Future Reflections Winter/Spring 2005
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Editor's Note: As an attorney with the Maryland Disability Law Center (MDLC), Margolis, is widely known and respected throughout the state for her legal knowledge and leadership in advocacy for children with disabilities. She has also successfully handled a number of advocacy cases for blind children throughout her career with MDLC. I have had the opportunity to work with her on various committees and organizational bodies throughout the years. The work she does is careful, thoughtful, and thorough. As the parent of a child with a disability, she has a passion for her work, but she never lets it cloud clear, legal thinking. The following document is reprinted with permission of the author. For ease in reading for the "lay" person, and because of space limitations, Ms. Margolis has also given us permission to omit the sections (about six pages) on Office of Special Education Programs (OSEP) policy rulings, civil rights rulings, and significant case law. However, as a service to our readers, the NOPBC will provide a free electronic copy of the complete handbook if you send your request to: <[email protected]>. Please type "ESY Handbook" in the subject line of the email, and tell us your name, what state you are from, and whether you are a parent, a teacher, an attorney, or advocate. You may also call (410) 659-9314, extension 2361, and make arrangements to get a print copy.
Extended school year (ESY) services are services provided beyond the regular school year that are necessary in order for a student to make educational progress during the school year. These services must be individually designed to meet specific objectives included in a student's individualized education program (IEP) and are part of what constitutes a free appropriate public education for the student who receives them. ESY services are not simply an extension of time in school, an automatic summer school placement, or a summer enrichment program.
A. Individuals with Disabilities Education Act (IDEA)
The statute is silent regarding ESY services.
B. IDEA Regulations
Regulations were issued in 1999 to implement the 1997 reauthorization of the IDEA. These regulations define "extended school year services" for the first time (34 C.F.R. 300.309(b)): "special education and related services that-—
1) Are provided to a child with a disability-
(i) Beyond the normal school year of the public agency;
(ii) In accordance with the child's IEP; and
(iii) At no cost to the parents of the child; and
2) Meet the standards of the State Education Agency (SEA).
Every public agency must ensure that ESY services are available to students whose IEP teams determine that such services are necessary for the provision of a free appropriate public education. 34 C.F.R. 309(a)(2).
The regulation specifically prohibits public agencies from limiting ESY services to particular categories of disability and from unilaterally limiting the type, amount, or duration of the services. 34 C.F.R. 300.309(a).
[Section II: C, D, E, F, G, and H have been omitted.]
The general standard of eligibility for extended school year services is that the student will not be able to continue to make meaningful educational progress during the school year unless extended school year services are provided. Some states may apply this standard to "critical life skills" which are not defined in federal law and may be interpreted differently within states. Generally, the following factors must be considered:
Regression: All students lose some skills during the summer. In determining eligibility for ESY services, it is necessary to show that the student would regress more than the amount that would be expected for any student.
Recoupment: All students need some time at the beginning of a school year to re-learn the skills they have lost during the summer. In determining eligibility for ESY services, it is necessary to show that it would take longer for the student with disabilities to regain skills than it would for students without disabilities.
NOTE: It is NOT necessary for a student actually to regress or take a long time to recoup skills before being determined to be eligible for ESY services. The LIKELIHOOD of regression or lengthy recoupment period, either of which would jeopardize the student's ability to make educational progress, is sufficient to establish eligibility. Also note that the regression-recoupment standard should include consideration of additional factors; generally, courts that have adopted a regression-recoupment standard have warned against "converting what should [be] a multifaceted inquiry into application of a single, inflexible criterion." See, e.g., Johnson v. Independent Sch. Dist. No. 4, 921 F.2d 1022, 1029 (10th Cir. 1990), cert. denied, 500 U.S. 905 (1991).
B. Other factors (as determined through cases and policy rulings):
1. Nature and/or severity of disability
2. Degree of progress (if progress is very slow, student may need ESY services in order to continue to make progress)
3. Emerging skills/breakthrough opportunities (e.g. student just beginning to communicate, accomplish self-care skills, read or write)
4. Interfering behaviors (e.g., student's behavior has an impact on his or her ability to make educational progress)
5. Special circumstances (e.g., student missed significant amount of time because of illness, surgery, or other personal circumstances; student at risk of more restrictive placement; student moving from restrictive placement to inclusive program, etc.)
