U.S. Department of Education issues long awaited Guidance on IDEA MOE Waiver Requests

As CEC has reported several times on this blog, states are experiencing a financial crisis greater than any in the last 70 years. Due to falling revenues from lower tax collections, many states have been forced to cut state funded services across the board. These deep cuts are also, in some places, impacting states ability to maintain their funding of IDEA.  Thus, Iowa, Kansas, West Virginia, and South Carolina have all requested waivers of IDEA’s Part B “maintenance of effort” provision.

The Department has never before granted a waiver for IDEA’s maintenance of effort provision, but this year it has already granted 2: to Iowa and Kansas. It is currently reviewing requests from South Carolina and West Virginia. IDEA’s maintenance of effort provision requires that when a state accepts federal IDEA funding, it agrees it will not decrease the amounts it spent on special education services in the year before.  The Department grants waivers only when a state demonstrates that it has experienced “exceptional or uncontrollable circumstances.”  But because no states have ever sought or been granted waivers in the past, there is little guidance or indication how the Department will decide to grant waivers. Advocates for students with disabilities, and the disability community in general requested clear guidance from the Department on the waiver issue to better understand how the Department would decide to grant waivers.
This week the Department issued very brief and vague guidance explaining how it will make decisions to grant waivers. The Department stated it will consider several factors including whether the state is experiencing an “exceptional and uncontrollable” circumstance; the state’s total amounts of appropriations to other agencies and other areas in education; and the state’s compliance and performance record in implementing Part B.  Additionally, if the waiver is granted the Department may undertake additional monitoring of the states implementation of Part B to ensure it continues to provide a free appropriate public education (FAPE) to all eligible students. Finally and most importantly, these are temporary waivers – meaning they only waive the maintenance of effort provision for one year. Importantly, they also do not reduce a state’s requirement to maintain effort at the same level as in the past.
When a state fails to provide the same amount of funding for IDEA services that it has in the past, it is likely that services and students suffer. CEC is concerned about how many states will be granted this waiver and how that will impact the provision of special education services. CEC is actively monitoring this situation and will provide regular updates on this blog so stay tuned!

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circumstance; the state’s total amounts of appropriations to other agencies and other areas in education; and the state’s compliance and performance record in implementing Part B.