Parents, it is quite possible that your child was unlawfully denied ESY. Read this article so you can become educated on the true requirements for your child to be found eligible for ESY.
ESY (Extended School Year) services are individualized special education and/or related services that are uniquely designed to provide a free appropriate public education (FAPE) to a student with disabilities as mandated by the Individuals with Disabilities Education Act (IDEA).
It is called “Extended School Year” services because an ESY program is services that go beyond the typical school year. In general, ESY is provided during the summer but is not limited to only summer months.
The IEP team must review a long list of questions in determining whether your child qualifies for ESY. Conversely, most IEP teams focus only on regression and recoupment, which would be a violation of ESY eligibility requirements because they fail to consider all the other aspects of eligibility. As such, many students are found ineligible for ESY when in truth, they are eligible, but most parents have no idea that their IEP team violated the ESY eligibility requirements.
ESY services must be provided to a child with a disability that is:
- Beyond the normal school year of the public agency
- In accordance with the child’s IEP
- At no cost to the parents of the child
- Determined by the child’s IEP team (and of course, parents)
It’s important to understand that ESY services are not the same as:
- Summer School
- Compensatory Services
- Enrichment Programs
ESY requirements for the IEP team when discussing eligibility:
1. ESY programs are not one size fits all.
ESY does NOT have to be the typical ESY program that a school already has in place. ESY is NOT the typical summer school program that the district offers to students that are not on an IEP.
It is quite common for districts to craft the ESY class curriculum to meet the needs of students who are more severely affected by their disability. As such, most parents decide to opt out of ESY because they feel it wouldn’t be appropriate for their child or meet their needs even though their child does meet the requirements to receive ESY. Parents are not aware that limiting ESY to a particular category of disability is a violation of §300.106(i), “Limit extended school year services to particular categories of disability.”
Many parents are also not aware that they can create an individualized ESY program that may only consist of related services and no academic services. On the other hand, if a student requires specialized academic instruction to avoid regression, ESY could be provided in a different location that is not in the school environment. The law is clear that schools can provide services in other locations. Services can be provided in community settings or private out-of-district summer programs.
2. How does the IEP team determine ESY eligibility?
IDEA is clear that ESY determinations are individual determinations and must be made based on detailed information relating to the child and is NOT limited to how much regression might occur if the child did not receive academic interventions during the summer months. It is quite common for districts to only focus on the most widely used criteria for determining the need for ESY services, which are regression and recoupment. However, this would be a violation of IDEA.
In Reusch V. Fountain (1994), cited a Maryland school district for “…the use of a standard for ESY eligibility which was incorrectly limited to a regression/recoupment analysis and did not consider other factors which were relevant in the ESY determination.” The decision said that this standard may be used, but only as one part of a multi-faceted inquiry.
Regression and recoupment requirements include the following:
- The IEP team must determine if the student is likely to lose critical skills during the time when services are not delivered, which is called regression.
- The team must determine if your child would take longer to recoup skills in comparison to how much time it takes a nondisabled student to regain skills lost during a school break.
- If the likelihood of regression is established, then the IEP team must determine whether the time the student will require to re-learn the skills lost is excessive, particularly when compared to the school break.
When IEP teams use this criterion, it is very common for the team to “guess” at whether or not a student would regress or how much time the student would need to recoup skills by making a subjective decision based on their opinion instead of real objective data. The IEP team’s subjective guess is usually not in favor of the student being found eligible for ESY.
As stated earlier, regression and recoupment are not the only criteria to use when determining the need for ESY services. In Reusch v. Fountain, the court listed many other factors in addition to regression and recoupment that the IEP team should consider in deciding if a child is eligible for ESY.
Below are other criteria to evaluate when discussing the need for ESY services.
– Whether the child is in the midst of acquiring a new skill & whether summer services are required to take advantage of a window of opportunity for learning the new skill as well as the ability of parents to provide programming.
The critical point of instruction/breakthrough of an emerging skill is the point at which a student has almost mastered the skills in an instructional sequence. As the need for ESY services is discussed, the IEP team must determine if a break in instructional programming would result in the loss of significant progress made toward the acquisition of a critical or emerging skill.
– Decisions about ESY should be made early enough in the year to allow parents adequate time to exercise their right to a review or appeal in a timely fashion.
– It is very common for a school to begin the ESY conversation at the end of the school year, which doesn’t allow parents enough time to disagree before the school year is over. By the time a parent dissent would be resolved, the new school year would have begun. Under these circumstances, parents have the right to request compensatory education, because the district violated the requirement for “decisions about ESY should be made early enough in the year to allow parents adequate time to exercise their right to a review or appeal in a timely fashion.”
– Is there a behavior concern? The IEP team should discuss if there are behavior concerns that interfere with learning and if a disruption in behavior support will risk an increase of behaviors when a student returns to school in the fall.
– If little or no progress has been made on IEP goals, then ESY can be used to help close any gaps on critical skills. Please note that ESY is not meant to continue instruction on all IEP goals. However, if your child’s progress on goals would regress due to an extended break, then ESY would be necessary.
– The nature and severity of the child’s disability should be considered when determining eligibility for ESY. No disability category may be excluded from consideration for ESY; however, the nature and severity of a child’s disability is a key factor in the ESY eligibility determination. Children with severe disabilities are more likely to need ESY services because their regression may be more significant as well as their recoupment of skills may take longer.
– Any other special circumstances which interfere with a child’s ability to benefit from special education.
3. What are the requirements for specifying the duration of ESY programs?
ESY services should not be limited. The Office of Special Education Programs (OSEP) issued a policy letter stating that limiting the duration of summer programs for students with disabilities “…would violate the basic requirement that programs be designed to meet the individual needs of each child” (Letter to Baugh, 211 IDELR 481, 1987).
This means that the “one size fits all” limited days and hours the district offers may not meet the needs of your child and you have the right to develop an individualized program, which includes the number of days and hours your child receives for ESY. Anything less would be a violation of §300.106(ii), the district shall not “Unilaterally limit the type, amount, or duration of those services.”
The following are the actual ESY statutes listed under IDEA, federal law.
§300.106 Extended school year services
(a) General. (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.
(b) Definition. As used in this section, the term extended school year services means special education and related services that: (1) Are provided to a child with a disability— (i) Beyond the normal school year of the public agency; (ii) In accordance with the child’s IEP; and (iii) At no cost to the parents of the child; and 2) Meet the standards of the SEA.
Every year, there are scores of students who are denied ESY because parents are unaware of the true eligibility requirements. Now that you know the legal obligations placed upon your IEP team, don’t let another year go by without advocating for your child to receive ESY and hold your IEP team accountable to adhere to the actual requirements listed in IDEA.
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Valerie Aprahamian is a special education advocate, IEP strategist, and speaker. She speaks on behalf of parents to protect the rights of neurodiverse children to receive the supports they need in public school.