BY DIANE WISCARSON, ATTORNEY AT LAW
“My child is behind, and could really benefit from summer school!” This is a common sentiment of parents of children with IEPs, and certainly true in many cases. Being behind can indicate that a student should indeed attend summer school or engage in other learning activities during break times from school. What many parents may not realize, though, is that there are certain circumstances under which a school district must provide special education services to students over breaks. These services fall under the category of Extended School Year (ESY). To assure that your child’s needs are individually considered and met, it is important to understand how ESY works.
IEPs AND FAPE
Every student with an IEP is entitled to a free appropriate public education (FAPE). As a part of FAPE, school districts are sometimes required to provide specially designed instruction and/or related services to students outside of regular school days and hours. When, to receive FAPE, a student needs services over the summer or during shorter breaks, such as the winter holiday or spring break, then the district is required to provide those services.
Whether a student qualifies for services outside the regular school calendar is decided by the IEP team, which must include parents. ESY is an often missed or ignored component of an IEP meeting. Keep in mind that ESY must be discussed for each student with an IEP at least one time per year, at the annual IEP meeting. If the IEP team determines that ESY is necessary for a student to receive FAPE, then ESY must be offered to the student.
ESY is special education and/or related services the district provides outside of the regular school day or year for IEP students who are eligible. ESY is available for IEP students who will, or likely will, significantly lose skills over breaks from school services. The purpose of ESY is to help students retain the skills they have learned during the school year, until the school year resumes or re-starts after a break.
ESY services can be almost anything that a child needs to receive their FAPE. Generally, ESY services might mirror the types of special education and related services a student receives during the school year, but in a smaller amount. For example, for a child who received 90 minutes of specially designed instruction for reading during a school week, ESY might be 45 minutes of reading instruction each week that the child receives ESY services.
ESY is not summer school, help catching up, compensatory services, or credit recovery. ESY is for IEP students who need special education support during breaks or would be in jeopardy of not retaining skills learned while school was in session.
Generally speaking, there are two ways that a student “qualifies” for ESY. Regression/recoupment analysis is the most often used method to determine whether a student qualifies for ESY. This model looks at data for individual IEP goals and objectives right before a break (winter, spring, summer) to determine a student’s current performance. Then, once the student returns from break, data is again taken on the student’s IEP goals and objectives to see if s/he regressed/lost skills. If the student performs worse on any IEP goals or objectives after a break, then the recoupment time is examined. After a bit of time has passed, data is taken again on the same IEP goals and objectives to see if the student was able to recoup the skills within a reasonable time.
For a student who regresses but recoups the skills in a short time frame, ESY is generally not determined to be necessary. For a student who regresses and does not recoup in a reasonable amount of time, ESY would likely be determined necessary for the child to receive FAPE.
The other way to look at eligibility for ESY services is “predictive factors.” These are factors to be looked at that might help “predict” whether an IEP student is in need of ESY. There are no definitive factors or specific criteria. Rather, as with all IEP decisions, the ESY discussion is to be individualized. Predictive factors that could be considered, if applicable to the child being discussed, include a history of losing skills over breaks, problems re-adjusting to the routines and demands of school after breaks, or the specific nature of the disability and its impact on an individual child.
PURPOSE OF ESY
The reason for ESY is often counter-intuitive to parents. ESY is simply for the maintenance of skills so that when the children resume school they will not have lost what was gained before the break. One parent was heard to inquire whether a child would actually be prevented from learning new skills. Of course, that is not the case, but the focus of ESY is not on acquiring new skills. Thus, for the parent who is hoping to work on “closing a gap” or “catching up,” ESY is not the appropriate avenue.
LOCATION OF SUMMER ESY SERVICES
Most medium to large school districts have ESY programs that run each summer. Generally, all ESY services within a district are provided in one school each summer, regardless of the students’ ages. ESY is generally offered somewhere between four and six weeks in the middle of the summer, for about four days a week (usually excluding Fridays) and for three or four hours each morning.
There is a very small percentage of students who require ESY during breaks other than the extended summer break, such as the winter or spring break. For those students, the services are often provided at the student’s home, or in community locations such as a library.
