Schools Must Provide Special Education Services Until Age 22

The Office of Counsel of the NYS Education Department (“Department”) released a formal opinion embracing the Second Circuit Court of Appeals decision in A.R. v. Connecticut Board of Education. The Second Circuit Court of Appeals, which has jurisdiction over New York, held that Connecticut must provide special education and related services to all SWDS who had not received a high school diploma until age 22, or the day before the student’s 22nd birthday.

In New York, SWDs have been entitled to special education programs and services until they either achieve a Regents or local high school diploma, or until the end of the school year in which they turn 21, whichever comes first. The Connecticut requirements are similar to New York in that SWDs have a right to receive  a free appropriate public education (“FAPE”) until they earn a high school diploma or the conclusion of the school year in which they turn 21, whichever occurs first. Connecticut, through its GED high school equivalency course, provides public education to nondisabled students over the age of 21 to age 22. The Second Circuit determined that the state must therefore provide educational programming to SWDs in the same age range, i.e., up to and including age 22. For SWDs, such educational programming would be FAPE, thus extending the FAPE entitlement from the conclusion of the school year in which the student turns 21 to when they reach age 22.  The Second Circuit relied upon a previous case holding that the phrase “3 through 21 inclusive” in the Individuals with Disabilities Education Act (“IDEA”) means every day up and until a student’s 22nd birthday (i.e., up to age 21 and 364 days).

The fact that students’ 22nd birthdays may fall at any point during a school year[1], however, is a complication not addressed by the A.R. decision. While not required by the Second Circuit decision, the Department’s Office of Special Education recommends that school districts consider providing such services through the end of the school year in which the student turns 22 or upon receipt of a high school diploma, whichever occurs first.

More information is available via the link below.

We hope you find this information helpful. Please contact Karen Pokorny at with any questions.


[1] NY Education Law 4402(5) states that a SWD who reaches the age of twenty-one in July or August is only entitled to special education services until the thirty-first day of August or until the termination of the summer program, whichever comes first.