On June 20, 2020, the New York State Education Department (SED) released two highly anticipated supplemental Question and Answer documents regarding special education, following guidance previously released on March 27 and April 27, 2020.   While the guidance covers several important topics, the first (Supplement No. 2) focuses on addressing outstanding questions related to determining and providing compensatory education as a result of the COVID-19 outbreak.

The second (Supplement No. 3) provides answers to several questions that were left open following Executive Order (EO) 202.37, which authorized schools to provide in-person special education services and instruction during the extended school year (ESY) summer term. This SED supplemental document further addresses various issues raised by the Department of Health’s June 9 guidance (the “DOH guidance”), which outlined the health and safety measures schools must implement in order to provide the extended school year in-person.

Although schools should closely review the new publications, a few of the more significant points contained within the guidance documents are provided below.

Supplement No. 2 – Planning for 2020-2021 and Compensatory Education

  • Identify and Address Emerging Student Needs. In addition to considering whether a student with a disability should receive compensatory and/or extended school year services, schools should consider whether the needs of any students have changed due to the school closure, which in turn could change the supports and services that a student needs in order to receive a free appropriate public education (FAPE).  There are a myriad of factors to consider, including the overall length of the closure, the amount of services missed, the extent to which the student’s anticipated rate of progress has changed and whether there is evidence of regression.  Plus, new student needs may have emerged (e.g., emotional, medical, academic) which may prompt the need for new types of instruction or services (e.g., a student experiencing anxiety caused by returning to school may require counseling or other accommodations).  Evaluations are recommended to identify and confirm the extent of such new services.
  • No Change to ESY Eligibility Criteria. The eligibility standard for the extended school year has not changed due to COVID-19.  The standard for ESY continues to be that a student requires instruction over the summer in order to prevent substantial regression.  While the standard remains the same, more students may meet that eligibility criteria following the school closure because their needs may have changed or they may have exhibited substantial regression while school was closed.  And if a student’s needs have changed, the Committee on Special Education (CSE) should revise the student’s individualized education program (IEP) to reflect those new needs and recommend supports and services accordingly.
  • The Compensatory Services Standard Remains the Same. The guidance confirms that students are not automatically entitled to compensatory services just because special education was provided virtually during the COVID-19 emergency. Rather, the determination of whether to provide compensatory services needs to be determined on an individual, case-by-case basis and only provided in situations where a student did not make adequate progress as a result of school closure.
  • The Compensatory Services Standard. The SED guidance reminds educators that the extended school year services are distinctly different from compensatory services, as ESY is provided only for the purpose of preventing substantial regression. In contrast, compensatory services are considered to remedy a district’s failure to provide a student with a FAPE. The purpose of compensatory services is to help the student catch-up to where he or she should have been performing but for a FAPE denial. The amount of compensatory education must be based on an analysis of the student’s unique situation and not simply a 1:1 replacement of missed services.
  • The CSE Must Make an Individual Determination on the Provision of Compensatory Services. In situations where a student’s IEP was not fully implemented during school closure, the CSE must determine whether that lack of implementation prevented the student from making adequate progress. If the student did not make adequate progress, the Committee must identify the compensatory services needed to place the student in the position he or she would have been but for the alleged FAPE denial. The CSE must base its determination on various documentation of the services that were provided during the closure due to COVID-19, including, but not limited to, progress monitoring and teacher and service provider reports.
  • Providing Compensatory Services. If the CSE determines the student is entitled to compensatory services, it must also identify the degree and duration of such services to be provided to facilitate the student’s progress towards his or her IEP goals. The services can be provided various ways such as extending the school day, providing tutoring before or after school, during the regular school hours, or if possible during the summer months.
  • Documentation of Compensatory Services. If the CSE determines that a student requires compensatory services, these services must be documented in an amendment or modification to the student’s IEP. The district should also send the parent a PWN of the changes to the IEP.
  • Compensatory Services for Students Over Age 21. Students who no longer receive IEP services beyond the 2019-2020 school year due to reaching the age of 21 or receiving a high school diploma may still be entitled to compensatory services due to the school closure.  In such cases, however, the CSE can only provide instruction and services at the secondary level, not the postsecondary level. Such a determination should also be carefully documented.

Supplement No. 3 – 2020 Extended School Year

  • July and August ESY Covered. SED interprets Executive Order 202.37 to cover the ESY period through July and August. Although the EO expires July 5, 2020, SED expects Governor Cuomo to extend the EO to apply for the entire duration of the 2020 ESY period. Schools may delay in-person ESY services to occur later in the summer to allow for additional time to prepare for an in-person program, provided that the total program includes at least six weeks funded at 30 days of programs and services.
  • EO 202.37 Applies to all Authorized Entities. The June 9 DOH guidance raised some questions about whether ESY could be provided by both school districts and “independent schools” or “independent schools” only. SED makes clear that EO 202.37 applies to all authorized entities operating NYSED-approved ESY programs, including school districts and BOCES.  In addition, SED has interpreted EO 202.37 to authorize transportation to approved ESY programs and has requested additional guidance from DOH applicable to school transportation.
  • Students are Entitled to ESY to the Greatest Extent Possible, but In-person ESY is Not Mandatory. SED has made it clear that EO 202.37 is permissive.  In other words, each ESY provider is responsible for determining whether or not it can effectively comply with the DOH guidance to offer in-person services.  If, however, an ESY provider determines that it cannot comply with the DOH health and safety guidelines, the provider must continue providing ESY services remotely.  Schools must continue to offer remote services for students whose parents decline in-person services, for students who are unable to attend in-person services due to failure to meet health screening criteria, and in the event that in-person services are suspended due to a health or safety concern. Parents should be notified of any intent to provide in-person programs and services as soon as possible.
  • In-person/Remote Hybrid Programs Acceptable. Under the guidance, extended school year providers have the flexibility to deliver services and instruction in-person, remotely or both.  ESY providers can assess which services may be provided in-person on a case-by-case basis to assess which programs can be delivered in accordance with DOH guidance.  In-person services may also be combined with remote service delivery in cases where, for example, programs are not able to meet existing program length requirements (e.g., school day, five days a week, or 30 days of in-person programs and services).  Further, the requirement to implement students’ IEPs “to the greatest extent possible” continues to apply to the 2020 ESY period.  Students who receive in-person services may not be in class sizes that are greater than 10, even if their IEP provides for a student group size of greater than 10. SED stressed that providing required special education services in the most effective way will mitigate the need to provide compensatory services in the future. Districts will need to evaluate their respective capacities if called on to implement a dual system of ESY, an in-person program and a virtual program depending on parental concerns and/or preferences.
  • In-Person Evaluations Authorized. While previous guidance advised that evaluations required to be conducted in-person would need to be postponed until schools re-opened, SED has interpreted EO 202.37 as now authorizing in-person initial and re-evaluations of both pre-school and school-aged children, including those ineligible for ESY.  SED has, however, requested additional health and safety guidance from the DOH applicable to in-person evaluations.
  • Students are Entitled to Transportation for ESY. Students who receive in-person extended school year programs and services must receive transportation to such services. School districts and counties should utilize the “Interim Guidance for Child Care and Day Camp Programs During the COVID-19 Public Health Emergency” guidance unless further direction regarding school transportation is forthcoming.

Federal and state guidance documents can be accessed at NYSED’s updated COVID-19 website at http://www.nysed.gov/coronavirus. We will continue to monitor and provide updates on any new federal and state guidance.

Visit our COVID-19 resource page for other information regarding the pandemic.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.