Extended
School Year Services
TENNESSEE
STATE DEPARTMENT OF EDUCATION
NASHVILLE,
TENNESSEE 37243-0375
MEMORANDUM
TO:
Service Providers
FROM:
Joseph Fisher
DATE:
February 24, 1997
SUBJECT:
Extended School Year Services
Several
questions continue to arise concerning the extent to when Extended School
Year (ESY) services should be provided to children with disabilities.
The following information should prove to be helpful during M-Team
meetings when ESY services are being considered:
1)
Degree of regression/time for skill recoupment
2)
Degree of disability:
Mild -
Moderate -
Severe
3)
Ability of the child's parents to provide educational structure at
home:
Above Average - Average -
Below Average - Inadequate
4)
The child's rate of progress (when compared to other children with
the same or similar disability): Above Average
- Average - Below Average
5)
Consideration of any behavioral/physical problems which the child
might have
6)
The availability of alternative (community) resources for serving
this child
7)
The ability of the child to interact with children who are
non-disabled:
Above Average
- Below Average -
Unable to Interact
8)
Areas in child's program/curriculum which require continuous
attention
9)
Consideration of child's vocational needs
10)
Is the area of service(s) under consideration
"Extraordinary" to this child's disability?
11)
Is the area of service(s) under consideration an integral part of
an educational
program designed for children with this
disability?
Please
consider the above when determining whether or not ESY services are
warranted.
This
information may be shared with LEAs during in-services, conferences,
meetings, etc.
Extended
School Year
Catherine
Monteiro, Attorney
Ohio
Legal Rights Service
The
Education for-All, Handicapped...Children Act (EHA) was enacted by
Congress to assure that all handicapped children have available to them a
Free Appropriate Public Education (FAPE) designed specifically to meet
these children's unique needs. 20 U.S.C. §1400.(C). By enacting the EHA.
Congress sought not only to aid the state in providing education to
handicapped children. but also to achieve equal opportunity and to allow
handicapped children to achieve at a minimum, self-sufficiency and
independence from caretakers. Armstrong v Kline, 476 F. Supp. 5831 (1979).
To do this, Congress specified that an individualized education program
(IEP) be developed for each identified handicapped child. The purpose of
the IEP is to tailor educational services to fit a particular child so
that he/she may benefit from special education.
For
some children, 180 days of school per year is not sufficient for them to
benefit from special education. These children need extended school Year
(ESY) services.
ESY
is not meant to merely maintain what a child earns during the normal
school year. Rather, it is another method of providing a handicapped child
,with the specialized instruction he/she requires in accordance with the
IEP under the EHA. Lee v Thompson, 1983-84 EHLR 554:429 (U.S. Dist. Ct.
Hawaii, 1983).
ESY
must be provided to those students who need it. When the state refuses to
provide more than 180 days of education to handicapped students who need
those services, it violates the EHA and §504. This policy inhibits
considerations of students' individual education needs, and accordingly
denies students a FAPE Yaris v Special School District of St Louis County.
1983-84 EHLR Dec. 554:389 (U.S. )Dist. Ct., Eastern District of Missouri,
Eastern Div. 983). A state satisfies the requirement that it provide a
handicapped child with a FAPE by providing (personalized instruction with
sufficient support services to permit the child to benefit educationally from
that instruction.
The
courts have developed some guide lines to determine which children are
entitled to an ESY. As a general principle, a handicapped student is
entitled an education program in excess of 180 days per year if regression
caused by interruption in educational programming, together with the
student's limited recoupment capacity, render it impossible or unlikely
that the student will attain the level of self-sufficiency and
independence from caretakers that the student would otherwise be expected
to reach in view of his/her handicapping condition.
In
determining whether a particular child meets this standard, the IEP team
and educational agency should consider at least the following factors, as
delineated by the Court in Lee v Thompson, 1983-84 EHLR Dec. 554:429:
1)
the nature of the student's handicapping conditions
2)
the severity of the handicapping conditions
3)
the areas of learning crucial to attaining the goal of self-sufficiency
and independence from caretakers
4)
the extent of regression caused by interruption in educational programming
5)
the rate of recoupment following interruption in educational programming
Some
have argued that it is sufficient to consider regression
and recoupment alone. The Court in Lee v Thompson, clearly stated
that this was not enough and that, at a minimum, all five factors must be
considered in evaluating an individual child's entitlement to an extended
education. When one evaluates the nature of the handicapping condition one
should be especially sensitive to those children with disabilities which
(require consistent, highly structured pro- grams since they might be at a
higher risk of regression when their programs are interrupted. These same
children may also have limited recoupment abilities. Examples of
handicapping conditions which typify the need for an ESY are: childhood
autism, severe emotional disturbance, severe or profound mental
retardation, degenerative impairments with mental involvement and severe
multiple handicaps.
