In a previous Harris Beach legal alert, we reported that the New York State Education Department (NYSED) issued a guidance document strongly encouraging school districts to provide students with disabilities an opportunity to return to school during the 2021 2022 school year.  NYSED did not cite any statutory or regulatory authority in support of its guidance. Instead, NYSED simply claimed that it would be “unfair and unjust” for students with disabilities to miss important educational and transitional opportunities due to the pandemic.

On June 29, 2021, New York Gov. Andrew Cuomo took additional measures by signing legislation authorizing school districts to provide educational services in the 2021-2022 and 2022-2023 school years to students with disabilities who turned 21 during the 2019-2020 or 2020-2021 school years. Under this legislation, school districts may only provide these services to students who were enrolled in their school district and received services pursuant to an individualized education program (IEP) during the 2019-2020 or 2020-2021 school years. The statute adds that school districts may provide these services to students until they “complete” the services in their IEP or turn 23, whichever is sooner. The statute does not define what it means to “complete” IEP services.

At first glance, these steps taken by New York State seem extraordinary and unprecedented since they are contrary to the well-settled notion that a student with a disability’s right to a free appropriate public education ends upon the student’s receipt of a Regents or local diploma or the conclusion of the school year in which the student turns 21, whichever comes first.  However, upon closer review, this new legislation seems consistent with NYSED’s previous guidance on compensatory education.  More specifically, the new legislation gives school districts the opportunity to provide COVID-related special education services to older students who turned 21 over the last 15 months. One way these services may be provided is through compensatory education. This is consistent with established case law, which allows school districts to provide students with disabilities with compensatory education services beyond the age of 21 when a district denied a student a free appropriate public education prior to the age of 21. This new legislation appears to codify this option for COVID-related matters, but also allows for continued special education services for students who were unable to complete their IEP services. Examples of this could be for students who were unable to complete IEP transition activities, earn an anticipated exiting credential, or earn a diploma as a result of the COVID pandemic.

This new legislation does not create an automatic right to compensatory education or continued special education services beyond the age of 21 for all students with disabilities. Technically speaking, it only applies to students who turned 21 during the 2019-2020 or 2020-2021 school years. More notably, compensatory-education and continued special education decisions must be made on a case-by-case basis.  School districts should continue to consider and make individualized determinations for each of their students with disabilities based on, among other things, their specific rate of progress and ability to attain their IEP goals, including transition-related goals, during COVID. Notably, this new legislation does not mandate a specific way for school districts to assess a student’s need or eligibility for compensatory education or continued special education instruction. Although there is no one-sized-fits-all approach to such determinations, it is helpful to compare the student’s actual rate of progress and IEP goals achieved during COVID versus their anticipated rate of progress if COVID never happened.

Lastly, the legislation is silent on the issue of state aid for these services. Historically, NYSED has taken the position that state aid should not cover services provided to students over 21.  It remains to be seen whether NYSED will change its position for services provided in accordance with this new legislation.  Hopefully NYSED will provide guidance on this important funding issue as school districts continue to prepare for the upcoming school year.

We will continue to monitor these issues and provide an update if there are any further developments.  If you have any questions, please contact the Harris Beach attorney with whom you usually work.

This alert is not a substitute for advice of counsel on specific legal issues.

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.