Secretary of Education Recommends Tolling of Part C to Part B Transition Evaluations, Extending Part C Eligibility During Closure


On April 27, 2020, U.S. Secretary of Education Betsy DeVos (Secretary) issued the “Recommended Waiver Authority Under [] the Coronavirus Aid, Relief, and Economic Security Act (‘CARES Act’)” report (Report).  Though California local educational agencies (LEAs) hoped the Secretary would recommend practical and needed relief from requirements under the Individuals with Disabilities Education Act (IDEA) made effectively impossible by the COVID-19 pandemic, the Report recommends only tolling the timeline for Part C to Part B transition evaluations, and a concurrent extension of Part C eligibility for children awaiting evaluations.  The Report also recommends that Congress authorize the Secretary to waive some program funding requirements under Section 504 of the Rehabilitation Act of 1973.  It is unclear if or when Congress will enact the waivers recommended by the Secretary.

Signed into law on March 27, 2020, the CARES Act required the Secretary to submit the Report to the Senate and House of Representatives Appropriations committees with recommendations for waivers of the IDEA.  Recommended waiver authority becomes effective only if enacted into law by Congress.

As to IDEA requirements, the Report recommends that Congress authorize the Secretary to extend Part B transition evaluation timelines until “no later than the day on which health and safety factors allow for face-to-face meetings to resume and the toddler is able to be evaluated.”  The Report also recommends “explicit authorization for Part C services to continue during the delayed Part B transition evaluation timeline.”

Contradicting the Report, the Secretary’s press release states that she “is not recommending Congress pass any additional waiver authority concerning the free appropriate public education (FAPE) and Least Restrictive Environment (LRE) requirements of the Individuals with Disabilities Education Act (IDEA), reiterating that learning must continue for all students during the COVID-19 national emergency.”  The Report in fact recommends waiver authority related to Part B eligibility determinations for children turning three years of age, because of difficulty related to completion of face-to-face testing.

The Report further recommends that Congress authorize the Secretary to:

  • grant a deferral of the work or repayment requirements related to IDEA personnel preparation grants, or allow credit to be given for the service obligation, if employment was interrupted by the pandemic;
  • extend the period of availability for Vocational Rehabilitation (VR) program funds allotted in fiscal year (FY) 2019 and available for carryover in FY 2020 for an additional fiscal year;
  • waive requirements for FY 2020 that States reserve not less than 15 percent of the allocated funds for providing pre-employment transition services to students with disabilities;
  • permit FY 2020 VR funds to be used to replace expired or spoiled food products at Randolph-Sheppard vending sites closed by the pandemic; and
  • waive the requirement that Rehabilitation Long-Term Training program scholars complete an internship in a State VR agency, and instead give them full credit for satisfying the internship, if interrupted by the pandemic.

The Report provides no guidance as to the “health and safety factors” to be considered when determining whether “face-to-face meetings,” and Part C to Part B evaluations generally, may resume.  It is unclear if or when Congress will address the recommendations, further complicating LEAs’ ability to comply with federal and California requirements to evaluate and serve children with disabilities.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

© 2020 Atkinson, Andelson, Loya, Ruud & Romo



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