School Year (ESY)
by Laura Athens, Attorney &
Educational agencies must ensure that
extended school year (ESY) services are available as necessary to
provide a free appropriate public education (FAPE). ESY services are
provided beyond the normal school year in accordance with the IEP,
must meet state educational standards, and be provided at no expense
to the parents.
I. IDEA regulations
A. The IEP team must make an
individualized determination of whether ESY services are necessary.
B. ESY services must be provided only
if the IEP team determines that such services are necessary.
C. A school district may not limit
ESY to certain categories of disability our unilaterally limit the
type, amount, or duration of ESY services.
34 C.F.R. Sec. 300.309
There is no federal standard for
determining whether ESY services are necessary. States are free to
develop their own standards.
II. Michigan Standards
A. Traditionally, Michigan has used a
regression-recoupment standard. A former MDOE IEP Team Manual, January
1998, stated that to be eligible for ESY, the student must have
experienced or be likely to experience a significant regression in
performance as measured be recoupment of IEP goals and objectives
during the first nine weeks of the school year. The current MDOE IEP
Team Manual, December 1999, does not include the regression-recoupment
standard. Instead, it cites and reflects the current federal
B. Under the Michigan Revised
Administrative Rules for Special Education, the severely mentally
impaired (SMI) and severely multiply impaired (SXI) programs operate
on an extended school year basis for a duration of 230 days.
C. School districts often have their
own ESY Guidelines or Policies. If guidelines or policies exist, the
school district must follow them to ensure procedural due process. To
the extent that the guidelines conflict with federal law, they would
III. Actual Regression is not
A student does not, in fact, have to
regress in order to be eligible for ESY services. The United States
Court of Appeals for the Sixth Circuit has ruled that a parent does
not need to prove that the child has regressed over the summer, and
empirical evidence of regression is not required. The court reasoned
that requiring the parent to empirically prove prior regression would
be unfair. Conscientious parents who provide summer programming should
not be punished for doing so and children should not have to suffer
regression to prove their right to ESY services. Under circumstances
in which there is no empirical data available, the need for ESY may be
proven through expert opinion based on a professional individual
assessment. The Sixth Circuit has acknowledged that the
regression-recoupment is one consideration, but has also stated that
the ESY standard should be open to developments in special education
field, and not bound to any particular standard. Cordrey v. Euckert,
917 F. 2d 1460, 1471-72 (6th Cir. 1990).
IV. Other Relevant Factors
A. The degree of impairment
B. The child’s rate of progress
C. Behavioral or physical problems
D. Availability of alternative
E. The child’s ability to interact
with nondisabled peers
F. Vocational needs
G. The curricular areas needing
H. Emerging skills and breakthrough
Johnson v. Independent School
District No. 4, 921 F. 2d
1022 (10th Cir. 1990); Reusch v. Fountain, 872 F. Supp. 1421
(D. Md. 1994).
When assessing the need for ESY
services, it is important to consider all of the child’s unique needs
including not only academic, but also social, emotional, behavioral,
physical and communication needs.
Laura A. Athens
Attorney and Mediator