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Aging Out of Special Education in New York

Published May 11, 2022

By Marion M. Walsh, Esq.

In the past few years, there has been a lot of confusion as to when students with disabilities age out of public education with their school district.  Students with disabilities have been among the hardest-hit by the COVID-19 pandemic, whether they have missed crucial opportunities to fulfill  academic or vocational requirements. 

When do students with disabilities age out of special education in New York?

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, if they have not received a high school diploma. While many states, such as Massachusetts, have interpreted this to mean that eligibility should continue until at least the student’s 22nd 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 who turn 21 between September 1 and June 30, of a school year, age out on June 30 at the end of the school year in which the student turns 21.   Thus, for Michael, who has a birthday of May 20, 2022, he will age out of special education on June 30, 2022.

But, for Rachel, who turns 21 on September 2, 2022, she will age out of special education on June 30, 2023. 

  • Students who turn 21 in July and August, retain their eligibility through the summer, aging out on August 31 of their graduation year, just beyond their 21st birthday.    Thus, if Jacob turns 21 on July 4, 2022, he will age out of special education on August 31, 2022.

New York Education Law 4402(5)

Can students with disabilities remain in school even if they receive a high school diploma?

No. 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.  

Doesn’t a recent New York State law mandate that school districts allow students with disabilities to remain in school until they turn 23, due to the pandemic?

No, there is not a mandate. In July 2021, former Gov. Andrew Cuomo signed a bill that allowed school districts to extend education for students with disabilities who “age out” of school but lost valuable opportunities because of the COVID pandemic. Under the new law, school districts could allow students with Individualized Education Programs to extend their public-school education until they are age 23, up from age 21. However, the law says a district “may” extend educational offerings, not that it “must.”  It is thus not mandatory and solely in a district’s discretion. 

The law states:

…a school district may provide educational services in the 2021-22 and 2022-23 school years to  a  student  who  turned  twenty-one years old during the 2019-20 or 2020-21 school years and was enrolled in the school district and receiving special education services pursuant to an  individualized  education plan. Such student may continue to receive such educational services  until  the  student  completes  the  service pursuant  to  the  individualized  education  plan or turns twenty-three years of age, whichever is sooner.

Didn’t the New York State Education Department require an extra year of school for students with disabilities due to the pandemic?

No.   In recognition of the impact of the COVID pandemic on students with disabilities, in both 2020 and 2021, the New York State Education Department issued Guidance Memo (LINK: “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 was welcome, it did 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 have benefitted 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.  NYSED has issued no guidance for 2022 on permission to extend eligibility another year, for 2022-23.  

Some persuasive caselaw in Connecticut supports an interpretation of the IDEA that requires states to grant students with disabilities eligibility through their 22nd birthday but this has not been applied yet to New York.

Conclusion The COVID-19 pandemic 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.

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