DOE Rescinds Guidance Documents Related to IDEA and Rehabilitation Act
On February 24, 2017, President Trump signed Executive Order 13777. This order required Federal agencies to evaluate their existing regulations and make recommendations to the agency head regarding their repeal, replacement, or modification. In conformity with this Order, on October 20, 2017, the Department of Education (“DOE”) released a list of guidance documents related to the Individuals with Disabilities Education Act (“IDEA”) and the Rehabilitation Act of 1973 that have been rescinded due to being outdated, unnecessary, or ineffective.
The DOE began its review by tasking the Office of Special Education and Rehabilitative Services (“OSERS”) and the Rehabilitation Services Administration (“RSA”) with assessing guidance on the IDEA and the Rehabilitation Act. As a result of this review, the DOE has rescinded 72 guidance documents. The list includes 63 documents by OSERS related to IDEA and 9 by the RSA related to the Rehabilitation Act. The majority of the rescinded guidance documents were originally issued in the 1990s and 2000s; the most recent is from 2014.
Reviewing the guidance related to the IDEA, the rescinded documents fall into several categories. Those categories include:
- Guidance letters, such as Q&A and Dear Colleague Letters, that have been superseded.
- Memos regarding grant requirements that are no longer relevant due to newer guidance.
- Information regarding time-sensitive programs that have since lapsed or been discontinued.
- Transmittal memos issued in advance of new policies or laws—such as pre-IDEA transitional guidance.
Below are examples of recent IDEA guidance documents that are no longer in effect:
OSEP Dear Colleague Letter on LEA Maintenance Effort
Superseded by LEA Maintenance of Effort regulations
Final Regulations Related to Parental Consent for the Use of Public Benefits or Insurance
No longer needed. Used when rolling out  Regulations
OSEP Dear Colleague Letter: Preschool Least Restrictive Environment (LRE)
Superseded by 2016 Dear Colleague Letter
Guidance on Procedural Safeguards and Due Process Procedures for Parents and Children with Disabilities
Superseded by 2013 Dispute Resolution Q&A
Q&A on Highly Qualified Teachers Serving Children with Disabilities
Outdated due to ESSA changes
Q&A on Serving Children with Disabilities Placed by Their Parents at Private Schools
Superseded by 2011 Q&A Document
Although these guidance documents are no longer valid, the IDEA and Rehabilitation Act, which they aimed to explain, are still in effect and must be followed. Further, the Department of Education does not anticipate that elimination of any of these guidance documents will result in changes to policies or services under the IDEA or the Rehabilitation Act. Department of Education Press Secretary Liz Hill explained that “Students with disabilities and their advocates will see no impact on services provided.”
The Department will continue to review its regulations and make determinations as to those that may be outdated. Indeed, on October 27, the DOE released a list of nearly 600 out-of-date pieces of sub-regulatory guidance it will withdraw. The list includes documents from the Office of Elementary and Secondary Education and Office of Postsecondary Education in addition to the OSERS guidance described herein. The release of this list marks the end of phase one for the DOE in its effort to comply with Executive Order 13777. Questions regarding the now outdated documents or general compliance with the IDEA and Rehabilitation Act should be directed to your legal counsel. As always, we will keep you up to date with proposed and implemented changes as the information becomes available.