Re: Fw: Re: Getting ESY services - Eligibility

January 28, 2007

Aloha,

See Attachment - In addition to the excellent info provided about ESY info

enclosed is some background info for ESY- hope it helps.

Mahalo,

Geraldine Bliss wrote:

Re: Re: Getting ESY services - Eligibility

There are a couple of commonly used " rules of thumb " for determining a student's

need for ESY.

1. Regression/recoupment. Is the child at risk of losing knowledge and skills

because of an interruption in the school year and how long will it take to

regain lost skills/knowledge/functioning? If the recoupment period is

anticipated to be more than 7 weeks (or possibly 9 weeks), then the student

would be eligible for ESY. (That seems arbitrary and unfair to me, but I think

that's based on the notion that for general education students, the first few

weeks of school are usually devoted to " reteaching " anyway.)

2. Emerging skills. If the student is at a critical stage of skill development

(like just about to talk or just about to read), ESY shouild be considered.

Hearing officers have ruled that you cannot look at just one standard to rule

out a child's eligibility for ESY (for example, the district can't just use the

regression/recoupment standard and rule out ESY because they don't anticipate a

regression). Other hearing officers have also considered other factors, like the

familiy's ability to provide educational structure during the summer and the

nature and severity of a child's disability.

Geraldine

In Texas-Autism- Advocacy@ yahoogroups. com, " funfiercemom " <funfiercemom@ >

wrote:

> >> > We have an ard meeting coming up next week and need info on advocating

for ESY services. Last ARD didnt approve it & I think my son really needs it

primarily due to his behavioral issues. Help!

..

January 28, 2007

Aloha,

In case the attachment did not get though I have re-attached to the body of

the e-mail

Mahalo,

ESY- Smart Starts

Overview | Key Points | Links

This SmartStart is updated with references to the IDEA 2004 statute and 2006

IDEA Part B regulations.

Overview

For some students with disabilities, the district is under a legal obligation

to provide year-round services, during the summer and school vacations or

otherwise beyond the normal school year. This SmartStart examines some of the

circumstances when such extended school year services could be required.

Key Points

These key-point summaries cannot reflect every fact or point of law contained

within a source document. For the full text, follow the link to the cited

source.

OBLIGATION TO PROVIDE ESY - IDEA

Pursuant to 34 CFR 300.106(a):

(1) Each public agency must ensure that extended school year services are

available as necessary to provide 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, in accordance with §§300.320 through

300.324, that the services are necessary for the provision of FAPE to the child.

(3) 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, or duration of those services.

Pursuant to 34 CFR 300.106(a), 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

(Authority: 20 U.S.C. 1412(a)(1))

OBLIGATION TO PROVIDE ESY - SECTION 504

Even though Section 504 does not contain an express provision for ESY

services as found in the IDEA, OCR has interpreted the law to impose such a

requirement. See e.g., County (NV) Sch. Dist., 16 IDELR 311 (OCR 1989);

Dallas County Suburban Coop. & Dallas County Sch., 352 IDELR 360 (OCR 1987);

Coachella Valley (CA) Unified Sch. Dist., 311 IDELR 42 (OCR 1985); and Baltimore

City (MD) Public School, 352 IDELR 185 (OCR 1986). As a practical matter, many

more IDEA students will require ESY services than students who are strictly

eligible under Section 504, given the relative severity of disabilities, which

often characterize this distinction. Establishing the need for ESY under Section

504 may also be more difficult in the absence of an IEP. See Cordrey v. Euckert,

17 IDELR 104 (6th Cir.1990), cert. denied, 112 S.Ct. 1391 (1991).

STANDARD FOR ESY SERVICES

Extended school year services must be made available as necessary to provide

FAPE and 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 (see

SmartStart: IEPs -- Extended School Year Programming). However, neither the IDEA

nor Section 504 establishes a standard for determining a student's needs for ESY

services. See Letter to Myers, 213 IDELR 255 (OSEP 1989). States have the

discretion to establish policies and procedures, within established judicial,

statutory and regulatory guidelines, for providing ESY services.

As a rule, if the student will experience any loss or regression in skills

during the break from school, ESY services should be made available to the

student. See Lawyer v. Chesterfield County Sch. Bd., 19 IDELR 904 (E.D. Va.

