For All Families

COVID-19 school closures have been particularly difficult for students with disabilities. This Q&A covers special education issues arising from pandemic related closures. For more information about COVID-19 special education issues, or special education issues generally, please call the Education and Disability Rights Project at (516) 292-8100 and ask for extension 3118or 3170.

What are the rules for schools to operate during the pandemic?

In New York, school districts may make their own determinations about whether to provide in-person education, online education, or a hybrid of in-person and online education, depending on local conditions. However, the state or local Department of Health may direct schools to close or require additional testing of students and staff if local infection rates get too high.

Whether schools are operating in-person or online, they must follow guidelines the New York State Department of Education issued in July 2020. The New York State Guidance covers many topics, including:

  1. Special Education;
  2. Health and Safety;
  3. Transportation;
  4. Nutrition;
  5. Technology and Connectivity;
  6. Social-Emotional Well-Being;
  7. Attendance and Chronic Absenteeism; and
  8. Career and Technical Education (CTE).

Visit the Department of Education website for the full guidance or read on for a summary.

What should I expect if my child’s school is in a “micro-cluster”?

Pursuant to Executive Order 202.68, the local Department of Health shall direct all schools located in a red or orange micro-cluster zone to close for in-person instruction until they can test students and staff. Only remote instruction will be allowed in these areas. However, schools in yellow zones may remain open with testing in place. School districts must continue to make meals available to students in all zones.

Red and Orange Zones

All students, faculty and staff must test negative for COVID-19 before returning to school in-person.

After a school reopens in a red or orange micro-cluster zone, 25% of the in-person school community (student, faculty, and staff) must be tested each week. Schools that cannot meet the testing requirements must remain in remote learning until the zone designation is lifted.

Yellow Zones

Although schools in a yellow zone may remain open for in-person instruction, these schools are required to test 20% of in-person students, teachers, and staff to determine if the school is a significant source of local virus spread. More information is available here.

What health and safety precautions should I expect during in-person instruction?

Schools and school districts must:

  • Perform health checks, including daily temperatures checks and encourage parents to screen student before school;
  • Develop social distancing plans that ensure that everyone keeps a distance of at least 6 feet or 12 feet while playing a wind instrument or doing sports, and
  • Develop a plan for masks whenever social distancing cannot be maintained.

Mask exceptions must be allowed if masks would impair health (including mental health) or obstruct services and instruction. Masks should not be used for anyone who has trouble breathing, who is incapacitated or otherwise unable to remove the covering without assistance.

Families should also be allowed to opt-out of in-person instruction.

My child qualifies for free or reduced-cost meals at school.  Will they be available if schools are not offering in-person instruction during the 2020-2021 school year?

Yes. School districts are required to provide free meals for eligible children, even if that school is not meeting in person. Many districts are providing free breakfast and lunch to all students through June 2021. Contact your school district directly for more information.

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.

Is school attendance still mandatory?

Yes – School attendance is still mandatory and schools are responsible for collecting attendance and addressing chronic absences.

What tools should districts provide to support emotional health?

Schools should:

  • Ensure that a comprehensive developmental school counseling program plan is reviewed and updated to meet current needs;
  • Establish a collaborative working group which includes families, students, teachers, Board of Education members, community service providers, school counselors, social workers and psychologists to inform the comprehensive school counseling program;
  • Address how resources and referrals to mental health, behavioral and emotional support services and programs will be provided;
  • Provide professional development opportunities for faculty and staff on how to talk with and support students during and after the ongoing COVID-19 pandemic, as well as provide supports for the development of coping and resilience skills for students, faculty and staff.

Are there special rules for Career and Technical Education (CTE)?

School districts must work collaboratively with BOCES to ensure that learning standards are met. They must also work with business partners to ensure safe and healthy work-based learning opportunities are provided.

For students with disabilities, the districts and BOCES must:

  • Allow remote or hybrid experiences to be used towards work-based learning hours; and
  • Consider placements in the school building if outside businesses are not able to meet IEP requirements.

Have the Regents Examinations changed because of the COVID-19 school closures?

The January 2021 Regents Examinations were cancelled, but no decision has been made about the June and August 2021 Regents.

Have graduation requirements changed because of the COVID-19 school closures?

Yes. There were several important changes to graduation requirements:

A. Regents Examination Exemption

Students who were planning to take a Regents Examinations in January 2021 at the end of a course of study are exempt from passing the Regents Examination. To qualify for the exemption, a student must meet one of the following requirements:

  • Be enrolled in a course that would ordinarily culminate in a January 2021 Regents Examination and earn credit for the course by the end of the first semester of 2020-21; or
  • Successfully complete a make-up program during the first semester of 2020-21; or
  • Be preparing to take a Regents Examination to graduate at the end of the first semester of the 2020-21 school year.

Learn more here.

B. Earning Course Credit

If a student was unable to complete the necessary study units due to COVID-19 related school closure, the student may receive diploma credit if the student “met the standards assessed in the provided coursework”.

C. Career Development and Occupational Studies (“CDOS”) Certificate

Many students with a disability pursue a CDOS Certificate. For example, if a student with a disability seeks a Local diploma through a “Superintendent’s Determination,” that student must obtain a CDOS (among other requirements). The CDOS requires many hours of coursework and/or work-based learning. A student with a disability may also use the CDOS towards the “+1 Pathway” to earn a Regents or Local Diploma.

