- Equal Justice Under Law
Beyond COVID-19 School Closures: Questions for Families
Stephen R. Hellman, Esq.
August 1, 2022
Latest Housing Update regarding ERAP and other Long Island Housing Assistance Programs
August 9, 2022For more information about special education issues, please call the Education and Disability Rights Project (EDRP) at (516) 292-8100.
Click here to download a PDF copy of Beyond COVID-19 School Closures (Questions for Families)
Questions for Families
Is the school mask mandate still in effect?
No. NY Governor Hochul recently announced that as of March 2, 2022, individual school districts can decide whether to lift the mask requirement. Individual students and staff members still have the option to wear masks. School districts and private schools can still require face coverings if they want to do so. The governor made the announcement after the CDC declared that, under its new guidelines, Long Island is now a “green zone” where mandatory masking is no longer needed in schools or indoor public places.
Schools that require people to wear a mask should consider the possibility of reasonable accommodation* for individuals who are not fully vaccinated and/or who are unable to wear or have difficulty wearing certain types of masks because of a disability. (*According to the U.S. Dept. of Education, reasonable accommodations in the education system may refer to related aids and services in the elementary and secondary school context or to refer to academic adjustments, reasonable modifications, and auxiliary aids and services in the postsecondary school context.)
What about remote learning?
So long as allowed by public health officials, schools should be open for in-person teaching and learning, and students should be in school.
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- In case of school closures due to a declared public health emergency, schools must be prepared to provide remote instruction.
- While the Department will not require schools that are open for full-time, in-person instruction to provide online or remote instruction, districts may work with students and families to offer remote options if it is deemed to be responsive to a student’s needs.
- Where a student has a documented medical condition and is prohibited from in-person learning, remote instruction may be sought.
What if my family doesn’t have access to the technology we need for remote learning?
School districts must determine home access to an appropriate device and reliable high-speed internet. They should work with families to provide devices and internet access as needed and provide students with multiple ways to participate in learning.
Have the Regents and other examinations changed?
Recent cancellation of Regents:
In addition to the Regents exams that were canceled early on in the pandemic, the January 2022 administration of the High School Regents Examination Program was canceled, due to the ongoing COVID–19 concerns. This cancellation applied to all Regents Examinations that had been scheduled for the January 2022 Regents examination period.
The June 2022 History Regents was also canceled, for reasons unrelated to COVID-19, as announced in a letter by the Commissioner¹ . It was determined that the exam had the potential to compound student trauma caused by the mass shooting in Buffalo.
¹ http://www.nysed.gov/common/nysed/files/programs/state-assessment/cancellation-us-framework-regents-june-2022.pdf
Students were qualified for an exemption from Regents given during the January 2022 examination period if the student:
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- Had been enrolled in a course of study that would ordinarily culminate in the taking of a January 2022 Regents Examination and earned credit for such course of study by the end of the first semester of the 2021-22 school year; or
- Between September 1, 2021 and the end of the first semester of the 2021-22 school year, had successfully completed a make-up program for the purpose of earning course credit; or
- Had been preparing to take a required Regents Examination in order to graduate at the end of the first semester of the 2021-22 school year.
As an example, some students did not qualify for a Regents Examination exemption in June or August 2021 because they were unable to earn credit in the course. These students were eligible for an exemption from the January 2022 Regents Examination as long as the student completed a make-up program to earn course credit by the end of the first semester of the 2021-2022 school year.
Typically, Grade 11 students take the Regents Examination in English Language Arts in January. In order to qualify for an exemption from the January 2022 Regents Examination in English Language Arts, the student must have earned credit for the course of study by the end of the first semester of the 2021-22 school year. If the course of study continued through the end of the second semester of the 2021-22 school year, students would not qualify for an exemption from the Regents Examination requirement for English Language Arts.
Graduation
On January 10, 2022, the Board of Regents approved emergency regulations allowing qualified students to graduate in January 2022 without the Regents exams that were scheduled to take place that month.
NYSED developed additional guidance in the form of an FAQ to address topics such as safety net options, mastery, honors, and technical endorsements so that schools were able to determine which diplomas to grant to their graduates. [Frequently Asked Questions Related to the Cancellation of the January 2022 Regents Examinations (nysed.gov)] ²
Technical Endorsements may be awarded to students who complete the requirements for any diploma type (local, Regents, or Regents with advanced designation) and complete a NYSED-Approved Career and Technical Education (CTE) program the associated technical assessments.
A school district may award an Advanced Regents diploma with honors to a student who achieves an average score of 90 on all Regents Examinations required for advanced designation. A student may earn the Mastery in Mathematics and/or Science endorsements based off of their Regents exam scores.
Students with disabilities have three safety net options available to support acquisition of the local diploma. These options include: Compensatory Safety Net, Low Pass Safety Net, and Low Pass Safety Net with Appeal.
