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November 2, 2021

Please join Nelson Mullins Riley & Scarborough for the 2021 South Florida Health Forum taking place on November 2 in Fort Lauderdale, FL. We look forward to reconnecting with you after a year away from our annual event!

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April 28, 2020

Betsy DeVos Refuses to Request Much-Needed Waivers from the IDEA and Section 504

By Sherry Culves, Neeru "Nina" Gupta

U.S. Secretary of Education Betsy DeVos has submitted a recommendation to Congress that states and local educational agencies (LEAs) not receive any waivers from the Individuals with Disabilities in Education Act (IDEA) or the Rehabilitation Act of 1973 (Section 504), with one limited exception. 

One Limited Waiver:

The only substantive waiver under the IDEA or Section 504 that Secretary DeVos is seeking is the request to extend the deadline for toddlers transitioning from early childhood Part C services to Part B services on their three-year-old birthday. If this limited waiver is granted, the timeline to complete three-year-old evaluations and service plans will be extended until the health and safety factors allow face-to-face evaluations.  The waiver also seeks to allow these toddlers to continue to receive their Part C services until the Part B evaluation and eligibility determination can be completed. No other waivers from the IDEA or Section 504’s requirements for educating students were requested. 

Fallout for School Districts:

Unless Congress acts independently to pass a waiver without the support of the United States Department of Education, which is highly unlikely, this means that states and LEAs are left fully exposed to FAPE and LRE challenges, despite COVID-19’s significant disruption and barriers to delivering IEP services.

Making matters worse, both the IDEA and Section 504 are fee-shifting statutes, meaning that if families sue and prevail, they will be entitled to recover their attorney’s fees, in addition to an appropriate compensatory services award. States and LEAs are rightfully concerned that this lack of flexibility from the IDEA and Section 504 will cause a flood of legal claims and due process hearing requests to be filed by attorneys looking to gain a windfall in legal fees during this crisis. 

How We are Helping:

Nelson Mullins School & College Law Team has been carefully monitoring these developments and is closely guiding school districts on how to mitigate their risks during this crisis. 

School districts should work with experienced legal counsel to ensure that—

  1. Their plans for educating students during COVID-19 school closures:
    1. Are individualized to the unique needs of the student;
    2. Allow for meaningful parental participation; and
    3. Are appropriately documented for retrospective scrutiny.
  2. The substantive services students with disabilities receive during COVID-19 are appropriate for the student.
  3. They undertake proactive measures to address students’ needs for compensatory services before the lawsuits start flowing in. This includes—
    1. Pre-emptively reaching out to families regarding the process the District is going to undertake to remediate the COVID-19 impact;
    2. Implementing a triaged approach to holding IEP meetings to address student needs;
    3. Developing defensible criteria to determine whether individual students have been denied FAPE, LRE, or any other IDEA/Section 504 requirement; and
    4. Creating innovative compensatory services plans to offer students. 

If you have any questions or would like assistance with navigating the above strategies and compliance with the IDEA and Section 504, please contact Sherry Culves, Nina Gupta, or any members of the Nelson Mullins Education Team.

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