In July 2017 I wrote a blog about the U.S. Department of Education (USED) requesting comments on regulatory reform. The reason for the USED action is Trump’s executive order requiring each federal agency to establish a Regulatory Reform Task Force to evaluate existing regulations and make recommendations regarding their repeal, replacement, or modification.
We are beginning to see some of the results of the review of guidance and regulations by the USED. In late October 2017, the USED announced that it has rescinded 72 special education regulations and guidance documents. There was an immediate outcry from special education advocates and political adversaries of Betsy DeVos, the U.S. Secretary of Education, due to a lack of transparency regarding this action and due to fears that the rights and protections of students with disabilities might be violated as a result of these changes.
This outcry resulted in the list of documents that were rescinded being reposted to the USED website, this time with an explanation for why each document was selected for removal. A cursory glance shows that there are three main reasons cited for the removals:
- The document is unnecessary, usually due to the content of the document referencing programs or policies that are no longer in existence;
- The document is outdated, usually due to changes in the law, regulations, or reporting requirements; and
- The document has been superseded by another guidance or regulatory document and is therefore no longer in effect.
No real impact to special education programs
Rescinding these 72 documents will effectively result in no real impact on the implementation of special education laws or programs. However, the outcry caused by this action demonstrates the sensitive nature of these types of actions and the fact that special education advocates are closely watching the actions the USED takes that may impact the rights and protections afforded students with disabilities.
Congressional action needed to make significant changes
It is important to note that the Individuals with Disabilities Education Act (IDEA) has written into the law, in Section 607(b)(2), that the U.S. Secretary of Education may not implement, or publish in final form, any regulation that “procedurally or substantively lessens the protections provided to children with disabilities under this title, as embodied in regulations in effect on July 20, 1983 (particularly as such protections related to parental consent to initial evaluation or initial placement in special education, least restrictive environment, related services, timelines, attendance of evaluation personnel at individualized education program meetings, or qualifications of personnel), except to the extent that such regulation reflects the clear and unequivocal intent of Congress in legislation (my emphasis added).”
What does this mean?
This means that USED cannot change the regulations related to the protections listed in the bold and underline section above without some type of Congressional action or approval that is reflected in legislation. So, while USED may have some ability to repeal, replace or modify existing guidance and regulations, when it comes to special education regulations associated with IDEA, there are specific limits to what it can do without Congressional action.
What should be monitored?
So far we have seen little to no new regulations coming out of USED since Trump took office. This may be in part due to another one of Trump’s Executive Orders (see Executive Order 13771) which requires that for “every one new regulation issued, at least two prior regulations be identified for elimination”. Thus, eliminating guidance and regulations that are outdated, unnecessary, or have been superseded is akin to picking low hanging fruit that could potentially open the door for the USED to produce new guidance and regulations.
TransACT will continue to monitor these types of guidance and regulatory actions at the federal level. If you have any questions, or for more information about TransACT’s Parent Notices and other products, please contact us at 425.977.2100, Option 3 or email at email@example.com.