Would IDEA waivers benefit districts during school closures?

Dive Brief:

A provision under the recently passed CARES Act requires the U.S. Department of Education to report to Congress by late April recommendations for waivers needed under the Individuals with Disabilities Education Act for states to flexibly meet the needs of students with disabilities during coronavirus-related closures. Under current law, U.S. Secretary of Education Betsy DeVos would need Congress' approval for potential waivers.
Special needs and disability advocacy organizations are worried waivers could compromise the civil rights students with disabilities have under IDEA, including supports, services, instruction and protections.
On the other hand, districts are vocalizing a greater need for flexibility under IDEA to be able to continue educating all students, considering usual in-person services like evaluations and various kinds of therapy have hit a roadblock with school closures and the shift to online instruction.

Dive Insight:

With states nationwide closing school buildings through April or extending closures through the end of the 2019-20 school year, districts are finding ways to continue special ed services remotely. Some have sent home instructional packets or are assigning work online while also routinely reaching out to families and offering additional supports through phone, video chat or email.

In Kansas, Brad D. Neuenswander, deputy commissioner in the state department of education's Division of Learning Services, says districts are reopening buildings to continue in-person services for smaller groups of students, including students with disabilities, as long as staff and students abide by social distancing and hygiene rules as allowed by Gov. Laura Kelly in an executive order.

But districts in other parts of the nation without that option are worried about meeting IDEA requirements, including timelines around evaluations, IEP meetings and other procedural deadlines.

Sasha Pudelski, advocacy director for AASA, The School Superintendents Association, told Education Dive she has already seen districts being litigated by parents whose children aren't receiving services included in their IEPs, like one-on-one aides.

Pudelski warned "every single district" in America could be facing due process cases and litigation for failure amid the pandemic to meet IDEA requirements.

"The stakes are really high," she said. "We can’t have districts dedicating resources, during what could be an enormous recession for this country, to fighting litigation."

But Monica McHale-Small, president of the Learning Disabilities Association of America and a former superintendent, said most parents are not litigation-happy.

According to early results of a survey the LDA distributed to parents of students with disabilities, she said, families are understanding as long as educators maintain communication and transparency.

"What’s really clear is that in situations where districts have reached out — even if they’re not providing the best resources — those parents are saying that they’re generally happy and that they understand that these are difficult times," McHale-Small told Education Dive. "But in the districts where [educators] haven’t reached out, that’s where parents are starting to get frustrated."

In addition to flexibility around timelines, districts could also benefit from changes to the "maintenance of effort" provision under IDEA, Pudelski said. The provision currently requires states to budget so they spend at least the same amount of funds for students with disabilities yearly.

As districts are figuring out how to offer in-person services like speech and physical therapy or evaluations for deafness and blindness, Pudelski anticipates some districts will spend "an unprecedented amount" for special education this year. Special ed services come with additional costs at least twice those of general education students, and as the pandemic worsens, so will the bind districts are in with staff and funding shortages, according to a letter the National School Boards Association sent to the Education Department in March.

Budgets may also look different, considering changes to daily operations that see special ed personnel being deployed differently than before. For example, some one-on-one aides are now helping with meal distribution.

But the current law requires that, once funding is increased, those levels must be maintained indefinitely. Districts are seeking a one-year waiver so they can increase funding as necessary in light of the pandemic without being held to it in subsequent years.

On the other hand, special education organizations such as LDA are concerned "blanket waivers" for IDEA could lead to an "unraveling of civil rights" for students with disabilities, and suggest individualized flexibility would be better than broad release from mandates.

Pudelski agreed the term "waiver" is misplaced and said Congress should provide "reasonable, narrow and temporary flexibility" for school districts instead.

In the meantime, the Education Department has urged districts to continue providing as many services for special needs students as possible, while working with parents on a case-by-case basis to extend timeline requirements and continuing remote education for general ed students "rather than educate no students out of fear."

The department is currently reviewing the request by Congress for potential IDEA waivers. "Secretary DeVos has been clear from the beginning that she is committed to ensuring all students, including students with disabilities, can continue their educations during this national emergency," spokeswoman Angela Morabito said.