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DeVos Weighs Waivers for Special Education. Parents Are Worried

Updated: May 19, 2020

This article originally appeared in the New York Times on 4/2/2020 by Erica L. Green.

WASHINGTON — Tucked away in the $2 trillion coronavirus stabilization bill is a provision that allows Education Secretary Betsy DeVos to seek congressional approval to waive parts of the federal special education law while schools combat the coronavirus pandemic. How she might use that authority scares parents like Jennifer Gratzer, who lives in Seattle. It took a 350-page complaint and hours of work for Ms. Gratzer to get the proper special education services for her 10-year-old son, a nonverbal third grader who has epilepsy and a condition called cortical visual impairment. He has made progress with services like occupational therapy, speech therapy and a one-on-one aid, afforded to special-needs students like him under the Individuals with Disabilities Education Act. But Ms. Gratzer fears that Ms. DeVos may relieve her son’s school district of such obligations for the foreseeable future.

“No one wants to do the hard thing unless they’re forced to do it,” Ms. Gratzer said, “and our kids have always been the hard thing.”

With the closure of schools across the country, parents like Ms. Gratzer have found themselves in an educational crisis like none seen since the disabilities law passed in 1975. Today, it grants nearly seven million students individualized instruction and a vast array of educational support and services.

Schools are scrambling to shift classes online as more than 55 million children stay at home. For now, that has upended special education, which is administered through meticulously devised plans called Individualized Education Programs, or I.E.P.s, which require extensive services that are not easily transferred to the internet.

Students who qualify can have moderate to severe disabilities and require a range of support, such as tutoring and behavioral assistance, hands-on services like physical and occupational therapy, and specialized staff. Such services are critical for school districts to comply with IDEA’s mandate that students with special needs receive an education comparable to that of their peers. The possibility that those obligations could be waived has driven a sharp wedge between school administrators, parents and special education teachers. Administrators and educators say without the waivers they would be forced to meet unrealistic expectations and face costly lawsuits. Avoiding those consequences could mean that districts decide not to offer any education at all to students in the next two months.

“While districts are working on solutions for kids with special needs, they shouldn’t wait to serve everyone else,” Michael J. Petrilli, the president of the Thomas B. Fordham Institute, a conservative research organization, wrote on Twitter. “The attitude that we need to have is: Let’s do everything we can, as fast as we can, for as many kids as we can,” he later said.

Lee Ann Wentzel, the superintendent of the Ridley School District in Pennsylvania, said her staff had been reviewing thousands of records, connecting with hundreds families and finding creative ways to offer one-on-one services like speech therapy through platforms like Google Hangouts.

But, she conceded, “even with accessibility devices, there are some times when features will come up short for some children.”

“We have to acknowledge the fact that we’re not going to be 100 percent compliant, and not for not trying,” she continued. “But we decided to do what’s best for all kids.” But parents and special education advocates fear the waivers could mark the beginning of the end of student disability rights.

Ms. Gratzer said she did not expect the same level of services that her son received in school. He could not see let alone follow what was happening on the screen during a recent meeting over Zoom, she said. But she said she hoped to take advantage of a benefit under the virus relief law that required schools to make up for lost time.

“It’s easy to do what they want and steamroll right over our kids,” Ms. Gratzer said. “My fear is that while parents like myself are trying to survive, people like Betsy DeVos will be out there pulling the rug from underneath us.”

The stimulus bill provision gave Ms. DeVos 30 days to submit recommendations for any waivers from the law she believes are necessary. Angela Morabito, an Education Department spokeswoman, said the department was reviewing the congressional request, “and will respond as appropriate.”

“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,” Ms. Morabito said.

Civil rights organizations say Ms. DeVos does not need to waive provisions to meet that commitment, and doing so could have unintended consequences.

“You’re taking a temporary disadvantage and making it permanent because it will be hard to recoup that learning loss,” said Miriam A. Rollin, the director of the Education Civil Rights Alliance at the National Center for Youth Law. “It really is opening a whole Pandora’s box.” In a letter, the National Urban League, The Education Trust and other groups said waiver authority for IDEA was “unnecessary.”

The AASA, The School Superintendents Association, disagreed, saying the right to request a waiver from special education mandates was vital when a shutdown district was struggling to meet the basic educational needs of its students. The organization has asked the Education Department to consider waivers from timelines for evaluating students and for relief from stringent rules for adjusting a student’s individualized education plans.

It also asked for flexibility from rules that govern how schools must respond to due process complaints that parents and lawyers file against districts for failing to provide services. The organization reported that lawyers had already filed complaints in at least four states. Gregory Molloy, the superintendent of Morrisville-Eaton Central School District in central New York, said the threat of due process complaints had loomed over districts in his region. The school district is reaching out to the parents of special education students to rewrite their individualized plans.

But, he said, “how do you deliver a one-to-one aide?” If schools did not, “that’s an easy due process complaint,” he said. Mr. Molloy said his small, rural school district was still “reeling from the pain that was inflicted” by a case two years ago, when it had to pay between $20,000 to $30,000 in legal fees alone. The damage to the morale of staff accused of failing children was irreparable, he said.

He said he hoped that in addition to waiving timelines and other rules, the Education Department would consider holding schools harmless against any due process complaints. “What happens four months from now, when we’re back in school and back into a routine, and lawyers are hungry?” Mr. Molloy said. “That empathy that exists for teachers right now, that could evaporate.”

Susan Lee said her 23-year career as a special educator made her a better mother when her daughter began to lose skills like walking and talking by age 3. Her daughter, Alyssa, made her a better teacher, she said, giving her the skills to unlock the potential of students living in a body that does not work for them.

Next week, when Ms. Lee’s school district in Alabama transitions to online instruction, both of her roles will be tested. She will reconnect with 21 second and third graders, whose federally mandated special education plans call for her to provide seven to eight hours of individualized instruction and a range of behavioral support. But Ms. Lee will also have to juggle instruction for Alyssa, now 12, who cannot hold or manipulate a mobile device because of Rett Syndrome, a rare genetic disorder that has left her completely dependent.

“As much as I wish I could provide every ounce of instruction to my students that is spelled out in their I.E.P.s, it is just not possible,” Ms. Lee said. “How am I able to teach behavioral skills when I can’t be there physically to reinforce it? If I’m teaching a class online and she has a seizure, where does that leave me?”

Ms. Lee said she also had reservations about the potential waivers and hoped that schools did not write off special education students for the rest of the year. But she also said she hoped the waiver provision would help schools and parents reach a middle ground.

“When you have a child with a disability, we’re told it’s OK to mourn the child we thought we had, and it’s also our opportunity to dream new dreams,” Ms. Lee said. “I think we need to apply that to this situation. It’s OK to mourn the school year that we thought we were going to have.”

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