By Marion Walsh, Esq., Littman Krooks LLP

Guidance, plans and recommendations for reopening schools in the fall seems to change daily and every decision is fraught with pitfalls. As of today’s date, formal guidance from the New York State Department of Education (NYSED) for fall reopening is due out this week. NYSED  provided a Framework of Guidance to Reopen Schools on Monday, July 13^th. NYSED will require school districts to develop their own district plans by July 31—whether remote learning, in person learning or a hybrid plan. Nothing in the Framework or any guidance thus far indicates that full in-person services will be mandatory. The Framework does state that “schools and school districts should consider in-person services a priority for high-needs students and preschool students with disabilities whenever possible.”

In the meantime, parents and students are still struggling with summer learning and how to address any regression from missed services. If your child is not receiving any remote or summer services and you believe that they require make up or compensatory services, reach out to your district. Some school districts did opt to provide in-person summer learning for students with disabilities but many did not. Governor Cuomo’s June 5, 2020 Executive Order 202.37, gave districts the option but not mandate of providing special education services in person for the summer term in school districts.

NYSDOH Interim Advisory on Policies for In Person Services in School Districts

As the Formal NYSED Guidance on school reopening will rely in part on NYSDOH guidelines, it is important to review understand current interim NYSDOH guidance. On June 8, the New York Department of Public Health (NYSDOH) issued an Interim Advisory  for In-Person Special Education Services and Instruction during the COVID-19 Public Health Emergency.

The NYSDOH Interim Advisory  informed the State’s response activities and reopening approach regarding the latest policies and protocols to reduce transmission of COVID-19 among New Yorkers. The Interim Advisory provides that special education services may be provided at New York state approved locations not operated by a school district (These state-approved schools are referred to as 853 schools, 4201 schools, 4410 schools).  The Interim Advisory defines these schools as “independent schools” provided that 1) a school district requests that a student receive special education services at an independent school, 2) an independent school that receives a request from a school district to serve a special education student may provide such services, and 3) if an independent school chooses to provide such special education services at the request of a school district, it does so by adhering to all safety guidelines applicable to the school district. The Interim Advisory represents the minimum requirements any district may provide, and additional precautions or increased restrictions may be taken. Most requirements are likely to be carried over in the fall.

Steps Districts Must Take Before Opening

The NYSDOH Interim Advisory includes protocols school districts must take for “before opening.”  The protocol includes:

• Establishing communication with parents/guardians and local health authorities,
• Protecting and supporting staff and students at higher risk for severe illness by considering remote options for telework and virtual learning if in-person learning is not feasible; provided that students receiving special education services and instruction are entitled to receive in-person instruction. “Before opening” practices include consulting the most recent federal guidance for school programs including ongoing mitigation strategies, prevention, support and communication resources, ensuring appropriate social distancing, access to personal protective equipment, hygiene, cleaning and disinfection, and training of faculty and staff.

Schools, “while operating,” will adopt healthy hygiene practices, ensure that face coverings are worn by staff whenever they are within six feet of students or other staff and encourage, but not require, that students wear face coverings, increase cleaning, disinfecting and ventilation, adhere to appropriate social distances by ensuring at least six feet of distance between individuals, unless safety or core function of instruction requires a shorter distance, and that student and staff groupings are as static as possible having the same group of students stay with the same staff. Nonessential visitors are to be restricted and seating is to be at least six feet apart. Measures will be taken to stagger arrival and drop off times will occur, limit the sharing of personal items, objects and equipment, identify signs and symptoms of the virus, plan for when an employee or student becomes sick and maintain operations that safeguard public health and safety including assisting staff and students with adopting supportive coping and stress reduction practices in addition to monitoring health clinic traffic and designating a staff person responsible for responding to COVID-19 concerns will occur.

What Does this Mean for Your Child?

Every school district will develop its own reopening plan based on the NYSDOH Interim Guidance and the soon to be issued Formal Guidance from the NYSED.  NYSDOH regularly consults with the New York State Education Department, and while practices are constantly evolving, these protocols are based on the best-known public health information and are meant to guide in-person special education services and instruction while helping protect against the spread of the virus.

For now, it is important to document your child’s needs and any regression and seek compensatory services or make-up services if warranted.  Also, it is important to document what is and is not working on remote learning and to seek a remote learning plan to document your child’s unique needs. Contact us here.