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Rescinded Guidance from Department of Education Mostly Harmless (This Time)

On Friday morning, the Department of Education quietly rolled back 72 guidance documents from the Office of Special Education and Rehabilitative Services and the Rehabilitation Services Administration. The documents were described by officials to be “outdated, unnecessary or ineffective.” However, no further details were provided as to what that might actually mean. Guidance documents are important because they explain how existing disability rights laws or regulations should be applied in schools. As a result, anxious disability advocates spent much of the weekend scrambling through hundreds of pages of complex policy documents, trying to determine how the rescinded guidance might affect disabled students across the United States.

Special education attorney and autistic self advocate Michael Gilberg told NOS Magazine he was, “deeply troubled by the US Department of Education’s decision to rescind 72 documents without any actual explanation of why… Parents, attorneys and advocates rely on this guidance to ensure that [disability accommodation guidelines for students are] being properly followed and that rights of the parent and student are not being overlooked.”

There is good news: The rescinded documents will actually have little, if any, impact on disabled students. The Department of Education has released a new document outlining exactly why each rescinded piece of guidance is, “outdated, unnecessary or ineffective.” The rescinded documents generally fall into three categories:

  • Memos that address specific issues submitted by states that are no longer relevant. For example, performance reports.
  • Guidance published after a policy change. For example, some older documents were no longer accurate after the passage of landmark legislation like the Individuals with Disabilities Education Act. Another example is a document that discusses how “least restrictive environment” might apply to preschoolers. There is a newer guidance document that covers much of the same ground, so the older document is no longer needed.
  • Memos to make professionals aware of  time sensitive publications or programs. For example, there is guidance about a high school tech program that no longer exists.

In a stakeholder call on Wednesday, Department of Education Press Secretary Liz Hill reassured an unknown number of anxious parents and confused legal experts. “The Department is clearing out guidance that is no longer in force or effect because the guidance is superseded by current law or guidance or out of date,” she informed callers. “Students with disabilities and their advocates will see no impact on services provided.”

Now, the bad news: The lack of transparency displayed by the Department of Education on Friday might be the new normal under Secretary of Education Betsy DeVos. This is the first time in its history the Office of Special Education and Rehabilitative Services has mass-rescinded documents. It will not be the last. Further regulation rollbacks have already been planned. During the stakeholder conference call on Wednesday, officials repeatedly stated that this was “phase one” of “cleaning house” and that “phase two” would come in 2018.








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