July 26, 2022 Special Education Update – Services for Students Beyond Age 21 and change to the “Ed” Classification
KEEPING YOU INFORMED…
We are writing to advise you of two recent changes in the law affecting New York’s special education students.
Educating Students Past The Age of 21
Governor Hochul recently signed legislation again extending a school district’s authority to provide special education services to certain students beyond the age of 21. Chapter 223 of the Laws of 2022 authorizes school districts to provide educational services in the 2022-2023 and 2023-2024 school years to students with disabilities who turned 21 during the 2021-2022 school year. Pursuant to the legislation, school districts may only provide these services to students who were enrolled in their school district and received services in accordance with an individualized education program (IEP) during the 2021-2022 school year.
Similar to previous legislation that authorized special education services to students with disabilities who turned 21 during the 2019-2020 or 2020-2021 school years, Chapter 223 does not create an automatic right to continued special education services beyond the age of 21. Rather, the legislation provides that school districts may provide these services until the student “completes” the services in their IEP or turns 23, whichever is sooner.
The new law does not define how a student “completes” the IEP services. Therefore, a district’s decision regarding whether a student who turned 21 years of age during the 2021-2022 school year is eligible to continue to receive educational services must be made on case-by-case basis. Please feel free to contact us if you need assistance in making this determination for a student.
Permanent Change of the Term “Emotional Disturbance” to “Emotional Disability”
This month, the Board of Regents approved, for permanent adoption, amendments to the Regulations of the Commissioner of Education to change the term “emotional disturbance” to “emotional disability.”
These amendments become effective on July 27, 2022. Thus, committees on special education (“CSE”) must begin using the term “emotional disability” in place of “emotional disturbance” for student disability classifications for IEPs and other related documents (e.g., prior written notices, meeting minutes, student records; etc.) that are developed or amended on or after July 27, 2022. CSEs are not required to amend IEPs that have already been developed for the 2022-2023 school year that use the term “emotional disturbance.”
According to the State Education Department (“SED”), these amendments are not intended to change the coverage, eligibility, or rights of students with disabilities currently identified with the disability classification of “emotional disturbance.” SED will update the State-mandated IEP form that is available on its website to replace the term “emotional disturbance” with “emotional disability.” SED will update other guidance and publications as necessary.
Although the term “emotional disturbance” has been revised to “emotional disability,” its definition remains the same. The regulations continue to define the term as follows:
a condition exhibiting one or more of the following characteristics over a long
period of time and to a marked degree that adversely affects a student’s educational
performance: (i) an inability to learn that cannot be explained by intellectual,
sensory, or health factors; (ii) an inability to build or maintain satisfactory
interpersonal relationships with peers and teachers; (iii) inappropriate types of
behavior or feelings under normal circumstances; (iv) a generally pervasive mood
of unhappiness or depression; or (v) a tendency to develop physical symptoms or
fears associated with personal or school problems. The term includes
schizophrenia. The term does not apply to students who are socially maladjusted,
unless it is determined that they have an emotional [disability].
If you have any questions regarding the above new legislation or amendments, please contact Lauren Schnitzer (firstname.lastname@example.org), Michelle Mahabirsingh (email@example.com) or one of our other attorneys at 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
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