LEGAL AND PRACTICAL CONSIDERATIONS FOR

EXTENDED SCHOOL YEAR SERVICES

ELENA M. GALLEGOS, Program Specialist

Questions Considered

What are extended school year services (ESY)?

What does the IDEA statute say regarding ESY?

Are all students with disabilities entitled to ESY?  

Who makes the decision regarding ESY eligibility?

Do the implementing regulations contain criteria for determining ESY eligibility?

What are these guidelines?

But I thought that ESY services were only for severely disabled students in a self-contained classroom?

Is ESY required for any student who fails to master his or her IEP goals?

I understand that court cases talk about regression-recoupment as a basis for determining ESY eligibility, what does OSERS/OSEP have to say about a regression-recoupment model?

Can the state require evidence of past regression and rate of recoupment in order for a child to qualify for ESY services?

So what criteria have the courts endorsed?

Does ESY apply to children who turn three during the summer?

Can we set up an ESY program that is the same for all ESY eligible students?

Is it possible for a child to receive only related services as part of his or her ESY?

Must a full continuum of placements be maintained during the summer for ESY?

If a regular education setting is necessary to implement an ESY IEP for an individual student, could a district be required to pay for services in a private school setting?

 

 

What are extended school year services (ESY)?

The IDEA implementing regulations define ESY as follows:

[T]he 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.

34 C.F.R. 300.309

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What does the IDEA statute say regarding ESY?

It is silent. The implementing regulations cite to the requirement of a free appropriate public education (FAPE) as its authority for ESY. This is consistent with well established case law on ESY. See Georgia Ass'n of Retarded Citizens v. McDaniel, 716 F.2d 1565, 1576 (11th Cir. 1983), modified on other grounds, 740 F.2d 902 (1984), cert. denied, 105 S.Ct. 1228 (1985); Crawford v. Pittman, 708 F.2d 1028, 1034 (5th Cir. 1983); Battle v. Pennsylvania, 629 F.2d 269, 281(3rd Cir. 1980), on remand, 513 F.Supp. 425 (E.D. Pa. 1980), cert. denied, 101 S.Ct. 3123 (1981).
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Are all students with disabilities entitled to ESY?

No. Only students who require ESY for FAPE are entitled to it. The regulations state: "Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph(a)(2) of this section." 34 C.F.R. 300.309(a)(1).
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Who makes the decision regarding ESY eligibility?

The IEP team. The regulations say: "Extended school year services must be provided only if a child's IEP team determines, on an individual basis, in accordance with Secs. 300.340-300.350, that the services are necessary for the provision of FAPE to the child." 34 C.F.R. 300.309(a)(2).
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Do the implementing regulations contain criteria for determining ESY eligibility?

Not exactly. But the regulations do impose some limitations:
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 C.F.R. 300.309(3). Additionally, according to OSERS, "Federal courts provide some basic guidelines that apply to making that determination." Letter to Anonymous, 22 IDELR 980 (OSERS 1995).

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What are these guidelines?

Consistent with federal regulations, the guidelines are summarized as follows:
First, the determination of what constitutes FAPE for a child, including the need for ESY services, must be made on an individual basis as part of the IEP process. (Citations omitted.) Second, a State may not have a policy that excludes any disability category from eligibility for ESY services.

Letter to Anonymous, 22 IDELR 980 (OSERS 1995).

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But I thought that ESY services were only for severely disabled students in a self-contained classroom?

That is not correct. According to OSERS:
A State rule or guideline limiting eligibility for 12-month programming to children whose disabilities are severe enough to require a structured learning environment is inconsistent with the first principle [decisions based on each child's unique educational needs], to the extent that it inhibits full consideration of the individualized needs of all eligible children with disabilities who may require extended school year programming in order to receive FAPE.

Letter to Libous, 17 IDELR 419 (OSERS 1990).

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Is ESY required for any student who fails to master his or her IEP goals?

Failing to master IEP goals does not automatically make the student eligible for ESY. In response to this question, OSEP has stated: "Whether a student with a disability requires EYS is a decision for that student's IEP team. Nothing in federal law or the corresponding regulations requires students with disabilities who do not meet their IEP goals to participate in EYS." Letter to Kleczka, 30 IDELR 270 (OSEP 1998).
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I understand that court cases talk about regression-recoupment as a basis for determining ESY eligibility, what does OSERS/OSEP have to say about a regression-recoupment model?

OSERS says that states can use "evidence of regression and slow recoupment without summer programming as a factor in determining the need for ESY services." Letter to Anonymous, 22 IDELR 980 (OSERS 1995). In another letter, OSEP states, "OSEP recognizes that a child's IEP for ESY services will probably differ from the child's regular IEP, since the purpose of the ESY program is to prevent regression and recoupment problems." Letter to Myers, 16 IDELR 290 (OSEP 1989).
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Can the state require evidence of past regression and rate of recoupment in order for a child to qualify for ESY services?

No. OSERS states: "Because of Part B's requirement for individualized determinations, we do not believe that it would be permissible for a State to adopt a policy of refusing to consider information, such as predictive data, that may be relevant" to the determination of ESY eligibility. Letter to Anonymous, 22 IDELR 980 (OSERS 1995).

OSERS' position is consistent with the Tenth Circuit:

The analysis of whether the child's level of achievement would be jeopardized by a summer break in his or her structured educational programming should proceed by applying not only retrospective data, such as past regression and rate of recoupment, but also should include predictive data, based on the opinion of professionals in consultation with the child's parents as well as circumstantial considerations of the child's individual situation at home and in his or her neighborhood and community.

Johnson v. Bixby Independent Sch. Dist. No. 4, 921 F.2d 1022, 1028 (10th Cir. 1990).