1993). 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). As in other areas of special education,

ESY services are not meant nor required to maximize a student's educational

benefit. Cordrey v. Euckert, 17 IDELR 104 (6th Cir. 1990).

In the comments and discussion to the 2006 IDEA Part B regulations, the ED

rejected a request to clarify 34 CFR 300.106 by adding language to the effect

" that 'recoupment and retention' should not be used as the sole criteria for

determining the child's eligibility for ESY services. " 71 Fed. Reg. 46582. The

ED acknowledged that:

The concepts of " recoupment " and 'likelihood of regression or retention' have

formed the basis for many standards that States use in making ESY eligibility

determinations and are derived from well-established judicial precedents. [case

cites omitted]. States may use recoupment and retention as their sole criteria

but they are not limited to these standards and have considerable flexibility in

determining eligibility for ESY services and establishing State standards for

making ESY determinations. However, whatever standard a State uses must be

consistent with the individually-oriented requirements of the Act and may not

limit eligibility for ESY services to children with a particular disability

category or be applied in a manner that denies children with disabilities who

require ESY services in order to receive FAPE access to necessary ESY services.

71 Fed. Reg. 46582-83 (2006).

TESTS USED TO DETERMINE NEED FOR ESY SERVICES

Since ESY eligibility must be based on individual need, any state standard

that purports to offer extended year services according to a uniform basis

violates the IDEA. Frequently, the analysis applied to determine whether a

student with a disability is in need of ESY services consists of a

regression-recoupment analysis. See Cordrey v. Euckert, 17 IDELR 104 (6th

Cir.1990), cert. denied, 112 S.Ct. 1391 (1991); Alamo Heights Indep. Sch. Dist.

v. State Bd. of Educ., 557 IDELR 315 (5th Cir. 1986); v. Independent

Sch. Dist. No. 4, 17 IDELR 170 (10th Cir. 1990). While this standard does not

require that children with disabilities actually experience regression in their

skills before they can become eligible for summer programs and services, there

must be a reasonable basis for concluding that regression would occur without

the provision of summer programs or services. See Letter to Anonymous, 22 IDELR

980 (OSEP 1995).

Some courts and due process hearing officers have evaluated other additional

factors in making the ESY determination. See Reusch v. Fountain, 21 IDELR 1107

(D. Md. 1994) (identifying six criteria which must be considered before a school

board can provide ESY services, including: regression/recoupment; degree of

progress; emerging skills and breakthrough opportunities; interfering behaviors;

nature and/or severity of the disability; and special circumstances).

In step with a 4th U.S. Circuit Court of Appeals decision, M.M. v. School

Dist. of Greenville County, 37 IDELR 183 (4th Cir. 2002), OSEP advised that a

determination for ESY services based solely on a " lack of progress " would be

inconsistent with the court's enunciation of either of two factors that must be

considered: significant regression or detrimental effect on progress toward a

goal. Letter to Given, 39 IDELR 129 (OSEP 2003).

ESY SERVICES DURING TIME PERIODS OTHER THAN SUMMER

Typically, ESY services are provided during the summer months. However, as

the comments and discussion to the 2006 IDEA Part B regulations make clear,

" there is nothing in [34 CFR 300.106] that would limit a public agency from

providing ESY services to a child with a disability during times other than the

summer, such as before and after regular school hours or during school

vacations, if the IEP Team determines that the child requires ESY services

during those time periods in order to receive FAPE. The regulations give the IEP

Team the flexibility to determine when ESY services are appropriate, depending

on the circumstances of the individual child. " 71 Fed. Reg. 46582 (2006).

APPROPRIATE PLACEMENT FOR ESY SERVICES

Significantly, the ED recognizes that a student's ESY placement may differ

from his regular school year placement. Because the purpose of ESY services is

typically to prevent regression and recoupment problems, a student's placement

for ESY services may differ from his placement during the school year. Letter to

Myers, 16 IDELR 290 (OSEP 1989).

A full continuum of services is not required for ESY. Letter to Myers, 16

IDELR 290 (OSEP 1989).

ESY AND THE LRE REQUIREMENT

There appears to be some flexibility in the placement options for

implementing ESY. Districts must maintain placement options for ESY services

that are necessary to implement the student's IEP and to meet the requirements

of LRE. Thus, even though Part B of IDEA does not address the district's

obligation to provide a full range of alternative placements, the district must

meet the LRE requirement by alternative means, such as private placements, if it

is decided that disabled children must have interaction with nondisabled

children. Letter to Myers, 213 IDELR 255 (OSEP 1989); Letter to Myers, 16 IDELR

290 (OSEP 1989).

