Office of Special Education and Rehabilitative Services Rescinds 63 IDEA-Related Guidance Letters (K-12) - School & College Legal Services of California

The Office of Special Education and Rehabilitative Services (“OSERS”) made national news on Friday, October 20, 2017, when it announced that it had rescinded 72 letters of guidance previously promulgated by the office charged with ensuring people with disabilities have equal opportunity and access to education. Sixty three of those letters were related to the Individuals with Disabilities Education Act (“IDEA”) and nine related to the Rehabilitation Act. The complete list of rescinded documents is attached to this legal update.

LEGAL UPDATE

October 27, 2017

To: Superintendents, Member School Districts (K-12)

From: Damara L. Moore, Senior Associate General Counsel

Subject: Office of Special Education and Rehabilitative Services Rescinds 63 IDEA-Related Guidance Letters

Memo No. 33-2017

OSERS is an office within the Department of Education, and the rescission was prompted by an Executive Order from the President directing the Department of Education to eliminate “outdated, unnecessary, or ineffective” guidance, policies and regulations. Executive Order 13777. Guidance letters are letters which explain the interpretation of the law by the agency charged with enforcement of the law. OSERS’ action does not change any laws or regulations in effect. OSERS asserts that the elimination is only of irrelevant guidance that is out-of-date or superseded by changes in the law and the action has no policy implications. Examples of what have been removed include memos that address outdated deadlines for grants or compliance. So, although previous rescissions by the Department of Education were policy-driven, such as the recent rescission of Obama-era guidance for schools about how to handle sexual misconduct on campus (see our Legal Update 20-2017), this move appears to be “house-cleaning.”

OSERS’ decision was made public to most when OSERS released a list of rescinded guidance documents in a newsletter without any accompanying explanation of OSERS’ action. OSERS has since stated all the documents were outdated, superseded, unnecessary or inaccurate. Although our office has not reviewed all 63 rescinded letters, a preliminary review indicates that the changes are not substantive and many are outdated. Some complaints about the removal of guidance include that helpful documents which outlined the use of federal funds for special education have been removed. https://www.washingtonpost.com/news/education/wp/2017/10/21/devos-rescinds-72-guidance-documents-outlining-rights-for-disabled-students/?utm_term=.8d5c66742698. It appears the newsworthiness of the rescission is due to the volume of documents and the lack of explanation initially provided to advocates, practitioners and educators, rather than any sudden changes to the law. The IDEA’s numerous regulations are also being reviewed in accord with the same Executive Order, so substantive changes to the law may be on the horizon.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

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