NOTE: This list is not all-inclusive. See: Johnson v. Independent School District No. 4, 921 F.2d 1022 (10th Cir. 1990), cert.denied, 500 U.S. 905 (1991); Reusch v. Fountain, 872 F.Supp. 1421 (D.Md. 1994); JH v. Henrico County School Board, No. 02-1418 (4th Cir., April 28, 2003)
1.Fifteen-year-old student with mental retardation who has almost learned to cross a street safely and will likely regress and have to learn this skill over again in the fall;
2.Student with autism who has met a social/behavioral objective on his IEP designed to reduce the frequency of self-injurious behavior and who is likely to resume that behavior at the previous level unless he receives extended school year services to enable him to maintain his behavior.
3.Ten-year-old student with cerebral palsy and learning disabilities who has just learned to activate an augmentative communication device to answer basic questions and will not retain this skill unless it is practiced consistently in a structured setting;
4.Student with deafness who has received a cochlear implant and needs education services and speech therapy in order to process sounds effectively so she will be able to obtain academic information orally;
5.Seven-year-old student with vision impairment, cerebral palsy, and learning disabilities who is moving from a day placement at the state school for the blind with a functional curriculum to a placement at her neighborhood school with a combination of general education classes and special education classes who needs special education services during the summer to maintain her skills so she will make a smooth transition to her new school;
6.Three-year-old student with developmental delays who is on a toileting schedule with verbal prompts at school and who may regress significantly over the summer and require considerable retraining in the fall if the toileting program does not continue;
7.Eight-year-old student with mental retardation who has spent most of the school year learning one or two basic language or math concepts and whose rate of progress is so slow that she needs extended opportunities to learn and practice skills;
8.Twenty-year-old with developmental disabilities who recently obtained paid supported employment in the community and would likely lose the position without continued transition services during the summer;
9.Ten-year-old student with blindness who is academically above grade level in all areas except math who is moving from a separate special education school to a regular education placement and who needs math instruction in order to catch up and begin the school year in a general education math class;
10.Student with developmental and physical disabilities who had major surgery during the school year, was unable to participate in educational activities for several months because of pain and post-surgery complications, and who needs extended school year services to make up for lost time.
A. Measurable Goals and Objectives on IEP
The decision regarding eligibility for extended school year services should be based on data and other information about the student's progress. At the outset, it is critical to ensure that the IEP contains measurable goals and objectives so that information about the student's progress may be collected. In evaluating an IEP's measurability, it may be helpful to ask the following questions:
1) Does the goal reflect a starting point and a proposed ending point?
Example: Jane will increase
her reading level from 3rd grade, 3 months, to 4th grade, 3 months.
Example: Steven will increase his current 150 word reading vocabulary by learning to read 60 new words.
Example: Samantha will correctly answer one-digit addition questions 9 out of 10 times by choosing the correct answer from a choice of four.
A goal that has a starting point and a proposed ending point is measurable. It is possible to measure how many months Jane gains in reading skills over the course of a year. It is easy to measure how many new words Steven learns. Likewise, whether Samantha is able to answer basic addition questions correctly 90 percent of the time can be readily measured.
2) Are the objectives or short-term benchmarks linked to the goal in a logical way? In other words, if the student achieves each of the objectives, will the goal be accomplished?
Example: Annual goal—Ellie
will independently drink from a cup, taking the cup from table to mouth and
returning the cup to the table.
Objectives: Ellie will take a three-fourths full cup from table, take a drink, and return cup to table with verbal prompts and hand over hand assistance.
Ellie will take a three-fourths full cup from table, take a drink, and return cup to table with verbal cues and tactile cuing.
Ellie will independently pick up a three-fourths full cup from table, take a drink and return cup to table with verbal cuing and tactile cue to initiate.
It is important to recognize, however, that not every measurable goal is appropriate. For instance, a goal that requires a student who is blind to avoid obstacles in her path with 80 percent accuracy is not appropriate if the obstacle happens to be a car.
3) Are the short-term benchmarks or objectives easily measured? School districts should maintain data regarding a student's progress towards IEP goals and should collect data periodically. This is more likely to happen if the data can be collected and compiled easily.
