How the school district is to proffer services during the summer, and why, is clearly stated in the law. It is often handled wrong.
Extended School Year (ESY) services are part of the IDEA:
(1) Each public agency must ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section.
(2) Extended school year services must be provided only if a child’’s IEP Team determines, on an individual basis, in accordance with §§ 300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.
(3) In implementing the requirements of this section, a public agency may not –
(i) Limit extended school year services to particular categories of disability; or
(ii) Unilaterally limit the type, amount, or duration of those services.
~ 34 CFR § 300.106
The general standard of eligibility for extended school year services is that the student will not be able to continue to make meaningful educational progress during the school year unless extended school year services are provided. This is based specifically on the concepts of “regression” and “recoupment.”
Regression: All students lose some skills during the summer. In determining eligibility for ESY services, it is necessary to show that the student would regress more than the amount that would be expected for any student.
Recoupment: All students need some time at the beginning of a school year to re-learn the skills they have lost during the summer. In determining eligibility for ESY services, it is necessary to show that it would take longer for the student with disabilities to regain skills than it would for students without disabilities.
ONLY the IEP Team can make the determination for ESY and ONLY the IEP Team can determine the length of time for ESY services, and the services themselves. It is important to ensure that the measurable goals and objectives of the student’s IEP are actually measured, i.e., that the data are collected and reported. This information will be crucial to the determination of eligibility for ESY services. In addition to periodic data collection during the school year, the IEP team should test the student or measure their status at the beginning of the school year to determine if there has been regression and, if so, how long it takes the student to recoup lost skills. Sound data and information collection practices are particularly important for students with severe disabilities, since their progress may be measurable only in minute steps.
The IEP Team should pay attention to the student’s IEP, goal by goal, and discuss both progress towards each goal and the student’s need for ESY services at the annual meeting. The Team must take into the individual considerations for the student and cannot “unilaterally limit the type, amount, or duration of those services.” ( 34 CFR § 300.106(a)(3)(ii))
Cookie-cutter, one-size-fits-all programs:
Despite the requirement that extended school year services be individualized to meet a student’s unique needs, school districts often tend to be rigid, offering generic programs for a set period of time that does not span the break between the end of one school year and the beginning of the next. It is not at all unusual for parents to be told, for instance, that the district’s extended school year services for third and fourth graders will be at a particular site, or that the students with severe disabilities are served at a particular school. Additionally, the school system might limit services to 2 ½ hours or 5 hours per day for five weeks. While a standard program might meet the needs of some students with disabilities, families and their advocates should not feel constrained by these types of artificial parameters imposed by the school system. Depending on the student’s needs, it may be possible to obtain services to supplement the standard program. For instance, a student who benefits from the district’s standard five week program, offered during July and the first week of August, but who will regress with no services for the remaining weeks before school starts, might receive tutoring at home or at a camp or recreational program. ~Extended School Year Services
As to related services and transportation, “the U.S. Department of Education, Office of Special Education Programs (OSEP), has stated the following in regards to the obligation of school districts to provide related services including transportation and therapy services to students who are in need of and receiving such services during the school year: “…to the extent that the extended placement differs from the regular school placement, the need for related services may also differ in the extended school year placement” (Letter to Baugh, 1987) (Ed note: I love that letter.). The IEP Team is to consider all the needs of the student when determining need for ESY services. If a student requires transportation to benefit from ESY services, then transportation must be provided.” (From here.)
Additionally, in its discussion of the ESY requirement for providing the least restrictive environment (“LRE” – a placement with non-disabled peers or as close to that goal as practicable for an individual student), OSEP is consistent with its previous rulings, such as in Letter to Myers, 213 IDELR 255 (OSEP, August 30, 1989). The LRE requirement must be met for ESY, although the LRE for the duration of ESY services may differ from that during the school year. The LRE for the duration of an individual student’s ESY services is based on the goals and objectives to be addressed during that period of time. Districts do not have to establish public programs for non-disabled children solely to implement the LRE provision. But, if a child’s IEP for the extended school year period requires interaction with non-disabled children, then the district must develop alternative means for meeting that requirement, including private placements. OSEP’s discussion indicates that this also could include noneducational settings.
So what does all this mean?
Make sure your ESY services are a Team decision, decided on an individualized basis. And what if they are not? What if your district just tells you a schedule for ESY?
- Call a Team meeting to discuss ESY services. Show them this blog post if necessary! Educate yourself on the law before the meeting (references below).
- If that does not work, contact your state Department of Education and file a procedural complaint. In MA this would be a PQA complaint since it deals with a procedural issue. This is the fastest, easiest way to resolve the issue. You don’t need a lawyer (although an advocate may be helpful, we are not needed either!).
That is as far as it needs to go. As always, you can escalate the issue further. There was BSEA hearing in a case in MA recently that concluded with:
Based on the documents admitted into the record and in consideration of the arguments of the parties, I conclude that the ESY program proposed by Mansfield in Bernadette Conroy’s letter of June 4, 2014 is not appropriate to provide the Student with FAPE. Mansfield’s program can be made appropriate, however, by (1) extending the duration of the program for an additional two weeks, to and including August 28, 2015; (2) providing Parent with a detailed schedule explaining the “overlap” of the ESY program and Summer of Champs Institute as well as the interventions to be used to assist Student with any transitions involved; (3) clarifying and/or ensuring that the shared paraprofessional actually accompanies Student to the Summer of Champs Institute. ~BSEA #1507326
Extended School Year is a right under the Federal IDEA. Make sure it is implemented correctly and your children get the services they are entitled to!
This ESY manual is almost exclusively about the Federal law and is applicable in all states. I highly recommend it as a great reference.
In Massachusetts, here is a very straightforward document from DESE.
And, of course, the best reference of all.
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