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Spotlight On Practice

The ABCs of ESY

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What We’ll Focus On. .

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Overview of General Principles and Legal Framework of ESY

Determining Need for ESY Role of IEP Team ESY Eligibility Standard

Determining Adequacy of ESY Offer Services and Placement

Relationship Between ESY and LRE

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I. Overview of General Principles

and Legal Framework of ESY

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Some Background

ESY authorized under both federal (IDEA) and state law Not mentioned in IDEA statute, but appears in

regulations under FAPE provisions No specific legislative criteria for determining

need

Eligibility and determination of nature and extent of ESY services is IEP team decision

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Some Background ESY is not:

Based on category of disability A child care service An automatic program provision from year to year Summer school, compensatory program or

enrichment services Required to be provided in traditional classroom

setting Required to maximize student’s potential

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So What Is ESY? Special education and related services

that: Meet state standards Are provided to a special education student beyond

the district’s normal school year Are provided in accordance with student’s IEP Are provided at no cost to parents Are provided only if IEP team determines that services

are needed for student to receive FAPE

(34 C.F.R. §300.106)

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Extension of Academic Year Any district (or SELPA or COE)

that offers special ed programs during regular academic year must make programs available beyond normal school year

ESY “extends preceding academic school year; it does not anticipate the year to come”

(Cal. Code Regs., tit. 5 §3043; Lucia Mar Unified School Dist. v. Student (OAH 2012) No. 2011070196))

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Length of ESY Services

Minimum of 20 instructional days (including holidays) Depending on IEP, ESY may need to be provided

for more than 20 days Same length of time as school day for students of

same age level attending summer school in district (unless otherwise specified in IEP)

May also be provided during spring and winter breaks, as well as after regular school hours

(5 C.C.R. §3043; 71 Fed. Reg. 46582 (Aug. 14, 2006))

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Length of ESY Services

Case Example: Garvey USD (OAH 2012) 8-year-old with intellectual disability ESY offer: June 27 until July 28 Parent asked for additional five weeks of ESY until

beginning of new school year (“summer gap”) ALJ: No indication that Student needed ESY beyond

that offered by District Rationale: Five-week break during summer would

not impact Student’s performance

(Student v. Garvey School Dist. (OAH 2012) No. 2012061193)

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ESY vs. Summer School

Summer school is not ESY Summer school typically focuses on

developing skills for students at risk of being retained or allowing students to regain credits

Districts can choose not to provide summer programs Special ed students may attend summer school as

part of their ESY services as determined by their IEP team

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II. Determining the Need for ESY

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Role of IEP Team

No legal obligation to discuss or offer ESY to every student

But since ESY services cannot be limited to particular categories of disabilities, prudent best practice is to raise possible need for ESY at each annual IEP meeting

(34 C.F.R. §300.106; Student v. Dublin Unified School Dist. (OAH 2008) No. N2007100454))

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Timeframe for ESY Decisions Decisions must be made in

“timely manner” when IEP team becomes aware that student may need ESY

Failure to determine needfor ESY in timely manner can deny FAPE

But no requirement to determine need for ESYat same time that team develops annual IEP

(Reinholdson v. School Bd. of Indep. School Dist. 11 (D. Minn. 2005) 44 IDELR 42)

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Timeframe for ESY Decisions Case Example: St. Helena USD (OAH 2009)

During October IEP meeting, team determined it would defer ESY decision for 14-year-old with SLD until spring

Wanted to wait to review progress and grades following third quarter of academic year

ALJ: Decision not to make ESY offer in October was neither procedural nor substantive denial of FAPE

Rationale: Decision to wait for information was consistent with obligation to offer program based on Student’s unique needs

(Student v. St. Helena Unified School Dist. (OAH 2009) No. 2008110533)

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Predetermination

Occurs when IEP team Decides on its offer prior to IEP meeting; or Presents “take it or leave it” option; or Does not allow parents adequate opportunities to

present opinions or proposals; or Makes “blanket” decision not to offer services to

particular groups of students

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Predetermination Case Example: Spencer Valley USD (OAH 2014)

Program specialist believed full-time placement in special ed classroom was not appropriate without some inclusion

But District offered such placement outside of IEP meeting in contradiction of opinion and without Parents’ input

ALJ found predetermination Case Example: Fresno USD (OAH 2012)

Team members believed Student would benefit from ESY No offer made because District did not offer ESY to any

student in adult transition programs ALJ found predetermination

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Practice Pointer

Ensure sure team members understand what ESY is – and what it is not

Make sure any decision not to offer ESY is supported by appropriate data

Always focus on students’ unique needs,not on district resources

Discuss appropriate ESY options and alternatives with parents

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ESY Eligibility Standard California regulations:

Student has disabling condition likely to continue indefinitely or for prolonged period; and