Example: Every month,
Jane's teacher administers an informal reading test to Jane to measure her reading
skills and keeps this information both for the quarterly progress report she
must prepare and for purposes of determining Jane's possible eligibility for
Example: Steven's teacher maintains a list of each new word Steven learns to recognize and pronounce correctly. Knowing that he should be learning about 15 new words a quarter, since his annual goal is to learn 60 new words, she can easily determine if Steven is on track to accomplish the goal.
Example: Every week, Samantha's teacher gives the class a math quiz with 10 problems. While the rest of the class is progressing to multiple digit addition and subtraction, Samantha's test consists of one-digit addition problems. Samantha's teacher keeps all of Samantha's quizzes in a folder and adds the results to a chart every month. This gives her the information she needs for Samantha's quarterly progress report as well as information that can be used in determining whether or not Samantha is eligible for ESY services.
B. Identification of Goals/Objectives as Critical Life Skills
Some states require the provision of extended school year services based on the criteria discussed above as applied to those goals and objectives on the IEP that reflect critical life skills, or skills that are critical to the student's overall educational progress. School systems do not necessarily have a uniform view about what constitutes a critical life skill, and state statutes may or may not provide definitions. Some districts view critical life skills as only functional skills of daily living; others consider academics to be critical life skills. However, what constitutes a critical life skill for a particular student must be determined individually, based on the student's age, disability, and other circumstances.
It could be argued that a student's entire IEP addresses critical life skills and that, therefore, the entire IEP must be implemented for an ESY program. While this may be true for some students, the eligibility criteria must still be applied to the goals and objectives on the IEP; even if an objective addresses a critical life skill, ESY will only be required if the regression/recoupment or other criteria are met. Generally, in practice, certain portions of the IEP will be selected for focus during the ESY program. A separate ESY IEP is clearly contemplated by OSEP. See, e.g., Letter to Myers (August 30, 1989), 213 EHLR 255.
C. Data Collection/Reporting of Data
It is important to ensure that the measurable goals and objectives of the student's IEP are actually measured, i.e., that the data are collected and reported. This information will be crucial to the determination of eligibility for ESY services. In addition to periodic data collection during the school year, the IEP team should test the student or measure his or her status at the beginning of the school year to determine if there has been regression and, if so, how long it takes the student to recoup lost skills. Sound data and information collection practices are particularly important for students with severe disabilities, since their progress may be measurable only in minute steps.
D. IEP Team Meeting:
IEP team members sometimes discuss ESY services in general terms, rather than with reference to the particular IEP goals and objectives on the student's IEP. Parents and advocates should call the IEP team's attention to the student's IEP, goal by goal, and discuss both progress towards each goal and the student's need for ESY services. Using the applicable standards for eligibility, the team should evaluate the student's need for ESY services for each goal and objective. If the governing state statute discusses ESY services in the context of "critical life skills," then the team should examine each goal and objective to determine if it is related to a critical life skill.
It is crucial that accurate and complete IEP meeting minutes be prepared. Any points of importance, such as insufficient data, the student's lack of progress, or any other issues regarding eligibility for ESY services or the substance of an ESY services program should be documented in the minutes. This document may be essential if the parent chooses to appeal an IEP team decision regarding ESY eligibility or services. If the minutes do not accurately reflect the substance of the meeting, the parent can ask that the minutes be revised. While IDEA regulations permit a hearing regarding a school system's refusal to amend its records, a faster and easier way to address the issue is for the parent to document the requested corrections, additions, or deletions and ask that the parent's document be released any time the original document is released. See 34 C.F.R. 300.567-569.
E. Reports and Evaluations by School System Personnel/Independent Evaluations
As with determinations of eligibility for IDEA services and the development of a school year IEP, decisions about ESY eligibility and services will depend on the information provided by a student's teachers and related service providers. Sometimes, these anecdotal reports or evaluations and recommendations will be sufficient to support the student's need for ESY. On occasion, the IEP team may not recommend ESY but an astute analysis of the school district's evaluations and other documents pertaining to the student, in combination with effective legal advocacy, may result in the team's recommendation of ESY services.
