum. These requirements are a critical feature of the law.

During the pandemic, CEC believes that the collaboration that occurs between parents and school personnel, including special education professionals, is no less important but may look different and require more flexibility to ensure all students’ needs are met. Therefore, CEC asks that the Department consider recommending the flexibilities to the following:

  • Documentation of FAPE under each districts’ circumstances and IEP meeting procedures [34 C.F.R. § 300.323(c)(1); 34 C.F.R. §300.324(b)(1); 34 C.F.R. §300.324(a)(4)(i); 34 C.F.R. §300.328].
    Specifically, we suggest that all IEPs written before the closure of schools during the pandemic be maintained. Services in these crisis circumstances should be reflective of the IEP to the extent possible, carried out in consultation with the parents, and continually documented.

  • Data collection and corrective action plans
    It is essential that the standards set forth under the IDEA related to district and state performance plans be reconsidered under the circumstances. We support the state and LEA focus on providing services to students, rather than divert attention during this period on corrective action or other paperwork.

It is also critically important that students’ IEPs are reasonably calculated to enable a student to make progress appropriate in light of their circumstances under the Endrew F. v. Douglas County School District Re-1, 137 U.S. 988 (2017) standard of FAPE. During these difficult times, special educators will always strive to make “good faith” efforts to deliver the best programming possible. Nonetheless, CEC believes flexibility is needed because of the limitations imposed by the COVID-19 epidemic.

As stated at the beginning of this letter, we cannot emphasize enough, CEC and its members are fierce and dedicated supporters of the Individuals with Disabilities Education Act, its implementing regulations, and individuals with disabilities. We believe that all children and youth with disabilities have a right to a free appropriate public education in the least restrictive environment with strong protections for all parties involved. To reiterate, we expect that these flexibilities should only be granted in this specific circumstance and that state and local education agencies, parents, and families should continue to work together in the interests of children with disabilities.

Should you have any questions or concerns, or if our organization and its members can be of service to you, please do not hesitate to reach out.

Sincerely,

Jennifer Lesh's signature
Jennifer Lesh, President
Council for Exceptional Children