When
the handicapping condition is severe there is a greater likelihood that
the child will have difficulty attaining the goals of self-sufficiency and
independence from caretakers. These children will need additional help,
support, and time to reach these goals.
The
court will consider an ESY when it is needed to develop those skills which
are particularly essential
to meeting the goals of self-sufficiency. Examples of these types of
skills are: toileting, eating, development of stable relationships, impulse
control, and appropriate peer interaction.
The
court will determine whether
the parent or guardian would be capable of monitoring programming to
prevent regression during interruptions in school (for example:
school vacations...). To evaluate this it is important to determine the
complexity of the child's program, time restraints on the parents, and the
parents' lack of expertise.
When
looking at the regression/recoupment factor, it is not necessary that a
student, actually experience regression and then have a significant
recoupment time to establish that a child needs continuous programming in
excess of 180 days a year. The IEP team, with the information it has about
a child, should be able to make a prognosis of regression..
If
parents feel that their child needs an ESY, they should bring up that need
at an IEP meeting. When ESY is an issue for a student, the school district
must discuss it at an IEP meeting. Letters of Inquiry (1987) EHLR 211:481.
It the school refuses to provide ESY the parents should refuse to sign the
IEP or write their objections on it. They should then pursue a due process
hearing.
The
following is a summary of a case where the hearing officer determined that
a child needed an ESY. Susan Tobin, an attorney from the Ohio Legal Rights
Service, represented Chance Cordrey in a due process hearing against
Evergreen School District to determine whether he was entitled to an ESY.
Jerry Lee, a Bowling Green attorney, who was chosen as the impartial
hearing officer found that yes, Chance is entitled to an ESY.
Mr.
Lee found that Chance Cordrey's intellectual functioning falls near the 18
month age limit, with speech and fine motor skills falling well below this
level and some skills above this level. Chance has pervasive severe to
profound delays in all areas including cognitive functioning, speech and
language, social adaptive and social emotional skills, and problems
generalizing skills from one situation to another. The hearing officer
also found that Chance exhibits autistic-like behaviors.
The
psychologist who evaluated Chance testified that the risk of not providing
ESY was unacceptable and that Chance could benefit greatly from ESY.
The
hearing officer thereby found:
ESY
is a necessary part of Chance's special education to allow him to benefit
from schooling during the year. The ESY program must follow Chance's IEP
as closely as possible to meet this need.
If
ESY is not provided for Chance, there is an unacceptable risk to
Chance's maintenance of academic progress, as well as behavioral and
attending skills during the regular school year.
-Mr.
Lee , in discussing the basis of the decision, reiterated the concern in
Lee v Thompson that it is not sufficient to consider regression alone in
determining whether a student is entitled to ESY. He stated:
Other
factors to be considered in making this determination include the nature
and severity of the child's developmental delay. the child's difficulty
with generalization of skills, whether the child has made sufficient
progress over the school year, and the assessments, observations and
recommendations of the parents, evaluators and those individuals working
with the child.
The
hearing officer then ordered Evergreen to reimburse Chance's parents for
the tuition they paid for a summer program in 1987, and ordered Evergreen
to provide Chance with an ESY which included:
1)
a minimum of 8 to 10 weeks of school during the summer which went for 5
days a week and a minimum of 5 hours per
day
2)
the program must follow his entire IEP as it exists during the school year
3)
transportation and all other related services received during the regular
school year.
Evergreen
was ordered to develop an appropriate process for evaluating the need for
ESY.
The
decision is currently being appealed by Evergreen.
For
more information call Ohio Legal Rights at 1-800-282-9181.
EXTENDED
SCHOOL YEAR PROGRAMS
by
Gary Buchanan
Extended
school year programs are programs offered to children with disabilities
when regular school is not in session. Generally, this means the summer
months. Like special education programs during the regular school year,
extended school year programs are provided at public expense.
