Is the school responsible for a 12-month program or ESY?

12-Month programs – Delaware law has a unique provision found in Title 14, Chapter 17, section 1703(e) of the Delaware Code which states that educational programs must be conducted on a 12-month schedule for students identified with autism (as well as several other disabilities). The Delaware code further states that a school district may extend school attendance from the regular 1,060 hours per year up to 1,426 hours for programs for students identified with autism. Enrollment beyond 180 days per year in any program is on a voluntary basis and applications must come from the parent, guardian, or other person legally responsible for the student. The student’s IEP has a box that should be checked if the student is eligible for a 12-program under this provision.

While the federal Individuals with Disabilities Education Act (“IDEA”) does not deem students identified with autism to be automatically eligible for a 12-month program, a student with autism may qualify for a 12-month program under IDEA if the IEP team determines that a 12-month program is necessary to provide the student with an appropriate education where they will have the opportunity to make meaningful progress.

ESY – Students who do not qualify for 12-month programs may still be eligible for Extended School Year (“ESY”) services. Under the federal IDEA, ESY services must be provided to a student at no cost to the parent if the IEP team determines that the services are necessary to provide the student with an appropriate education based on that student’s individual needs. The services must address the child’s unique needs and cannot be limited in their type, amount, or duration. Federal IDEA does not set specific criteria for determining whether a child is eligible for ESY.

The Delaware Code, however, sets forth the following specific criteria that IEP teams should consider when determining whether a student qualifies for ESY:

• Without ESY services, will appropriate and meaningful progress on the IEP goals and objectives be achieved?
• Does the student have a consistent pattern of substantial regression in critical skill areas over the summer break?
• Will attaining a nearly acquired critical skill be significantly jeopardized over the summer break without ESY services?
• For students whose IEPs contain vocational or employment goals and objectives, would paid employment opportunities be significantly jeopardized if training and job coaching are not provided during the summer break?
• Do any special or extenuating circumstances exist that justify provision of ESY services?

ESY services should be tailored to the student’s individual needs and goals as identified in the IEP; therefore, if the student needs social skills and appropriate and meaningful progress has not been made or the student is likely to regress during the summer, then the summer program should include a social skills program. The same applies to all other special education and related services (SL and OT, for example).