For more information, please visit the NYSED website: http://www.nysed.gov/
² http://www.nysed.gov/common/nysed/files/programs/coronavirus/faq-january-2022-exemptions.pdf
Declination:
Can the parent/guardian of students who were eligible to graduate in the 2021-22 school year and beyond as a result of having met an assessment requirement through an exemption, at any time, decline such exemption?
Yes. Parents could have declined the Regents exemption so that their child was not awarded a diploma in January, 2022³. In addition, the exemption declination was extended to permit parents and persons in parental relation to decline the exemption to the graduation assessment requirement(s) for any year that their child has been exempted prior to such child’s graduation. “Schools must notify parents . . . of the option to decline such exemption . . . prior to the conclusion of the semester in which students are due to receive their high school diploma (10 days prior for those graduating after the first semester of the 2021-2022 school year and 30 days prior to the second semester of the 2021-2022 school year and thereafter).”
If the parent or guardian explicitly declines the exemption of a Regents Examination, a January 2022 NYSED Approved Alternative examination, a Pathway examination or an exemption to the unfinished Career Development and Occupational Studies (“CDOS”) Commencement Credential requirements applied to his/her child as a result of COVID, a diploma/credential will not be conferred on such student until such student meets the applicable requirements.
³ For more information, please visit NYSED’s Frequently Asked Questions Related to the Cancellation of the January 2022 Regents Examinations (nysed.gov) at http://www.nysed.gov/common/nysed/files/programs/coronavirus/faq-january-2022-exemptions.pdf and/or the text of the emergency regulation: https://www.regents.nysed.gov/common/regents/files/122p12a2.pdf
Is a student who passed a Regents Examination with a score of 65 or higher prior to January 2022 and intended to retake the Regents in January 2022 to earn a higher score eligible for a Regents Examination exemption?
No. Any student who passed a Regents Examination with a score of 65 or higher prior to January 2022 is not eligible for the exemption.
Can a student make a “special appeal” to graduate with a lower score on a Regents Examination?
At its May, 2022 meeting, the Board of Regents approved a temporary expansion of the existing process to appeal to graduate with a lower score on a Regents Examination. This temporary expansion was allowed, due to the widely varied teaching and learning conditions caused by the continued impact of the pandemic, and allows any student to utilize this “special appeal” to earn a diploma with a lower score on a Regents Exam, under the following conditions: 1) The student must have taken the Regents Exam during the June 2022, August 2022, January 2023, June 2023 or August 2023 administration periods; 2) The student must have a score of 50-64 on the Regents Examination that is the subject of the appeal and was taken during one of the above administrations; and 3) The student has attained a course average in the course that meets or exceeds the required passing grade by the school and is recorded on the student’s official transcript with grades achieved by the student in each quarter of the school year. Under this special appeal, a student need only take the examination under appeal one time and “the appeal may be completed any time prior to a student’s graduation”. For more details about the special appeal process, see guidance ⁴, issued by Betty A. Rosa, Commissioner dated May 16, 2022.
⁴ http://www.nysed.gov/common/nysed/files/programs/curriculum-instruction/
nysedmemospecialappeallowerscore22-23.pdf
Do students need to complete 1,200 minutes of satisfactory laboratory experiences in order to be eligible for an exemption to a Regents Examination in Science?
No waiver for laboratory minutes exists for the 2021-2022 school year. Additional information may be found in the Virtual Laboratory Experiences and the 1,200 Minute Science Laboratory Requirement for the 2021-2022 School Year memo⁵.
Yes. The GED® Test is the new High School Equivalency (HSE) Exam in New York State. The TASC Test™ was discontinued on December 31, 2021. Scores from passing TASC subtests (2014-2021) and passing GED subject tests (2002-2013) can be used toward meeting the requirements for an HSE diploma. GED had previously served as the NYS HSE exam from the 1940’s through 2013.
Questions For Students With Existing IEPs Or Section 504 Plans
Can a student with a disability stay in school after age 21, due to the pandemic?
Yes. In June, 2022 Governor Hochul signed a new law ⁶ which clarifies that schools are allowed to continue providing instruction and services to students with disabilities who turned 21 during the 2021-22 school year. Students in New York State have the right to attend high school until the end of the school year in which they turn 21. Students with disabilities also have the right to receive transition services—such as job training or support developing independent living skills—to help them prepare for life after high school. However, during the pandemic, many older youth with disabilities had limited access to the special education supports and services needed to help them successfully transition to adult life. The new law makes clear that schools can give students with disabilities who receive special education services pursuant to an individualized education program (IEP), and who would otherwise “age out” in June 2022, more time to finish high school. The students will be able to finish their education plans in the 2022-23 and 2023-24 school years or until they turn 23 years old, whichever first occurs.
⁶ https://www.nysenate.gov/legislation/bills/2021/S7866
Is my child entitled to receive Compensatory Education for missed services due to COVID-19 school closures?
Possibly. The District’s Committee on Special Education (“C.S.E.”) should make individual decisions about compensatory or extended school year services, including services to make up for any skills the student lost.
