On Friday June 5th, Governor Cuomo issued Executive Order 202.37 allowing for special education services and instruction to be provided in person during the summer term through July 5, 2020. Students with disabilities who experience “substantial regression” are entitled to 12-month special education programming through extended school year (“ESY”) services provided in the summer. Given that Governor Cuomo previously stated that schools would not be back in session until September at the earliest, schools planned on providing ESY services remotely while awaiting further guidance about whether schools may reopen in the fall. This recent Executive Order now allows schools to begin providing in-person special education services this summer, but per the Order, such services “must follow State and Federal guidance.”
This Executive Order was issued without corresponding guidance from the New York State Education Department (“NYSED”). As a result, there are many unanswered questions regarding the steps schools must take to implement the governor’s directive. For example, the Order provides that schools “may” provide special education services in person. This could be interpreted as allowing schools to decide whether to provide in-person special education services or continue with remote learning during the summer. Students who receive ESY services are entitled to be mainstreamed as appropriate during their summer programming; however, this will likely not be possible this summer given that special education services will be the only in-person education services provided.
Previous federal and state guidance requires schools to determine on an individual basis whether students require compensatory services to make-up for a lack of adequate progress made while school was closed. This Order does not specify whether schools may now calculate the need for compensatory services and begin to provide those services over the summer to all eligible students regardless of whether they qualify for ESY. It is possible that some parents will refuse to send their children to in-person ESY or compensatory services this summer due to fears related to COVID-19; however, it is unclear if a parent’s refusal to allow his or her child to receive such services will be a valid defense for schools in future claims of compensatory services. In addition, if schools establish an in-person ESY program and/or compensatory service provisions for the summer and some parents refuse to allow their student to participate in-person, it is currently unknown if schools will be required to provide remote online services as an alternative.
Questions also remain about whether in-person evaluations may be conducted with students over the summer, and if so, if those evaluations may be conducted only with students who qualify for ESY rather than the general student population.
Executive orders can only be issued with 30 day intervals; therefore, the Order on ESY is effective from June 5 to July 5, 2020. Most ESY programs begin around the July 4th holiday and last for about six weeks, causing schools to await further direction from the Governor about whether this Order will be extended to include the typical ESY time-period. While technically it is anticipated the EO would be extended for the full summer term, that is not confirmed at this time.
In light of the above, we anticipate guidance from NYSED on the steps schools must take to fulfill their special education obligations over the summer. We will continue to monitor guidance from NYSED and keep you apprised of further updates.
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.