Interruption of program during summer break may cause regression, when combined with limited recoupment capacity, makes it unlikely that student will attain level of self-sufficiency and independence that would otherwisebe expected

Clear lack of evidence of such factors may not be used to deny ESY if IEP team determines a need and includes it in IEP

(5 C.C.R. §3043)

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Regression/Recoupment Regression = Decline in

knowledge or skills that can result from interruption in education

Recoupment = Amount of time it takes to regain prior level of knowledge or skills

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Regression/Recoupment Mere indication of “possible” regression does

not necessarily mean student requires ESY services because all students “may regress to some extent during lengthy breaks”

Some courts: ESY services are only necessary if benefits student gains during school year will be “significantly jeopardized” without ESY program

(MM v. School Dist. of Greenville County (4th Cir. 2002) 37 IDELR 183; Alamo Heights Indep. School Dist. (5th Cir. 1986) 557 IDELR 315)

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Regression/Recoupment May regression/recoupment analysis be sole criteria

for ESY eligibility? OSEP: Yes, purpose of ESY is to prevent

regression/recoupment problems USDOE: Yes, states may use such criteria but also have

flexibility for making ESY determinations; criteria may not be applied in manner that denies ESY to students who need it for FAPE

OAH: Consistently has applied regression/recoupment standard found in state regulations

(Letter to Myers (OSEP 1989) 16 IDELR 290; 71 Fed. Reg. 46582 (Aug. 14, 2006))

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Other Factors Some courts have identified other factors that IEP teams

should consider, in addition to regression/recoupment: Degree of impairment Ability of parents to provide educational structure at home Rate of progress Behavioral and physical problems Availability of alternative resources Ability to interact with nondisabled students Areas of curriculum needing attention Vocational needs Emerging skills/breakthrough opportunities

(Johnson v. Independent School Dist. No. 4 (10th Cir. 1990) 17 IDELR 170; Reusch v. Fountain (D. Md. 1994) 21 IDELR 1107)

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ESY Eligibility Case Example: Elk Grove USD (OAH 2014)

3-year-old with cerebral palsy Parents demonstrated:

Disabling condition likely to continue indefinitely Likelihood that gross motor skills might regress over

summer without ESY physical therapy services ALJ: But Parents did not establish that Student had limited

recoupment capacity when school started in fall Rationale: While lack of evidence of regression/recoupment

may not be used to deny ESY if IEP team offers it, no offer was made . . . therefore no denial of FAPE

(Student v. Elk Grove Unified School Dist. (OAH 2014) No. 2014040312)

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ESY Eligibility Case Example: Vista USD (OAH 2013)

12-year-old with OHI (ADHD) Not provided ESY as District had no indication that

Student could not recover information lost over summer when teachers reviewed material at beginning of school year

Parents pointed to low assessment test score for sixth grade, but that information was not yet available at time of IEP meeting

ALJ upheld District’s decision of no ESY eligibility Rationale: No regression/recoupment issues

(Vista Unified School Dist. v. Student (OAH 2013) No. 2013070169)

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ESY Eligibility Case Example: Oak Park USD (SEHO 2002)

Student with autism received home discrete trial training services (DTT) during summer of 2001 and during breaks

District refused to fund DTT for summer 2002 but did not first assess Student to determine if regression would occur

Hearing Officer: District should have offered ESY Rationale: Because Student had received DTT during

previous summer, continuing the service was likely necessary to prevent regression; District had burden to show Student no longer needed services

Would this case be decided same way today?

(Student v. Oak Park Unified School Dist. (SEHO 2002) No. SN02-01186)

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Practice Pointer

Determining need for ESY services should not be made as “game time” decision at annual IEP meeting Instruct teachers and service providers at beginning

of year to collect data and record any decline in Student’s performance following breaks/vacations

Analyze data periodically throughout school year Develop (and keep current) ESY “worksheet” with

summaries of observations, evidence of regression, indications of recoupment difficulties and list of other available options

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III. Determining Adequacy of the ESY Offer: The FAPE

Standard for ESY

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ESY Programs and Services Districts must provide ESY services that meet

student’s individual needs in order to provide FAPE Services offered during ESY must be comparable in

“standards, scope and quality” to regular year special ed program

But remember: Criteria for determining whether student needs ESY services to receive FAPE is different (purpose of ESY is to prevent regression)

(Cal. Code Regs., tit. 5, § 3043(f)(2))

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ESY Programs and Services Case Example: Sacramento City USD (OAH 2014)

ESY services offered to high school Student with ED Designed to prevent regression in areas of mental

health and safety Parents disputed offer, claiming academic program at

ESY location was not sufficiently rigorous ALJ: Upheld District’s offer Rationale: No indication academic program at ESY

location offered by District was below state standards and Student did not have ESY needs related to academics

(Student v. Sacramento City Unified School Dist. (OAH 2014) No. 2013100405)