The Individuals With Disabilities Education
Act does not mention extended school year services. The extended school
year is the result of judicial interpretation of the Act. The Act
guarantees each disabled child an "appropriate" program. The
federal courts recognized that the regular nine-month school year was not
appropriate for all students with disabilities.
Understanding this history is important in
knowing where to look to find out about extended school year programs in
Tennessee. Since we are dealing with judicial interpretation of the Act,
rather than the Act itself, we must look to court decisions for guidance
in this area. Likewise, an understanding of the federal judicial system is
necessary to find the court decisions applicable to Tennessee. The federal
court system is divided into twelve "circuits."
Each circuit has one Court of Appeals which supervises the federal
trial courts within that Circuit. Tennessee is in the Sixth Circuit. Thus,
decisions of the Sixth Circuit Court of Appeals are binding in Tennessee.
In 1990, The Sixth Circuit Court of Appeals
decided Cordrey v. Euckert. The Court's opinion includes a comprehensive
discussion of extended school year services. At present, this decision is
the most authoritative pronouncement of legal principles governing
extended school year programming in this state.
Traditionally, the child's right to an
extended school year has depended on whether the child will experience
"significant regression" during the summer. The Sixth Circuit
endorsed the continued use of this terminology, but then interpreted it so
broadly that a new meaning was created.
The Court said that parents do not have to
prove that the child experienced regression in past summers to obtain an
ESY program. Parents can rely on expert opinion that the child will
regress in the absence of ESY. Further, the Court said that the standard
is "flexible enough to accommodate...refinements in professional
understanding of when a child needs an ESY."
The Court said that some of the factors an
expert can consider include the nature and severity of the handicapping
condition, the areas of programming crucial to progress towards
self-sufficiency, and the extent of regression and the rate of recoupment
following an interruption in programming. Finally, the Court acknowledged
that in the cases of the most severely disabled children, the provision of
an appropriate program may require optimum benefit. The need for summer
services would follow logically in such a case.
To summarize, Cordrey holds that there must
be some relationship between the extended school year program and the
regular school year program. The parents must show that something the
regular school year program is intended to accomplish will be threatened
if ESY is not provided. While the foregoing is generally consistent with
the traditional regression test, the Court appears to expand the
circumstances in which ESY is warranted by defining regression -- in its
own words -- "loosely" and by permitting the need for ESY to be
established by expert testimony based on any relevant fact including
"refinements in professional understanding of when a child needs an
ESY"
Gary
Buchanan is a Brentwood attorney who specializes in special education law.
IS
YOUR CHILD ENTITLED TO A SUMMER PROGRAM
by
Reed Martin
I.
Background:
At
the time the Education for All Handicapped Children Act was passed, public
schools traditionally ran for 180 days per school year. Children who did
not fit into a fairly regular curriculum were generally excluded from
school.
With
the passage of Public Law 94-142 schools had to become responsive to
handicapped students that did not fit the nine months per year, twelve
year curriculum. Congress recognized that some students learned slower and
expanded the age range for service from 3 through 21. Some children
required 24 hour per day structured environments in order to learn, so
Congress authorized residential placements at public expense. The same
logic applied to the traditional summer break in programming.
If a child needed programming throughout the year in order to
receive the educational benefit to which he was entitled, then the public
school had to provide it.
II.
Judicial Decisions:
Many
school districts have tried to hide behind their policy that they provide
180 school days per year and that is all. The first major case to
consider, and reject, that philosophy was Battle v. Scanlon, 629 F. 2d 269
(3rd. Cir. 1980), cert. denied. The school district attempted to appeal it
to the Supreme Court but the Supreme Court let the appeals court decision
stand:
"We
believe the inflexibility of the defendant's policy of refusing to provide
more than 180 days of education to be incompatible with the EHA's emphasis
on the individual. Rather that ascertaining the reasonable educational
needs of each child in light of reasonable
educational goals and establishing a reasonable program to attain those
goals, the 180 day rule imposes with rigid certainty a program restriction
which may be wholly inappropriate to the child's educational objectives.
This the Act will not permit."
The
Eleventh Circuit reached a similar result and the Supreme Court again
declined to review the case. Georgia A.R.C. v McDaniel, (11th Cir. 1985), cert. denied.
In
Texas, the law is found in the Fifth Circuit decision in Crawford v.
Pittman, 708 F. 2d 1028 (5th Cir. 1983) which found it a violation of the
law to go into an IEP meeting with a fixed mind in regard to whether a
child would receive summer services.
