EXTENDED SCHOOL YEAR SERVICES By: Elena M. Gallegos

Learning Objectives The participants will be able to answer the following questions:  What are Extended School Year (ESY) Services?  Who is eligible for ESY Services?  Who determines eligibility for ESY Services?  How is the decision made?  Does ESY apply to children who turn three during the summer?  What services are providing during ESY? Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

What are extended school year (ESY) services?  The IDEA implementing regulations define ESY services as follows: As used in this section, the term extended school year services means special education and related services that– (1) Are provided to a child with a disability– (i) Beyond the normal school year of the public agency; (ii)In accordance with the child’s IEP; and (iii)At no cost to the parents of the child; and (2)Meet the standards of the SEA. 34 C.F.R. § (b). Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Who is Eligible for ESY Services?  “Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph(a)(2) of this section.” 34 C.F.R. § (a)(1). Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Who is Eligible for ESY Services?  “Some children with disabilities may not receive FAPE unless they receive necessary services during times when other children, both disabled and nondisabled, normally would not be served.”  “[P]ublic agencies [must] understand their obligation to ensure that children with disabilities who require ESY services in order to receive FAPE have the necessary services available to them, and that individualized determinations about each disabled child’s need for ESY services are made through the IEP process.” 71 Fed. Reg (August 14, 2006). Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Who Determines Eligibility for ESY Services?  “Extended school year services must be provided only if a child’s IEP Team determines, on an individual basis, in accordance with Secs , that the services are necessary for the provision of FAPE to the child.” 34 C.F.R (a)(2). 34 C.F.R. § (a)(2). Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

How is the decision made?  “In implementing the requirements of this section, a public agency may not– (i)Limit extended school year services to particular categories of disability; or (ii)Unilaterally limit the type, amount, orduration of those services.” 34 C.F.R (a)(3). 34 C.F.R. § (a)(3). Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

How is the decision made?  Johnson v. Bixby Independent Sch. Dist. No. 4, 921 F.2d 1022 (10 th Cir. 1990). Tenth Circuit adopted standard articulated by the Fifth Circuit: “The issue is whether the benefits accrued to the child during the regular school year will be significantly jeopardized if he is not provided an educational program during the summer months. This is, of course, a general standard, but it must be applied to the individual by [the IEP Team] in the same way that juries apply other general legal standards such as negligence and reasonableness. Id. at 1028, citing Alamo Heights ISD v. State Board of Education, 790 F.2d 1153, 1158 (5th Cir.1986).” Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Regression/Recoupment  Johnson v. Bixby Independent Sch. Dist. No. 4, 921 F.2d 1022 (10 th Cir. 1990): “The amount of regression suffered by a child during the summer months, considered together with the amount of time required to recoup those lost skills when school resumes in the fall, is an important consideration in assessing an individual child's need for continuation of his or her structured educational program in the summer months.” Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Regression/Recoupment  States can use “evidence of regression and slow recoupment without summer programming as a factor in determining the need for ESY services.” Letter to Anonymous, 22 IDELR 980 (OSERS 1995).  “OSEP recognizes that a child’s IEP for ESY services will probably differ from the child’s regular IEP, since the purpose of the ESY program is to prevent regression and recoupment problems.” Letter to Myers, 16 IDELR 290 (OSEP 1989). Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Regression/Recoupment  W.A. v. Patterson Joint Unified School District, 57 IDELR 38 (E.D.Cal. 2011). The fact of likely regression, alone, is not enough to justify ESY services "because all students, disabled or not, may regress to some extent during lengthy breaks from school.“Instead, ESY is provided when the benefits a disabled child gains during a regular school year will be “significantly jeopardized.“ Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Actual and Predictive Data  Johnson v. Bixby Independent Sch. Dist. No. 4, 921 F.2d 1022 (10 th Cir. 1990): “The analysis of whether the child’s level of achievement would be jeopardized by a summer break in his or her structured educational programming should proceed by applying not only retrospective data, such as past regression and rate of recoupment, but also should include predictive data, based on the opinion of professionals in consultation with the child’s parents as well as circumstantial considerations of the child’s individual situation at home and in his or her neighborhood and community.” Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Actual and Predictive Data  “Because of Part B’s requirement for individualized determinations, we do not believe that it would be permissible for a State to adopt a policy of refusing to consider information, such as predictive data, that may be relevant” to the determination of ESY services eligibility. Letter to Anonymous, 22 IDELR 980 (OSERS 1995). Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Other Factors Johnson v. Bixby Independent Sch. Dist. No. 4, 921 F.2d 1022 (10th Cir ):  Degree of impairment;  Degree of regression suffered by the child;  Recovery time from this regression;  Ability of the child's parents to provide the educational structure at home;  The child's rate of progress;  The child's behavioral and physical problems;  The availability of alternative resources;  The ability of the child to interact with nondisabled children;  The areas of the child's curriculum which need continuous attention;  Whether the requested service is extraordinary for the child's condition, as opposed to an integral part of a program for those with the child's condition.

