Source http://iepadvocate4you.blogspot.org/2005/03/esy-extended-school-year.html

Carol Sadler, Educational Advocate



[This material appears by kind  permission of the author.  Additional emphasis in bold italics  has been added by Roger N. Meyer.  References to cases italicized by name is found towards the end of this article]


FYI - It's getting time to schedule those meetings with your schools to discuss ESY.  Do not let the schools jump past the ESY portion in your IEP meeting and merely tell you your child doesn't qualify (no regression), so no need for ESY.  Regression is NOT the only requirement for ESY, I've bolded important information below.


Also, don't let the school tell you ESY is traditional summer school, it is not, although it can be if it is appropriate to meet the child's IEP goals.


I often use ESY services to negotiate additional services for children where the school has "Failed to Identify", appropriately remediate a child's learning problem, and/or failed to provide identified spec. ed. support or related services.  I've used it to give the school one more chance to teach a child to read or to teach a child appropriate social skills, before pulling out and privately placing the child at public expense.  The school system can pay for traditional summer school classes as ESY services for instance, if a school failed to identify a child with a disability, and the child failed the first semester of High School, and now needs to make up courses during Summer School.


Extended School Year can look at many things.  Don't let the schools tell you no automatically, and don't let them tell you it is only for the severely disabled.  NOT TRUE!  Talk with an advocate, attorney, or disability organization to find out more information.


Carol Sadler

Special Education Consultant/Advocate

GA Advocacy Office PLSP I Graduate


1105 Rock Pointe Look

Woodstock, GA  30188







Information contained in this.orgmunication...is not meant to represent legal or medical advice, but rather advice given based on my knowledge as a trained Parent Advocate by the GA Advocacy Office, Council of Parent Advocates & Attorneys, CHADD, LDA, and the GA DOE Parent Mentor program as an invited guest.  Please do not forward without my permission.


Extended School Year (ESY


The Individuals with Disabilities Education Act (IDEA) regulations requirethat 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 ofavailable 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.


ESY is NOT traditional summer school, but rather an extension of an individual child's education plan!


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 childen with disabilities.  Several district court cases, beginning with Armstrong v. Kline (1979) and culminating with Reusch v. Fountain (1994), shaped thecurrent 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 achild 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 thanthe same 180 days to disabled children that is provided to non disabled 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 inpart, 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. McDaniel (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 Williams 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 the12-month program at a local facility for multi handicapped 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 Maryland 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, (b) written misleading letters r.orgmending asummer program that required tuition from the parents, (c) 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 childrenin 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 achild 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 ESYshould 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, (b) requiring school districts to look at issues beyond regression or recoupment when determining ESY eligibility, (c) emphasizing the need to set higher ESY standards than simply working toward self-sufficiency, (d) refusing to allow school districts to offer ESYprograms that were available only to the most severely disabled children,and (e) requiring that integration with nondisabled peers be provided in ESYprograms 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, (b) are addressed and mandated by the IEP, and (c) 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."




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


Davila, R. R. (1990, Nov.).


Office of Special Education and RehabilitativeServices Policy Letter, 17 Education for the Handicapped Law Review 41.


Georgia Association for Retarded Citizens v. McDaniel, Education for theHandicapped 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 PolicyLetter, Education for the Handicapped Law Review 213:255.


Stacey G. v. Pasadena Independent School District, Education for theHandicapped 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.


Williams v. Gering Public Schools, 17 Education of the Handicapped Law Report 427 (Ne. S. Ct. 1990).



Extended School Year Services (ESY) - Info from



Many parents have questions about extended school year services.  If you have questions about a legal issue, you should do your own legal research.  Do not accept legal advice from school personnel.  While they may tell you what they believe is true, in many cases, they have not read the law and regulations for themselves.  You need to know what the law and regulations say


Read what the IDEA statute says about your issue.  Next read the federal regulations and your state special ed regulations about your issue.  ( The IDEA statute and regulations are in Wrightslaw: Special Education Law and in the Statute and Regs section of the Wrightslaw site).


Next read a case or two about your issue (check the Caselaw Library). If you take these steps, you will have a clear understanding of the issues and variables.


You will find that extended school year (ESY) is not mentioned in the IDEA statute, but is in the IDEA regulations. Read the IDEA regulation about ESYat 34 CFR Section 300.309 (page 165, Wrightslaw: Special Education Law).