"We
hold that such a policy violates the Act's mandate that an individual
educational program be designed to meet the personal needs of each
handicapped child.
"The
Act requires the state to treat each child as an individual, a human whose
unique qualities and needs can be evaluated and served only be a plan
designed with wisdom, care and education expertise. Its grand design does
not tolerate policies that impose a rigid pattern on the education of
children. Each IEP must be prepared on the basis of an individual
evaluation of a particular boy or girl. The child and his or her parents
and guardians can exact no more. The state must provide no less."
The
Fifth Circuit then concluded with a decision that invalidates virtually
every summer school policy that this writer has seen:
"Categorical
limitations on the possible duration of special education programs are
simply inconsistent with the Act's insistence on IEPs formulated to meet
the unique needs of each handicapped child."
Reimbursement
formulas are not the same as the law:
A
more recent case in Texas deals with several misinterpretations of the law
with regard to Texas Education Agency reimbursement policy and the
eligibility criteria for summer services.
Local
school districts do not want to spend any of their own money when they do
not have to. Traditionally some schools have offered summer programs on
tuition basis and proudly proclaim that they are "self
supporting", which is just another way of saying we value getting by
without having to spend our own money. In Alamo Heights I.S.D. v. Williams
(W.D. Tex. 1984) the Federal Court found that unappealing and illegal and
found that
The
District's policy is still motivated by fiscal policies rather than the
unique needs of handicapped children" and that the district
"values fiscal concerns over the needs of the handicapped
children." IEP's are to
be based on individual needs of the child, not the fiscal policies of the
district. Local schools try to get the Texas Education Agency to reimburse
for costs of special education and try to fit their policies into what
they perceive to be the TEA reimbursement scheme. TEA's current policy for
"extended contracts for special education teachers" appears to
allow contracts only (1) for children facing severe regression and (2)
children who are severely handicapped (which is interpreted by some
districts as meaning multi-handicapped).
Some
local schools then refused to consider for summer services any child who
is not multi-handicapped and facing severe regression over the summer. In
that way they feel they will be covered by TEA. The only problem is that
is a violation of the Federal law.
Children
are eligible for services on criteria other than severe regression as
found in Alamo Heights. Further, the Federal Court noted that schools
cannot legally be motivated only by state reimbursement formulas because
the Education for All Handicapped Children Act requires schools to
contract for privately provided services where needed, and that Public Law
94-142 provides Federal dollars for excess costs of services like summer
school. 94-142 dollars are
never to replace local and state dollars; they are to supplement them.
Summer services are a good example of the necessary excess costs that
Congress wanted Federal dollars to pay for.
How
much service must be provided?
If
a school can therefore not limit a program to 180 days per year, or limit
eligibility by category, or limit it by whether state funds are available
for reimbursement because of the Supreme Court's procedural requirement of
individualized decision-making, how much summer service must be provided?
The answer is found in the Supreme Court's discussion of the substantive
requirements of Public Law 94-142 in Board of Education v. Rowley, 458
U.S. 176 (1982). The Court stated that to determine if the education is
appropriate, one must ask:
"Is
the individualized educational program developed through the Act's
procedures reasonable calculated to enable the child to receive
educational benefit?"
One
inference that can be clearly made is that for a "benefit" to
have been conferred, there must be net gain. Thus summertime regression
"brings their overall progress for the year to a virtual
standstill" (a standard suggested in a concurring opinion
in Battle) then the school could not say that any benefit had been
"conferred."
Schools
argue, however, that every child regresses during interruptions in
programming, and then they recoup the loss after the program picks up
again. Some schools suggest that they will simply begin each fall trying
to teach the child whatever has been lost through summertime regression
and that benefit will eventually have been conferred if the child can
eventually recoup the loss.
But
that is not fair for two reasons. First, the child will be denied a full
opportunity at instructional growth during any current year because
attention must be focused on playing catch-up from the previous year.
Cases such as Alamo Heights have found that if it takes more than a few
weeks in the fall to get back to where the child was in the spring, the
regression was too severe.
A
second reason it is unfair is that some kinds of skills, once lost, are
harder, if not impossible, to reinstitute. In areas such as self-care or
impulse control, when skills are lost they may be replaced by incompatible
behaviors which will inhibit the re-teaching of the desired skills.
Although
a child may regress only slightly in one area, any child will presumably
be in a program addressing many areas at the same time.
