On October 20, 2017, the Office of Special Education and Rehabilitation Services (OSERS) within the U.S. Department of Education rescinded 72 education policy guidance documents.  Sixty-three of the documents are from the Office of Special Education Programs (OSEP), which administers the Individuals with Disabilities Education Act (IDEA) and provides guidance to states and local governments on how to provide free and appropriate public education to children with disabilities.  The remaining nine documents are from the Rehabilitation Services Administration (RSA), which assists individuals with disabilities in employment, independence, and community integration matters.  The OSEP documents concern topics including special education funding, due process procedures, private school placements, and more.  By contrast, the RSA documents primarily concern employment issues and centers of independent living for adults with disabilities.

Aleks Rushing will be presenting on this rescinded guidance as well as federal court litigation from the Supreme Court and Seventh Circuit impacting special education at the 19th Annual Illinois Alliance of Administrators (IAASE) Winter Conference on February 22, 2018.

In a letter, OSERS explained that the 72 guidance documents “have been rescinded due to being outdated, unnecessary or ineffective.”  According to OSERS, the removal of documents does not cause any substantive changes in policy.  Instead, the removal only continues the Trump Administration’s goal of alleviating unnecessary regulatory burdens.  Many documents were rescinded because they have expired and are no longer in line with current regulations.  Indeed, nine of the documents were published in the 1980s, and only six were published within the last ten years.

Highlights from the revoked guidance documents include:

  • Several memoranda regarding implementing the funding formula under IDEA;
  • A 2013 summary on obtaining parental consent for use of public benefits and insurance for students with disabilities;
  • A Dear Colleague letter from 2012 clarifying that preschool children are entitled to all rights and protections guaranteed under Part B of IDEA;
  • Guidance published in 2009 regarding IDEA due process procedures for parents, parent training and information centers, school personnel, state educational agencies, local educational agencies, advocacy organizations, and other interested parties;
  • A 2007 memorandum explaining the High School/High Tech Program that exposes youth with disabilities to careers in science, technology, and math;
  • A question and answer document from 2007 that clarifies the requirements for special education teachers;
  • Question and answer documents published in 2000 and 2006 that explain how to best serve children with disabilities in private schools;
  • Documents from 2000, 2005, and 2006 advising how to best serve children with disabilities in private schools and how to determine the amount of federal funds to be expended by the local educational agencies for children with disabilities placed in private schools; and
  • A 2001 memorandum providing guidance on including children with disabilities in state and school assessment programs.

What This Means to You

The removal of the 72 documents may not change federal policy or procedure with respect to IDEA or the Rehabilitation Act.  No laws were changed, and no new policies were issued.  However, with 72 guidance documents now rescinded, school districts also no longer have the benefit of detailed guidance on how to accommodate special education students and their parents in certain circumstances.

As this is one of the many recent deregulation efforts from the Trump Administration, we remain on alert for any new announcements or guidance regarding special education.  Be sure not to miss the next update in this area and subscribe to our K-12 Legal Insights Blog for the latest on issues directly impacting schools across the country.

Photo of John W. Borkowski John W. Borkowski

Coming from a family of teachers, John knows that educators are dedicated to serving students and society. His lifelong passion for education underlies the insightful counsel he provides to colleges, universities and school districts.

Photo of Aleks Ostojic Rushing Aleks Ostojic Rushing

As a licensed teacher, Aleks’ passion for education runs deep and is at the core of her work with clients. She knows that every client and every student requires a unique approach to optimize success. Aleks counsels K-12 and higher education clients on…

As a licensed teacher, Aleks’ passion for education runs deep and is at the core of her work with clients. She knows that every client and every student requires a unique approach to optimize success. Aleks counsels K-12 and higher education clients on investigations, litigation and compliance matters arising from a wide range of civil rights and educational funding issues. These include Title IX, Title IV, the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA) and the Family Educational Records Privacy Act (FERPA).

Photo of Mary Kate Mullen Mary Kate Mullen

Mary Kate represents clients in a wide variety of industries, including healthcare, education, manufacturing, and real estate. She has experience in all stages of litigation, including fact investigations, initial pleadings, discovery, depositions, and trial strategy. Mary Kate focuses her practice on the defense…

Mary Kate represents clients in a wide variety of industries, including healthcare, education, manufacturing, and real estate. She has experience in all stages of litigation, including fact investigations, initial pleadings, discovery, depositions, and trial strategy. Mary Kate focuses her practice on the defense of medical malpractice claims and the defense of commercial claims, including contract disputes and business torts on behalf of pharmacies and pharmacy benefit managers.