Coronavirus and Schools: Concerns with DeVos Recommendations to Congress
One of our districts expressed a concern about a line in the attached letter from Secretary of Education DeVos. The line in question is that “Parents must be informed about the impact waivers will have on their children’s education and consent to those changes.” The concern our district administrator expressed about this language is this: “Many districts sent PWN's not NOREPs. This letter's language is leaning more towards a NOREP. Even though they are essentially the same form, I would like to hear from the firm for guidance on these matters.”
The letter in question accompanied a report that USDE forwarded to Congress on April 27, as required under the CARES Act, recommending the enactment of certain waivers of the requirements of various federal education laws. As most of us are now aware, Secretary DeVos did not recommend that Congress enact any waivers of IDEA mandates, with one minor exception we will discuss below. In her cover letter, Secretary DeVos enumerates certain “considerations” that USDE took into account in recommending (or refraining from recommending waivers), and the language quoted above was one of them.
We have no idea what Secretary DeVos is talking about, as we are aware of no requirement in federal law that parents be notified of the “impact” that waivers will have on their children; nor are we aware of any requirement that parents “consent” to those waivers. The waivers Congress asked the secretary to recommend under the CARES Act were those that Congress might possibly enact into law. Congress essentially made clear in the CARES Act that it did not want the Trump administration to grant waivers of education mandates without congressional approval in the form of legislation. Nothing in the CARES act required that parents receive notice of the “impact” of any waivers USDE might recommend or that they “consent” to them. Perhaps the secretary was suggesting that school entities can obtain individual waivers of IDEA requirements from consenting parents. That’s true enough. We do that every time we enter into a “waiver agreement” to settle claims: we give something of value to the parents, in exchange for which the parents waive our obligation to comply with the IDEA. We agree, for example, to pay for compensatory education, and the parents agree to waive our past failure to comply with the FAPE mandate, or we agree to pay for a private school the parents are seeking for their child, and the parents agree to waive any FAPE claims concerning that school.
We doubt, of course, that the secretary had this sort of waiver in mind. We also doubt that the secretary was suggesting the use of “prior written notice” (which we call a “NOREP” in Pennsylvania-ese) to advise parents of the “impact” of a proposed action that waives their child’s rights and to obtain consent for that action. Certainly, if an LEA uses a NOREP to propose a very poor program of special education and related services and obtains parent signatures on that NOREP, ostensibly “consenting” to that very poor program, parents do not thereby waive their right to file a due process complaint and seek remedies for the effect of that poor program on their child’s progress. Indeed, even if we advise the parents somewhere in that NOREP of the deleterious “impact” the poor program will have on their child, the parents’ and child’s rights are not waived when they ill-advisedly consent to that program.
Whenever an LEA proposes any action concerning the identification, program, or placement of, or the provision of a FAPE to, a child with disabilities, the IDEA requires that we provide “prior written notice” of that action. Again, in Pennsylvania, “prior written notice” means “NOREP,” which is why we recommended the use of the NOREP to notify parents of your plans for their child’s FAPE under your “continuity of education” program. Eventually, the Bureau of Special Education also recommended use of the NOREP for this purpose. Neither we nor the bureau suggested that the NOREP would be a vehicle for obtaining informed parent consent to a waiver of IDEA mandates. In fact, we have indicated—as has USDE and PDE in their guidance documents—that once schools reopen, IEP teams will need to consider whether each individual student needs “compensatory services” to address any ill-effect that months of virtual learning might have had on that student. Thus, the “continuity of education” NOREPs that many of you have issued are not “waiving” anything.
Many of you balked at the notion of issuing hundreds of NOREPs and preferred to use letters to describe for parents the special education and related services their children would receive as part of your “continuity of education” plan. We supported the use of a letter as an alternative to the NOREP and provided sample language for such letters. We are all working in a “do the best we can” environment, knowing that the “best we can” will in all likelihood fall short of full compliance. Pennsylvania’s Act 13, moreover, requires only that schools provide “written notice” to parents of the specific plans for meeting, in “good faith,” each child’s right to a FAPE during the period of school closures. “Written notice” could be a sufficiently detailed NOREP or a sufficiently detailed letter. The Pennsylvania General Assembly did not choose, after all, to mirror the exact language used in the IDEA—“prior written notice”—perhaps signaling some flexibility in a school’s choice of “notice.”
Our recommendation: ignore the errant language in Secretary DeVos’s letter of transmission to Congress. It is not a regulatory document. It is not even an official USDE interpretation of federal law.
Secretary DeVos is, however, recommending that Congress consider enacting one waiver of an IDEA requirement. This waiver, if enacted, would only affect so-called “MAWA holders” that operate Early Intervention programs (usually IUs). Under the IDEA, when a child who is receiving services in the “infant and toddler” program attains age three, the responsible LEA must evaluate him or her to determine whether he or she is eligible for special education under “Part B” of the act, which governs the rights of children with disabilities from age 3 though graduation from high school. The LEA must conduct this evaluation in time to ensure that, if the child is eligible, special education services begin as of the child’s third birthday. Right now, to comply with the evaluation requirement, most Pennsylvania MAWA holders are conducting “record review” evaluations or are limiting evaluation activity to the use rating scales and other forms of assessment that can be validly administered remotely. Based on these less-than-complete evaluations, MAWA holders are issuing evaluation reports in which they make tentative eligibility and program recommendations. Based on these tentative ERs, they are proceeding to implement services similar to those the child received in the infant and toddler program run by the county.
The waiver that Secretary DeVos is suggesting to Congress would allow LEAs to forgo evaluations until schools reopen and to continue implementing the infant and toddler services the child was receiving under his or her Individualized Family Services Plan (IFSP). LEAs would be permitted to use IDEA Part B funding for these IFSP-based services until a full reevaluation can be completed once schools reopen. If Congress enacts such a waiver—and the operative word here is “if”—Pennsylvania “MAWA holders” could forgo the “window dressing” evaluations and the development of IEPs that do little more than embody the contents of the child’s expired IFSP.