Academic skills might not be a problem for a particular child, but
behavioral skills may face severe regression with an interruption in
programming, and social interaction skills may not achieve reasonable
growth without continuous programming through the year.
It's
an individual decision
All
of the courts to consider the issue emphasize that the decision cannot be
made for a group; it must be made on an individual basis. Each IEP must
truly be individualized and must state, as the Supreme Court said in
Rowley, a "written record of reasonable expectations" for that
one child. That one child's goals are thus what would be used to determine
whether benefit had been conferred. The
amount of benefit will differ from child to child. But how does a parent
or school know whether the child will attain sufficient benefit in a given
year? The cases all talk
about regression -- an after, - the - fact judgment. Does the child have
to be allowed to regress during the summer before the IEP can call for
extended services? No -- not
if the case can be made that reasonably expected benefit which will be
conferred during the 180 days will be lost during the summer break in
programming.
In
Battle the lower court indicated that previous experience with breaks in
programming could be considered, as well as making a mid-year
determination of how the
program is going. The IEP
must have short-term evaluation goals (generally considered to be each
third of the way through a regular 180 day academic year) and those
mid-program evaluations will determine if the student needs to have the
program extended.
Thus
on an individual basis, school and parent could agree at the IEP meeting
that the child in question seems to be a candidate for extended services;
either because his reasonably expected goals for the year are far from
being attained mid-year; or because past history documents he will lose
too much if there is a lengthy summer break in programming.
In either case, consideration must then be given to extending the
program into the summer.
No
single criteria can make the decision:
Most
school personnel assume that when one considers students for summer
services, those students must be profoundly handicapped. The courts
disagree. Any student, no matter what the handicapping condition, could be
considered for extended services. Public Law 94-142 clearly demand that
all decisions be made on an individual basis. Therefore a school cannot
have a policy that says only the profoundly handicapped will be considered
for summer service.
In
Lee v. Thompson (D.. Hawaii
1983) the Federal District Court examined what criteria would be used.
That court had previously found against the Department of Education of
Hawaii for failure to provide education to the handicapped in excess of
the standard school year. The court ordered that the school district
consider, in determining whether a particular child needs such extended
services, the following factors:
"a. nature of the
handicapping condition;
b. severity
of the handicapping condition;
c. area
of learning crucial to attaining the goals of self-sufficiency and
independence from caretakers;
d. extent
of regression caused by interruption in educational programming; and
e. rate
of recoupment following interruption in educational programming."
The
court then found that the school district had erred because it had
"selected the first two factors -- the nature and severity of the
handicapping condition -- and had made these criteria the exclusive
measure of a child's entitlement to an extended school year."
The
court ordered compliance with its earlier order and the school district
developed new criteria. The district erred again, selecting "the last
two factors listed by Judge Curtis - regression and recoupment - and has
made these factors the exclusive measure of a child's entitlement to an
extended school year."
The
court then pointed out that each of the criteria must be considered.
"Judge Curtis chose to treat the five factors...as independent
factors and to reject any single standard based simply on regression and
recoupment. The meaning of Judge Curtis' order is unambiguous:
at a minimum the Department of Education must consider all five
factors in evaluating an individual child's entitlement to extended
education."
Only
when all factors are considered can one determine how much service must be
offered. The rationale for the extended service -- that a specific need of
a specific child has been identified as in peril -- answers the question
how much service is required. One child might need a service (or services)
that require only a few hours a week. They might be offered in one central
location. Another child might need a fuller curriculum that requires an
offering more like a full school day.
Where
children are served, how they are grouped, the staff that serve them, how
many hours per day are required, how many days per week are required, and
how many weeks per summer are required are all questions that can only be
answered after those children who are entitled to an extended year are
identified and the services specified.
III.
Determining Your Child's need for Summer Programming:
The
court cases discussed in the previous section do not mean that your
handicapped child is automatically due a summer program. They do mean that
the decision to provide or not provide a summer program must be made on an
individual basis and must be controlled by the IEP.
Parents
of handicapped students in the same district are often tempted to band
together and demand that the district "give us some summer
school." If approached
this way, rather than individually through each child's IEP, the school
will then be the one to determine how
much, how long, curriculum, location, and related services. If you say
"give us some summer school" and the school says "We'll
give you two hours each morning, four days a week for six weeks, with all
age ranges and disabilities together, and no related services" then
how can you argue with that? "They
gave you some summer school." Obviously
you have to argue with it by saying, in the words of the Supreme Court,
services must always be "specially designed,"
"tailored," and
"personalized" to meet your child's "unique needs,"
and that takes you right back to the IEP.