Failing to Master IEP Goals – Not a Factor  “Whether a student with a disability requires ESY is a decision for that student’s IEP team. Nothing in federal law or the corresponding regulations requires students with disabilities who do not meet their IEP goals to participate in ESY.” Letter to Kleczka, 30 IDELR 270 (OSEP 1998). Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Failing to Master IEP Goals – Not a Factor  In JH v. Henrico County Sch. Bd., 326 F.3d 560 (4th Cir. 2003), the Fourth Circuit affirms its use of the Tenth Circuit standard of “seriously jeopardized.”  Fourth Circuit rejects the notion that ESY Services should be provided in order to help a child with a disability master goals in the IEP for the regular school year that had gone unmet.  “The goal of a disabled child making reasonable progress during the summer months on unmastered skills is obviously a higher goal than simply preventing the skills and benefits the same child has already gained from the regular school year from being significantly jeopardized.” Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Does ESY apply to children who turn three during the summer?  An IDEA eligible child who turns three during the summer must be considered for ESY in the same manner as any other IDEA eligible child. According to OSEP, cut off dates for determining IDEA eligibility are impermissible. Therefore, when a child is going to turn three during the summer, the IEP prior to the third birthday, must “specify the child’s program upon the third birthday, including ESY, if needed by a particular child to receive FAPE. If ESY services are not needed to provide FAPE, the date of initiation of services could be the beginning of the upcoming school year.” Letter to Anonymous, 22 IDELR 980 (OSERS 1995). Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

What Services are Provided During ESY?  The nature and amount of services must be determined on an individual basis by the IEP team.  It is not permissible to “predetermine the specific amount of services for an individual child regardless of the child’s unique needs.” Letter to Libous, 17 IDELR 419 (OSERS 1990). Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

What Services are Provided During ESY?  In the ESY context, some IDEA eligible students may only require related services “as the sole component of their special education program during the summer months to enable them to benefit from the special education and related services included in their IEPs during the school year.” Letter to Libous, 17 IDELR 419 (OSERS 1990). Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Recent Cases  Annette K. ex rel. C.K. v. State of Hawaii, Dep't of Educ., 60 IDELR 278 (D. Haw. 2013):  Court applies the “significantly jeopardized standard.”  Student with severe dyslexia was entitled to individually tailored ESY.  “C.K. rapidly regressed when was not provided with educational programming. For example, the Principal of the Public School testified that C.K. was able to make improvements in his reading skills in a supportive setting, but ‘hours, days, weeks later... it's like you're starting fresh.’” Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Recent Cases  Utah Schs. for the Deaf and Blind, 61 IDELR 207 (SEA Utah 2013).  Hearing Officer finds that the District improperly predetermined the student’s eligibility for ESY, by deciding ESY outside of an IEP team meeting.  “Eligibility for ESY services must be determined by the IEP team which includes the parent. See 20 U.S.C. 1412(a)(1). …USDB's determination that the Student was not eligible for ESY services for 2011 and 2012 outside of an IEP team meeting significantly impeded Petitioner's opportunity to participate in the decision making process regarding the provision of a FAPE for the Student and effectively denied the Student a FAPE.” Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Recent Cases  Northwestern Lehigh Sch. Dist., 11 ECLPR 54 (SEA Pa. 2013).  Hearing Officer finds that the District’s practicing of having the director of special education make the final decision regarding ESY violated the IDEA.  Hearing Officer Order: “An ESY determination shall be made for the Student during the IEP team meeting. The ESY determination shall be made by the Student's IEP team, and shall not be subject to veto by District administrators.” Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Recent Cases  In re: Student with a Disability, 9 ECLPR 30 (SEA Mont. 2011).  Hearing Officer finds that the District’s practice of determining the type, amount, and duration of ESY services outside of the IEP meeting violated the IDEA.  “The regulation specifically prohibits a district from unilaterally limiting the type, amount, or duration of those services.” Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Recent Cases  C.H. ex rel. F.H. v. Goshen Cent. Sch. Dist., 61 IDELR 19 (S.D.N.Y. 2013).  Court held that a student who experienced “little or no regression after an 18-day winter recess and a 5-day snowstorm break” was not entitled to ESY services. Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Recent Cases  Windsor Board of Education, 60 IDELR 268 (SEA Conn. 2012).  A school district “must offer extended services when such services are necessary in order for a student to receive FAPE. 34 CFR § ‘Extended year services’ for this purpose include extended day services, or educational services that extend beyond the regular school day.”  In this case the student did not qualify for extended day services: “the evidence did not establish that the Student tended to regress in his learning, required atypical time for recoupment of learning, or that his disabling conditions, behaviors or any special circumstances required that he receive extended school day services.” Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

Be Aware of State Laws  In New Mexico, for students with autism spectrum disorders, the IEP Team must consider eleven strategies, and include the strategies in the IEP when needed for FAPE.  The eleven strategies include “extended educational programming, including, for example, extended day or extended school year services that consider the duration of programs or settings based on assessment of behavior, social skills, communication, academics, and self-help skills.” B. (5)(a) NMAC (7/29/11). Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C

The information in this handout was created by Walsh, Anderson, Gallegos, Green and Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney. Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C