The Special Ed Advocate newsletter
It's Unique ... and Free!
Sep 24 - Nashua, NH
Oct 1 - San Antonio, TX
Oct 11 - Denver, CO
Oct 22-23 - Torrance, CA
Oct 26 - Park City, UT
Nov 4 - Atlanta, GA
Nov 12 - Glen Burnie, MD
Topics from A-Z
Seminars & Training
Yellow Pages for Kids
Books & Training
Mail & Fax Orders
Doing Your Homework
Ask the Advocate
Short Course Series
Fed Court Complaints
Behavior & Discipline
Episodic, such as
Diabetes, Epilepsy, etc
Identification & Child Find
Law School & Clinics
Letters & Paper Trails
LRE / Inclusion
Military / DOD
PE and Adapted PE
Privacy & Records
Response to Intervention
Restraints / Seclusion
School Report Cards
Teachers & Principals
Twice Exceptional (2e)
VA Special Education
Resources & Directories
Legal & Advocacy
Best School Websites
Many parents have questions about Extended School Year (ESY) services. If you have
questions about a legal issue, you need to do your own legal research. This is especially true for extended school year because courts in different states and federal circuits have issued decisions that create different standards, and the standards for ESY have changed quickly.
Do not accept legal advice from school personnel. While they may believe what they tell you is true, educators are not legal experts and some have not read the
law, regulations and caselaw for themselves. You do need to read the law and regulations and know, for yourself, what the law and regulations say.
Read what the particular IDEA statute says about your issue. Then read the federal
special education regulations, and your state special ed regulations and your state policies about this issue. You will find that Extended School Year (ESY) is not mentioned in the IDEA statute, but is in the IDEA regulations. Read the IDEA regulation about ESY at 34 CFR § Section 300.106 (see pages 205-206, Wrightslaw: Special Education Law, 2nd Edition).
Next read a case or two about ESY (also search the Caselaw
Library) from your federal district court or Court of Appeals. If you take these steps, you will have a clear understanding
of the issues and variables in your state and how to proceed.
Standards for Extended School Year
In Standards for Extended School Year (ESY), Nissan Bar-Lev describes the legal basis and standards for ESY as defined by federal courts around the country. Dr. Bar-Lev is the special education director of CESA-7 in Green Bay, WI.
Letter to State Directors of Special Education (OSEP 2013). Transfering schools during the summer? What about ESY (page 4) When kids transfer to a new school during the summer, OSEP says the new school district generally must provide ESY services as comparable services to a transfer student whose IEP from the previous district contains those services, and may not refuse to provide ESY services to a child merely because the services would be provided during the summer.
Letter to Given (OSEP, 2003) After the U.S. Court of Appeals for the Fourth Circuit issued a decision about ESY in MM v. Greenville County, 303 F.3rd 523, 537-538 (2002), the Department of Education issued an Opinion Letter clarifying that lack of progress is not the only criteria for finding a child eligible for ESY. They noted that "likelihood of regression, slow recoupment, and predictive data based on the opinion of professionals are derived from longstanding judicial precedents," and that the Fourth Circuit noted that ESY decisions are fact and case specific and a showing of actual regression is not required to find a child eligible for ESY." (pdf)
If you have a disagreement or dispute with the school about Extended School Year (ESY) services, you need to get a copy of your state's standards for ESY. You also need to learn how to negotiate with school staff so you can resolve the problem and protect your relationships with school personnel.
To learn how to resolve an ESY dispute, read Advocacy Strategies: Negotiating for Extended School Year Services.
Should Your Child's IEP Include Extended Year Services (ESY)? Some children with disabilities require special education and related services longer than the usual school year in order to receive FAPE. Extended School Year (ESY) services are special education and/or related services provided beyond the usual school year.
ESY, Regression, and Responding to "Misinformation" from School Administrators by Sue Whitney, Wrightslaw Research Editor. ESY is a team decision, not a unilateral decision by the school. ESY can be used to recoup regression, or to catch your child up to where he should be, or for any other reason the team decides.
Overcoming Roadblocks to Extended School Year Services. Find out how Christine learned about her state regulations for ESY, then used these regulations to navigate around roadblocks and successfully negotiate with the school for ESY services.
How I Got Extended School Year (ESY) Services After the School Said "No!" When we attended our child's ESY Meeting, we were told that he did not qualify for Extended School Year services because he did not meet the "regression-recoupment criteria". We were not advised of any other criteria that may be used to determine if a child is eligible for ESY. But I didn't stop there.
Summer's Over - and our ESY Services Never Happened! History tends to repeat itself. Since the school did not provide OT and PT services this summer, you and the school need a backup plan if these problems occur again.
Making Up Missed Services. Missed sessions or interrupted services could constitute a denial a FAPE. If the missed therapy sessions will not be made up before end of school year, you may need to request ESY.
For more information about ESY, check the Topics Pages - especially the FAPE and IEP pages.
three cases about ESY to help you understand how these issues are decided: Daniel
Lawyer v. Chesterfield (1993), Reusch v. Fountain (1994), and J.H. ex rel. J.D. v. Henrico County School Board (2003).
