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"Important Issues to Remember When Determining Student Eligibility for Extended School Year Services"
As the School Year Draws to a Close, IEP Teams Must Tackle ESY Eligibility Issues
May 10, 2006
by Thomas N. Shorter

Each spring, as the end of the normal school year or final school term approaches, the issue of extended school year (ESY) services begins to appear in individualized education program (IEP) team meetings. Often the issue of ESY services for a child with a disability creates confusion for IEP team members, particularly in those school districts that also offer regular education summer school programs for children. Understanding and preparing for a discussion on ESY begins with the Individuals with Disabilities Education Act (IDEA) regulations.

The Basics
The IDEA regulations define "extended school year services" as special education and related services that:

• Are provided to a child with a disability-

• Beyond the normal school year of the public agency;

  In accordance with the child's IEP; and

  At no cost to the parents of the child; and

• Meet the standards of the State Educational Agency.

The IDEA regulations also set forth the general requirement to provide ESY services to a child with a disability and the limits on exclusion from ESY:

1. Each public agency shall ensure that extended school year services are available as necessary to provide a free and appropriate public education (FAPE), consistent with paragraph (a)(2) of this section.
2. Extended school year services must be provided only if a child's IEP team determines, on an individual basis, that the services are necessary for the provision of a FAPE to the child.
3. In implementing the requirements of this section, a public agency may not:

• Limit extended school year services to particular categories of disability; or

  Unilaterally limit the type, amount, or duration of those services.

Boiled down to their essence, the federal regulations require that a school district must provide ESY services to a child with a disability if they are necessary to provide a free and appropriate public education according to state standards. Hence, the federal regulations are largely unhelpful in guiding an IEP team. Indeed, as part of the IDEA Reauthorization in 1997, the U.S. Department of Education specifically declined to adopt a federal standard for determining ESY service eligibility and chose to leave the issue to states. This ambiguity has left determination of appropriate ESY criteria to administrative law judges, courts and, to some degree, individual state education agencies.

ESY Criteria
There is no single standard that may be applied in all cases when determining whether a child with a disability qualifies for ESY services. Nonetheless, the most widely known and perhaps the most often used criterion is the regression/recoupment standard. This standard arose from a special education case in the 1980s and continues to be used . Alamo Heights Sch. Dist. v. State Bd. Of Educ., 557 IDELR 315 (5th Cir. 1986). Generally, the regression/recoupment standard calls for the IEP team to determine whether the child will experience significant regression in the absence of services (i.e., over the summer break) and, if so, whether the time it will take the child upon return to relearn the skills demonstrated before summer break is excessive.. If a student's regression is no greater than that of a nondisabled student, ESY services are most often found to be unnecessary. Anderson v. Thompson, 495 F.Supp. 1256 (E.D. Wis. 1980), affd, 658 F.2d 1205 (7th Cir. 1981). Nonetheless, while the regression/recoupment standard is a good starting point for ESY service consideration, courts have been clear that this should not be the only consideration.

In Johnson v. Independent Sch. Dist. No. 4, 17 IDELR 170 (l0th Cir. 1990), the court identified a number of other criteria that should be considered by the IEP team in additional to regression/recoupment, including:

• Past regression and the exact time of past regression;
• Rate of progress and recovery rate;
• Vocational needs;
• Availability of alternative resources;
• Behavioral and physical problems;
• Ability to interact with nondisabled children;
• Whether ESY is an extraordinary service given the child's needs (note: be careful not to determine based solely on disability category)
• Educational structure at home; and
• Specific areas of curriculum needing attention

Practical Advice
If the IEP team first thinks about ESY services in the spring, the most critical data collection opportunities may have already passed. Nonetheless, considering ESY in the spring, as opposed to earlier in the school year, is consistent with IDEA requirements. Pachl by Pachl v. School Bd. of Indep. Sch. Dist. No. 11, 42 IDELR 264 (D. Minn. 2005).

Reviewing past regression over school breaks and implementing measurement timelines are helpful when creating a baseline for comparison to determine ESY eligibility. Typical information and documentation used to determine eligibility for ESY services includes review of IEP goals and objectives in relation to the regression and recoupment of a student's progress, samples, tests, grades, homework, progress reports and parent observations. Documented progress on IEP goals can provide strong support for a denial of ESY services. Board of Educ. of the Southold Union Free Sch. Dist., 42 IDELR 245 (SEA NY 2004).

The collection of data as a mechanism for determining ESY services has been recommended by several state education agencies. For example, the New Jersey Department of Education recommends the following ESY data collection schedule:

• At the end of the regular school year;
• At the end of the summer program;
• At the beginning of the subsequent school year;
• At the end of the subsequent school year;
• Before/after school vacations;
• Ongoing collection of information throughout the school year; and
• Before/after student has been out of school for other reasons.

There is still time to begin collecting data in preparation for spring ESY discussions. Review winter break data to determine what, if any, regression occurred. Utilize the spring break period to collect data that can be considered by the IEP team.

As a final note, IEP teams should be careful not to confuse the issue of providing a child with a disability an equal opportunity to participate in a regular education summer school program under Section 504 of the Rehabilitation Act with the provision of ESY services under IDEA. A child with a disability in need of accommodations to participate in summer school does not necessarily need ESY services.

If you have any questions, contact Thomas Shorter (608-284-2239 or tshorter@gklaw.com) or another member of the Godfrey & Kahn Education/School Law Team.