ESY MUST BE INDIVIDUALIZED
While most summer ESY programs have a certain number of days and hours that they operate, that does not mean all ESY students receive the same amount or type of services. It is common for students to attend two days of the four days each week for ESY; or all four days of the ESY week, but maybe for only an hour of the ESY program; or perhaps two of the four available weeks of ESY.
The basic premise of IEPs, FAPE, and ESY remains the same – they must each be based on individual needs, as determined by the child’s IEP team. Thus, if a student is found eligible for ESY, then the next step is to decide what is needed for ESY for the student. That discussion will involve determining the goals, objectives, and amount of service for each area of identified ESY need during an IEP meeting.
When a student qualifies for ESY, the district must provide transportation to and from the location of the ESY services. This is generally door-to-door transportation via a special education bus. The district can choose to transport children via other methods such as a taxi cab or secure transport, or may even provide a mass transit pass for a student who is able to safely navigate and ride public transportation.
Districts cannot require parents to transport their children to or from ESY services. However, a district can ask if a parent is willing to transport the child. If the parent is willing to provide the transportation then the district will provide “mileage in lieu” to the parent. What this means is that the parent provides the transportation to and from the ESY location and keeps a mileage log. After the parent submits the mileage log to the district, the district reimburses the parent for the mileage driven, at the standard mileage rate set by the General Services Administration and used by all federal and state agencies. The rate at this time is $0.535 per mile.
Thus, whether the district actually transports a child to the ESY site or the parent provides the transportation, the cost of that transportation is borne by the district, not the parent.
COMPULSORY OR OPTIONAL
Even if a child is found to be eligible for ESY, the parents can decide whether the child attends. States have compulsory attendance laws for school, meaning that students are required to attend school during the regular school year, unless there is an excused absence. Excused absences are generally for things like illness, appointments, family emergencies, or even pre-planned vacations from time to time. When students do not follow compulsory attendance laws, there are often consequences for students, and sometimes parents.
ESY is different in that there is no compulsory attendance requirement. It is common for families to take vacations in the summertime, which is when almost all ESY services are offered. Thus, even if a student is determined eligible for an entire ESY program – all weeks offered, all days of the week, and all hours – the student is not required to attend. If a family is scheduled for vacation during a week or two of the time that ESY is being offered, the student can just attend for the ESY times that work for the family.
ESTABLISHING A PRECEDENT
Every year, it is important to consider whether a child qualifies for ESY. This is an integral part of any IEP, and as such, must be reviewed at least annually. Once the decision has been made as to whether a child is eligible for ESY, the parent has valuable information to help shape the child’s activities during breaks.
As circumstances change for families from year to year, attendance at ESY might also vary. For an eligible child, the ESY services offered one year might not fit with the family’s planning, but in another year might work well. Parents should examine and determine ESY eligibility every year to gain a better understanding of their child’s learning style and characteristics, regardless of whether the child will attend ESY in a particular year.
Even if a child is eligible in a particular year for ESY, there is no guarantee that the same child will be eligible in another academic year. However, if a child shows a regression/recoupment pattern, or has the same predictive factors from year to year, it makes it more likely that the child will be eligible in future years.
IEP MEETING NEEDED
If ESY was not discussed at your annual IEP meeting and/or you have not seen the actual data that tells you whether your child is eligible for ESY, an IEP meeting is needed before the end of the school year. Whether or not you would choose for your child to access ESY if qualified, the information gained in the ESY determination is critical for parents as they learn to understand and respond to their child’s individual learning style. The more knowledge you can gain about your child and their learning, the better you can advocate for your child.•
ABOUT THE AUTHOR:
Diane Wiscarson worked her way through the special education system on behalf of her son, and in so doing, found her passion for helping other families navigate special education and the law. Since graduating from law school in 1996, and founding Wiscarson Law, she has helped thousands of Oregon and Washington families obtain appropriate services and placements for their special needs children in public schools and education service districts in both states. For more information call (503) 727-0202, or go to www.wiscarsonlaw.com