Transcript EXTENDED SCHOOL YEAR SERVICES

EXTENDED SCHOOL YEAR
SERVICES
By: Elena M. Gallegos
Learning Objectives
The participants will be able to answer the
following questions:
What are Extended School Year (ESY)
Services?
Who is eligible for ESY Services?
Who determines eligibility for ESY Services?
How is the decision made?
Does ESY apply to children who turn three
during the summer?
What services are providing during ESY?
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
What are extended school year (ESY)
services?
 The IDEA implementing regulations define ESY services as
follows:
As used in this section, the term extended school year
services means special education and related services
that–
(1)
(2)
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
Meet the standards of the SEA.
34 C.F.R. § 300.106(b).
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Who is Eligible for ESY Services?
 “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.”
34 C.F.R. § 300.106(a)(1).
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Who is Eligible for ESY Services?
 “Some children with disabilities may not receive
FAPE unless they receive necessary services
during times when other children, both disabled
and nondisabled, normally would not be served.”
 “[P]ublic agencies [must] understand their
obligation to ensure that children with
disabilities who require ESY services in order to
receive FAPE have the necessary services
available to them, and that individualized
determinations about each disabled child’s need
for ESY services are made through the IEP
process.”
71 Fed. Reg. 46582 (August 14, 2006).
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Who Determines Eligibility for ESY
Services?
 “Extended school year services must be
provided only if a child’s IEP Team
determines, on an individual basis, in
accordance with Secs. 300.320-300.324,
that the services are necessary for the
provision of FAPE to the child.”
34 C.F.R. § 300.106(a)(2).
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
How is the decision made?
 “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.”
34 C.F.R. § 300.106(a)(3).
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
How is the decision made?
 Johnson v. Bixby Independent Sch. Dist. No. 4,
921 F.2d 1022 (10th Cir. 1990). Tenth Circuit
adopted standard articulated by the Fifth Circuit:
“The issue is whether the benefits accrued to
the child during the regular school year will be
significantly jeopardized if he is not provided
an educational program during the summer
months. This is, of course, a general standard,
but it must be applied to the individual by [the
IEP Team] in the same way that juries apply
other general legal standards such as
negligence and reasonableness. Id. at 1028,
citing Alamo Heights ISD v. State Board of
Education, 790 F.2d 1153, 1158 (5th
Cir.1986).”
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Regression/Recoupment
 Johnson v. Bixby Independent Sch. Dist. No. 4,
921 F.2d 1022 (10th Cir. 1990):
“The amount of regression suffered by a
child during the summer months, considered
together with the amount of time required to
recoup those lost skills when school resumes
in the fall, is an important consideration in
assessing an individual child's need for
continuation of his or her structured
educational program in the summer
months.”
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Regression/Recoupment
 States can use “evidence of regression and
slow recoupment without summer
programming as a factor in determining the
need for ESY services.” Letter to Anonymous,
22 IDELR 980 (OSERS 1995).
 “OSEP recognizes that a child’s IEP for ESY
services will probably differ from the child’s
regular IEP, since the purpose of the ESY
program is to prevent regression and
recoupment problems.” Letter to Myers, 16
IDELR 290 (OSEP 1989).
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Regression/Recoupment
 W.A. v. Patterson Joint Unified School District,
57 IDELR 38 (E.D.Cal. 2011). The fact of likely
regression, alone, is not enough to justify ESY
services "because all students, disabled or not,
may regress to some extent during lengthy
breaks from school.“Instead, ESY is provided
when the benefits a disabled child gains during
a regular school year will be “significantly
jeopardized.“
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Actual and Predictive Data
 Johnson v. Bixby Independent Sch. Dist. No. 4,
921 F.2d 1022 (10th Cir. 1990):
“The analysis of whether the child’s level of
achievement would be jeopardized by a
summer break in his or her structured
educational programming should proceed by
applying not only retrospective data, such as
past regression and rate of recoupment, but
also should include predictive data, based on
the opinion of professionals in consultation
with the child’s parents as well as
circumstantial considerations of the child’s
individual situation at home and in his or her
neighborhood and community.”
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Actual and Predictive Data
 “Because of Part B’s requirement for
individualized determinations, we do not
believe that it would be permissible for a
State to adopt a policy of refusing to
consider information, such as predictive
data, that may be relevant” to the
determination of ESY services eligibility.
Letter to Anonymous, 22 IDELR 980
(OSERS 1995).
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Other Factors
Johnson v. Bixby Independent Sch. Dist. No. 4, 921 F.2d 1022
(10th Cir. 1990):
 Degree of impairment;
 Degree of regression suffered by the child;
 Recovery time from this regression;
 Ability of the child's parents to provide the educational
structure at home;
 The child's rate of progress;
 The child's behavioral and physical problems;
 The availability of alternative resources;
 The ability of the child to interact with nondisabled
children;
 The areas of the child's curriculum which need continuous
attention;
 Whether the requested service is extraordinary for the
child's condition, as opposed to an integral part of a
program for those with the child's condition.
Failing to Master IEP Goals – Not a
Factor
 “Whether a student with a disability
requires ESY is a decision for that student’s
IEP team. 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).
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Failing to Master IEP Goals – Not a Factor
 In JH v. Henrico County Sch. Bd., 326 F.3d 560 (4th
Cir. 2003), the Fourth Circuit affirms its use of the
Tenth Circuit standard of “seriously jeopardized.”
