March 16, 2020 Suspension of In-School Student Instruction and New SED Guidance Related to the Novel Coronavirus
KEEPING YOU INFORMED…
We wish to provide you with important information regarding the mandatory suspension of student instruction and extracurricular functions/activities within public and private school buildings for Nassau and Suffolk Counties and recent guidance from the New York State Education Department (SED) concerning several issues facing schools while local and State officials attempt to reduce the spread of the Novel Coronavirus (COVID-19).
Suspension of Student Instruction, Functions and Activities in Nassau and Suffolk County School Buildings
In accordance with Governor Andrew M. Cuomo’s Executive Order issued on March 13, 2020, the Commissioner of Education is authorized to waive the required reduction in State aid for those days that a school is not in session for at least 180 days in a school year. This waiver will only apply to schools that are:
- closed for instruction because they have been directed to do so by a declaration of a State or local state of emergency or if the school is directed to close for instruction by a State or local health official; and
- unable to make up the missed instructional days using scheduled vacation days.
This authorization is effective through April 11, 2020.
For Nassau and Suffolk County school districts, which are subject to mandatory closures for student instruction and extracurricular functions/activities pursuant to the Executive Orders issued by the respective County Executives on March 15, the waiver would only apply to those days for which the school is unable to make up the missed instruction by requiring school to be in session during a previously scheduled vacation day. In accordance with the Education Law, school may not be in session during a legal holiday (except that school may be in session on the general election day, Washington’s Birthday and Lincoln’s Birthday). School closures for instruction cannot, therefore, be made up on Memorial Day.
On March 14, the Governor issued a second Executive Order, directing that a school district that is closing pursuant to a local state of emergency declared as a result of COVID-19 must “first consult with local department of health.” It is unclear whether this directive applies to voluntary and/or mandatory closures. However, since all Long Island schools are subject to a mandatory closure for student instruction and extracurricular functions/activities, we recommend that you consult with your local department of health if you have not already done so. The Governor also directed that these schools must “exhaust any available time including snow days and vacation days.” This is consistent with his previous Executive Order providing a waiver of the 180-day requirement for those school days that cannot be made up.
The Governor also ordered the SED to promulgate guidance for districts to ensure access to meals for students in need, critical educational supports for students and distance learning options.
The Governor’s Executive Orders do not specify whether virtual or remote instruction would satisfy the Educational Law’s requirement that schools be in session for students for a minimum of 180 days without a loss of State aid.
Nassau and Suffolk County Executive Orders
We note that, although the County Executives for both Counties stated on March 15 that the mandatory suspension of student instruction and extracurricular functions/activities in public and private school buildings would be in effect for two weeks commencing on March 16, their Orders only require closures for instruction for “five days” and provide that the respective County Executive may extend the mandatory suspension by up to five additional days. According to the Governor’s website, on March 15, he announced that “Schools in Westchester, Nassau and Suffolk will close for two weeks beginning Monday, March 16.” We have not seen any legal authority for that pronouncement. We will continue to keep you updated regarding the length of the mandatory school closures for instruction.
The Suffolk County Executive Order allows school facilities to be “used by administrators and teachers for local district needs including, but not limited to, planning, distance based education, day care and temporary grab and go meal programs.” The Nassau County Executive Order similarly permits schools to remain open for “administrative and staff functions” (which, according to a statement by the Nassau County Executive, includes the same reasons listed in the Suffolk County Order).
The mandatory closures for instruction in both Counties do not apply to residential educational programs for school-aged children that are approved or operated by SED and/or the Office for People with Developmental Disabilities.
Preliminary Guidance on the Preparation for a COVID-19 Outbreak in New York State
On March 13, 2020, SED issued preliminary guidance urging schools throughout the State to engage in contingency planning to prepare for prolonged school closures and a COVID-19 outbreak in New York State. The guidance urges schools to establish plans to provide continuity of learning to the extent feasible and appropriate during a closure.
The guidance references the United States Department of Education’s March 12, 2020 guidance that we discussed in our March 13, 2020 memorandum concerning special education services. It provides that SED “will be as flexible as state and federal laws allow and will continue to investigate and inquire about additional flexibility for provision of services for students with disabilities during the outbreak.”
The new SED guidance also provides that the National School Lunch Act authorizes the provision of meals to children who are not in school during unanticipated school closures through the Summer Food Service Program (SFSP) or the National School Lunch Program’s Seamless Summer Option (SSO). In normal circumstances, these meals must be offered in a congregate setting at non-school sites. During a public health emergency due to COVID-19, social distancing may be necessary to avoid spread of the virus. The USDA requires that the State apply for general authority to grant waivers to school districts. SED has done so and has now been granted these waivers. The USDA also requires that each school district apply to SED’s Child Nutrition Office for a waiver to continue to administer Child Nutrition Programs in the event of a closure during the state of emergency. The application is available on SED’s Child Nutrition website. All interested school districts and other school food authorities should apply for this waiver now so that the waiver is in effect as soon as possible during the current mandated school closure for instruction. This guidance is available at:
If you have any questions regarding the mandatory school closures for instruction or recent SED guidance, please contact Lauren Schnitzer or one of our other attorneys by calling (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.
© Lamb & Barnosky, LLP 2020