USED’s Regulatory Review: What You Need to Know

The U.S. Department of Education (USED) has made a lot of headlines over the last few weeks for conducting an agency-wide review of their regulations and guidance. Understandably, the special education community has been concerned about the lack of transparency.  Here is what you need to know about the ongoing regulatory review and what it means for students with disabilities.

What’s the back story?

In response to an executive order issued by President Trump earlier this year, USED and all other government agencies are in the process of reviewing every regulation and policy document they’ve issued over the years. Their goal is to identify any that “eliminate jobs, or inhibit job creation;” are “outdated, unnecessary, or ineffective;” “impose costs that exceed benefits;” or interfere with regulatory reform.

Each agency is creating their own timeline and process for their regulatory review. USED put together a Regulatory Review Taskforce to make recommendations on whether regulations or guidance documents should be rescinded, modified, or kept as is. They also released a progress report containing a list of regulations and guidance documents that were being considered, and  issued a notice seeking public comment.

The public was given two months – from the end of July to the end of September – to comment on which, if any, regulations or guidance documents should be changed. During that time, USED received more than 16,000 comments from parents, educators, community members, and advocates.

NCLD and many of our partners in the disability and civil rights community made it clear to USED that all regulations implementing current laws (such as the Individuals with Disabilities Education Act (IDEA), the Every Student Succeeds Act (ESSA) and the Rehabilitation Act, and the Civil Rights Act are critical to the support and success of students with disabilities and must be maintained. We also stressed that guidance and policy documents are important tools for parents, educators, and advocates in the special education community who must effectively interpret and implement the law and regulations, and that rescinding guidance documents could lead to confusion or problems at the local level.

What happened in October?

 With the comment period closed, USED informed the community at the end of October that they were in the process of compiling all of the feedback and would soon begin reviewing it to determine which recommendations and guidance documents would be recommended for modification or rescission.

Yet, on Friday, October 20^th, USED issued a statement indicating that they had rescinded 72 guidance documents related to special education and students with disabilities, without any explanation as to  why these 72 were chosen.

On Monday, October 23^rd, USED explained that the guidance documents were rescinded because they were deemed “outdated, unnecessary, or ineffective.” The Department stated that some had been replaced by newer guidance while others were no longer in effect due to changes in laws, regulations, or other policies. However, those decisions were made without input from parents or the disability community, as USED had not yet reviewed the 16,000+ comments received.

Fortunately, the 72 rescinded special education guidance documents will not have a substantial impact on the rights students with disabilities and their families. However, as a community, we are concerned about USED’s lack of transparency and partnership in this process. USED referred to this first round of review and rescission of guidance as “Phase 1.” Certainly, this is just the beginning of what may be a long road ahead. 

What’s next?

We are looking ahead to “Phase 2” of the regulatory review process, which USED indicated will include reviewing the 16,000+ comments received in September, and identifying additional guidance and regulations to modify and rescind.

If USED plans to remove or modify any regulations, we expect the public to have another opportunity to comment before it is final and we intend to monitor the process closely. However, there is no public comment period for guidance and USED can simply rescind any pieces of guidance without following any formal procedure.

This is concerning to the community, as we – parents, educators, and advocates – heavily rely on the many pieces of guidance issued by USED over the years.

What does it mean for me?

Parents and other stakeholders must have a chance not only to weigh in, but for their input to be considered by USED. Parents, educators, advocates and individuals with disabilities must be part of the conversation before making any further decisions that will substantively impact the rights of and services provided to students.

We are urging USED to meaningfully engage with the community, especially parents, before making any further decisions about modifying or rescinding regulations and guidance.

Our president and CEO, Mimi Corcoran, wrote an op-ed urging USED to meaningfully engage with the community, especially parents, before making any further decisions about modifying or rescinding regulations and guidance. We ask that you share their piece with your networks, and work alongside us as we continue to demand that USED is transparent before making more changes that could directly impact the success of children with learning and attention issues.