At
the IEP meeting, you need to look at each area of need (for example:
behavioral, social, emotional, occupational, speech, academic, independent
living skills, and physical needs) and
examine each area's annual goals. Always keep in mind the question of what
are your child's unique needs that require an extension of the program
into the summer?
You
should put your observations about your child's needs, the program's
progress (or lack of it) and your request for a continuation of services
in writing. State that it is to be made part of your child's record
folder.
Relate
your request to either lack of growth toward a reasonable expected goal,
or fear of regression from a satisfactorily achieve goal, or both. Do not
say you are requesting the service to "enrich" the program to
allow your child to "maximize her potential."
Courts have rejected that. Do
say the summer of extension of services is need to enable your child to
achieve and/or maintain reasonable growth toward reasonably expected
annual goals related to the overall goal of independent functioning and
self-sufficiency.
As
a parent you are part of the IEP process. Congress and the Supreme Court
have referred to you as an "equal participant" with the school
district. Congress and the Supreme Court have also recognized that you are
part of the evaluation process. Be as specific as you can. If you take to
the IEP meeting a written statement about problems as a result of last
summer's lack of programming, make sure it is placed in your child's
record and used in programming. Congress
expected parents to make these kinds of observations and wanted
evaluations that were "independent" of the evaluations performed
by schools.
For
example, if you noted (with daily, dated notes) the recurrence of
inappropriate behaviors during the summer that had been under control
during the regular school year, the loss of skills during the summer that
were being developed during the year, and the length of time in the fall
that it took to get those behaviors back under control and the skills back
up to their previous level, those facts would be very important to any
consideration of summer programming.
If
you can tie your request specifically to a lack of growth toward a stated
goal, do so. For example, although her annual goal was to be able to do X,
she is far short of that and needs to continue if the program is to be
reasonably calculated to confer the desired educational benefit.
(Remember: congress made it clear that the annual goals stated are
for a twelve month year; not nine month year.
The program must be reasonably calculated to confer educational
benefit -- that is, to reach that twelve month goal.
If the goal is not being reached then the program must be extended
as the most reasonably calculated way to meet the goal. One warning to
parents -- don't let the school district try to water down the annual
goals so that they can easily be met in nine months.
You
might also tie your request for a continuation of services into summer to
regression. Based on previous experience (last summer, Christmas break,
spring break) you might say she would lose significant ground this summer
and regress in the absence of programming. For example, although she
attained her annual goal last year, she was severely set back last summer
and it was November before she was able to begin working on the goals for
this year's program.
Anything
the school does to deny your request for an extension of services into the
summer must be put in writing. Anytime a school refuses to initiate or
change a matter in regard to the provision of an appropriate education
(and extension of services into the summer is certainly part of an
appropriate education) then they must give a written explanation of:
what they are refusing to do; why they are refusing it; what
options they considered; why they rejected the other alternatives; and
what evaluation, test or other measures they relied on. As to this last
factor -- what the decision
is based on -- if the school has nothing in the record on your child's
summer problems, and you have supplied a written statement, it would be
hard for the school to refuse summer programming and explain what
evaluation their decision was based. Use their requirement that the school
must put its decision in writing to press the school for services. Do not
leave the meeting with a denial of services and nothing in writing to
explain it. If the school refuses to put anything in writing, you should
write a note to that effect and direct that it be made part of the IEP
(you are an equal participant in the process) and be kept in your child's
permanent records.
IV. Problems
You Can Anticipate:
1. The school
might say you do not need summer programming because your child met
his/her IEP goals. The real problem here may be that you have a poor IEP
anyway, with poorly stated goals, such as "increase motor
functioning" and "increase reading".
Further, you may have such poorly stated measures of attainment
(e.g. "teacher
observation"), that accurate evaluation is impossible. If this is the
case, challenge the poorly stated goals and say you don't feel your child
has made enough progress.
Demand
that the school show you precisely where your child was at the beginning
of the year in each area of concern, and precisely where you child is now,
so it can be determined whether there was reasonable progress.
If the school cannot show you where your child was and where they
are now because of the IEP goal and measurement statements are so vague,
then the school can hardly say that they are sure so much progress has
been made that summer services are not needed.