"Window of Opportunity:" Lawyer v. Chesterfield School Board (1993)
is a young child with autism. At age six, he had expressive language
and phonological processing problems. The experts who evaluated and
treated Danny advised his parents that his ability to be self-sufficient
and independent later in life would depend on his ability to communicate.
the summer, Danny regressed in his ability to communicate. His behavior
deteriorated. His school district refused to provide any speech language
therapy during the summer months - and refused to reimburse his parents
for the services they purchased for their son.
The parents retained Pete Wright and requested a special education due process hearing - and prevailed. The
school district appealed. The Review Officer overturned the Hearing
Officer's decision. The case was appealed to Federal Court.
the record and hearing new testimony, Judge Spencer concluded, "Regression
is not the only factor" in deciding if a child needs ESY services.
The judge listed several additional factors that IEP teams should consider
in making ESY decisions:
in the Fall;
rate of progress;
Child's behavioral or physical problems;
of alternative resources;
of the child's curriculum that need continuous attention;
Judge Spencer discussed regression and recoupment.
He also discussed the need to take advantage of "windows of
opportunity" in educating children with disabilities:
"Danny's regression in the summer, coupled with nominal recoupment,
severely limits the educational benefits he receives from instruction
during the school year. His rate of progress is minimized by the interplay
of continuous regression and recoupment."
"Moreover, Danny's behavioral problems are compounded by his severe
language deficit. His inability to effectively communicate triggers
unacceptable behavior. Therefore, it is critical that Danny be provided
with continuous speech and communication services."
"Finally, the evidence provided by expert witnesses indicates that
for children who suffer from moderate to severe childhood autism, there
is a small, but vital, window of opportunity in which they can effectively
learn. Such period is generally between the ages of five and eight years
old . . . The Court concludes that it is extremely important that at
this critical stage of development, Danny receive uninterrupted speech
language therapy." Read the
in Lawyer v. Chesterfield.
to Providing ESY: Reusch v. Fountain (1994)
v. Fountain (D. MD 1994), a
federal court addressed the school districts "hostility to
The court found that parents were prevented from advocating
for their children by the districts refusal to provide parents
with notice about their right to request these services. The district
also engaged in delaying tactics by requiring parents to attend futile
also found that, in this district, administrative convenience took precedence
over providing FAPE to children with disabilities. Educational decisions
were not individualized according to the needs of the child.
v. Fountain, the court listed six factors that the IEP team
should consider in deciding if the child is eligible for ESY as a related
and recoupment - is the child likely to lose critical skills or
fail to recover these skills within in a reasonable time;
of progress toward IEP goals and objectives;
skills/breakthrough opportunities - Will a lengthy summer break
cause significant problems for a child who is learning a key skill,
Behavior - does the childs behavior interfere with his or
her ability to benefit from special education;
and/or severity of disability;
circumstances that interfere with childs ability to benefit
from special education.
Pete's case, Florence
County School District Four v. Shannon Carter, the
District Court found that:
any contest between systematic efficiency and the provision of FAPE
to a disabled child, Congress and the Supreme Court have made it clear
that the child must prevail."
"Window of Opportunity" Evidence: J.H. ex rel. J.D. v. Henrico County School Board, 326 F.3d 560 (4th Cir. 2003)
In 2003, the U. S. Court of Appeals for the Fourth Circuit issued a decision in J.H. ex rel. J.D. v. Henrico County School Board, 326 F.3d 560, 567-69 (4th Cir. 2003) and found that the district court and hearing officer applied an incorrect legal standard in determining whether extended school year services were necessary to provide a free appropriate education and remanding the case for reconsideration under the correct standard.
This decision appears to conflict with another decision by the 4th Circuit, MM v. School District of Greenville County, 303 F.3d 523 (4th Cir. 2002), that was issued by the 4th Circuit a year earlier. These cases with different outcomes show that caselaw in a jurisdiction can change quickly.
"The Plaintiffs noted the present appeal. Significantly, on September 6, 2002, just three weeks after the completion of the briefing schedule in this case, we issued MM v. School District of Greenville County, 303 F.3d 523 (4th Cir. 2002). In MM, we first announced a formal standard for determining when ESY Services are appropriate under the IDEA:
"ESY Services are only necessary to a FAPE when the benefits a disabled child gains during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer months." Id. at 538. In MM, we carefully emphasized that, under this standard, "the mere fact of likely regression is not a sufficient basis, because all students, disabled or not, may regress to some extent during lengthy breaks from school. Id."
[Later, in the same opinion, in the Order to Remand to the Hearing Officer]
"Because the record does not contain findings by the Hearing Officer with respect to whether the level of speech/language and occupational therapy services provided in the Summer 2001 IEP was adequate to prevent the gains that JH had made in these areas during his regular kindergarten school year from being significantly jeopardized, we are presently unable to conduct meaningful appellate review of the district court's judgment. Accordingly, we vacate that judgment and remand with instructions that the district court further remand the case to the Hearing Officer for reconsideration under the MM standard. We direct that upon such reconsideration, the Hearing Officer shall consider the "window of opportunity" evidence presented by the Plaintiffs to the extent that it is relevant to the question of whether the level of services provided in the Summer 2001 IEP was adequate to prevent the gains that JH had made during his regular kindergarten school year from being significantly jeopardized. We also direct that, prior to any decision being issued by the Hearing Officer, the parties be allowed to present oral and written argument before the Hearing Officer regarding the evidence in the record in support of their respective positions."
Last updated: 05/01/19