The Sixth Circuit has also addressed this issue:

[The regression standard does not] require that a child demonstrate that he has regressed in the past to the serious detriment of his educational progress in order to prove his need for a summer program. Instead, where there is no such empirical data available, need may be proven by expert opinion, based upon a professional individual assessment.

Cordrey v. Euckert, 917 F.2d 1460, 1472 (6th Cir. 1990); 17 IDELR 104.

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So what criteria have the courts endorsed?

Well, for purposes of this handout, we will focus only on the federal courts of appeal.

From the Third Circuit, Battle v. Pennsylvania, 629 F.2d 269 (3rd Cir. 1980), cert. denied, 101 S.Ct. 3123 (1981). In summary, according to the Third Circuit, the IDEA requires that the IEP team (1) ascertain the reasonable educational needs of each child, (2) develop reasonable education goals, and (3) and determine a reasonable program to attain these goals. This may include a program that extends beyond the regular school year.

From the Fifth Circuit, Alamo Heights Independent School District v. Texas Board of Education, 790 F.2d 1153, 1158 (5th Cir. 1986); IDELR 557:315:

The some-educational-benefit standard does not mean that the requirements of the Act are satisfied so long as a handicapped child's progress, absent summer services, is not brought to a virtual standstill. Rather, if a child will experience severe or substantial regression during the summer months in the absence of a summer program, the handicapped child may be entitled to year-round services. The issue is whether the benefits accrued to the child during the regular school year will be significantly jeopardized if he is not provided an educational program during the summer months.

From the Sixth Circuit, Cordrey v. Euckert, 917 F.2d 1460, 1472 (6th Cir. 1990); 17 IDELR 104:

[I]f the existing regression-based standard for ESY is defined loosely to allow for individualized expert opinion and not just empirical predictions based on actual prior regression, the standard would seem flexible enough to accommodate such refinements in professional understanding of when a child needs ESY. .... The ESY standard should be open to developments in special education science, but not bound to any particular one. At 1472.

Cordrey v. Euckert, 917 F.2d at 1473:

The best rule is that which recognizes that the school district has no purely custodial duty to provide for handicapped children while similar provision is not made for others. We therefore begin with the proposition that providing an ESY is the exception and not the rule under the regulatory scheme. Given those policy considerations, therefore, it is incumbent upon those proposing an ESY for inclusion in the child's IEP to demonstrate, in a particularized manner relating to the individual child, that an ESY is necessary to avoid something more than adequately recoupable regression.

The following is a summary of the relevant questions identified by the Sixth Circuit: (1) What is the child's tendency to regress? (2) Is there a history of prior regression (e.g. following a weekend, holiday, or previous summers)? (3) What is the child's ability to recoup lost skills? (4) What is the child's progress toward his/her educational goals? Are the skill losses of such degree and duration so as to seriously impede the students' progress toward his/her educational goals. See Cordrey v. Euckert, 917 F.2d at 1474.

Additionally, at least one court has cited a district court case, Lee v. Thompson, IDELR 554:429, 430 (D.Haw. 1983). In that case:

Factors relevant to whether an ESY program is proper include (1) the nature and severity of the disability, (2) the areas of learning crucial to progress towards self-sufficiency, and (3) the extent of regression and the rate of recoupment following an interruption in programming.
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 Does ESY apply to children who turn three during the summer?

An IDEA eligible child who turns three during the summer must be considered for ESY in the same manner as any other IDEA eligible child. According to OSEP, cut off dates for determining IDEA eligibility are impermissible. Therefore, when a child is going to turn three during the summer, the IEP or IFSP developed 90 days prior to the third birthday, must "specify the child's program upon the third birthday, including ESY, if needed by a particular child to receive FAPE. If ESY services are not needed to provide FAPE, the date of initiation of services could be the beginning of the upcoming school year." Letter to Anonymous, 22 IDELR 980 (OSERS 1995).
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Can we set up an ESY program that is the same for all ESY eligible students?

No. The nature and amount of services must be determined on an individual basis by the IEP team. It is not permissible to "predetermine the specific amount of services for an individual child regardless of the child's unique needs." Letter to Libous, 17 IDELR 419 (OSERS 1990).
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Is it possible for a child to receive only related services as part of his or her ESY?

Yes. To be eligible for services under IDEA, a student must need special education services. Related services are provided when necessary for a student to benefit from special education. In the ESY context, however, some IDEA eligible students may only require related services "as the sole component of their special education program during the summer months to enable them to benefit from the special education and related services included in their IEPs during the school year." Letter to Libous, 17 IDELR 419 (OSERS 1990).
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Must a full continuum of placements be maintained during the summer for ESY?

OSEP states:
Because ESY services are provided during a period of time when the full continuum of alternative placements is not normally available for any students, the Department does not require States to ensure that a full continuum of placements is available solely for the purpose of providing ESY services. However, [IDEA] does require that options on the continuum be made available to the extent necessary to implement a child's IEP.

Letter to Myers, 16 IDELR 290 (OSEP 1989).

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If a regular education setting is necessary to implement an ESY IEP for an individual student, could a district be required to pay for services in a private school setting?

Yes. OSEP states:
[T]he LEA is required to purchase private school placements in a regular education setting if they are required to implement a child's IEP. Each child's placement determination must be individualized and based upon the content of the IEP. [citations omitted.] OSEP recognizes that a child's IEP for ESY services will probably differ from the child's regular IEP, since the purpose of the ESY program is to prevent regression and recoupment problems. Therefore, the placement needed to implement the child's IEP for ESY services may differ from the child's placement during the regular school year.

Letter to Myers, 16 IDELR 290 (OSEP 1989).

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