March 2021

As we now approach a full year of either virtual or hybrid learning, many parents and students are even more exhausted and overwhelmed than ever. As the future is still uncertain, many parents still have questions and concerns on their child’s progress and access to services. Here are some common questions and answers and resources

Does recent CDC Guidance change any requirements for New York school districts and students?
The Center for Disease Control (CDC) released Guidance on February 12, 2021, on school reopening. The CDC provides some helpful research-based information, and, for example, notes that, in-person learning for elementary schools is likely to have less risk of in-school transmission than for middle schools and high schools.  CDC Guidance will not override state rules and guidance already in place, at this time. The New York State Education Department (NYSED) provided Guidance in July 2020 which required each NYS school district to have a specific and detailed reopening plan by August 2020 and set very detailed guidance and requirements.

My child cannot access virtual learning. Can I compel my school district to teach my child in person?

Parents may request that your school district provide full time in-person learning for their child. However, this will be subject to the school district’s Reopening Plan and with Reopening Guidance from NYSED, as well as New York State Department of Health Guidance. The NYSED Guidance strongly encourages school districts to give priority to students with the most significant disabilities to receive in-person instruction but does not require it at this time.

However, there is at least one federal court decision L.V. v. New York City Dep’t of Educ., No. 19-CV-05451, 2020 WL 4043529 (S.D.N.Y. July 8, 2020), required a school district to provide in-person ABA and other services, under safety precautions, and additionally recommended an order to conduct an independent assistive technology evaluation to assess what would be needed to deliver services remotely. The report and recommendations were adopted by the court. 2020 WL 4040958 (S.D.N.Y. July 17, 2020) (adopting report and recommendations).

Can I ask for a distance or virtual learning plan with accommodations?

Yes. The U.S. Department of Education Office of Special Education and Related Services (OSEP) and NYSED both contemplate the school districts must offer virtual instruction. While most school districts have offered virtual or hybrid learning, few have developed individualized plans for each child.  OSEP has stated that “distance learning plans” may be appropriate and thus the Guidance included a presumption that contemplated a plan for each student. 

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