IEP Season: What Are the Next Steps? Part III

It is the middle of May and most of you should have already had your annual IEP meeting or will soon convene one.  I have given you a few ideas and suggestions in my prior posts on annual IEP meetings that occur during the Spring of each year.  I have attended a couple of IEP meetings this week for families that addressed some of the issues that I have previously discussed. One of the issues that must be discussed at any annual IEP meeting in the Spring is extended school year programming or commonly referred to as ESY (extended school year) or ESYP (extended school year programming).  Each school district should have guidelines on how EYS is to determined for a student with disability.  The IDEA does not require that all school systems have one uniform policy, rules or guidelines on ESY.  ESY determination may vary from one school system to another.  The IDEA does prohibit, however, that ESY be determined by just regression and recoupment criteria. What is regression-recoupment criteria?

Virtually all IEP teams will begin a determination of ESY with a discussion of whether your child experiences regression and recoupment during extended periods of time during school breaks such as the summer, and Winter and Springs breaks.  What I will usually hear from IEP team members is that the child does not regress during these breaks.  This opinion is almost always subjective. In other words, the IEP team members will voice an opinion that your child does not regress during long breaks from school based solely on their subjective thoughts and perceptions.  These subjective opinions should be challenged. I always ask IEP team members that voice such opinions is where is the data?  Most of the time no data is collected to determined whether your child actually regresses during long school breaks.  I would add that two week breaks for the Winter and one week breaks during the Spring from school are hardly statistical valid evidence that your child does not regress educationally during these breaks. I had one parent, for instance, this week inform the IEP team that he provides therapies and other services for his child during Winter and Spring breaks.  Well, in this case the child is very unlikely to regress educationally  if he is receiving instruction and services that are comparable to what he obtains in school during the school year.  Even if you do not provide any therapies, services or instruction during the Winter or Spring break, it is very difficult to measure over such a short period of time whether there is educational regression for the child.

My advise is to challenge the IEP members to produce data that demonstrates your child does not regress educationally during the summer. It is unlikely that they will do so.  And if your child has recently been determined eligible for special education and there is no track record of extended breaks from school such as the summer, then the burden is still on the school system to show that your child will not regress educational during the summer. There is also the component of recoupment. This means when your child returns from extended school breaks how long does it take for the child to recoup or make up any loss time from receiving educational services and instruction. Again, it is likely that IEP team members will give an opinion that your child recovers quickly after school breaks and is up to speed with the other students in his classes in no time.  It is very unlikely that the IEP team members have collected data to support their opinion. I would challenge the IEP team members on data collection and how they objectively determine that your child easily recoups what he learned before the school break and is up to speed in his classes when he returns from the break.

When you begin to question and challenge IEP members on the regression and recoupment standard then you can make further arguments that your child is entitled to EYS.  In addition, there are other factors that the IEP team must consider in determining ESY. For example, the IEP team members will discuss whether the child has made the expected progress in his goals and objectives after long school breaks. Does the child exhibit inconsistent progress on his IEP goals and objectives after long school breaks?  The IEP members may also discuss whether the child is at a critical point of instruction such as the introduction of new goals and objectives, new therapies and assistive technology?  Finally the IEP team members may discuss special considerations such as the child’s age, the nature and severity of the child’s disability, and other factors that may warrant the need for ESY. In general, the more severe your child’s disability the more likely that your child will need ESY. The courts that ruled on this issue heavily weigh in favor of awarding ESY when the child has a severe disability. What is severe?  That depends upon the nature of your child’s disability and how far behind he may be educationally compared to his or her peers. A child with a moderate or severe intellectual disability is likely to need ESY because of the nature and severity of the disability. This may be true for other types of disabilities.

To determine whether your child qualifies for ESY, I would consult with an experienced special education attorney.  You should collect all of your child’s educational records, including his educational progress during the school year, as evidence to show that he requires ESY. If your child has made little or no educational progress during the school year, this is another argument that you can make that your child requires ESY for the summer.  Unless your child receives ESY, he is likely to regress educationally. Some require ESY to maintain their skills during the summer. Please remember that ESY is designed not for your child to make educational progress during the summer on specific goals and objectives but to maintain his competency level on his IEP goals an objectives. The IEP team will select certain IEP goals and objectives, and related services, such as speech and language therapy and occupational therapy, that your child may need during extended school breaks.  There is considerably more that I can discuss about ESY but I will stop for now. If you have any thoughts and questions about ESY please let me know.