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

It is important for parents and students to understand when the entitlement to special education ends.  The Individuals with Disabilities Education Act (IDEA) requires that states must provide a free appropriate public education to all students with disabilities residing in the state between the ages of 3 and 21, inclusive. While many states, such as Massachusetts, have interpreted this to mean that eligibility should continue until at least the student’s 22^nd birthday, others, including New York, have interpreted the requirement to mean that entitlement ends when a student turns 21.  New York Education Law specifies the following timeline to end eligibility for students who turn 21:

• Students with birthdays between September 1 and June 30, age out on June 30 at the end of the school year in which the student turns 21.
• Students with July and August birthdays retain their eligibility through the summer, aging out on August 31 of their graduation year, just beyond their 21^st
• Students with birthdays between September 1 and December 31 are entitled to an additional school year relative to those whose birthdays fall earlier in the calendar year, and do not age out until June 30 at the end of the school year of the school year they turn 21.

Consider the following examples of students with IEPs:   If Alex turns 21 on May 15, 2021, he will age out of special education on June 30, 2021.  If Alanna turns 21 on August 28, 2021, she will age of special education on August 31, 2021. But Aiden who turns 21 on September 2, 2021, will not age out of special education until June 30, 2022.

Regular Diploma Ends Eligibility

Earning a regular diploma from a public or private high school will also end eligibility for special education services.  In this regard, if your school district lets you know that your child is ready to graduate before 21 with a Regents or Local Diploma and you dispute this or do not believe he or she is ready, keep in mind that you do have legal remedies and the option to seek pendency in services if you file for due process before graduation. You should speak with a special education attorney as soon as possible.

NYSED Issues Non-Mandatory Recommendations that Students Receive an Extra Year of Eligibility

Students with disabilities who have not earned a diploma by their 21^st birthday include both those who continue to work toward a diploma and those with intellectual and developmental disabilities who are eligible to take the New York State Alternate Assessment. Students in both categories are among the hardest-hit by the COVID-19 pandemic, whether they have missed crucial opportunities to fulfill Regents requirements (while most high-stakes exams have been waived), or whether their programs include community experiences such as supermarket trips and using public transportation and prevocational experiences volunteering in the community or interning in office, food service, retail, or other workplaces which have been largely unavailable to school programs since March 2020.  Students who missed in-person instruction for the final months of 2019-2020, and whose final year of 2020-2021 has had severely curtailed in-person and community experiences, have missed a critical opportunity to prepare for transition beyond secondary school, in educational, employment, or adult services settings.

In recognition of this fact, the New York State Education Department issued a Guidance Memo “strongly encouraging schools and school districts to allow those students who will age out of school the opportunity to return for summer school and, if necessary, attend school in the 2021-2022 school year, in order to complete their education and earn a diploma, credential, or endorsement.”  While this guidance is welcome, it does not compel districts to provide this opportunity and thus does not empower parents and students to demand it.  As well, it is unclear regarding students with the most severe intellectual and developmental disabilities, those designated to take the New York State Alternate Assessment who age out with the Skills and Achievement Commencement Credential (sometimes called the Skills Credential).  While such students are indeed working toward a credential as described in the guidance memo, the credential can be awarded at any time that the student exits the system and does not require specific criteria to be achieved.  Thus, while such students could surely benefit from the opportunity to make additional progress during the 2021-2022 school year, the lack of such opportunity would not prevent them from earning the Skills Credential.

Due to the impact of COVID-19 on students, Assembly member Tom Abinanti (D-92) has sponsored Bill A01201A, which would require school districts to provide supports and services to all students through the end of the 2021-2022 school year, through their 23^rd birthday.  While it has many cosponsors, it has not been voted on in committee.  A companion Senate bill sponsored by Senator Pete Harckham (D-40) does not have any cosponsors.  Thus, it seems unlikely this will become law.

Some persuasive caselaw in Connecticut supports an interpretation of the IDEA that requires states to grant students with disabilities eligibility through their 22^nd birthday.  In June 2020, a federal district court , in A.R. v. Connecticut State Board of Education, ruled that  Connecticut’s  decision to limit services to special education students only up to the year they turned 21 violated the Individuals with Disabilities Education Act. The court found that because Connecticut provides public education to non-disabled individuals over the age of 21 in the form of adult education and GED programs, it must offer something similar for special education students. This decision is only applicable to Connecticut, but the reasoning could equally apply in a future New York case.

Conclusion

The COVID-19 has disrupted education for every student and has created particular difficulties for many students with disabilities.  While it may be possible to extend eligibility for special education beyond the traditional age out at 21, it is not assured. Consult with a special education attorney if you have questions or are not sure of your child’s status.