Child's Rights to a Special Education
by David Sherman
Ordering Information
SAMPLE CHAPTER
Extended School Year Services
Summer is Coming! Does Your Child Need Extended School Year Services?
As part of your child’s public special education from the public school, he/she may be entitled to Extended School Year Services "ESY." ESY is generally thought of as a summer program (although it can be provided during any school break). ESY can include an Applied Behavior Analysis (ABA) or other type of program, tutoring, home programs, life skills, speech and language, occupational therapy, vocational programs, summer camp (sometimes with an aide) and other services. All ESY services should be set forth in the student’s Individualized Education Program (IEP).
34 Code of Federal Regulations Section 300.309 governs extended school year services providing that "each public agency shall ensure that extended school year services are available as necessary to provide a free appropriate education "FAPE", consistent with paragraph (a)(2) of this section."
Extended school year services must be provided only if a child's IEP team determines, on an individual basis, in accordance with Secs. 300.340-300.350, that the services are necessary for the provision of FAPE to the child.
Subsection (3) provides that "in implementing the requirements of this section, a public agency may not:
(ii) Unilaterally limit the type, amount, or duration of those services."
In addition to federal law, 49 states have statutes or policies that either require or allow ESY to be provided as an option. Since eligibility and delivery varies from state to state, parents should check their state law. The state law can provide for additional rights over and above your federal rights, but cannot take away any of your federal rights.
Students with autism often need ESY, and, in fact, it can be critical for young children. The National Research Council (NRC) in Educating Children with Autism recommends early intervention services for a minimum of 25 hours per week for 12 months a year.
Sometimes school districts tell a parent that extended school year services can only be provided for a certain number of weeks during the summer. Under the law, extended school year services must be provided for the entire time that they are appropriate.
According to the NRC, "The consensus across programs is generally strong concerning the need for: early entry into an intervention program, active engagement in intensive instructional programming for the equivalent of one full school day, including services that may be offered in different sites, for a minimum of five days a week with full year programming, use of planned teaching opportunities, organized around relatively brief periods of time for the youngest children (e.g., 15-20 minutes intervals) and sufficient amounts of adult attention in one to one or very small group instruction to meet individualized goals." (National Research Council, Educating Children with Autism, P.6, 219. emphasis added)
The NRC also advises that the service providers must be familiar with theory and research concerning the best practices for children with autism, including methods of applied behavior analysis, naturalistic learning, assistive technology, socialization, communication, inclusion, adaptation with the environment, language interventions, assessment, and the effective use of data collection systems. P. 225
The committee goes on to recommend that it is important for teachers and other professionals to have multiple exposures, opportunities to practice skills and building on the knowledge of teachers.
Thus, the teachers and staff who provide extended school year services should be qualified, just like the personnel who provide services during the regular school year. One of the problems that parents often face is that the personnel in the ESY program are not qualified.
Under the law, school districts cannot limit services provided during the extended school year. Sometimes the school will tell parents they can have some services, but other services, such as speech and language, are not available during the summer. If a certain service is needed to prevent regression, the school must provide the service.
As another example, schools sometimes tell parents that they can provide services for part of the summer, say July and the first week of August, but after that time period there is not staff available. If there will likely be regression during that time period (when the school claims they do not have anyone available), the school must arrange to provide the service.
Generally speaking, to qualify for ESY, parents must show that the child would regress if the/she does not receive extended school year services to qualify for ESY. ESY will generally not be awarded for the purpose of maximizing the child’s education.
A lack of progression is not grounds for an ESY claim. Generally, there must be significant regression or detrimental effect of progress towards a goal. Letter to Given, 39 IDELR 129 (OSEP 2003); MM v. School District of Greenville County, MM v. Greenville County, 303 F.3rd 523, 537-538 4th Cir. (2002)
It is not necessary to prove lost skills or that there was regression in the past to qualify for ESY, although this would certainly may be helpful to your claim for ESY. If you have convincing evidence that there will likely be regression in the coming summer, regardless of what has taken place in the past, your child is entitled to extended school year services. If you claim that regression is likely to occur if extended school year services are not provided, you may need an autism expert's opinion. In many cases, only an expert would have the knowledge of predictive regression.
Whether or not your child is offered extended school year services for this summer, you may wish to make a written request that standardized tests be performed - before and after the summer program. A private expert can perform these tests, or you can make a written request to the school to have these assessments done free of charge. If you do not receive extended school year services and the tests show your child regressed, you will have a good argument for compensatory education and/or extended school year services for the next summer.
If you do not have standardized tests from the previous summer, or any new tests, you can still secure the opinions of teachers, experts, or others working with your child as evidence of your child’s regression during the past summer.
Although regression is one factor in determining whether ESY should be provided, the courts have considered other factors such as "emerging skills" and "breakthrough opportunities." Reusch v. Fountain 872 F.Supp. 1421 (1994)
Now is the time to decide whether your child needs a summer program and if so, to determine what supporting evidence is needed. Reports, teachers' recommendations, assessments, experts, or others who observed your child before the past summer and after the summer ended, should be considered.
Your request for ESY should be in writing. It is generally best to request an IEP meeting to be scheduled for the early Spring, to allow enough time for the school to consider your request, time for negotiations, and time for a mediation or due process, if necessary. See www.aboutautismlaw.com –Sample Letters section for a letter that you can use to request ESY services
Make sure that the ESY teachers and service providers are qualified. Many times the teachers and staff in the summer program are much less qualified, Many times, the teachers and staff are much less qualified than those who teach during the regular school year. If you have doubts, make a written request to the school for the qualifications of the personnel. (Again, see www.aboutautismlaw.com for a sample letter.)
If the school district agrees to provide ESY services, all of the terms should be set forth in an IEP. The services should be specified with the dates of service, the frequency, a description of the services, and the start and stop dates. Goals and objectives should be developed in each area of need. Before and after testing can also be requested. Additionally, it is advisable to have the school commit to keeping a log of the services provided each day, including the hours of service, who provided them, the progress or lack of progress, and a brief description of the services provided.
ESY is not limited to students with severe disabilities. If your child has Asperger’s or is high functioning, this does not preclude your child from receiving extended school year services. Research, however, has shown that students with more severe handicaps showed more signs of regression during school vacations.
The law regarding ESY is still in the development stage and different courts in different parts of the country may set different tests as to whether a child is entitled to ESY in that court’s jurisdiction. Check your state education code and case law.These services can be crucial to maintaining and hopefully improving your child’s skills and quality of life.
About the Author: Dave Sherman is a special education attorney in California who consults nationally with parents of children with ASD. He is the author of Autism: Asserting Your Child’s Rights to a Special Education available on his web site www.aboutautismlaw.com , Amazon.com and other web sites and stores.
References
34 Code of Federal Regulations Section 300.309
Letter to Given, 39 IDELR 129 (OSEP 2003)
MM v. School District of Greenville County, MM v. Greenville County, 303 F.3rd 523, 537-538 4th Cir. (2002)
National Research Council, (2001) Educating Children with Autism, Washington DC: National Academy Press, P. 6, 219, 225
Reusch v. Fountain, 872 F. Supp 1421 (1994)