We selected two cases about ESY to help you understand these issues: Daniel Lawyer v. Chesterfield and Reusch v. Fountain.  For more information, check the Topics Pages - especially the FAPE and IEP pages.


"Windows of Opportunity": Lawyer v. Chesterfield School Board (1993) Danny Lawyer is a young child with autism.  At age six, he had expressive language and phonological processing problems.  The experts who evaluated and treated Danny advised his parents that his ability to be self-sufficient and independent later in life would depend on his ability t.orgmunicate.  During the summer, Danny regressed in his ability to.orgmunicate.  His behavior deteriorated.  His school district refused to provide any speech language therapy during the summer months - and refused to reimburse his parents for the services they purchased for their son.  The parents requested a special education due process hearing and prevailed.  The school district appealed.  The Review Officer overturned the Hearing Officer's decision.  The case was appealed to Federal Court.


After reviewing the record and hearing new testimony, Judge Spencer concluded, "Regression is not the only factor" in deciding if a child needs ESY services.  The judge listed several additional factors that IEP teams should consider in making ESY decisions:


Recoupment in the Fall;

Child's rate of progress;

Child's behavioral or physical problems;

Availability of alternative resources;

Areas of the child's curriculum that need continuous attention;

Child's vocational needs.


In "Lawyer," Judge Spencer discussed regression and recoupment.  He also discussed the need to take advantage of "windows of opportunity" in educating children with disabilities: " Danny's regression in the summer, coupled with nominal recoupment, severely limits the educational benefits he receives from instruction during the school year.  His rate of progress is minimized by the interplay of continuous regression and recoupment."  "Moreover, Danny's behavioral problems are.orgpounded by his severe language deficit.  His inability to effectively.orgmunicate triggers unacceptable behavior.  Therefore, it is critical that Danny be provided with continuous speech and.orgmunication services."  "Finally, the evidence provided by expert witnesses indicates that for children who suffer from moderate to severe childhood autism, there is a small, but vital, window of opportunity in which they can effectively learn.  Such period is generally between the ages of five and eight years old"....The Court concludes that it is extremely important that at this critical stage of development, Danny receive uninterrupted speech language therapy.


Read the decision in Lawyer v. Chesterfield.


Hostility to Providing ESYReusch v. Fountain (1994)  In Reusch v. Fountain, 872 F.Supp. 1421 (D. MD 1994), a federal court addressed the school districts "hostility to providing ESY."  In this case,the court found that parents were prevented from advocating for their children by the district's refusal to provide parents with notice about their right to request these services.  The district also engaged in delaying tactics by requiring parents to attend futile meetings.  The court found that, in this district, administrative convenience took precedence over providing FAPE to children with disabilities. Educational decisions were not individualized according to the needs of the child.


Six Factors for IEP Teams to Consider


In Reusch v. Fountain, the court listed six factors that the IEP team should consider in deciding if the child is eligible for ESY as a related service



1. Regression and recoupment - is the child likely to lose critical skills or fail to recover these skills within in a reasonable time;


2. Degree of progress toward IEP goals and objectives;


3. Emerging skills/breakthrough opportunities - Will a lengthy summer break cause significant problems for a child who is learning a key skill, like reading;


4. Interfering Behavior - does the childs behavior interfere with his or her ability to benefit from special education;


5. Nature and/or severity of disability;


6. Special circumstances that interfere with childs ability to benefit from special education.


Citing Pete's case, Florence County School District Four v. Shannon Carter, the District Court found that: "In any contest between systematic efficiency and the provision of FAPE to a disabled child, Congress and the Supreme Court have made it clear that the child must prevail."


Other findings:


Notice and Timing - The importance of making a decision about ESY early enough in the school year to allow the parents adequate time to exercisetheir rights administrative review or appeal in a timely fashion.  That the explanation about ESY contained in a brochure distributed to all studentswas not sufficient and ordered that the student's eligibility for ESY be considered at each annual review meeting, and the parents sign a form acknowledging their receipt of this information.  The district must documentthe discussion and the decision reached after consideration of ESYeligibilty at each annual review meeting.


Content and Duration - The content of child's ESY program must be determined on an individual basis. The duration is also based on individualized determinations of the number of weeks, days per week,and hours per day that each student receiving ESY should be provided.


Copyright 1999-2002, Peter W. D. Wright and Pamela Darr Wright.

All rights reserved. www.wrightlaw.org



Posted by Carol Sadler to IEPadvocate4You at 3/14/2005 05:59:00 AM


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