New York’s State Education Department recently issued a recommendation that school districts provide special education services to some students with disabilities through age 22: an additional year that will likely impact district budgets.
The recommendation comes after a U.S. Second Circuit Court of Appeals decision holding that Connecticut must make available a free appropriate public education (FAPE) until age 22 for students with disabilities (SWDs) who had not received a high school diploma.
The longstanding requirement in New York was that students with disabilities are entitled to special education programs and services until they either receive a Regents or local high school diploma, or upon the conclusion of the school year in which they turn 21, whichever occurs first. Case law also provided school districts the authority to provide SWDs with compensatory education and services beyond the age of 21 in circumstances in which it was determined that compensatory services were necessary to address the school district’s previous failure to provide FAPE.
This general services provision was first realigned due to the COVID pandemic, when the Board of Regents advised districts to continue to provide special education services and programs to students who turned 21 during the pandemic since they may have not met the goals of their individualized education program (“IEPs”) for that year. Subsequent legislation authorized districts to provide educational service in the 2021-2022 and 2022-2023 school years to SWDs who turned 21 during the 2019-2020 or 2020-2021 school year. Statutes now set forth that school districts may provide these services to eligible students, who would have previously aged out by the end of the 2021-2022 school year, until they “complete” their IEPs or turn 23, whichever occurs first.
Decision in Connecticut Special Education Case Affects New York
The scope of a district’s general obligation to provide a free appropriate public education to SWDs who have not received a high school diploma up to the age of 21 was further examined in a recent case decided by the federal Second Circuit Court of Appeals in A.R. v. Connecticut State Bd. of Education, 5 F.4th 155 (2d Cir. 2021). While the case was based upon Connecticut statutes and the federal Individuals with Disabilities Education Act (“IDEA”), the Second Circuit Court of Appeals also has jurisdiction over New York.
The Connecticut requirements are similar to New York in that SWDs have a right to receive FAPE until they earn a high school diploma or the conclusion of the school year in which they turn 21, whichever occurs first. Connecticut, through its adult education programs (GED high school equivalency course), provides public education to nondisabled students over the age of 21 to age 22. The Second Circuit found the state is therefore required to provide educational programming to SWDs in the same age range, i.e., up to and including age 22. For SWDs, such educational programming would be FAPE, thus extending the FAPE entitlement from the conclusion of the school year in which the student turns 21 to when they reach age 22.
The Second Circuit relied upon the phrase “3 through 21 inclusive” in the IDEA, meaning every day up and until a student’s 22nd birthday (i.e., up to 21 and 364 days). Until recently, the impact of this Second Circuit decision on New York’s longstanding requirement to provide SWDs a FAPE only until they receive a diploma, or the conclusion of the school year in which they turn 21, has been unclear
New York Issues Opinion: Special Education Services Until Age 22
On July 6, 2023, New York State Department of Education’s Office of Counsel issued a formal opinion to districts in which it fully embraced the A.R. decision as applicable to New York. The legal opinion explains that New York law defining eligibility for special education is “materially indistinguishable” from Connecticut law. Additionally, New York, like Connecticut, offers publicly funded adult education programs to nondisabled students in this same age group. Therefore, Counsel concludes that the holding in A.R. regarding the interaction between federal law as set forth in the IDEA and state law, similar to Connecticut, requires New York public schools to provide special education and related services to resident students with disabilities at least until their 22nd birthday.
The NYSED Office of Counsel goes even further, stating that students’ 22nd birthdays may fall at any point during a school year, creating a complication not addressed in the A.R. decision. The Office of Counsel addresses this issue by admitting that, while not required by the applicable federal court decision, “SED’s Office of Special Education recommends that school districts consider providing such services through the end of the school year in which the student turns 22 or upon receipt of a high school diploma, whichever occurs first.”
The movement from age 21 to 22 for the provision of services for SWDs that originated due to the circumstances of the COVID pandemic, was formalized by the Second Circuit Court in the A.R. decision, and now officially effectuated through the Office of Counsel’s formal opinion.
This change in eligibility of services will likely have significant impact on school districts across New York. Administrators, boards of education, and special education professionals will need to plan for increasing budget allocations to fund these additional services. It remains unclear whether the Board of Regents and NYSED program offices will provide additional funding and guidance to support districts in meeting these new special education programming and service requirements.
