By Sandi Rosenbaum, Educational Advocate and Marion Walsh, Esq., Partner, Littman Krooks LLP

Parents of students starting kindergarten in the fall may want to keep their child in the preschool program they attend, rather than having them transition to kindergarten. This is especially true for children with disabilities, who have birthdays in November and December.  It makes sense that a student with a disability may not appear ready for kindergarten when compared to typically developing same-aged peers.  Compounding this disadvantage, parents of typical students often keep their child back a year so that their child will be turning 6 upon entering kindergarten or shortly after.

New York Law Does Not Allow Flexibility on Aging Out of Preschool Services

Unfortunately, while New York Education Law provides flexibility with regard to when a parent of a child without identified disabilities may enroll their child in kindergarten, this flexibility does not apply to publicly funded preschool services, whether public Pre-K or special education services. Under New York State Education Law, addressing special education programs, a “preschool child” means a child with a disability who is eligible for special education services, but who will not have become five years of age on or before December first of the relevant school year, or even a later date if a school district establishes a later cutoff date (some districts use December 31). A child will be deemed a preschool child, and eligible for special education services as such, through August prior to the school year in which the child first becomes eligible to attend kindergarten.  (NY Educ. Law 4410(I)(i))

What Law Means for Students with Disabilities

What does this mean for students who receive services through the Committee on Preschool Special Education (CPSE)? Preschool special education services end on June 30 of the year during which the child will be 5 years old as of their District’s cutoff date (December 1 or later).  If the student is deemed eligible for Extended Year Services, they will receive 6 weeks of those services in the summer, ending sometime in August.

When September comes, the student will no longer be served by the CPSE, but, if applicable, by their district’s CSE, serving school-aged students, 5-21 years of age. All CPSE students have an exit meeting in the spring prior to “the turning 5 meeting” for kindergarten.  The CPSE determines whether to refer the student to the CSE to consider special education supports and services under the school-aged system.  For referred students, the CSE will determine eligibility and recommend programming and services as appropriate.

Can Parents Keep their Child in Preschool and Still Receive Services?

Parents may choose to keep their child in preschool but obtaining services will be difficult. For students offered an IEP for the kindergarten year, the school district will offer a program in district which may include related services at the school building and the parents may ask for the student to receive them, even if the student is not enrolled.  However, the school district may not be required to allow parents to opt for certain services while declining kindergarten enrollment.  Also, the sessions may not be able to be scheduled at times convenient for the family, students may not develop a rapport with others in the group therapy cohort who attend the school full time, and transportation may not be provided or may result in the student missing excessive preschool class time.

Maintaining Child in a Preschool/Kindergarten Program

For students whose final year of preschool takes place in a NYS-accredited private kindergarten program (perhaps a Montessori program serving elementary students, or a “developmental kindergarten” class at a private elementary or primary school, designed for younger kindergarten-aged students who may repeat kindergarten the following year), these students are regarded as having been parentally placed in a private school and are entitled to District of Location special education services from the school district in which the private school is located, through an Individualized Education Services Program (IESP).  Parents must request these services by June 1^st of the preceding year.  The logistics of these services vary widely; some Districts send teachers and clinicians into the local private schools to provide services on-site, while others offer transportation to local school buildings, which may result in significant loss of instructional time.

Complex Choices Require Careful Thought and Analysis

For students who require a special class placement, or who have benefited from SEIT (special education itinerant teacher) services in the preschool classroom, no precisely comparable service model may be accessed through the Committee on Special Education for a kindergarten-aged student in a public-school placement.  Some parents choose to hire a special education teacher or teacher aide at their own expense to provide additional support in the classroom or day care setting or some opt for private school placement.  Many are compelled by circumstances and expense to accede to a District kindergarten placement.  It may be possible, depending upon individual circumstances, for a student, the following year, to repeat kindergarten in their District.

These are complex choices, and a special education attorney can help you decide what is right for your child and family. Contact us here or call 914-684-2100.