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New York Office of Special Education COVID-19 Special Education Updates by Alison Morris, Esq.

Posted on June 1, 2020

On April 27, 2020, the New York State Education Department (“NYSED”) released a Supplemental Memo with Additional Questions and Answers, regarding school district’s obligations and families’ rights during COVID-19 school closures.  Some of the main takeaways from NYSED’s Supplemental Memo include:


  1. A reiteration that yes, initial evaluations for and re-evaluations of students with disabilities must take place timely if possible. However, because observations and assessments of students that must be conducted in person or face-to-face must be held off until schools re-open, “school districts [are encouraged] to work with parents to reach mutually agreeable extensions of time, as appropriate.” In addition, assessments that do not require face-to-face observation or assessment can be conducted virtually, and evaluators can determine on a case-by-case basis if any assessments can be conducted virtually. Once schools re-open, if any assessments were conducted virtually, parents and school districts should discuss whether those evaluations provide “sufficient information, or whether further information is required,” meaning whether additional or re-evaluations are necessary. Therefore, it is up to you and your family if any evaluation can be conducted remotely at this time, whether you want to proceed with the evaluation in that manner, or wait until schools re-open for the evaluation to take place.
  2. NYSED reiterated that school districts should be communicating with families in their “preferred language or mode of communication.” Therefore, if you speak a language other than English and are not receiving communications or information in your preferred language, or there is a different mode of communication you would prefer to receive information in (for instance, emails over call or vice-versa) you should inform your school of this, and document your request.
  3. NYSED made clear that while schools districts absolutely have flexibility regarding the provision of instruction and services during this time, as “schools may not be able to provide all services in the same manner they are typically provided.” However, NYSED reiterated that school districts “must ensure that, to the greatest extent possible, each student with a disability is provided the special education and related services identified in the student’s IEP.” (emphasis added). NYSED further clarified providing students with the services and instruction as per their IEPs now “is the most effective way to mitigate the need to provide compensatory services in the future.” Parents should be documenting and keeping track of any instruction and/or services their child is not receiving, or that is not meaningful to their child, as you may be entitled to make-up instruction and/or services once schools re-open.
  4. NYSED made clear individualized education program (“IEP”) meetings (also called annual review meetings) and initial eligibility meetings for special education programs and services can and should be taking place now, as they can be conducted virtually or over the phone. Any IEP or initial eligibility meeting should create a program for a student to enable the student to make meaningful educational progress and be developed to give the student what they need, “and should not be written to accommodate a temporary situation.” (emphasis added). A school district can, however, create a contingency distance learning plan.
  5. Regarding the provision of instruction and services at this time, NYSED explained that schools may need to provide services after school hours or during the weekend, based on the individualized needs of the student: “based on individual circumstances, a school may need to consider providing services during alternate times and days that are mutually agreed upon with the parents in order to accommodate students, parents, school and service delivery personnel.”
  6. If your child attends an out-of-district placement, an approved private school, or a BOCES program, NYSED made clear it is your home school district (your district of residence, where you live) that is responsible for ensuring your child is receiving appropriate special education instruction and services during this time, stating your home school district “must ensure continuity of learning and special education services are provided to students with disabilities by their out-of-district placement.” If your child attends an out-of-district placement, an approved private school, or a BOCES program, that school or program should be in communication with your home school district, so your home school district can know what services and instruction your child is receiving during this time, and can determine “whether compensatory services are needed” when schools re-open. Again, if your child attends one of these schools or programs, you should be documenting and keeping track of the instruction and services they are getting as well.


We understand how frustrating this time is for families with special needs children right now. We continue to recommend that you document any issues with instruction and /or services your child is receiving, keep an open dialogue with your school district regarding these issues, and keep an open mind to be creative with your school district to provide services and instruction to your child during this time. However, this does not mean your child should not receive appropriate instruction, and if your child is not receiving appropriate instruction, they may be entitled to make up services. If you have any questions, we at the Cuddy Law Firm are here to assist you during this time.

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