JESSIE, one more for you, take what you like and delete the rest
Extended School Year Services (ESY)
Many parents have questions about extended school year services. If you have questions about a legal issue, you should do your own legal research.
Do not accept legal advice from school personnel. While they may tell you what they believe is true, in many cases, they have not read the law and regulations for themselves. You need to know what the law and regulations say!
Read what the IDEA statute says about your issue. Next read the federal regulations and your state special ed regulations about your issue. (the IDEA statute and regulations are in Wrightslaw: Special Education Law and in the Statute and Regs section of the Wrightslaw site)
Next read a case or two about your issue (check the Caselaw Library). If you take these steps, you will have a clear understanding of the issues and variables.
You will find that extended school year (ESY) is not mentioned in the IDEA statute, but is in the IDEA regulations. Read the IDEA regulation about ESY at 34 CFR § Section 300.309 (page 165, Wrightslaw: Special Education Law).
We selected two cases about ESY to help you understand these issues: Daniel Lawyer v. Chesterfield and Reusch v. Fountain.
For more information about ESY, check the Topics Pages - especially the FAPE and IEP pages.
"Windows of Opportunity": Lawyer v. Chesterfield School Board (1993)
Danny Lawyer is a young child with autism. At age six, he had expressive language and phonological processing problems. The experts who evaluated and treated Danny advised his parents that his ability to be self-sufficient and independent later in life would depend on his ability to communicate.
During the summer, Danny regressed in his ability to communicate. His behavior deteriorated. His school district refused to provide any speech language therapy during the summer months - and refused to reimburse his parents for the services they purchased for their son.
The parents requested a special education due process hearing - and prevailed. The school district appealed. The Review Officer overturned the Hearing Officer's decision. The case was appealed to Federal Court.
After reviewing the record and hearing new testimony, Judge Spencer concluded, "Regression is not the only factor" in deciding if a child needs ESY services. The judge listed several additional factors that IEP teams should consider in making ESY decisions:
Recoupment in the Fall;
Child's rate of progress;
Child's behavioral or physical problems;
Availability of alternative resources;
Areas of the child's curriculum that need continuous attention;
Child's vocational needs.
In Lawyer, Judge Spencer discussed regression and recoupment.
He also discussed the need to take advantage of "windows of opportunity" in educating children with disabilities:
"Danny's regression in the summer, coupled with nominal recoupment, severely limits the educational benefits he receives from instruction during the school year. His rate of progress is minimized by the interplay of continuous regression and recoupment."
"Moreover, Danny's behavioral problems are compounded by his severe language deficit. His inability to effectively communicate triggers unacceptable behavior. Therefore, it is critical that Danny be provided with continuous speech and communication services."
"Finally, the evidence provided by expert witnesses indicates that for children who suffer from moderate to severe childhood autism, there is a small, but vital, window of opportunity in which they can effectively learn. Such period is generally between the ages of five and eight years old . . . The Court concludes that it is extremely important that at this critical stage of development, Danny receive uninterrupted speech language therapy."
Read the decision in Lawyer v. Chesterfield.
Hostility to Providing ESY: Reusch v. Fountain (1994)
In Reusch v. Fountain, 872 F.Supp. 1421 (D. MD 1994), a federal court addressed the school district’s "hostility to providing ESY."
In this case, the court found that parents were prevented from advocating for their children by the district’s refusal to provide parents with notice about their right to request these services. The district also engaged in delaying tactics by requiring parents to attend futile meetings.
The court found that, in this district, administrative convenience took precedence over providing FAPE to children with disabilities. Educational decisions were not individualized according to the needs of the child.
Six Factors for IEP Teams to Consider
In Reusch v. Fountain, the court listed six factors that the IEP team should consider in deciding if the child is eligible for ESY as a related service:
1. Regression and recoupment - is the child likely to lose critical skills or fail to recover these skills within in a reasonable time;
2. Degree of progress toward IEP goals and objectives;
3. Emerging skills/breakthrough opportunities - Will a lengthy summer break cause significant problems for a child who is learning a key skill, like reading;
4. Interfering Behavior - does the child’s behavior interfere with his or her ability to benefit from special education;
5. Nature and/or severity of disability;
6. Special circumstances that interfere with child’s ability to benefit from special education.
Citing Pete's case, Florence County School District Four v. Shannon Carter, the District Court found that:
"In any contest between systematic efficiency and the provision of FAPE to a disabled child, Congress and the Supreme Court have made it clear that the child must prevail."