Coronavirus (COVID-19): Federal and New York State Education Update

Written by Paul T. O’Neill, this March 23, 2020 Coronavirus (COVID-19) education update provides a current status of all U.S. federal and New York state guidance for school districts, charter schools and private schools.

FEDERAL

Supplemental Fact Sheet on Special Education

On Saturday, 3/21/20, the U.S. Department of Education’s Office for Civil Rights (OCR) issued supplemental guidance on dealing with special education considerations during COVID-19 school closures. The Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities is a follow-up on two other recent guidance documents addressing special education, this guidance focuses on encouraging creative thinking while not lowering expectations. In particular, the new guidance makes it clear that providing education via online/virtual means is not inconsistent with federal law.

Suspension of Standardized Testing For the Reminder of 2020

On Friday, 3/20/20, the U.S. Secretary of Education Betsy DeVos announced that students impacted by school closures due to the coronavirus pandemic can bypass standardized testing for the 2019-2020 school year. Upon a proper request, the Department will grant a waiver to any state that is unable to assess its students due to the ongoing national emergency, providing relief from federally mandated testing requirements for this school year.

Suspension of Student Loan Payments

On Friday, 3/20/20, U.S. Secretary of Education Betsy DeVos announced on 3/20/20 that the office of Federal Student Aid is providing student loan relief to tens of millions of borrowers during the COVID-19 national emergency.

All borrowers with federally held student loans will automatically have their interest rates set to 0% for a period of at least 60 days. In addition, each of these borrowers will have the option to suspend their payments for at least two months to allow them greater flexibility during the national emergency. This will allow borrowers to temporarily stop their payments without worrying about accruing interest.

The Families First Coronavirus Response Act

On Wednesday, 3/18/20, the federal government passed The Families First Coronavirus Response Act (FFCRA), creating paid family and sick leave benefits for eligible employees who require leave due to covered needs relating to COVID-19.

Under FFCRA, employees of covered employers are eligible for:

  • Two weeks (up to 80 hours) of paid sick time at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick time at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
  • Up to an additional 10 weeks of paid family leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Covered Employers: The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA.

HHS Waiver of HIPAA Rules Limiting Telethealth Remote Communications

On Tuesday, 3/17/20, the U.S. Department of Health and Human Services announced that it is waiving restrictions in the Health Insurance Portability and Accountability Act that could limit the ability of providers of healthcare (such as charter schools providing therapy) from utilizing various online platforms that are not HIPAA-approved.

Family Educational Rights and Privacy Act (FERPA)

The U.S. Department of Education’s Office for Civil Rights (OCR) provides guidance in the FERPA & Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions (FAQs) March 2020 including the application of FERPA privacy protections to student health information and clarifies circumstances under which its health or safety emergency exemption may be triggered.

Upcoming: Stimulus Package and Special Education

Senate Republicans have introduced the Coronavirus Aid, Relief, and Economic Security Act to support states in their efforts to protect their citizens and to infuse cash into the economy. The bill would empower the U.S. Secretary of Education to suggest to Congress waivers that would eliminate protections under the Individuals with Disabilities Education Act (IDEA) and the Rehabilitation Act of 1973 (a.k.a. Section 504). Congress is expected to vote on the stimulus bill the week of 3/22/20. It is unclear whether or not the special education language will remain in it.

NEW YORK

New York State Testing Suspended

Suspension for the remainder of the school year applies to the following New York State testing programs:

  • New York State Grades 3-8 English Language Arts Test;
  • New York State Grades 3-8 Mathematics Test;
  • New York State Grade 4 Elementary-Level Science Test;
  • New York State Grade 8 Intermediate-Level Science Test;
  • New York State English as a Second Language Achievement Test (NYSESLAT) in Grades K-12; and
  • New York State Alternate Assessment (NYSAA) for students with severe cognitive disabilities in Grades 3-8 and high school.

NYC Free Meals Locations

The New York City Department of Education controls the provision of free meals at its locations; it has closed certain buildings entirely and in some instances has stopped providing grab and go meals in those locations. See this link for current locations.

Guidance on Gatherings and Public Spaces

On Thursday, 3/19/20, the State announced Interim Guidance on Executive Orders Issued for Gatherings, Public Spaces, and Public and Private Sector Entities During the COVID-19 Outbreak – Revised March 19, 2020.

NYSED Guidance on School Closures

On Tuesday, 3/17/20, the NY State Education Department directed school districts, charter schools and nonpublic schools, pursuant to an Executive Order 202.4, to close by 3/18/20 due COVID-19. The Additional Guidance on Statewide School Closures Due to Novel Coronavirus (COVID-19) Outbreak in New York State also directed school districts to establish and submit closure plans addressing alternative instructional options, meal distribution and child care.

Special Education Supports — Teletherapy

The Collaborative for Inclusive Education of the NYC Charter School Center is providing resources for charter schools seeking to use online resources as part of their support for students with disabilities, including information relating to teletherapy.

Statutes of Limitations Suspended in NY

On Friday, 3/20/20, the Governor signed Executive Order 202.8, tolling statutes of limitation until April 19, 2020.  This means that time limits on bringing claims in state courts will be suspended until that date.

For more information

This update was written by Paul T. O’Neill.  New York schools with questions should reach out to PaulJaime Fernand, or Lisa Holtzmuller. If you have questions about compliance in Massachusetts or Rhode Island, please contact Matthew R. PlainGreg Vanden-Eykel, or Rita E. Nerney at 888.273.9903.

About Barton Gilman

Barton Gilman provides the full scope of legal services to education clients – including traditional and non-traditional public schools, charter schools, charter management organizations, private schools, education advocacy organizations and other education-related organizations – throughout Massachusetts, Rhode Island and New York. For more information, please click here.