Special Education Services and the CARES Act

April 13, 2020

UPDATE, 4/28: We’re pleased to see that Education Secretary Betsy DeVos is protecting the rights of students with disabilities and will not allow schools to waive the main requirements of the Individual with Disabilities Education Act (IDEA). Every student deserves a free, appropriate public education. Read more.

In this episode of Real Talk, Student & Athlete Defense attorneys Susan Stone and Kristina Supler discuss the potential impact of the CARES Act on special education services. The act directs Secretary of Education Betsy DeVos to provide Congress with a list of waivers of certain provisions of federal statutes regarding providing special education services to children. Susan and Kristina explore the potential consequences of these waivers, which could mean significant regression for students already struggling during this time of distance learning due to COVID-19 coronavirus. Transcript below.



SUSAN STONE:                Welcome back to Real Talk with Susan Stone and Kristina Supler, co-chairs of The Student and The Athlete Practice Group at Kohrman Jackson Krantz. Kristina, why don’t you talk about what we’re going to discuss today in this podcast.

KRISTINA SUPLER:           Sure. Today we’re going to talk about a topic that’s very dear to us and that is special education services. Specifically, there’s been a provision of the CARES Act, which of course is largely viewed as a wonderful thing for our country in this very difficult time, but that being said, there’s a portion of it that would allow Secretary DeVos, she has 30 days to make recommendations as to whether there should be waivers of certain provisions of federal statutes providing special education services to children. Susan, why don’t you talk a little bit more?

SUSAN STONE:                Absolutely, and again, this is very important. We’re not here to scare anyone, but we want those parents with children who are receiving special education related services to be aware of the request in the CARES Act. The state directors of special education and special education administrators want Secretary DeVos to waive timelines for initial evaluations, annual IEP reviews, complaints and transitions from part C, to K through 12 special education. Simple language, all the timelines that everybody relies on to get that IEP looked at and make the changes necessary, would be waived. Kristina, when would this start if she agrees to do so?

KRISTINA SUPLER:           Yeah, that’s a great question. This waiver, or pausing the timeframe, is really significant. In essence, it would run from the date school was closed so for most of us that’s, I don’t know, early to mid March until 45 days after school begins and those are in person days. So, daily-

SUSAN STONE:                That’s significant Kristina, because doesn’t that mean if we count that that would be 25% of a timeline change from next year?

KRISTINA SUPLER:           That’s exactly right, and 25%, that’s significant percentage. What we’re predicting is that the consequences of the waiver for this timeline would be significant. There could really be a likelihood of significant regression for students.

SUSAN STONE:                Well, let’s put this in perspective. Students aren’t receiving the same type of services already, while everyone is sheltering in place. Correct?

KRISTINA SUPLER:           That’s right. There’s been a transition to distance learning for everyone, but let’s be real. Learning over the computer for hours on end is not the same thing as real world instruction in a classroom with your teacher, your peers around you.

SUSAN STONE:                I have students. A child in middle school and I have two students in college, and they’re struggling. What’s it like for you Kristina with children in elementary school?

KRISTINA SUPLER:           Yeah. I have a son and a daughter in elementary school. My son in particular receives services under IDEA, and I got to tell you this distance learning through the computer, it’s so difficult because for a child’s first, second, third grade to sit in front of a computer screen, there’s no substitute for in-person instruction and the necessary attention span and everything surrounding the computer, and we’re all fighting iPad use. It’s really difficult.

SUSAN STONE:                Basically, to put this in context, so students are not receiving the same services and if Secretary DeVos approves the waiver and the waiver kicks in 45 days into the next school year, potentially, if you look at it correctly and you have the intervening summer months, that would be equivalent to a half of the school year and math is not my great subject, but do you see it that way, Kristina?

KRISTINA SUPLER:           I do. And that’s a significant period of time for there to not be FAPE, free appropriate public education. Really, this isn’t necessary. There’s no reason for this to happen.

SUSAN STONE:                I’ll tell you why I don’t think it’s necessary Kristina, because it reminded me of something that happened that you reported to me about you and your son. A lot of these meetings can be handled over Zoom. There is no reason. It’s inconvenient. It’s annoying. It’s difficult. But in terms of timelines, you can have an IEP meeting, you can have an annual review, you can discuss any ETR over Zoom and other technology. Do you agree with that?

KRISTINA SUPLER:           Absolutely. Or even the telephone. What’s wrong with using the good old fashioned telephone?

SUSAN STONE:                And we’re not saying it’s the same.

KRISTINA SUPLER:           Right.

SUSAN STONE:                But I think it’s the best we can do and it’s a lot better than-

KRISTINA SUPLER:           Than placing everything on hold through November, perhaps December 2020.

SUSAN STONE:                This is really tight guys, because by the time some of you hear this podcast, Secretary DeVos might already make the decision. So, we are really urging parents out there to contact their senator, their house member, their governor, their state legislators, and say that we don’t agree that these waivers should occur.

KRISTINA SUPLER:           Please, please, please take action. This is an important issue. It’s an issue that affects the most vulnerable of our population, our children with special needs. Thanks for listening.

SUSAN STONE:                And please take action. Thank you.