Understanding Your Right to ESY

The IDEA requires school districts to offer Extended School Year (ESY) services to students if necessary for the provision of Free Appropriate Public Education (FAPE) to your child. However, the IDEA is silent as to what factors a student’s IEP team should consider when determining whether a student needs ESY in order to receive FAPE.  Thus, many states, including Pennsylvania, have implemented their own regulations to guide school districts.  Parents are encouraged to review their state’s list of factors prior to any IEP meetings in which ESY will be discussed.

In Pennsylvania, an IEP team is required to make an ESY determination on an individual basis, taking into consideration a variety of factors; however no single factor should be considered determinative.  The factors IEP teams are required to consider in Pennsylvania are as follows:

1. Whether the student reverts to a lower level of functioning as evidenced by a measurable decrease in skills or behaviors which occurs as a result of an interruption in educational programming (Regression).
2. Whether the student has the capacity to recover the skills or behavior patterns in which regression occurred to a level demonstrated prior to the interruption of educational programming (Recoupment).
3. Whether the student’s difficulties with regression and recoupment make it unlikely that the student will maintain the skills and behaviors relevant to IEP goals and objectives.
4. The extent to which the student has mastered and consolidated an important skill or behavior at the point when educational programming would be interrupted.
5. The extent to which a skill or behavior is particularly crucial for the student to meet the IEP goals of self-sufficiency and independence from caretakers.
6. The extent to which successive interruptions in educational programming result in a student’s withdrawal from the learning process.
7. Whether the student’s disability is severe (such as autism/pervasive developmental disorder, emotional disturbance, severe Intellectual Disability, degenerative impairments with mental involvement and severe multiple disabilities).

In assessing these seven factors, Pennsylvania IEP teams are required to take into consideration reliable sources of information regarding your child’s educational needs including progress toward annual goals, reports from related services providers, parental input, medical reports where applicable to your child’s disability, opinions of all team members who have direct knowledge of your child, and results of tests such as curriculum-based assessments.

Additionally, in Pennsylvania, ESY determinations for students with severe disabilities such as autism/pervasive developmental disorder; emotional disturbance; Intellectual Disability; degenerative impairments with mental involvement; and severe multiple disabilities must be made no later than February 28^th of each school year.  For other disabilities, the Pennsylvania school district is required to make an ESY determination no later than March 31^st.

Unfortunately, ESY determinations are often made without the IEP team even discussing the reasons for offering or denying the services.  When faced with this situation, it is imperative for parents to raise the issue and request that the District clarify what reliable information the District relied upon to make the ESY determination.  This is important even if the District has agreed to offer ESY, because the ESY services offered should be relevant and meaningful to your child.  Without considering information about the services that the child needs, ESY cannot be individualized to your child.  On the other hand, if the District has denied ESY, you will need documentation of the basis for the District’s denial in order to effectively pursue your procedural safeguards (i.e. mediation or due process).

What is reliable information?  For purposes of an ESY determination, parents should always request that the reliable information include data taken before and after an extended break (most often this is Christmas/winter break).  If the data suggests that your child has regressed in their skills or behaviors over the winter holiday break, this supports the argument that ESY is needed during the summer break.  If you ultimately decide to file for due process regarding ESY, in Pennsylvania due process hearings are expedited so that the issue can be resolved prior to the expected start of ESY services.

For more information about special education visit www.mcandrewslaw.com or call 610-374-9900.  The information within this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.