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The Board of Regents Passed Emergency Amendments Regarding Services for Special Education Students and Impartial Hearings

Published April 8, 2020

By Arshi Pal, Esq., Littman Krooks LLP

On April 6, 2020 Governor Andrew Cuomo extended the ‘New York on Pause’ order, keeping New York State schools closed through April 29th. Simultaneously, the New York State Board of Regents adopted emergency regulations to address continued school closures. The amendments address various topics such as Requirements for State Aid; Special Education; continuing education requirements for teachers and personnel; Curriculum requirements; and Bilingual Education during the time school is closed due to the Governor’s Executive Order.

We’ve summarized some important updates for special education:

When are the Amendments Effective?

The amendments become effective on April 7, 2020. Notably, the Special Education amendments address impartial hearings; State Approved Private Schools; Preschool Providers; and initial evaluations and the start of special education programs for students with disabilities.

May Parents Still File for Impartial Hearings?

Yes. If Parents disagree with a Committee on Special Education meeting or a district decision or inaction, they have the right to file for an impartial hearing.

Are Impartial Hearings Still Proceeding?

Typically impartial hearings are held in person where an impartial hearing officer presides, the district representative and the parent present documentary evidence with live witness testimony and a court report transcribes the proceeding. In line with the social distancing guidelines, the Amendments allow hearing officers to hold hearings via video conference while schools are closed.

Will Impartial Hearings Take Longer?

They may and the state has given some flexibility on deadlines. Usually the impartial hearing officer has 30 days to issue a decision unless the parties request an extension of the compliance date. The hearing officer is authorized to extend the compliance date no more than 30 days at a time if it will not prejudice the student. However, the amendments now allow the impartial hearing officers flexibility to extend the compliance date for 60 days at a time while schools are closed.

Do Schools have to make up days if they school is not in session for 180 days?

No. New York regulations do provide that public schools must have 180 days of school during the school year. However, the amendments also allow flexibility for all public schools in New York State, as well as State approved private schools, State operated schools, Special Act School Districts, and State supported schools and preschools. The schools will be excused from the requirement to operate and provide instruction for 180 days during the 10 month school year.

Are there Any Waivers of School District Obligations that Parents Should be Concerned About?

Yes. Two amendments that will be detrimental to some of the most vulnerable students include waiving missed services and initiation of services. The amendments waive the requirement for Preschool providers to make up missed special education services within 30 days. The providers will not have to make up services for days when schools were closed.

Typically, after an initial referral to special education, school districts must provide special education program and services to students with disabilities deemed eligible, within 60 days from a parent or guardian’s consent to evaluate. However, the amendments indicate that days when schools are closed due to the Governor’s order cannot be counted toward the calculation. This means that children will face delays in receiving needed services.

What Should Parents Do to Preserve their Children’s Rights?

These are indeed uncharted territories as we face the pandemic. It’s most important to keep your child healthy during these times and to do your best to assist with virtual services.  Reach out to your school district via email or phone if you have questions and attend CSE meeting, when scheduled, remotely. Be sure to review your child’s Individualized Education Program (IEP) so you can review what services he or she should be receiving remotely. Keep track of any missed services or regression for your child.

We are here to provide you with support and advocacy. Please feel free to reach out to us with any questions you may regarding how these amendments may affect your child or a pending CSE meeting or hearing.

To view the press release click here.

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