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ESY Programs and Services Case Example: Yucaipa-Calimesa USD (OAH 2014)

District offered ESY to 16-year-old Student with visual impairment, but did not provide Braille instruction or orientation/mobility instruction

District argued such services were not necessary to prevent regression, but no documentation in IEP notes

Rather, IEP notes documented that vision impairment and orientation/mobility staff did not work during the summer

ALJ: Student needed those services during ESY and District had obligation to make appropriate personnel available

(Student v. Yucaipa-Calimesa Unified School Dist. (OAH 2014) No. 2013100045)

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ESY Programs and Services Case Example: Eureka City USD (OAH 2010)

District offered ESY to ninth-grader for reading remediation (20 days for two hours per day)

Parents rejected offer and sought funding for Lindamood-Bell summer program

ALJ found for District Rationale:

No evidence that District’s offer was inadequate to prevent regression of reading skills

Lindamood-Bell program focused on advancement, not preventing regression

(Student v. Eureka City Unified School Dist. (OAH 2010) No. 2010070151)

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ESY Programs and Services Case Example: Monrovia USD (OAH 2008)

District offered ESY to 16-year-old that focused on reading and behavioral needs

ESY reading teacher used reward system for behavior and work completion that did not always work

No IEP meeting was convened to address behavior issues that arose during ESY

ALJ: Failure to provide proper behavior strategies resulted in inability for Student to benefit from ESY program

(Student v. Monrovia Unified School Dist. (OAH 2008) No. N2007120717)

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Practice Pointer

Consider the following to enable ESY service providers to successfully implement program developed by IEP team: Ensure providers have copy of completed IEP and

understand how to implement it Discuss targeted goals and regression/recoupment

issues Make sure providers have access to supplementary

aids and services, including assistive technology Identify data that providers should collect so that team

can determine success of ESY services and address new issues that might arise over the summer

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ESY Placement Placement criteria for ESY same as for

regular school year placement Determined annually in accordance with IEP and

close as possible to student’s home Unless IEP requires another arrangement,

placement is in school student would attend if not disabled

No removal from age-appropriate general ed classrooms solely because of needed modifications to general ed curriculum

(34 C.F.R. §300.116)

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ESY Placement

However, OSEP has acknowledged that student’s ESY placement might differ from regular school year placement because purpose of ESY is typically to prevent regression and recoupment problems

(Letter to Myers (OSEP 1989) 16 IDELR 290)

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ESY Placement Case Example: Lucia Mar USD (OAH 2012)

District offered ESY services to 14-year-old Student with autism at elementary school campus rather than middle school where she would attend the following year

District’s believed that Student was best served by starting her transition in the program she had most recently experienced

ALJ upheld placement offer Rationale: Methodological choice; no evidence that

placement at elementary school would harm Student in any way

(Lucia Mar Unified School Dist. v. Student (OAH 2012) No. 2011070196)

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IV. Relationship Between ESY and LRE

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ESY and LRE Review of LRE principles

Education must take place in general ed setting to maximum extent appropriate

Removal from general ed environment only if nature and severity of student’s disability is such that education in general ed classes with supplementary aids and services cannot be achieved satisfactorily

Continuum of services must be available

(34 C.F.R. §300.116)

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ESY and LRE Application of LRE to ESY

No exception in LRE requirement for ESY OSEP: Does not interpret LRE to mean that

districts must establish public programs for nondisabled children for sole purpose of being able to implement LRE during ESY

However, districts must meet LRE requirements by alternative means, such a private placements, if student must have interaction with nondisabled students to receive FAPE

(Letter to Myers (OSEP 1989) 213 IDELR 255)

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ESY and LRE

Application of LRE to ESY (California regulations) If student’s IEP during regular year specifies

integration in general ed classroom, districts that do not offer regular summer school programs are not required to meet that component of the IEP for ESY

(5 C.C.R. §3043(g))

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ESY Placement Case Example: San Francisco USD (OAH 2009)

District offered ESY placement in SDC instead of inclusion setting to Student with pervasive developmental disorder

Did not offer regular summer school program Parent asserted LRE violation; claimed state

regulation was contrary to IDEA LRE requirements and District must offer regular class as part of continuum of alternative placements

ALJ found no violation; cited Letter to Myers that full continuum not required solely for providing ESY

(Student v. San Francisco Unified School Dist. (OAH 2009) No. 2009040611)

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Finally . . . A Few Words About 504 Student eligible under Section 504 may receive ESY

OCR: Obligation to provide ESY programming derives from Section 504’s FAPE requirement

As practical matter, more difficult for 504-only students to establish need for ESY when disabilities do not rise to level of special ed eligibility

Difficult for 504 teams to determine need for ESY in absence of IEP with goals that would allow team to measure past regression/recoupment

(Coachella Valley (CA) Unified School Dist. (OCR 1985) 311 IDELR 42)

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .