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ESY Considerations

This document is a compilation of documents from various sources on ESY.  For more information, see the sources related to each article and/or visit Special Ed Law Michigan.

Extended School Year Services - Tennessee State Department of Education

Extended School Year - Catherine Monteiro, Attorney

Extended School Year Programs - Gary Buchanan, Attorney

Is Your Child Entitled to a Summer Program? - Reed Martin, Attorney

Extended School Year Services






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.



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.


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 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. logo which links to a page for online giving

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