|Please remember that the law is always changing and may not apply to
your particular matter.
Do not rely upon this information as legal advice.
(1) Each public agency shall 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 300.340-300.350, 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(b) Definition. As used in this section, the term extended school year services means special
(ii) Unilaterally limit the type, amount, or duration of those services.
(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.
a.. Type and severity of the handicap.
b.. Presence of medically diagnosed health impairments.
c.. The child's age.
d.. Attainment of self-sufficiency.
e.. Need for recreational programs.
f.. Respite care for parents.
g.. Family environmental factors (family stress levels).
h.. Family inability to provide educational programming during the summer
Support services should also be made available when they are required for maintenance of skills. These services may include speech therapy, physical and occupational therapy, and adaptive physical education.
Now remember........the school district cannot limit the amount, duration or type of services!!
AND.......it is in direct violation of IDEA to limit or refuse services
based on the school districts' inability to pay for them.
So if your school says, "We don't have the money to pay for ESY" or "It's not in the budget this year"
Write a state complaint!!!!!!!!!!!!
Just a brief listing of websites that have invaluable information about Extended School Year Services:
On November 20, 2001, the Illinois State Board of Education issued a comprehensive memo describing when a District must supply ESY. It is actually more imposing than many districts apply, and you may find it very helpful in getting a local district to supply ESY. Also, many districts are more apt to follow ISBE guidelines than general Federal laws.
These are the topics of the eleven-page memo:
The ISBE in fact advises that regression-recoupment is not the only factor a school must consider:
1. What is the definition of Extended School Year (ESY) under federal and state requirements? 2. What does case law tell us about the right to an ESY program? 3. Can a local school district have a policy or practice that precludes the provision of ESY in any and all instances? 4. What factors should be considered in determining the need for ESY services? 5. What do the courts say about "regression-recoupment" learning criterion? Where is this derived from? 6. Are children who turn three over the summer entitled to ESY services? 7. If a child graduates from an elementary district at the close of a regular school term, is the elementary or the high school district responsible for the provision of ESY services during the summer? 8. What questions might the IEP Team ask to determine on an individual basis the need for extended school year services? 9. How should ESY services be documented on the IEP? 10. Can the IEP for ESY include only related services such as occupational therapy? 11. Must LRE requirements be considered by the IEP Team when determining needed ESY services? 12. What is the difference between an ESY program and a summer school program 13. Can special education ESY services be provided during a regular summer school program? 14. Can a student with a disability be excluded from a regular education summer school program? 15. Can a school district provide and receive reimbursement for the provision during the summer of only a related service? 16. What reimbursement is available for special education ESY services provided during the summer
[The] regression recoupment analysis is one measure for determining whether a child may need extended school year services. It cannot be the sole means for determining ESY eligibility. In addition to the degree of regression and the time necessary for recoupment of previously learned skills and acquired knowledge, IEP teams must considered many other factors important in its discussions of what constitutes an “appropriate” educational program and the need for extended school year services. [Q&A.5.]The Virginia Department of Education makes an excellent observation:
* In general, extended school year (ESY) refers to special education(VADOE's 2000 ESY Technical Assistance Document.)
and/or related services provided beyond the normal school year of a public
agency for the purpose of providing FAPE [a free appropriate public
education] to a student with a disability. These services are distinct from
enrichment programs, summer school programs, and compensatory services and
are not simply an extension of time. ESY services are not so much a
regression and recoupment issue as they are an issue of FAPE. Unrecouped
regression, over time, may be evidence that FAPE is not being provided. In
other words, it is not the case that a student is entitled to extended
school year services, but that the student will not receive FAPE if ESY
services are not provided. These services, at no cost to the parent, will
vary in type, intensity, location, inclusion of related services, and length
of time, depending on the individual needs of the student. The
consideration of extended school year services is a part of the
individualized education program (IEP) process.
"The U.S. Court of Appeals for the Fourth Circuit (which includes West Virginia) acknowledged in a recent decision that it has “not developed a standard for determining when ESY services are appropriate under the IDEA.” M.M. v. School Dist. Of Greenville County, 303 F.3d 523, 537-538 (4th Cir. 2002). However, the M.M. Fourth Circuit decision agreed with the lower district court’s standard in the M.M. case which required parents to demonstrate that “ESY would prevent significant regression of skills or knowledge retained by the child so as to seriously affect his progress toward self-sufficiency, or that benefits accrued to the child during the regular school year would be significantly jeopardized if he were not provided an educational program during the summer.” 303 F.3d at 537. Thus, regarding your question as to whether lack of progress alone can be the basis for an ESY determination, the M.M. case requirement that parents demonstrate either “significant regression” or a jeopardization of benefits accrued during the school year, would be inconsistent with relying on lack of progress as the sole criterion for determining that ESY services are necessary. The Fourth Circuit Court also noted that an ESY determination is necessarily fact and case specific and that a showing of actual regression is not required in order to find a child eligible for ESY. 303 F.3d at 537-538."
http://www.ed.gov/policy/speced/guid/idea/letters/2003-1/given020403iep1q2003.doc (MS Word format)
The Indiana Department of Education has prepared a set of guidelines
and worksheets with examples that they recommend
for determining eligibility for ESY.
If that link is missing, try this: IndianaESY.html
Note that the MM case ruled : "We agree with the court's rejection of the District's position that the child must actually
regress during the summer before ESY Services must be offered. This "Hobson's choice" has wisely been rejected by other courts,
because parents should not be compelled to watch their disabled child regress in order to qualify for ESY Services."
... Because a showing of actual regression is not required, a disabled child's
need for ESY Services may be established by expert testimony, based on a
professional individual evaluation. However, the mere fact of likely regression
is not a sufficient basis, because all students, disabled or not, may regress
to some extent during lengthy breaks from school. ESY Services are required
under the IDEA only when such regression will substantially thwart the goal
of "meaningful progress." 303 F.3d 523.
Another topic for future discussion: does your school make enrollment
into summer school more difficult for children with disabilities than it
does for nondisabled children who have failed to meet the grade?
If so, there may be a discrimination claim made. Why should failing
nondisabled children have access to remedial summer programs and disabled
children do not?
Schools may not charge a materials fee to ESY students even though
they charge a fee for non disabled students attending summer school. See
this 2002 OSEP memo: OSEP-ESY.pdf
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This link contains abstracts of studies showing the effectiveness of
year-round services and / or ESY and links to some school sites:
|Please remember that the law is always changing and may not apply to your particular matter. Do not rely upon this information as legal advice.|