Special Education

Ed. Dept. Sweeps Away Old Special Education Guidance and Regulations

By Christina A. Samuels — October 20, 2017 2 min read
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One of the Trump administration’s first executive orders was directing federal agencies to search for—and eliminate, if possible— regulations considered to be burdensome to the American public.

On Friday, the federal office for special education and rehabilitative services took its first crack at clearing the book of “outdated, unnecessary or ineffective regulations.” In all, 63 pieces of guidance from the office for special education programs were identified for elimination, along with 9 documents fro the Rehabilitation Services Administration, for 72 documents in all.

That sounds like a lot. But it appears that many of the special education guidance documents were targeted because they’re just very old. For example, 50 of the guidance documents from OSEP marked for elimination predate the most recent reauthorization of the Individuals with Disabilities Education Act, which was passed in November 2004. One memo, which does not have a link available, is a 35-year-old letter to state chiefs about data collection for fiscal year 1983.

Other pieces of guidance to be eliminated were geared toward a very specific purpose, like this memo that gave districts a one-year grace period back in 2005 to adjust to a change in federal special education law regarding students with disabilities enrolled in private school. (Prior to the 2004 reauthorization, school districts were expected to provide services to private school students who lived in their boundaries, regardless of where the child attended school. The 2004 law switched this around, so that districts were now responsible for providing services to the private schools located in their boundaries, regardless of where the student with a disability lived.)

That grace period is more than a decade in the past, and now the memo that created it is gone too.

Another memo refers to monitoring under the American Recovery and Reinvestment Act of 2009 that’s also long in the past. Also on the chopping block, perhaps for redundancy, is a 2009 memo about using federal funds for response to intervention. The concept of “highly qualified teachers” explained in this 2007 Q&A no longer exists, which is probably why this memo is set to be axed.

This is just the first step in the process of clearing out old regulations and guidance; the department noted that it is still analyzing public comments.

But it’s also important to note that within special education, there are some pretty important regulations that cannot be eliminated or even substantively modified through this process, because the Individuals with Disabilities Education Act forbids it. Those include regulations related to parental consent to initial evaluation or initial placement in special education, least restrictive environment, timelines, and attendance of evaluation personnel at individualized education program meetings.

Those very substantive regulations were in place prior to July 20, 1983, and the IDEA says they can’t be “procedurally or substantively lessened” without “the clear and unequivocal intent of Congress in legislation.”

Photo: President Donald Trump listens as Education Secretary Betsy DeVos speaks during a meeting with parents and teachers on Feb. 14 at the White House.—Evan Vucci/AP

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A version of this news article first appeared in the On Special Education blog.