2.
If where your child is now is in any doubt, demand (in writing) an
evaluation now, to give you a baseline for future goal setting. With that
baseline established, you can better evaluate whether there is regression
over the summer in case you do not get summer services. If the school
refuses your written request for an evaluation now, then demand that the
refusal be made in writing.
3.
The school might say they offer summer programs only for children
facing severe regression. That is not the standard in Federal Courts. The
school is simply adopting what they think the TEA policy is so that they
will not have to use any local money. Ask in writing for the school to
state in writing what sources of funds they use for summer school.
4.
If the school uses the term "severe:" (severely
handicapped, severe regression) ask in writing to see the written criteria
by which they define and assess "severe."
5.
Make sure the school is not just looking at one type of skill
regressing over the summer, such as academics. Remember to address
behavioral, social, emotional, vocational, speech, independent living
skills, and physical needs as well as academics. Each might be the source
of need for summer services.
6.
Ask in writing to see in writing the evaluation of your child in
all those areas they are using to make their decision. They probably have
no such evaluation. Such decision cannot be based on a single measure so
do not accept teacher observation" as the sole criteria. Ask in
writing for an evaluation of your child in each area of concern, using the
school's written criteria if they have them, by an independent evaluator
paid for by public expense. If they school refuses your request, make sure
they refuse in writing with the required explanations.
7.
If the school is denying summer services because your child will
not regress, ask exactly what they are looking for that they do not feel
will regress over the summer and ask for the measures they would use. Then
you should evaluate your own child during the summer, and if you see
regression in those areas cited by the school as measured by the measures
used by the school, then demand an immediate IEP
meeting at that point to provide services sufficient to stop the
regression. Let the school know that if they refuse, and if you can show
that regression did occur, then you will ask for compensatory services in
the fall in addition to the regular program.
8.
Do not let the school make the decision about summer service solely
on the basis of severe regression. Remind the school that the "severe
regression only" criteria was struck down in Texas in Federal Court
in Alamo Heights v. Williams and insist that they consider also whether
summer services are needed to enable your child to achieve reasonable
growth toward the overall goal of independent living. If they refuse, get
their refusal in writing.
9.
The school might say that their summer program is for "multi-handicapped"
only. It is a violation of the law to categorically make decisions that
summer school will only be for one group. Make the school state in writing
that they offer summer school only to a single predetermined category of
handicapping condition and since your child does not fit that category
they will not consider your child for summer services.
10.
The school might say your child will not get summer services
because they are too low functioning and could not benefit. This is a
violation like (9) above. In addition, it is contradictory because if
summer services ought to be for anyone they ought to be for lower
functioning children. Make sure you get the school to make that statement
of denial of services in writing.
11.
If a school does plan summer services they will probably have a
predetermined block of time (for example, two hours per day for four
weeks) with no particular curriculum. Insist that summer services for your
child be based on individual needs. If your child needs a continuation of
a full day of programming, then insist on that.
The
Fifth Circuit case of Crawford v. Pittman says that school cannot
categorically decide in advance how much summer services to give to all
children. If the school offers the block of services on a
take-it-or-leave-it basis, be sure and get that in writing. (Refer to
handout, "The End of the Take It Or Leave It IEP: Town of Burlingtown
v. Massachusetts").
12.
Similarly, many schools will try to deny any related services
during the summer. If your child needed physical therapy and occupational
therapy or transportation to benefit during the regular year, they need it
during the summer as well. Get any denial in writing.
13.
Finally, many schools will try to say the parent is really
responsible for dealing with their child during
the summer. Have the school state in writing whatever they feel the
parent should do during the summer.
14.
Tape record all meetings. If you do not get the services your child
deserves this summer, you can at least document the case you need for
better services in the fall and summer services next year.
V.
Conclusion:
The
fact that your child has a handicap does not give your child an automatic
right to summer programming. What it does is give you a right to have the
decision regarding summer programming be an individual decision made on
the basis of IEP goals.
If
you have followed the procedures described here and still feel your child
has been inappropriately denied needed summer service, you should file a
formal complaint with the State Education Agency.
Reed
Martin is an attorney in Texas and has represented clients at all levels
of litigation in special education law from administrative hearings
through the U.S. Supreme
Court. He has authorized numerous published books and articles about
special education.
Reprinted
from an article donated by the Illinois TASK chapter.
