This IEP team must consider, as appropriate, whether a child needs extended school year services in order to receive a free appropriate public education (FAPE). Clearly, this determination must be done on an individual basis.

The program of ESY as part of the IEP is not simply an extension of time in school, nor is it required for every student. Nevertheless, it is the function of the school district to evaluate the need for ESY services correctly and fairly. This issue is made more difficult by the fact that there are no comprehensive eligibility criteria in the law, and only general standards have been mentioned by the courts for including ESY in the student’s program.

What follows is a compilation of ESY standards discussed by various federal courts throughout the country (At the time of this writing, no ESY case has been decided by the Court of Appeals for the 7th Circuit which includes Wisconsin). These ESY standards could become part of the school district’s comprehensive staff training on this issue.

STANDARD #1: NO SINGLE CRITERION

The first standard that has been mentioned by many federal courts is that no single criterion can be used as a sole qualifying factor. For example, the Tenth Circuit Court of Appeals (Johnson v. Independent School District No. 4) concluded that a single standard could not be used as the sole criterion for the provision of ESY services.

In Reusch V. Fountain (1994), cited a Maryland school district for "...the use of a standard for ESY eligibility which was incorrectly limited to a regression / recoupment analysis and did not consider other factors which were relevant in the ESY determination." The decision said that this standard may be used, but only as one part of a multi-faceted inquiry.

STANDARD #2: REGRESSION / RECOUPMENT

Judicial decisions have outlined various areas of considerations for determining eligibility, starting with the concept of regression / recoupment first established in Battle v. Commonwealth of Pennsylvania (1980).

Regression refers to a decline in knowledge and skills that can result from an interruption in education; recoupment is the amount of time it takes to regain the prior level of functioning. The issue is whether the benefits derived by the child during the regular school year will be significantly jeopardized if he is not provided an educational program during the summer months.

This criterion for eligibility, although it is a primary consideration to be used by IEP teams, is still only one of several criteria to be considered in making ESY decisions. It covers both instructional and related services for the prevention (or reduction) of academic and physical regression.

For some students, the skill regression during the summer months, coupled with their limited recoupment ability, is such that their basic educational needs cannot be met in a traditional 180 day program.

As one example or reference point, the IEP committee could determine that more than 45 school days (9 weeks) will be required to return the student to the former level of achievement because of the interruption of summer vacation.

The determination of ESY eligibility must be based on empirical and qualitative data collected by the IEP committee for individual skills. The IEP committee must take into account not only retrospective data, but also predictive data on recoupment abilities (will the recoupment take 9 weeks or more?). The key question before the IEP committee is whether the child needs services in the summer in order to secure the minimum benefits of a free and appropriate public education in the fall.

STANDARD #3: EMERGING SKILLS

In Reusch v. Fountain , the Court noted that "... ‘emerging skills’ and ‘breakthrough opportunities’ (as when a child is on the brink of learning to read) - can and should be incorporated into the eligibility analysis." The child is in a critical stage of developing a skill which has great potential for increasing his/her self-sufficiency. If such a skill is not completely acquired and mastered, it is likely that the current level of acquisition will be lost due to the interruption of summer vacation.

STANDARD #4: NATURE AND SEVERITY OF THE CHILD’S DISABILITY

Another criterion usually included in the eligibility determination is the nature and severity of the child’s disability. Although no disability category may be excluded from consideration for ESY, the nature and severity is a key factor in the ESY eligibility determination.

Children with severe disabilities are more likely to be involved in ESY programs, since their regression may be more significant, and their recoupment abilities may extend over longer time.

STANDARD # 5: NOTICE AND TIMING

Another point made by the court in the Reusch v. Fountain case was the importance of making a decision about ESY early enough in the year to allow the parents adequate time to exercise their right to administrative review or appeal in a timely fashion.

That decision of the U.S. District Court in Maryland prescribed very specific requirements relative to ESY procedures. The court found that the explanation about ESY contained a brochure distributed to all students was not sufficient and ordered additional explanation to be provided to parents.

The court also ordered that the student’s eligibility for ESY be considered at each annual review meeting, and that parents sign a form acknowledging their receipt of this information. The district must document the discussion and the decision reached after consideration of ESY eligibility at each annual review meeting.

STANDARD #6: CONTENT AND DURATION OF ESY SERVICES

Some ESY services may extend over the summer, while others provide only for periodic contact with professionals, or assistance to parents in providing instruction or reinforcement to their children.

OSEP issued a policy letter stating that limiting the duration of summer programs for students with disabilities "...would violate the basic requirement that programs be designed to meet the individual needs of each child" (Letter to Baugh, 211 IDELR 481, 1987).

Requirements for specifying the content and duration of ESY programs were also strongly stated in the Reusch v. Fountain decision. The court mandated "...individualized determinations of the number of weeks, days per week, and hours per day that each student receiving ESY should be provided".

Also, the content of the child’s ESY program must be determined on an individual basis. In response to an inquiry: "May LEAs refuse to provide related services, including transportation and therapy services, to students who are in need of and receiving such services during the regular school year?" OSEP responded: "No".

STANDARD #7: ABILITY OF PARENTS TO PROVIDE AN EDUCATIONAL STRUCTURE AT HOME

A number of federal courts (Johnson v. Bixby, 10th federal circuit court, 1990; Battle v. Pennsylvania, 3rd federal circuit court, 1980) mentioned that one of the standards that needs to be considered in determining need for ESY is the ability of the parents to provide an educational structure at home. If parents can provide the proper structure at home, the regression and recoupment issue will not be as severe, thus ESY services through the school staff may not be necessary.

Interventions during the summer may be provided by other than school staff. For example, parents may be able to provide structured opportunities for their children to practice specific skills. Perhaps the student’s utilization of a computer software program will be sufficient to maintain a critical skill. Perhaps accessing an existing community resource, such as a summer recreation program, will meet the need. If so, the provision of such parental services will not necessitate an ESY program. The IEP committee may recommend ESY services after concluding that (a) parents are not able or willing to provide home structured opportunities, or (b) the involvement of EEN staff during the summer is necessary to offset the impact of regression and recoupment.

EXTENDED SCHOOL YEAR (ESY) IS: