Now is the time for considering ESY

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Now is the time for considering

Extended School Year (ESY)

The Individuals with Disabilities Education Act (IDEA) regulations require

that ESY services be considered annually for every child with a disability. An

ESY Program of services in the summer or weekends, must be provided if needed

to make a student's education program appropriate. " Under the law, a school

district may not limit ESY services for children with particular categories of

disabilities, and may not limit the type, amount or duration of ESY. " (Ed Law

Center - PA) A school system cannot use a " lack of available funds " argument to

deny ESY services to a child with a disability. School districts must look at

issues beyond regression or recoupment when determining ESY eligibility.

The following is taken from:

http://www.ppmd.org/publications/extended_school_year.html

It is a summary of judicial decisions regarding ESY.

Extended School Year

by Rose Kraft

Since the precedent for extended school year programming was set in the

Armstrong v. Kline case in Philadelphia, in a large number of instances the

courts

have been asked to determine the eligibility of individual children for

extended school year services. This summary looks at the judicial decisions that

have been rendered regarding this issue.

Judges and lawmakers have made significant decisions during the last 20

years, which define extended school year (ESY) services for chidden with

disabilities. Several district court cases, beginning with Armstrong v. Kline

(1979) and

culminating with Reusch v. Fountain (1994), shaped the current federal

regulations. For the first time in the history of the Individuals with

Disabilities

Education Act (IDEA), these regulations require that ESY services be

considered annually for every child with a disability. Each team that develops

an

individual education plan (IEP) for a child must decide if ESY services are

necessary so that the child can avoid regression, a lengthy recoupment of lost

skills, or other difficulties that could interfere with the education plan.

The first significant case in this arena was the Armstrong case, in which the

judge ruled that a mandated 180-day school year violated a child's right to a

free appropriate public education (FAPE), specifically in reference to

children with severe and profound impairments or severe emotional disturbances.

The

court stated that, " By its terms, the Act (meaning the Education for All

Handicapped Children Act) appears to demand that the state supply instruction

designed to meet all of the handicapped child's " unique needs " without

limitation. "

The court also required state and local school districts " to provide an

education to handicapped children in excess of 180 days, " as determined by each

child's needs. This case defined that a school system's goal for these severely

affected children should be self-sufficiency, which could require providing

more than the same 180 days to disabled children that is provided to nondisabled

children. This case was upheld on appeal by the circuit court, which agreed

that, " For some, but not all, SPI and SED children, standing in the way of the

attainment of some of these objectives (for self-sufficiency) is the effect of

breaks in the educational program which are created, at least in part, by the

180 day rule. " The court also noted that recoupment time for lost skills is

" usually much greater " for children with disabilities.

Once the courts ordered state and local school systems to provide more than

180 days of school per year to some children with disabilities, families across

the nation began taking their school systems to court. In Stacey G. v.

Pasadena Independent School District (1982), a 12-month program without major

breaks

was ruled necessary for a child with autism and severe mental retardation. In

Georgia Association for Retarded Citizens v. Mc (1983), the court ruled

that a school system cannot use a " lack of available funds " argument to deny

ESY services to a child with a disability. A school system must look at the

child's needs, rather than at its budget, when determining summer services for a

child. The judge in Alamo Heights Independent School District v. State Board

of Education (1986) noted that transportation services must be part of the ESY

package for a child, even if the bus must get that child from a babysitter's

out-of-district home. The case of Bucks County Public Schools v. Commonwealth

of Pennsylvania (1987) showed that academic regression isn't the only

qualification for ESY eligibility. The judge in the Bucks County case stated

that

regression in emotional development for severely emotionally disturbed children

is

often " caused by interruptions in the educational programming, " and ordered

that prediction of regression in emotional development qualifies as a need for

ESY. Holmes v. Sobol (1988) was a significant case because it found that

physical therapy was a related service that could be provided for ESY, and

further

ruled that a related service can be a sole special education program. This

case stated that without the maintenance of physical strength through therapy,

the child would not be able to benefit from his general education. In

v. Gering Public Schools (1990), the parents of a child with multiple

disabilities believed that a 12-month program could only be provided for their

child in

a residential placement. This court agreed that the child needed a 12-month

school program in order to receive a free appropriate public education, but did

not require that it be provided in a residential facility. The court ordered

the school district to provide the 12-month program at a local facility for

multihandicapped children, specifying that an interruption from one school to

another just for a summer program would provide an unacceptable level of

regression for the child.

Reusch v. Fountain (1994) blasted a land school district for deceptive

and purposeful policies which sought to deprive children of ESY services. The

school district had (a) refused to notify parents of a child's eligibility for

ESY services, ( written misleading letters recommending a summer program that

required tuition from the parents, © told school administrators to refer

parents to central administration when they asked for ESY services, (d)

purposely didn't mention ESY services until it was too late to deliver them, and

(e)

never told parents they had a right to request ESY services. The judge used

strong language as he set the parameters for ESY policies for children with

disabilities. " The MCPS practice of inadequate and untimely ESY notice must

cease.

Notice of ESY designed to fully explain such services must be provided to

parents of disabled children in a timely fashion before annual review meetings.

The notice must not disguise or downplay the true nature of ESY or attempt to

confuse parents between free extended year services and tuition-charging summer

enrichment programs. " The court went further and required that additional

criteria be considered in addition to regression and recoupment time when

considering a child for ESY services. The court decided that " emerging skills "

and

" breakthrough opportunities " (as when a child is on the brink of learning to

read) -- can and should be incorporated into the eligibility analysis. " A

fixed-length program was also ruled illegal by this court, which ordered the

school

district to " make individualized determinations of the number of weeks, days per

week, and hours per day that each student receiving ESY should be provided. "

While litigation continued in courtrooms across the country, the Office of

Special Education Programs and the Office of Special Education and

Rehabilitative Services wrote policy letters which provided interpretation of

the federal

regulations for school districts. The Office of Civil Rights wrote letters of

finding which defined when the denial of ESY services violated a person's civil

rights. Together these letters provided parallel support for the court

decisions by (a) defining ESY criteria and related services in an ESY program,

(

requiring school districts to look at issues beyond regression or recoupment

when determining ESY eligibility, © emphasizing the need to set higher ESY

standards than simply working toward self-sufficiency, (d) refusing to allow

school districts to offer ESY programs that were available only to the most

severely disabled children, and (e) requiring that integration with nondisabled

peers be provided in ESY programs if required by the IEP.

The result of the court cases and substantive letters has led to the written

federal regulations which describe how ESY services are to be implemented

according to IDEA. The regulations define ESY as " special education and related

services " which (a) go beyond the normal school year, ( are addressed and

mandated by the IEP, and © are free to the parents. The regulations also

require

that ESY services are available to each child with a disability and, " The

determination of whether a child with a disability needs extended school year

services must be made on an individual basis by the child's IEP team. " 34 CFR ?

300.309 (1997).

The regulations also add two notes clarifying these definitions. The first

note states that school districts cannot limit ESY services to " particular

categories of disability or unilaterally limit the duration of services. " The

second note gives states the authority to set standards for use in determining

ESY

eligibility " on an individual basis, " suggesting the consideration of factors

such as the " likelihood of regression, slow recoupment, and predictive data

based on the opinion of professionals. "

 

References

Alamo Heights Independent School District v. State Board of Education,

Education for the Handicapped Law Report 554:315 (5th Cir. 1986).

Armstrong v. Kline, Education for the Handicapped Law Report 551:195 (E.D.

Pa. 1979).

Baltimore (MD) City Public Schools (1986). Office of Civil Rights Letter of

Finding, Education for the Handicapped Law Review 352:185.

Battle v. Commonwealth, Education for the Handicapped Law Report 551:647 (3rd

Cir. 1980).

Bucks County Public Schools v. Commonwealth of Pennsylvania, Education for

the Handicapped Law Report 559:153 (Commonwealth Ct. of Pa. 1987).

Davila, R. R. (1990, Nov.). Office of Special Education and Rehabilitative

Services Policy Letter, 17 Education for the Handicapped Law Review 419.

Georgia Association for Retarted Citizens v. Mc, Education for the

Handicapped Law Report 555:251 (11th Cir. 1983).

Holmes v. Sobol, Education of the Handicapped Law Report 559:463 (W.D. Ny.

1988).

Mesa (AZ) Public Schools (1989). Office of Civil Rights Letter of Finding, 16

Education for the Handicapped Law Review 316.

Reusch v. Fountain, 21 Individuals with Disabilities Education Law Report

1107 (D. Md. 1994).

Schrag, J. A. (1989, Aug.). Office of Special Education Programs Policy

Letter, Education for the Handicapped Law Review 213:255.

Stacey G. v. Pasadena Indep endent School District, Education for the

Handicapped Law Report 554:206 (S.D. Tx. 1982).

Turnbull, H.R. III, & Turnbull, A.P. (1998). Free appropriate public

education: The law and children with disabilities (5th ed.). Denver, CO: Love

Publishing Company.

Will, M. (1987, Aug.). Office of Special Education and Rehabilitative

Services Policy Letter, Education for the Handicapped Law Review 211:481.

v. Gering Public Schools, 17 Education ofthe Handicapped Law Report

427 (Ne. S. Ct. 1990).