 Fourth Circuit rejects the notion that ESY Services
should be provided in order to help a child with a
disability master goals in the IEP for the regular
school year that had gone unmet.
 “The goal of a disabled child making reasonable
progress during the summer months on
unmastered skills is obviously a higher goal than
simply preventing the skills and benefits the same
child has already gained from the regular school
year from being significantly jeopardized.”
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Does ESY apply to children who turn
three during the summer?
 An IDEA eligible child who turns three during
the summer must be considered for ESY in the
same manner as any other IDEA eligible child.
According to OSEP, cut off dates for
determining IDEA eligibility are impermissible.
Therefore, when a child is going to turn three
during the summer, the IEP prior to the third
birthday, must “specify the child’s program
upon the third birthday, including ESY, if
needed by a particular child to receive FAPE. If
ESY services are not needed to provide FAPE,
the date of initiation of services could be the
beginning of the upcoming school year.” Letter
to Anonymous, 22 IDELR 980 (OSERS 1995).
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
What Services are Provided During
ESY?
 The nature and amount of services must be
determined on an individual basis by the
IEP team.
 It is not permissible to “predetermine the
specific amount of services for an individual
child regardless of the child’s unique
needs.” Letter to Libous, 17 IDELR 419
(OSERS 1990).
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
What Services are Provided During
ESY?
 In the ESY context, some IDEA eligible
students may only require related services “as
the sole component of their special education
program during the summer months to enable
them to benefit from the special education and
related services included in their IEPs during
the school year.” Letter to Libous, 17 IDELR
419 (OSERS 1990).
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Recent Cases
 Annette K. ex rel. C.K. v. State of Hawaii, Dep't
of Educ., 60 IDELR 278 (D. Haw. 2013):
 Court applies the “significantly jeopardized
standard.”
 Student with severe dyslexia was entitled to
individually tailored ESY.
 “C.K. rapidly regressed when was not
provided with educational programming. For
example, the Principal of the Public School
testified that C.K. was able to make
improvements in his reading skills in a
supportive setting, but ‘hours, days, weeks
later ... it's like you're starting fresh.’”
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Recent Cases
 Utah Schs. for the Deaf and Blind, 61 IDELR 207 (SEA
Utah 2013).
 Hearing Officer finds that the District improperly
predetermined the student’s eligibility for ESY, by
deciding ESY outside of an IEP team meeting.
 “Eligibility for ESY services must be determined by
the IEP team which includes the parent. See 20
U.S.C. 1412(a)(1). …USDB's determination that the
Student was not eligible for ESY services for 2011
and 2012 outside of an IEP team meeting
significantly impeded Petitioner's opportunity to
participate in the decision making process
regarding the provision of a FAPE for the Student
and effectively denied the Student a FAPE.”
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Recent Cases
 Northwestern Lehigh Sch. Dist., 11 ECLPR 54 (SEA
Pa. 2013).
 Hearing Officer finds that the District’s practicing
of having the director of special education make
the final decision regarding ESY violated the IDEA.
 Hearing Officer Order: “An ESY determination
shall be made for the Student during the IEP team
meeting. The ESY determination shall be made by
the Student's IEP team, and shall not be subject to
veto by District administrators.”
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Recent Cases
 In re: Student with a Disability, 9 ECLPR 30 (SEA
Mont. 2011).
 Hearing Officer finds that the District’s practice of
determining the type, amount, and duration of ESY
services outside of the IEP meeting violated the
IDEA.
 “The regulation specifically prohibits a district
from unilaterally limiting the type, amount, or
duration of those services.”
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Recent Cases
 C.H. ex rel. F.H. v. Goshen Cent. Sch. Dist., 61 IDELR
19 (S.D.N.Y. 2013).
 Court held that a student who experienced “little
or no regression after an 18-day winter recess and
a 5-day snowstorm break” was not entitled to ESY
services.
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Recent Cases
 Windsor Board of Education, 60 IDELR 268 (SEA
Conn. 2012).
 A school district “must offer extended services
when such services are necessary in order for a
student to receive FAPE. 34 CFR § 300.106.
‘Extended year services’ for this purpose include
extended day services, or educational services
that extend beyond the regular school day.”
 In this case the student did not qualify for
extended day services: “the evidence did not
establish that the Student tended to regress in his
learning, required atypical time for recoupment of
learning, or that his disabling conditions,
behaviors or any special circumstances required
that he receive extended school day services.”
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
Be Aware of State Laws
 In New Mexico, for students with autism spectrum
disorders, the IEP Team must consider eleven
strategies, and include the strategies in the IEP
when needed for FAPE.
 The eleven strategies include “extended
educational programming, including, for example,
extended day or extended school year services that
consider the duration of programs or settings
based on assessment of behavior, social skills,
communication, academics, and self-help skills.”
6.31.2.11 B. (5)(a) NMAC (7/29/11).
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C
The information in this handout was
created by Walsh, Anderson, Gallegos,
Green and Treviño, P.C. It is intended to
be used for general information only and
is not to be considered specific legal
advice. If specific legal advice is sought,
consult an attorney.
Copyright 2014: Walsh, Anderson, Gallegos, Green and Treviño, P.C