Winter break is almost here . . . so why are you writing about extended school year services (ESY), services which usually occurs during the summer months?  Aren’t you jumping the gun a bit? Why don’t you wait until April or May to talk about this subject?

Well, ordinarily I would wait until March or April to discuss extended school year services,  but I decided to tackle this subject earlier for this reason. I am representing  two families of children with disabilities in Georgia. I reviewed the IEPs for the students over a course of several years. One student has severe auditory processing deficits, ADHD, and a speech impairment. She was retained twice. She was not diagnosed with a specific learning disability, speech impairment and other health impairment for four years after she entered the school system. The IEP team never recommended extended school year services for this student. The other student is diagnosed with on the Autism Spectrum Disorder, with moderate to severe intellectual disability, severe self-injurious and other behaviors, and is non-verbal.  Over the course of several years and two different school systems, the IEP team never determined that this student qualified for extended school year services.  What is wrong with this picture?  I have represented students that have been diagnosed with far less severe disabilities and they received extended school year services.   Why are these students being denied ESY services?

Let us start off with the legal requirements for ESYP. First, 34 C.F.R. 300.106(a) states that school districts must ensure extended school year services are available as necessary to provide a free appropriate public education to the child that is consistent with the requirements of the IDEA. A school district cannot limit extended school year services to particular categories of disability or unilaterally limit the type, amount or duration of those services. for example, if you hear the IEP team saying that they will limit ESYP to two weeks during the summer and they refuse to provide no more than one hour a week of Applied Behavior Analysis (ABA) therapy for your child with autism- who has benefitted from full time ABA therapy in prior school years – you should start jumping up and down in protest.  The law further provides that under 34 C.F.R. 300.106(b), the extended school year services shall be provided to the child beyond the normal school year.  This means that ESY services can be provided during the summer months or after school has ended for the school year or any other time that school is ordinarily not in session, e.g. winter and spring breaks. ESY services must be provided in accordance with the child’s IEP. ESY services must be at no cost to the parents. Also, ESY services can be provided for children that are covered by Section 504 and an accommodations plan.

There is no one required standard or criterion to determine ESY services. Each state and school system may establish their own standard or criterion for ESY services.  However, it unlikely that a school system’s criteria that only relies upon “regression” and “recoupment” to determine ESY services will survive court scrutiny. You should ask the IEP team for a copy of its policy and procedures for determining ESY services.  The IEP team should be able to give you a copy of its policy and procedures for ESY services.  If only “regression” and “recoupment” are used by your school system to determine ESY services you should challenge it as inadequate. What is regression and recoupment? Simply put, regression of educational skills may occur for a child with a disability during the summer and it may be difficult for the child to recoup these skills after returning to school in early August.  The IEP team should produce data and objective evidence why your child will not suffer regression and recoupment during the summer before rejecting ESY services. In addition, the IEP should consider other factors for determining eligibility for ESY services such as: (1) degree of regression in past school year(s) during the summer; (2) how long it took for child to recoup educational skills when returning to school; (3) ability of the parents to provide educational structure at home during the school or periods when school is not in session; (4)  child rate’s educational progress; (5) child behavioral and other physical/medical problems; (6) availability of other resources to educate child during the summer or when school is not in session; (7) ability of the child to interact with nondisabled children during the summer or when school is not in session; (8) areas of the child’s curriculum that need continuous attention; (9) the child’s vocational needs; and (10) whether the requested ESY services are extraordinary for the child’s condition. Further, it is likely that the school system will have adopted the following criteria for ESY services: (1) regression/recoupment; (2) degree of progress on IEP goals and objectives; (3) emerging skills and opportunities for the child; (4) interfering behaviors; (5) nature and severity of the child’s disabilities; (6) special circumstances.  In sum, ESY services are designed for the child to make meaningful educational progress for the school year. In the recent Georgia case of Glynn County School District,  OSAH-DOE-SE-14-299225-63-Woodard, the Administrative Law Judge denied the parents request to increase ESY services to the child from 4.5 hours a day, three days a week for a period from June 10, 2014 through July 24, 2014 to four days a week and reassignment to a class led by a regular school teacher. My two families would have been happy with receiving ESY services three days a week for 4.5 hours a day as their children have received no ESY services.

The practical lessons to be learned from this analysis of ESY services is that the IEP meeting to determine ESY services should occur sufficiently in advance of the end of the school year so that you can thoroughly discuss ESY services for your child, and if they are unlawfully denied, then you have an opportunity to challenge the IEP team’s decision hopefully before ESY services begin in the district. Thus ESY services should be discussed at the annual IEP meeting in either March or April each year. The school system should produce empirical data to show that you child does not suffer regression or recoupment when school is not in session and especially during the summer months before school begins in August. The school system should produce a policy or procedures how ESY services should be determined. Of course, ESY services is determined on a case-by-case basis. But if your child has a severe disability and makes little progress on IEP goals and objectives during the school year, and suffers significant regression and recoupment when school is not in session during the summer, then you probably have a good case to challenge the school system’s denial of ESY services.