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Client Memoranda

Executive Order on Women's Sports 
February 12, 2025

On February 5, 2025, President Trump issued an Executive Order, Keeping Men Out of Women's Sports, aimed at transgender female students who were assigned as male at birth, but identify their gender as female and participate in female team sports. The Executive Order states that “it is the policy of the United States to rescind all funds from educational programs that deprive women and girls of fair athletic opportunities… and opposes male competitive participation in women's sports as a matter of safety, fairness, dignity, and truth.” 

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Specially Designed Reading Instruction  
February 10, 2025

Over the past year, we have received questions from districts seeking guidance about how to address students with significant reading deficits. The Commissioner's Regulations provide for specially designed reading instruction, which can be listed on IEPs as a special education service. This memorandum provides options for districts as to how and when specially designed reading instruction should be recommended by the Committee on Special Education (“CSE”) for a student classified with a disability. 

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New Law on Extreme Heat Conditions in Schools 
February 5, 2025

On December 13, 2024, Governor Hochul signed into law Chapter 596 of the Laws of 2024, which establishes maximum temperatures in school buildings during instruction. The law requires districts to develop a policy for ensuring the health and safety of students and staff on days with extreme heat conditions. An “extreme heat condition day” is defined as a day when the district's occupiable space for educational and support services is at least 82 degrees Fahrenheit. 

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Impact of Title IX Court Decision 
February 3, 2025

On January 9, 2025, a federal judge in the Eastern District of Kentucky struck down the 2024 Title IX Regulations adopted by the U.S. Department of Education (“DOE”), which had expanded non-discrimination protections to LGBTQ individuals on the basis of gender identity. In particular, the 2024 amendments expanded the scope of Title IX protection to include discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. 

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New Guidance on Immigration and Customs Enforcement 
January 27, 2025

The inauguration of President Trump on January 20, 2025, and the resulting change in policy by his administration has created complex and conflicting legal issues for school districts concerning enrollment and immigration enforcement. This memorandum addresses those issues. Please be reminded that the present legal landscape regarding these issues is rapidly changing. It is anticipated that new information and questions will be presented over the next few weeks, and we will endeavor to provide you with timely updates on these issues as they arise. 

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Student Discipline Decisions from the Commissioner 
January 21, 2025

This past Fall, 2024, the Commissioner of the State Education Department (“Commissioner”) issued three decisions of note that overturned student discipline determinations by school districts. This memorandum provides a summary of those decisions, and recommendations for districts to ensure that student discipline determinations will not be overturned. 

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Parentally Placed Students with Disabilities 
January 7, 2025

This memorandum is a reminder to districts about their obligations under the Individuals with Disabilities Education Act (“IDEA”) regarding parentally placed students classified with disabilities who are enrolled at private schools. Under IDEA, there are two types of classified students who are parentally placed by parents. The first group are the parents of students who seek an Individualized Equitable Services Plan (“IESP) from the district of location where the private school is located, and the parents pay for the private school tuition at their own expense.1 Under an IESP, the district of location provides equitable services including speech language, counseling, occupational and physical therapy, or programs such as consultant teacher or resource room while the student receives instruction at the private school. 

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Testing Accommodations for Students with Disabilities  
December 30, 2024

In December, 2024, the State Education Department (“SED”) updated its guidance on Testing Accommodations for Students with Disabilities.1 The guidance applies to students classified with a disability under the Individuals with Disabilities Education Act (“IDEA”) and students with disabilities under Section 504 of the Rehabilitation Act of 1973. Test accommodations recommended by the Committee on Special Education (“CSE”) or 504 Committee remove obstacles to the test-taking process based on the student's disability without altering the expectations. They enable students with disabilities to participate in assessments on an equal basis with non-disabled peers. Testing accommodations include but are not limited to: flexible scheduling or timing of tests; flexible setting or location used for test administration; changes in the method in which the test is presented, such as tests read to a student; and changes in the method of the student's response to a test question, such as access to a computer or the use of a scribe. 

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Manifestation Determination Reviews 
December 23, 2024 

The State Education Department (“SED”) recently issued updated guidance reminding districts about their obligations under state and federal law related to classified students with a disability upon whom an out-of-school suspension is imposed.

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EEOC Enforcement Guidance on Workplace Harassment
December 23, 2024

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently released updated workplace guidance titled Enforcement Guidance on Harassment in the Workplace.1 This guidance from the EEOC is the first update about workplace harassment enforcement since 1999.2 In addition to the EEOC reiterating its past guidance, the updated guidance adds new information regarding discrimination based on sex, harassment in a virtual work environment, and updates the anti-harassment policies that employers should adopt. The update is consistent with recent court and EEOC administrative decisions interpreting these issues in the workplace.  

