On Tuesday, June 9th, the New York State Department of Health (“DOH”) released an interim advisory containing guidelines for delivering in-person special education services and instruction while helping to protect against the spread of COVID-19. This DOH guidance follows Governor Cuomo’s Executive Order 202.37, issued Friday, June 5th, which permits in-person special education services and instruction to be provided during the summer term through July 5, 2020, i.e, extended school year services (“ESY”). Since executive orders can only have a duration of 30 days, it is expected that the governor will extend this order for the duration of the ESY summer period.  You can read our legal alert regarding Executive Order 202.37 here.

As discussed in that alert, EO 202.37 was issued without corresponding guidance from the New York State Education Department (“NYSED”), resulting in many open questions regarding how schools should implement the Governor’s EO.   Among those is whether schools are required to provide in-person services or have the option to continue with remote learning during ESY.  Additionally, it’s unknown if schools will be required to provide remote online services as an alternative if, for example, parents refuse to allow their child to participate in an in-person ESY program due to COVID-19 related fears.  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.  The brief language of the EO is limited to “special education services and instruction” which does not include student assessments and evaluations. NYSED has yet to release guidance that addresses these and other important pressing issues.

Additionally, the DOH guidance raises—perhaps inadvertently—the question of whether in-person ESY services may be delivered on site within school districts, or if services may only be provided at independent schools such as 853 schools, 4201 schools, and 4410 schools.  The guidance states that “special education services may be provided at locations not operated at a school district”, i.e., independent schools, which some may interpret as permitting ESY special education services and instruction to be conducted only at independent schools,  On the other hand, EO 202.37 expressly states that summer special education services may be provided in person “in school districts”  The DOH guidance also makes several references to school districts and to their application of the guidelines, leading to the reasonable conclusion that special education services may be provided at school districts as well as independent schools.

For those schools who will begin operating their own summer special education programs, the DOH guidance outlines several protocols to follow to protect the health and safety of students and staff.  For example, the guidelines provide that, before opening, appropriate social distancing, personal protective equipment (“PPE”), hygiene and cleaning protocols must be in place, and that all faculty and staff should be trained – either remotely or in person – on the precautions outlined by DOH.  During operation, employees must complete a health screening assessment before beginning work each day.  Arrival and drop-off times (and locations) or other measures should be implemented to limit close contact with parents or guardians to the greatest extent possible. Use of common spaces such as cafeterias should also be staggered.   In addition, schools should ensure that desks/seating are spaced to at least six feet apart, and should be facing the same direction (rather than facing each other).  The guidance further provides that students should not be placed in groups of more than 10. This could require a reduced number of students placed in special classes that would typically have 12 or 15 students.

Further, schools must provide employees with an acceptable face covering at no cost to employees, which must be worn unless an individual is medically unable to do so.  Notably, the guidance states that students are not required to wear face coverings, although they should be encouraged to do so, unless it would impair their health or mental health.  The guidance also provides that alternate PPE, such as a transparent face shield, may be worn by employees who provide services or interventions that involve visualization at or around the mouth, e.g., speech therapy, or who work with students who might benefit from being able to see more of the provider’s face.

With regard to staffing, EO 202.39, issued on June 7, permits members of the public workforce (including school districts, BOCES, and other schools under contract with districts and BOCES to provide approved ESY programs and services) to return to their work locations two weeks after they are deemed to be in phase 2 of the statewide reopening plan.  This allows schools to have the needed staff on site to run their ESY programs and services.

While DOH’s advisory provides welcome guidance on how to conduct safe, day-to-day operations, we continue to expect additional guidance from NYSED regarding what schools must do to fulfill their special education obligations over the summer under state and federal law.  We will continue monitoring for such guidance and keep you informed of any 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.