Due to school closures, students with disabilities who were otherwise eligible to exit from high school in the 2019-2020 school year may get the CDOS without meeting all the requirements, if the student “has otherwise demonstrated knowledge and skills in the commencement level CDOS learning standards.” In 2020-21, CDOS students unable to complete 54 hours of work-based learning due to school’s inability to provide those experiences may be awarded CDOS if the student meets other requirements. See 8 N.Y.C.R.R. §100.6(b)(3)(iv).

D. High School Equivalency Diplomas

Normally, High School Equivalency (HES) candidates are exempt from the Test Assessing Secondary Completion (TASC) sub-tests matching any Regents exams they passed. See 8 N.Y.C.R.R. §100.7(2)(a). Students exempt from a Regents exam due to COVID-19 will also be exempt from that section (sub-test) of the TASC if they apply for an equivalency degree in the future.

What help is available for students who are behind?

Students in grades 3-8 at risk of not achieving English Language Arts, Mathematics, Social Studies, and/or Science standards are entitled to Academic Intervention Services (AIS). In 2020-21 school districts are not required to conduct the usual two-step identification process to determine AIS eligibility. See 8 N.Y.C.R.R. §100.2(ee)(2)(ii)(f). Read on for information about compensatory services for students with disabilities who fell behind because of the school closures during the 2019-2020 school year. Families concerned that their students have not been appropriately evaluated for intervention services should contact Nassau Suffolk Law Services for additional guidance.

IEPS and 504 Plans

Is my child still entitled to the special services or accommodations required in their Individual Education Plan or Section 504 Plan during COVID-19?

Whether school is in-person or online, schools are still required to provide students with disabilities a Free Appropriate Public Education (FAPE), consistent with the need to protect the health and safety of students with disabilities and the providers of special education services. School districts must provide each student with a Free and Appropriate Public Education (“FAPE”) by providing the special education and related services in the student’s individualized education program (“IEP”) to the greatest extent possible. If a student has a 504 Plan, school districts must provide the services in the 504 Plan to the greatest extent possible.

The New York State Department of Education instructed districts to prioritize in-person services for high-need students with disabilities, but districts should also have a plan to continue to offer services during any period of remote learning.

This means that wherever education takes place, the District should ensure access to:

  • Accommodations (for example, fewer math problems per page, extra time to complete assignments);
  • Modifications (for example, reduced number of assignments, alternate grading system);
  • Supplementary aids and services (for example, note taker, one-to-one aide, study guide); and
  • Technology (for example, pencil grip, voice activated computer, software that assists with reading/writing).

In doing so, the District must:

  • Ensure meaningful parental engagement regarding the provision of services to that family’s child;
  • Ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP; and
  • Ensure access to the necessary accommodations, modifications, supplementary aids and services and technology (including assistive technology), to meet the unique disability related needs of students.

What are the options for special education students who cannot learn well in a virtual environment?

NYS 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.

Is my child entitled to receive Compensatory Education?

Possibly. The District’s Committee on Special Education (“CSE”) should make individual decisions about compensatory or extended school year services, including services to make up for any skills the student lost. The NYS Department of Education instructed Districts to ensure that compensatory services continue if schools are required to close again during the current school year.

If you think that your child needs compensatory services, document the services that 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.

Will Committee on Special Education (“CSE”) meetings be held if schools are not open for in-person instruction?

Yes. The CSE must meet at least once each school year to conduct an “Annual Review” of each student’s IEP. 34 C.F.R. §300.324(b)(1). A CSE does not have to meet in person while schools are closed. Parents/guardians and the CSE may agree to conduct CSE meetings through other means, including videoconferencing or phone calls. 34 C.F.R. §300.328.

Parents/guardians should say that they do not waive any rights to challenge services offered during the school closure or virtual instruction. Parents/guardians should tell the other CSE members that they want their concerns included in the Prior Written Notice (“PWN”) that the school district will send out after the CSE meeting. If the concern is not in the PWN, then parents/guardians should write a letter to the school explaining their concerns and objections.

Suppose the parent/guardian and district agree to change a child’s IEP after the Annual CSE meeting. In that case, they may amend or modify the child’s current IEP in writing without meeting again. 34 C.F.R. §300.324(a)(4)(i).

I disagree with the IEP.  Is there anything I can do?

Yes. Parents/guardians can still make a Due Process Complaint (DPC) or a State Education Complaint to challenge their child’s IEP as a denial of FAPE. A State Education Complaint and a Due Process Complaint (DPC) 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.

Do the COVID-19 school closures impact any 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 (“NYSED”) 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

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.

  • 30 Day Deadline for Private Placement Doesn’t Include Closure Days

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 CSE’s recommendation. The 30-day time period will not include any days the school is closed due to COVID-19.

  • Impartial Hearings

An Impartial Hearing Officer (IHO) may receive testimony by video. IHOs may conduct special education due process hearings by video conference. Commissioner’s Regulation §200.5(j)(3)(xii)(h).

IHOs may extend cases up to 60 days while schools are closed due to COVID-19. Extensions must still be made at the request of the school district or the parent. IHOs may not grant extensions on their own behalf or grant extensions unilaterally. Commissioner’s Regulation §200.5(j)(5)(i). Learn more from the NY State Department of Education by click here and here.

Last updated December 4, 2020. The situation is changing rapidly. Please check back for updates.

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