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SED Regulations on Science-Based Reading Instruction
December 18, 2024 

On December 9, 2024, the Board of Regents adopted emergency regulations requiring districts to align their reading instruction in grades pre-kindergarten through 3rd grade to the instructional best practices developed by the State Education Department (“SED”).1 Districts must verify through an attestation with SED's Business Portal, that their curriculum aligns with SED's best practices by September 1, 2025.  

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Guidance on 504 Plans: Migraines, Narcolepsy, Stuttering, and Bowel Disease
December 18, 2024

In December, 2024, the U.S. Department of Education's Office for Civil Rights (“OCR”) released updated guidance on protections for students with disabilities under Section 504 of the Rehabilitation Act of 1973. In particular, the new guidance impacts students who suffer from migraines, narcolepsy, stuttering, and inflammatory bowel disease. These guidance documents from OCR are part of a series of policy recommendations on Section 504 issued this year.

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School Safety Plans
December 18, 2024

New regulations from the State Education Department (“SED”) are now in effect related to school safety, which expands existing school safety plan laws. The new regulations were recommended by the Safe Schools Task Force and the School Safety Improvement Team.1 Previously, districts were required to develop and annually update by September 1st of each school year, a confidential building-level emergency response plan, which is not subject to public disclosure under the Freedom of Information Act (“FOIL”), and they were required to annually update their comprehensive district-wide school safety plan. 

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Guidance on Functional Behavioral Assessments from US DOE
December 16, 2024

In November, 2024, the U.S. Department of Education (“DOE”) released guidance regarding functional behavioral assessments (“FBAs”) for students with disabilities.1 An FBA is an assessment for identifying the reasons behind, or factors contributing to, a student's behaviors that interfere with the student's learning or that of others.2 The purpose of an FBA is to assist in developing effective positive behavioral interventions, supports, and other strategies to mitigate or eliminate a student's negative behaviors. FBAs can be conducted in response to safety-related behaviors such as physical aggression or throwing objects, and non-safety related behaviors such as calling out in class, not following directions, name calling, task avoidance, or school refusal.  

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Affidavit Ballots in School Board Elections
November 22, 2024 

On October 16, 2024, the State Education Department (“SED”) released a Formal Opinion of Counsel, which concluded that an affidavit ballot submitted in a school board election does not need to be notarized in order to be counted.

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Update on FAPE Entitlement to Age 22 for Students with Disabilities
November 14, 2024 

This memorandum is an update to our July 14, 2023 client memorandum regarding the status of students classified with a disability who turn 21 years of age.

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Independent Educational Evaluations
November 12, 2024 

This memorandum provides an update on recent decisions regarding Independent Educational Evaluations (“IEEs”), and advises districts on how to respond to a parent's request for an IEE. A sample Board policy on IEEs is attached for reference.

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Sample Policy for Students on School Boards 
October 11, 2024 

On September 24, 2024, Frazer & Feldman, LLP released a client memorandum, Students on School Boards, which discussed a new law requiring each school district that operates a high school to designate at least one student as an ex officio member of the school board. An ex officio student board member is one who is entitled to sit with the board at public meetings and hearings, but is not entitled to vote on any matters. The law takes effect on July 1, 2025.     

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Guidance on 504 Plans: Anxiety, Bipolar, Depression, and Eating Disorders 
October 9, 2024

In September, 2024, the U.S. Department of Education's Office for Civil Rights (“OCR”) released updated guidance on protections for students with disabilities under Section 504 of the Rehabilitation Act of 1973, in particular, students who suffer from anxiety, bipolar, depression, and eating disorders.

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Guidance on 504 Plans: Cancer, Epilepsy, and Sickle Cell Disease 
October 8, 2024

In June, 2024, the U.S. Department of Education's Office for Civil Rights (“OCR”) released updated guidance on protections for students with disabilities under Section 504 of the Rehabilitation Act of 1973, in particular, for students who have cancer, epilepsy, or sickle cell disease.1 The guidance documents are part of a series of fact sheets issued by OCR this year on Section 504.2.

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Regionalization 
October 7, 2024

New York State Education Department (“NYSED”) has developed a plan for dealing with the growing inequities in educational opportunities for students in New York State, particularly those in under-resourced and rural areas. 

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New SED Q & A, “Contracts for Instruction” 
October 2, 2024

This memorandum provides information concerning the newly revised Questions and Answers from the State Education Department (“SED”) entitled, “Updated Clarifying Information and Q and A related to Contracts for Instruction” (“2024 Q&A”).1  The 2024 Q&A replaces SED's 2010 document related to Contracts for Core Instruction 2 and takes effect immediately. The 2024 Q&A provides important clarification for school districts regarding instructional contracts and programming given recent amendments related to virtual instruction3 and changes to the current educational landscape.

