On July 6, 2023, the New York State Education Department issued a Formal Opinion of Counsel to address the holding of A.R. v. Connecticut Bd. of Educ., 5 F.4th 155 (2d Cir. 2021). In that case, the Second Circuit Court of Appeals found that Connecticut’s law providing that students must receive a free and appropriate education from a public school until “such child is graduated from high school or reaches age twenty-one, whichever occurs first” required schools to provide special education services until the child turns 22 years of age. As the Second Circuit has jurisdiction over both Connecticut and New York, questions remained whether New York’s special education eligibility statute, which provides that eligibility for special education services continues for students “who reach[] the age of twenty-one during (a) the period commencing with the first day of July and ending on the thirty-first day of August or until the termination of the summer program, whichever shall first occur; or (b) the period commencing on the first day of September and ending on the thirtieth day of June…” should be read as to require districts to provide special education services to students until they reach the age of 22 or receive a diploma.
The State Education Department, in its Formal Opinion of Counsel, answered that question in the affirmative. SED opined that New York’s statute concerning eligibility is essentially the same as Connecticut’s statute. Therefore, SED has determined that New York school districts should provide special education services until the date a student turns 22 or receives a diploma, whichever occurs first. Our office interprets this opinion to mean that students who receive one of the credentials certificates, as opposed to a diploma, would still be eligible for services until they reach the age of 22 (or achieve the necessary requirements for a diploma).
As SED pointed out in its Formal Opinion, the Second Circuit did not address what should occur if a student turns 22 during a school year. In that instance, SED has issued guidance as follows: “While not required by the decision, SED’s Office of Special Education recommends that school district 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. This issue should be part of the larger discussion between schools and families concerning students’ transition ‘from school to post-school activities.’” SED is only requiring consideration of the continuation of services, which should involve discussions with the family. What factors should be considered by the district is an open question; however, one point that must be determined is whether the State will provide continued aid to a school district that opts to provide education past the legally mandated period of eligibility.
It is this office’s opinion that, as SED is interpreting an existing statute and did not specify an effective date in its Formal Opinion, that students who are 21 years of age are still eligible for special education services until they attain the age of 22 years old, even if you exited them out on June 30, 2023 or were intending to exit them out on August 31, 2023. To that end, districts should determine the number of students that were exited from services due to attaining the age of 21 prior to June 30, 2023 (or will be exited on August 31st due to a summer birthday) and contact the family to extend services until the student’s 22nd birthday. We recognize that this may be problematic, especially for students who were in out-of-district programs, as there may not be spaces still available. However, unless and until SED clarifies that districts are not responsible for these students, the obligation to provide a FAPE for these students still remains.
Another issue that may need to be addressed is that districts have entered into stipulations of settlement that contained waivers of future claims through the date of eligibility for educational services. Those stipulations may refer to the year a student attains the age of 21 as the last date of eligibility. Our office is prepared to argue that the waiver language would extend to the date the student turns 22 years of age, as the consideration for the reimbursement was a waiver of all future claims, and any specification of age was a recitation of the current law at the time.
Our office remains ready to answer any questions or assist you in determining how individual situations should be addressed. Please contact any of the firm’s Education Law attorneys for assistance.
