Post by momofrussell on Jun 23, 2004 15:54:56 GMT -5
Don't know if it's too wordy or helps much, but this is from a sites legal archives and spells out ESY and IDEA... it DOES say it's an IEP thing.. so I hope all your children's IEPS state it... or they should from now on!!!
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The Individuals with Disabilities Education Act ("IDEA") requires that Extended School Year ("ESY") services must be made available to individual students who require such services in order for them to be receiving a free appropriate public education ("FAPE"). This requirement - which was refined in the 1997 Amendments to the IDEA and the 1999 implementing regulations - recognizes that some students with disabilities will not receive an appropriate education unless they have special education or related services during the Summer months.
ESY 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 FAPE to the child. Public educational agencies may not limit extended school year services to particular categories or disability, nor may school districts limit the type, amount, or duration of those services.
Federal regulation defines the term ESY services as special education and related services:
are provided to a child with a disability;
beyond the normal school year of the public agency;
in accordance with the child’s IEP;
at no cost to the parents of the child; and,
meet the standards of the state educational agency.
In January, 2000, the National Council on Disability ("NCD") published a report (http://www.ncd.gov/publications/backtoschool_1.html) analyzing the compliance of each state educational agency ("SEA") with the requirements of the IDEA. Compliance and non-compliance was established through Monitoring Reports of the Office of Special Education Programs ("OSEP") at the U.S. Department of Education over the past ten years. OSEP found that 28 states (56%) had failed to ensure compliance with the ESY requirements of the IDEA. The NCD report cites the following examples of SEA non-compliance with the ESY requirements of the IDEA:
In Alabama, interviews with teachers and administrators revealed that ESY was not available for students in the facilities visited by OSEP. Teachers stated that they were unsure as to the criteria for ESY, and, therefore, did not know how to determine the need for ESY services. None of the teachers interviewed by OSEP investigators had ever participated in an IEP meeting where students were considered for ESY services.
In four out of five public educational agencies visited by OSEP investigators in Iowa, OSEP determined that ESY services were not considered on an individual basis and provided to students who require the services.
In Delaware, OSEP found that availability of ESY services was restricted to students with autism and those who received certain physical disabilities. Participation of other students in ESY services was not determined based on their IEP, and in some of the agencies visited by OSEP investigators, ESY was not available to other students at all.
In four of the five educational agencies visited by OSEP investigators in Connecticut, children with particular types of disabilities were categorically excluded from consideration for ESY services.
Two teachers in an agency in Arkansas reported that the agency did not offer ESY and that it was never discussed at any IEP meeting they attended.
Prior to the recently promulgated regulations, there was a great deal of litigation concerning ESY eligibility criteria. Many courts endorsed a regression-recoupment analysis whereby baselines were established for a child through specific measurements prior to a break in schooling, and then re-measured after the break. Under the regression-recoupment analysis, if a child regresses more than like-peers or recoups the measured skills at a slower rate than peers, the child is considered to be eligible for ESY services. Other courts have endorsed an individualized standard under which "non-regression-based factors," such as the child's being on the brink of being able to read, would be considered in addition to the factors of regression and recoupment because it is an emerging skill with breakthrough opportunities. Each recent case, however, has mirrored the new regulation and emphasized flexibility and individual determinations in applying the various approaches to determining ESY eligibility. The new regulations make it clear that each child’s IEP team must consider factors to determine whether a child can be afforded FAPE absent ESY services. Quite simply, if the IEP team determines that a child can not meet his or her IEP goals for the year, the child is likely eligible for ESY services. Factors to be considered in ESY eligibility determinations include degree of progress, emerging skills/breakthrough opportunities, regression-recoupment, socialization and behavioral issues, and the nature and severity of the disability.
Most school districts are very reluctant to offer ESY services that comply with the requirements of the IDEA. I envision that litigation and due process hearings over issues relating to failure to provide FAPE by denial of ESY will explode in the next year. Many states have implemented regulations that specifically address how ESY eligibility is determined. As a parent advocating on behalf of your special child, you should compare the state regulation or policy, if any, with the current federal regulation (34 C.F.R. §300.309). The federal regulation is controlling if the state regulation or policy is inconsistent. Be prepared to demand ESY services if you believe that such services are needed in order for your child to receive FAPE. Keep in mind that the school district is the "payor of last resort" under the 1997 IDEA Amendments. That means that if another public agency or program, such as Medicaid, has a funding responsibility to your special child, the other (non-school) agency is obligated to pay first. If the two agencies each bury their heads in the proverbial sand and each refuse to pay, it is the school district’s affirmative obligation under the IDEA to provide the services, and then the school district can seek reimbursement from the other public funding source. This is a very important factor for parents to know, as the Summer is often over before threshold issues regarding ESY eligibility and funding have been established. Parents can avoid this scenario by demanding resolution of ESY issues no later than April 1st each year. Any failure by the public educational agency to resolve all ESY issues in a timely fashion should be met with a request for a due process hearing. All due process hearings must be concluded within forty-five (45) days of a parental request, so any hearing request filed after May will necessarily result in no ESY.