If you think that your child needs compensatory services*, document the services your child was receiving before the closure, services offered during the closure, and your child’s access to materials and education. Also, document any regression your child experienced. Keep records of the dates and times when services were provided and the dates when they were not provided.
(*Compensatory services are services required to remedy any educational or other deficits that result from the student with a disability not receiving the evaluations or services to which they were entitled⁷.)
⁷ https://www2.ed.gov/about/offices/list/ocr/docs/factsheet-504.html
What are the options for special education students who cannot learn well in a virtual environment?
N.Y.S. Department of Education instructed districts to prioritize in-person services for high-needs students with disabilities whenever possible.
Districts must also determine how special education programs and services will be delivered to meet the needs of students with disabilities in both remote learning and in-person instructional models. This must be considered in the event of future school closures.
Will Committee on Special Education (“C.S.E.”) meetings be held if schools are not open for in-person instruction?
Yes. The C.S.E. must meet at least once each school year to conduct an “Annual Review” of each student’s I.E.P. 34 C.F.R. §300.324(b)(1). A C.S.E does not have to meet in person. Parents/guardians and the C.S.E. may agree to conduct C.S.E. meetings through other means, including videoconferencing or phone calls. 34 C.F.R. §300.328.
Suppose the parent/guardian and District agree to change a child’s I.E.P. after the Annual C.S.E. meeting. In that case, they may amend or modify the child’s current I.E.P. in writing without meeting again—34 C.F.R. §300.324(a)(4)(i).
I disagree with the I.E.P. – Is there anything I can do?
Yes. Parents/guardians can make a Due Process Complaint (D.P.C.) or a State Education Complaint challenging their child’s I.E.P. as a denial of a Free and Appropriate Public Education. A State Education Complaint and a D.P.C. may not be brought at the same time. Generally, parents/guardians have two years from when they knew or should have known, of a violation of the IDEA to request a due process hearing [20 U.S.C. §1415(f)(3)(C)] and a State Education Complaint must allege a violation within the past year.
A Due Process Complaint is made by a parent who is requesting an impartial hearing. For more information on requesting an impartial hearing, please refer to the NYSED’s Q&A on Impartial Due Process Hearings for Students with Disabilities. https://www.p12.nysed.gov/specialed/dueprocess/documents/impartial-hearing-guidance-jan-2018.pdf
A State Education Complaint is defined by NYSED as “a written, signed statement of an allegation that a local or State educational agency (e.g., school district or other public agency) has violated a requirement of federal or New York State (NYS) law or regulation relating to the education of students with disabilities”. More information on this process can be found on the NYSED website: http://www.nysed.gov/special-education/state-complaint
Does the COVID-19 crisis continue to impact special education deadlines?
Yes. “[P]ublic agencies are encouraged to work with parents to reach mutually agreeable extensions of time, as appropriate.” The New York State Education Department (“N.Y.S.E.D.”) announced that several deadlines will not include days schools are closed because of COVID-19:
- 60 Day Deadline to Provide Special Education Program and Services Doesn’t Include Closure Days
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- New York State Commissioner’s Regulation §200.4(d) normally requires a Board of Education to provide appropriate programs and services within 60 school days of receipt of a consent to evaluate or referral for review. The 60-day deadline will not include any days the school is closed due to COVID-19.
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- 30 Day Deadline for Private Placement Doesn’t Include Closure Days
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- New York State Commissioner’s Regulation §200.4(e)(1) normally requires a Board of Education to arrange for placement at an approved private school within 30 school days of the C.S.E.’s recommendation. The 30-day time period will not include any days the school is closed due to COVID-19.
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Impartial Hearings
An Impartial Hearing Officer (I.H.O.) may receive testimony by video. I.H.O.s may conduct special education due process hearings by video conference. Commissioner’s Regulation §200.5(j)(3)(xii)(h).
I.H.O.s may extend cases. Each extension shall be for no more than 30 days; except that if schools are closed pursuant to an Executive Order issued by the Governor pursuant to a State of Emergency for the COVID-19 crisis, an extension may be granted beyond 30 days for the length of time schools are closed but no more than 60 days. No more than one extension at a time may be granted. The reason for each extension must be documented in the hearing record. Extensions must still be made at the request of the school district or the parent. I.H.O.s may not grant extensions on their own behalf or grant extensions unilaterally. Commissioner’s Regulation §200.5(j)(5)(i).
Have there been any changes to classification terminology?
The New York State Board of Regents approved permanent amendments to sections 200.1 and 200.4 of the Regulations of the Commissioner of Education to change the term “emotional disturbance” to “emotional disability”. Christopher Suriano, Assistant Commissioner of the NYS Office of Special Education states this change was made “as the result of stakeholder engagement discussions, survey responses, and the analysis of public comment”. For more information on these amendments, please see the July 2022 official memorandum from the Office of Special Education:
For more information about special education issues, please call the Education and Disability Rights Project (EDRP) at (516) 292-8100.