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 Article of Interest - ESY

Extended School Year (ESY)

by Laura Athens, Attorney & Mediator

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 regulation.

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 be preempted.

III. Actual Regression is not Required

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 resources

E. The child’s ability to interact with nondisabled peers

F. Vocational needs

G. The curricular areas needing continuous attention

H. Emerging skills and breakthrough opportunities

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

(248) 661-0801

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