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Alternately Assessed Students with a Disability
October 1, 2024

This past school year, we have noticed some common errors in various Individualized Education Programs (“IEPs”) and at meetings of the Committee on Special Education (“CSE”) related to alternately assessed students with severe cognitive disabilities.This memorandum is a reminder as to when and how alternate assessments should be recommended on a student's IEP. 
 
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September 24, 2024
Students on School Boards

On September 5, 2024, Governor Hochul signed Chapter 311 of 2024 into law requiring each school district that operates a high school to designate at least one student as an ex officio member of the school board.1 An ex officio student board member is one who is entitled to sit with the board at public meetings and hearings, but is not entitled to vote on any matters. The law takes effect on July 1, 2025.

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Prescriptions for Related Services 

September 18, 2024

We have received several inquiries from districts asking whether a medical prescription is required for related service providers to render occupational therapy, physical therapy, or speech language therapy. 

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Expressing Breast Milk in the Workplace 
September 6, 2024

Recent legislation has further expanded the rights of employees to express breast milk in the workplace. Previously, school districts were required to provide reasonable unpaid break time to employees to express breast milk. Employees could also use paid breaks or mealtime for such purposes.

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Adapted Physical Education

August 29, 2024

This past school year, we have noticed some common errors in various Individualized Education Programs (“IEPs”) related to adapted physical education (“APE”). This memorandum is a reminder as to when and how APE should be recommended on a student's IEP. 

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High School Student Government Requirement
August 28, 2024

On September 1, 2024, Chapter 357 of the Laws of 20231 is set to take effect, which requires the board of education of each school district to establish at least one student government organization for high school students in grades 9-12.2 The bill was signed into law by Governor Hochul on September 7, 2023. The goal of the new law is to ensure all high school students have the opportunity to participate in student government for civil engagement and leadership. Many of you have long established student governments at your high schools. For you, this is just a reminder.  

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Receipt of Ten-Day Notice Letters
August 7, 2024
As you prepare for the 2024-2025 school year, districts may begin to receive ten-day notice letters from the parents of students classified with a disability who reside in-District.

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Parent Consent to Receive Student Special Education Records by Electronic Mail 

July 30, 2024

Over the past year, we have received several inquiries from districts regarding the use of electronic mail (email) to send special education records to parents. This memorandum provides guidance to districts regarding the applicable laws for email use, and under what circumstances student records may be emailed to parents.

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Managing Allergies & Anaphylaxis in Schools
May 30, 2024

In April, 2024, the State Education Department (“SED”) released Guidelines for Managing Allergies and Anaphylaxis in Schools to help districts treat and prevent allergic reactions by students in schools.1 Under Section 2500-H*2 of the Public Health Law, districts must implement or update their anaphylactic policy within six months of SED's new guidance, or no later than October, 2024. With allergy season in effect, this guidance is intended to help districts protect students against anaphylaxis, which is a rare but severe allergic reaction. When a person is suspected of experiencing an anaphylactic reaction, emergency medication must be administered as soon as possible.

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2024 Summer School Guidance
May 30, 2024

In May, 2024, the State Education Department (“SED”) released its Handbook for Summer School Administrators and Principals (2024), which contains guidance for districts to implement summer school programming. A copy of the report is enclosed for reference.  

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SED Guidance on Transgender Rights
May 24, 2024

On May 14, 2024, the State Education Department (“SED”) released a Formal Opinion of Counsel advising districts that pursuant to New York's Gender Expression Non-Discrimination Act (“GENDA”), transgender students have the right to use a school bathroom or locker room that aligns with their gender identity. SED's Opinion was published in response to an inquiry from the Clarkstown Board of Education on this issue.  

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New Procedural Safeguards Notice
May 17, 2024

On May 16, 2024, the State Education Department (“SED”) released an updated version of its Procedural Safeguards Notice (“Notice”) detailing the rights of parents of students with disabilities under the Individuals with Disabilities Education Act (“IDEA”). We have attached a copy of the Notice for immediate use by Committees on Special Education (“CSEs”) to replace SED's 2017 version.  

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Election Day Instructions
May 13, 2024

This memorandum will provide information and instructions for you and your election personnel on May 21st. You can review or distribute the election worker instructions set forth on the page entitled "Instructions for Election Workers" as is or modify the document to fit your needs. In the event of a challenge to the election, the fact that you provided clear and precise instructions to your election workers on matters including the canvassing of absentee and early mail ballots will go a long way in defending the integrity of the election. 

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Title IX Regulations - 2024 Updates
May 1, 2024

On April 19, 2024, the Office for Civil Rights (“OCR”) of the U.S. Department of Education (“Department”) released the long-awaited Final Title IX regulations. As you know, Title IX prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance.1 The focus of these amendments is to promote educational equity and opportunity and provide an educational environment that is free from discrimination based on sex. Below is an overview of the key provisions of the final regulations.  

