During the 2019-2020 and 2020-2021 school years, the Board of Regents and New York State Education Department (NYSED) temporarily modified the requirements for all students, including students with disabilities, to earn high school diplomas, credentials, and endorsements.  For example, NYSED waived numerous Regents examination requirements for students seeking a Regents or local diploma. Stating that this situation has been greatly compounded for those students who will “age out” of the P-12 education system because they have turned 21 by the start of school in September 2021,  NYSED recently issued a guidance document strongly encouraging school districts to provide these students with an opportunity to return to school during the 2021-2022 school year.

NYSED does not cite any statutory or regulatory authority in support of its guidance. It also does not indicate that there will be additional funding sources for school districts to provide these programs and services. Instead, NYSED simply claims that it would be “unfair and unjust” for students with disabilities to miss important educational and transitional opportunities due to the pandemic. The absence of express directives has led to many important questions including: (i) to what extent is this process required or enforceable? (ii) which students are entitled to these additional services? (iii) which services should be provided to “eligible” students? (iv) for how long should these services provided? (i.e., is a full year required?)

Although the guidance document does not expressly answer these questions, it indicates that additional services should be afforded to two categories of students with disabilities: (i) students who failed to earn a diploma, credential, or endorsement based on the manner in which services were provided during the pandemic; and (ii) students who due to the pandemic are not fully prepared for the transition to their planned postsecondary experiences. As a result, school districts choosing to provide these additional opportunities to certain students who have reached 21 years of age should limit them to students who fall within one of these categories. Consistent with the most fundamental principles of special education, these determinations should be based on the student’s individualized circumstances. For example, if a student needs to pass one more class in order to earn a diploma or credential, the district’s obligation would be limited to allowing the student to participate in that one class, as opposed to receiving a full-day class schedule.  Similarly, if the student can earn the necessary credit in less than a full year, then the district’s obligation would conclude at the point that such credit is earned

As for students deemed unprepared to transition to postsecondary experiences as a result of circumstances impacting the student’s program or services over the past school year, the district (presumably the Committee on Special Education, although this was not expressly stated in the guidance document) should identify any outstanding skills necessary for transition and then develop a plan for the student to acquire such skills. The district would have complete discretion when developing and implementing the plan. The district’s obligation to provide additional services would conclude as soon as the student acquires the identified skills, even if this occurs before the conclusion of the 2021-2022 school year.  In some cases, students may be able to meet these additional requirements and goals through an opportunity to attend summer school.

We will continue to monitor this development and provide an update if NYSED issues further guidance. 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.