By Marion M. Walsh, Esq.

This June, Governor Kathy Hochul signed a bill into law https://www.nysenate.gov/legislation/bills/2021/S7866) that allows school districts to extend the eligibility of students with disabilities to receive special education services and programming past the current age of 21 in New York.  This law essentially mirrors the law the Governor signed in 2021 for students who had turned 21 in the 2019-20 and 2020-21 school years.  The law intends to extend special education services for students whose education faced disruption and delays due to the COVID-19 pandemic.   Districts now have the authority—although not the mandate—to allow qualifying students who turned 21 during 2021-22 to continue to receive services until they turn 23 in the 2022-23 and 2023-24 school years.

State legislators have lauded the new law and praised it for constituents.   For example, New York State Senator Pete Harckham has observed that, “the pandemic disrupted a good deal of our state’s education system, and among those most impacted were students with unique needs, who missed out over a year’s worth of programs and services.”  He noted that “this bill recognizes that these students should be allowed to finish their programs because of the structure and stability they provide, which all help the students to thrive.”  See Senator Harckham Press Releases (Link: https://www.nysenate.gov/newsroom/press-releases/pete-harckham/harckham-abinanti-bill-ensure-special-services-students-passes)  Parents and disability rights advocates have also applauded the law. 

How to Help Your Student Receive Extended Eligibility

However, many have overestimated the law’s requirements.  While the law removes an important barrier to extending eligibility, it does not guarantee or mandate an extension.  All parents must understand that the new law does not mandate that their school district grant an additional year for a student, as the law uses the discretionary term “may,” in describing school district obligations. The law provides:

“a school district may provide educational services in the 2022-23 and 2023-24 school years to a student who turned twenty-one years old during the 2021-22 school year and was enrolled in the school district and receiving special education services pursuant to an individualized education program. Such student may continue to receive such educational services until the student completes the services pursuant to the individualized education program or turns twenty-three years old, whichever is sooner.” (Emphasis supplied).

Accordingly, parents must be prepared to advocate that their student requires an additional year or two of services.  Parents should gather documentation that their student regressed during the pandemic throughout the 2020-21 and 2021-22 school years due to the impact of COVID and its effect on access to education.  Parents should provide this evidence systematically by gathering information from their student’s education records that shows regression. Among other concerns, it’s a good idea to base the advocacy on the following questions listed in NYSED June 2021 Guidance on Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic (Link: https://p1232.nysed.gov/specialed/publications/2020-memos/documents/compensatory-services-for-students-with-disabilities-result-covid-19-pandemic.pdf ):

•           How long was the school closed and/or not providing full in-person learning?

•           Was the student provided instruction or services in a learning modality/modalities other than full in-person learning (e.g., remote synchronous and/or asynchronous instruction and/or related services? To what extent?

•           What documentation is there to demonstrate that the student benefited from the learning modality/modalities described above?

•           Was the student engaged and able to access the instruction and services?

•           Is there documentation of the amount of instruction and services the student was provided during the learning modality/modalities described above (including dates, times, and duration)? If so, what amount of instruction and services did the student receive?

•           Have there been changes in the student’s educational progress and achievement, including progress toward 4 meeting IEP goals, and ability to participate in the general education curriculum? What are those changes?

•           Are there indications that the student regressed during the time the student was not receiving full in-person learning? What specific skills regressed?

•           Is there a possibility that the student will require extended school year services due to regression?

•           Did any new needs develop for the student (e.g., emotional, medical, behavioral, academic) such that the student should be provided with additional special education or related services?

The above indicia are based directly on factors listed in NYSED Guidance from 2021 but you may also have other documentation, such as the fact that your student had no opportunity to participate in on-site job training.   Every student with a disability has the right to a free appropriate public education until they exit special education and the pandemic disproportionately impacted students with disabilities.  

Essentially, this important law opens the door for school districts to provide an additional year of services and programming to provide redress.  Parents have an opportunity to show why the student needs the additional year.  Your school district should not make this decision on aging out without your detailed input.   Further, parents must document the student’s need and any disagreement before the student actually ages out of special education, which for many, may be June 30, 2022.   If the District disagrees, parents should consult with an experienced special education attorney who can help you with appropriate action.  (For further background, see Aging Out of Special Education (LINK: https://www.littmankrooks.com/2022/05/aging-out-of-special-education/)