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Budget Re-Vote
May 1, 2024

This memorandum will provide you with the options available to the Board of Education should the budget be defeated by the voters on May 21, 2024. As in previous years, the Board may hold a special meeting (a budget “re-vote”), in which case the Board can present the same or a modified budget to the voters. The procedures for a re-vote are outlined below. Alternatively, the Board may choose to forego a second vote and adopt a contingency budget. The parameters for a contingency budget also follow below.

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New Web Content Accessibility Rule
April 24, 2024

On April 8, 2024, the U.S. Department of Justice (“DOJ”) announced that it had enacted a new rule under the Americans with Disabilities Act (“ADA”) requiring that state and local governments make their websites and mobile applications accessible for people with disabilities. The rule applies to all school district “web content”, which includes text, images, sounds, videos, and documents on the district's website. School districts with fewer than 50,000 residents living in it must comply by April, 2027. Larger districts with more than 50,000 residents must comply by April, 2026.

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Civil Service Law Section 71
April 24, 2024

Over the last several months, our office has received a number of inquiries from school district administrators concerning Civil Service Law section 71 (“CSL 71”), which authorizes a public employer to terminate the employment of an employee absent as a result of a workers' compensation illness or injury in excess of one year.   This memorandum is intended to inform you of when section 71 is available, and provides a step-by-step guide and sample letters to enable the district to implement this statute appropriately. 

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Writing Effective Prior Written Notice Letters
March 21, 2024

As many of you know, prior written notices (“PWNs”) are the letters the Committee on Special Education (“CSE”) sends to parents to apprise them of actions taken at CSE meetings. We are often asked to review PWNs following a contentious CSE meeting. This past year, we have come across some consistent, problematic areas which raise red flags if the PWNs were reviewed by an impartial hearing officer (“IHO”). This memorandum reviews the purpose of a PWN and provides helpful tips when drafting them.  

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New COVID Sick Leave Law
March 8, 2024

This memorandum provides information about updated guidance from the federal Centers for Disease Control (“CDC”) regarding COVID-19 in the workplace. The changes were made for a number of reasons, including the fact that far fewer people are getting seriously ill from COVID-19. 

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Updated Guidance on English Language Learners with Disabilities
February 20, 2024

In January, 2024, the State Education Department (“SED”) issued updated guidance regarding the identification of English Language Learners (“ELLs”) for special education services. Under state regulations, school districts must submit written assurances to SED that each ELL student has access to appropriate instructional and support services, including ELLs with disabilities.

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Updated Guidance on Students with Fake Vaccinations
January 29, 2024
This memorandum provides updated guidance to school districts that have received an “Impacted School Alert” from the New York State Department of Health (“DOH”) regarding students who received fake immunizations from Jeanette Breen, a licensed midwife who operated Baldwin Midwifery in Nassau County.
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Updated Guidance on Assistive Technology Devices and Services for Students with Disabilities
January 29, 2024
On January 22, 2024, the U.S. Department of Education (“DOE”) released a “Dear Colleague Letter” that provides updated guidance on the use of assistive technology devices and services.1 The guidance reminds school districts that the Committee on Special Education (“CSE”) must consider whether a student with a disability needs assistive technology (“AT”) devices and services as required under the Individuals with Disabilities Education Act (“IDEA”).2
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Immunization Status
January 22, 2024
Several Superintendents have received notice that an attorney representing students excluded from school for failure to receive required immunizations will seek a temporary restraining order for the immediate reinstatement of these students to school attendance.
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NYSDOH Notice of False Immunization Records.
Wednesday, January 17, 2024
This memorandum provides guidance to those who received the “Impacted School Alert” email from the New York State Department of Health (“NYSDOH”) regarding false immunization records by Jeannette Breen, a licensed midwife who operated Baldwin Midwifery in Nassau County. NYSDOH has reported that Breen administered 12,449 fake immunizations to roughly 1,500 school-aged patients and submitted false information to the State. Many affected students attend school on Long Island. See https://www.health.ny.gov/press/releases/2024/2024- 01-17_baldwin_midwifery.htm. Set forth below is a summary of the relevant law and steps that districts must take in response.
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Immunization Notice Ltr 2024 Model

NYSDOL Guidance relating to the State Workplace Violence Prevention Act
January 10, 2024
This memorandum provides new information about the recently expanded New York State Workplace Violence Prevention Act (“Act”), which applied to school districts beginning on January 4, 2024. As you will recall from our client memorandum dated December 10, 2023, the Act requires school districts and other public employers to take certain steps to help prevent workplace violence. See NY Lab. Law §27-b; 12 NYCRR §800.6. As outlined below, while the Act went into effect for school districts on January 4th, the New York State Department of Labor (“NYSDOL”) just published new guidance that significantly relaxes the compliance dates for several of those steps.
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Archived Client Memoranda

For more information on how to access our client memoranda and documents, please contact [email protected].

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