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A.
**********
The Individuals with Disabilities Education Act ("IDEA") requires that Extended School Year ("ESY") services must be made available to individual students who require such services in order for them to be receiving a free appropriate public education ("FAPE"). This requirement - which was refined in the 1997 Amendments to the IDEA and the 1999 implementing regulations - recognizes that some students with disabilities will not receive an appropriate education unless they have special education or related services during the Summer months.
ESY 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 FAPE to the child. Public educational agencies may not limit extended school year services to particular categories or disability, nor may school districts limit the type, amount, or duration of those services.
Federal regulation defines the term ESY services as special education and related services:
are provided to a child with a disability;
beyond the normal school year of the public agency;
in accordance with the child’s IEP;
at no cost to the parents of the child; and,
meet the standards of the state educational agency.
In January, 2000, the National Council on Disability ("NCD") published a report (http://www.ncd.gov/publications/backtoschool_1.html) analyzing the compliance of each state educational agency ("SEA") with the requirements of the IDEA. Compliance and non-compliance was established through Monitoring Reports of the Office of Special Education Programs ("OSEP") at the U.S. Department of Education over the past ten years. OSEP found that 28 states (56%) had failed to ensure compliance with the ESY requirements of the IDEA. The NCD report cites the following examples of SEA non-compliance with the ESY requirements of the IDEA:
In Alabama, interviews with teachers and administrators revealed that ESY was not available for students in the facilities visited by OSEP. Teachers stated that they were unsure as to the criteria for ESY, and, therefore, did not know how to determine the need for ESY services. None of the teachers interviewed by OSEP investigators had ever participated in an IEP meeting where students were considered for ESY services.
In four out of five public educational agencies visited by OSEP investigators in Iowa, OSEP determined that ESY services were not considered on an individual basis and provided to students who require the services.
In Delaware, OSEP found that availability of ESY services was restricted to students with autism and those who received certain physical disabilities. Participation of other students in ESY services was not determined based on their IEP, and in some of the agencies visited by OSEP investigators, ESY was not available to other students at all.
In four of the five educational agencies visited by OSEP investigators in Connecticut, children with particular types of disabilities were categorically excluded from consideration for ESY services.
Two teachers in an agency in Arkansas reported that the agency did not offer ESY and that it was never discussed at any IEP meeting they attended.
Prior to the recently promulgated regulations, there was a great deal of litigation concerning ESY eligibility criteria. Many courts endorsed a regression-recoupment analysis whereby baselines were established for a child through specific measurements prior to a break in schooling, and then re-measured after the break. Under the regression-recoupment analysis, if a child regresses more than like-peers or recoups the measured skills at a slower rate than peers, the child is considered to be eligible for ESY services. Other courts have endorsed an individualized standard under which "non-regression-based factors," such as the child's being on the brink of being able to read, would be considered in addition to the factors of regression and recoupment because it is an emerging skill with breakthrough opportunities. Each recent case, however, has mirrored the new regulation and emphasized flexibility and individual determinations in applying the various approaches to determining ESY eligibility. The new regulations make it clear that each child’s IEP team must consider factors to determine whether a child can be afforded FAPE absent ESY services. Quite simply, if the IEP team determines that a child can not meet his or her IEP goals for the year, the child is likely eligible for ESY services. Factors to be considered in ESY eligibility determinations include degree of progress, emerging skills/breakthrough opportunities, regression-recoupment, socialization and behavioral issues, and the nature and severity of the disability.
Most school districts are very reluctant to offer ESY services that comply with the requirements of the IDEA. I envision that litigation and due process hearings over issues relating to failure to provide FAPE by denial of ESY will explode in the next year. Many states have implemented regulations that specifically address how ESY eligibility is determined. As a parent advocating on behalf of your special child, you should compare the state regulation or policy, if any, with the current federal regulation (34 C.F.R. §300.309). The federal regulation is controlling if the state regulation or policy is inconsistent. Be prepared to demand ESY services if you believe that such services are needed in order for your child to receive FAPE. Keep in mind that the school district is the "payor of last resort" under the 1997 IDEA Amendments. That means that if another public agency or program, such as Medicaid, has a funding responsibility to your special child, the other (non-school) agency is obligated to pay first. If the two agencies each bury their heads in the proverbial sand and each refuse to pay, it is the school district’s affirmative obligation under the IDEA to provide the services, and then the school district can seek reimbursement from the other public funding source. This is a very important factor for parents to know, as the Summer is often over before threshold issues regarding ESY eligibility and funding have been established. Parents can avoid this scenario by demanding resolution of ESY issues no later than April 1st each year. Any failure by the public educational agency to resolve all ESY issues in a timely fashion should be met with a request for a due process hearing. All due process hearings must be concluded within forty-five (45) days of a parental request, so any hearing request filed after May will necessarily result in no ESY.
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