Modifications to ESY programs must be made to ensure LRE, and any

modifications must be determined on a case-by-case basis. See also SmartStart:

Placement - Application of LRE Beyond Academics and SmartStart: Application of

LRE Beyond the Classroom.

See e.g., Fremont Union High Sch. Dist., 102 LRP 2941 (SEA CA 2000) ( " The

District attempted to accommodate the parents' wishes and provide the student

with some outside tutorial assistance. The Hearing Officer finds that the math

prep summer program was the least restrictive environment. For the foregoing

reasons, the Hearing Officer finds that the District offered STUDENT a FAPE in

the least restrictive environment for the ESY summer 2000).

USE OF PRIVATE PLACEMENTS FOR ESY SERVICES

A district is not required to establish public programs for ESY services if

the district does not offer any public programs for nondisabled students during

the same time. A district must purchase private placement for ESY services,

however, if no public program is available and the student's IEP requires the

ESY services. Letter to Myers, 16 IDELR 290 (OSEP 1989). For students already

attending private schools, the public agency may fulfill its ESY obligations by

allowing them to attend any ESY program offerings available at the private

school. On the other hand, if the private school does not offer ESY programming,

then the district must find another program that can fulfill the student's

needs. Letter to Myers, 16 IDELR 290 (OSEP 1989); Letter to Skiba, 18 IDELR 592

(OSERS 1991).

THE USE OF RECREATIONAL PROGRAMS FOR ESY SERVICES

A district has no purely custodial duty to provide for students with

disabilities over the summer months. Cordrey v. Euckert, 17 IDELR 104 (6th Cir.

1990). Some states adopt strict prohibitions against ESY placements in summer

recreational programs or camps. However, for students with severe physical and

mental disabilities who have a need to learn how to generalize skills, these

types of programs have been deemed necessary to fulfill the FAPE requirement.

County Pub. Schs ., 24 IDELR 719 (SEA MD 1996).

PROVISION OF RELATED SERVICES TO STUDENTS WITH DIABILITIES WHO ATTEND SUMMER

SCHOOL AND DO NOT MEET ESY ELIGIBILITY

OCR supports the provision of related services to students with disabilities

via summer school and other supplemental school programs, even where the

students do not require such programs as a part of FAPE. Fayette County (KY)

School District, 353 IDELR 279 (OCR 1989); Jefferson County (KY) School

District, 353 IDER 176 (OCR 1988); and Clayton (MO) Sch. Dist., 16 IDELR 766

(OCR 1990). Even where the services in question are not essential for FAPE under

the IDEA, Section 504 places a duty on the district to provide the necessary

related services to the summer school program to ensure that the student with a

disability receives equal opportunities to participate in this programming to

the same extents as his nondisabled peers. See West Lafayette (IN) Community

School Corporation, 352 IDELR 498 (OCR 1987); accord, Seattle (WA) School

District, 352 IDELR 375 (OCR 1987). OCR has rejected the argument that the

provision of an aide in summer school programs amounts to a

fundamental alteration where the student otherwise meets essential eligibility

requirements for these programs. See Mentor Exempted Village (OH) Schs., 32

IDELR 243 (OCR 2000); see also Conejo Valley (CA) Unified Sch. Dist., 23 IDELR

448 (OCR 1995), (same rule of law for after-care programs sponsored by

districts.)

OBLIGATION TO PROVIDE EXTENDED/SHORTENED SCHOOL DAY PLACEMENTS

Extended school day services may be required for some students with severe

disabilities. See e.g., Arkansas County Indep. Sch. Dist., 22 IDELR 170 (SEA TX.

1994); Portland Sch. Dept., 21 IDELR 1209 (SEA ME 1995).

Courts have also upheld the provision of a shortened school day for a student

with a disability where it has been determined that the student cannot benefit

from the amount of services offered during the typical school day. Buser v.

Corpus Christi Indep. Sch. Dist., 20 IDELR 981 (S.D. Tex. 1994), aff'd 22 IDELR

626 (5th Cir. 1995), reh'g denied, 56 F.3d 1387 (1995), cert. denied, 116 S.Ct.

305 (1995).

Links