FAQS ON NEW YORK STATE SPECIAL EDUCATION
Last Updated: April 20, 2020
Is your child’s school closed?
Does your child receive special education programs and services or have a 504 plan?
Do you have questions about how school closure affects your child’s special education programs and services?
When a state of emergency is declared, school districts are expected to be concerned about the health and safety of their students. During such times, the United States Department of Education and New York State Education Department grant schools wide latitude in complying with applicable laws or policies. Right now, the schools are officially closed until May 15. What does this mean for our students who have special needs? If you have questions about Special Education, CSE, and compensatory education during the Coronavirus Pandemic? Call Empire Justice at (585) 454-4060. We are here to help you understand the new guidance.
Q. Is my child entitled to special education programs and services or 504 accommodations when the school is closed due to COVID-19?
It depends. New York State and the Federal government are providing frequent updates on this issue. During a period of school closure during which instruction is being delivered to students, a free, appropriate public education (FAPE) is required for students with disabilities consistent with their IEP or 504 Plan. Therefore, if instruction is being delivered to students, the school is required to comply with IEPs and 504 Plans. If a district is not providing general education instruction to students, the District does not have to provide corresponding special education instruction to students with disabilities.
Q. My school is doing distance learning. Will my child’s programs and services be provided exactly the same as these programs were provided during school? When will the school start providing my student their services?
NYSED guidance states that schools are granted “as much flexibility as federal and state laws and regulations allow in determining how FAPE is to be provided…”
- If distance learning can be provided that would allow a student to progress in his/her/their educational goals, schools may be providing FAPE.
- Equal access is a necessary element. Accessibility must be achieved in a means that would allow the student to be able to learn in light of his, her, or their disability. It also includes language access for English Language Learners.
- Districts are authorized to provide therapies (OT, PT, S/L, counseling) through telepractice or teletherapy, if appropriate. NYSED understands that exceptional circumstances may affect provision of a particular service.
The New York State Board of Regents has granted schools an ‘extension’ in providing services to students with disabilities. It is unclear how long schools have to get services in place.
Q. My child receives their education at an alternate location (such as BOCES or private special education school). What obligations does the school district have to educate my child?
When a school district has placed a student at another location, the district has the same obligations to your child as a student that attends in-district programs. Where possible, the district is encouraged to work with the outside agency to have the student’s program delivered by that agency. But, if that is not possible, your home school must deliver instruction to your student.
Q. What is the Committee on Special Education (CSE) required to do during school closure?
- CSEs are not required to amend IEPs to reflect that virtual learning is in use.
- CSEs are still required to comply with timelines, where practical, for holding Annual Reviews, Re-Evaluation Reviews, and Initial Eligibility Determinations.
- Mutually agreed upon extensions are permissible.
- CSEs are not required to meet face-to-face and are authorized to meet using phones or online means, with the permission of the family.
Q. What if my student was in the process of being evaluated for special education services before the schools were closed?
If the evaluations can be completed via the internet or over the phone, the schools are being required to complete them. The timeline for any evaluation that would require in-person contact is waived until the schools re-open.
Q. What rights do students have if they are not provided or did not gain benefit from special education programs and services while schools were closed?
Your child might be entitled to compensatory education if it is documented that progress was not made during the time of school closure. That decision would be made at a CSE meeting based on evidence of academic or behavioral regression or lack of progress.
Q. What if I have already filed a due process complaint? Will the district still have to comply with the timeline?
Yes, to the extent possible both resolution sessions and due process hearings are expected to proceed through virtual/telephonic means with the mutual consent and participation of both parties. Extensions can be requested. The recent New York State guidance allows hearing officers to extend cases up to 60 days rather than the usual 30 days while schools are closed pursuant to the terms of the Executive Order(s) issued by the Governor.
Q. Can the 60-day timeline for filing State Complaint final written response be extended?
Yes, the Coronavirus pandemic may be considered an ‘exceptional circumstance’ since staff is not available.
Q. What happens if my child develops Covid-19 and their health is compromised? Can the school release that information?
- The Family Educational Rights and Privacy Act (FERPA) normally protects students’ identifiable information from unauthorized access when providing information to public health officials. Disclosure of this information would normally require consent from the parent.
- Districts are also required to protect student information when delivering digital learning through an online platform.
- However, during a state of emergency, districts can release student information “if necessary to protect the health or safety of the student or other individuals.”
Questions about Special Education, CSE, and compensatory education during the Coronavirus Pandemic?
Call Empire Justice at (585) 454-4060
We are here to help you understand the new guidance.
NYS Education Department Guidance:
United States Department of Education Guidance:
Broad flexibilities provided to states to bypass ESSA mandated testing for the 2019-2020 school year due to COVID-19 national emergency. States education leaders can find the waiver application here. (March 20, 2020)
CDC guidance on Considerations for School Closures (March 13, 2020)
Protecting Student Privacy: FERPA and the Coronavirus (March 12, 2020)
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