Other times, it may be necessary to obtain an independent evaluation regarding the student's need for ESY services. The process is the same for ESY as it is for any other independent evaluation. In accord with 34 C.F.R. 502, parents have the right to obtain an independent evaluation at public expense if they disagree with an evaluation done or obtained by the school system. Similarly, although not specifically addressed in the regulations, if a school system fails to obtain an evaluation recommended by the IEP team, parents have generally been able to obtain an independent evaluation at public expense. If the school system believes its evaluation is appropriate and refuses to fund the independent evaluation, the school system must initiate a due process hearing to show that its evaluation is appropriate.
Parents always have the right to obtain an independent evaluation at their own expense. If they do so, the IEP team must consider the results of the evaluation but is not required to adopt the results. In situations in which the team does rely on the results or recommendations of the privately funded independent evaluation, families should consider seeking reimbursement from the school system. Failure of the IEP team to consider an independent evaluation constitutes a procedural violation of the IDEA but, at least in one circuit, not one that results in a substantive denial of a free appropriate public education. See, DiBuo v. Board of Education of Worcester County, 309 F.3d 184 (4th Cir. 2002)( IEP team refused to look at private recommendations for ESY eligibility for young child with autism).
It is essential that any outside professionals understand the purpose of and eligibility criteria for ESY services. Rather than focusing on what is "best" for the student or on what will enable the student to learn new skills during the summer, outside professionals should focus on what services are necessary in order for the student to be able to maintain skills and continue to make educational progress when the school year resumes. Professionals should base their opinions about a student's need for ESY on the student's specific IEP goals and should discuss the eligibility criteria as they relate to the student. Recommendations that do not relate to IEP goals and objectives are likely to be dismissed by the IEP team as "medical" or otherwise irrelevant recommendations. A report that simply notes that a student would benefit from ESY services is not sufficient. Rather, the professional should reference relevant eligibility criteria and explain why ESY is necessary in order for the student to continue to make educational progress and what the likely consequences are to the student if ESY services are not provided.
Development of a case for due process on the issue of ESY services is similar to the development of any other case. The key aspect of preparing for an ESY services due process hearing is that of timing. Ideally, the IEP team should consider a child's eligibility for ESY services early enough in the school year so that there is time, if necessary, for a family to resolve the matter through due process prior to the beginning of the summer. Otherwise, families may be forced to expend their own funds to ensure that their child receives summer services or stand by and watch their child suffer harm without services while the procedural process runs its course. See, e.g., Reusch v. Fountain, 872 F. Supp. 1421 (D.Md. 1994) (determination of ESY services must be made early enough so that parents can appeal a denial in time to obtain ESY services if their child is found eligible).
For a variety of reasons, of course, it may not be possible to resolve an ESY matter prior to the beginning of the summer. In this situation, if families have the resources and the ability to obtain services for their child, they can seek reimbursement. While the IDEA does not address the issue of notice regarding a family's intent to seek private ESY services, it would be wise to be cautious and have families give notice to the school system in accord with the requirements of 34 C.F.R. 300.403 regarding unilateral private placement when a free appropriate public education is at issue.
If families are unable to obtain services for their child, they can seek compensatory services to make up for the school system's denial of services during the summer. Families can use the IDEA complaint process or a due process hearing to challenge the failure of the school system to provide ESY and to seek compensatory services as a remedy. It is natural, if a student is owed compensatory services for the school system's failure to provide ESY, to accept an ESY program the following summer as the compensatory service. Likewise, if a student misses a service during the school year, a program during the summer might seem to be a reasonable way to provide compensatory services.
However, care should be taken to ensure that compensatory services are truly compensatory, rather than a substitution for services to which the student is already entitled. For instance, if a student needs an ESY program as part of a free appropriate public education, the student should receive an ESY program regardless of any entitlement to compensatory services. The compensatory services should be over and above what the student already has a right to receive. On the other hand, if a student ordinarily would not be entitled to an ESY program, compensatory services could take the form of a summer program. Advocates and families should be careful not to call this kind of summer program ESY, however, because to do so blurs the definitions of ESY and compensatory services.
A. Least Restrictive Environment/Location of Services:
Despite the fact that the IDEA's least restrictive environment requirements apply to extended school year services, many extended school year service programs are self-contained and serve only students with disabilities. This is because extended school year services are designed for students with disabilities and occur outside of the regular school schedule when students without disabilities generally do not attend school.
However, there are a variety of ways in which school districts can meet their obligation to provide students with disabilities extended school year services in less restrictive settings. First, as OSEP has noted, the school system could place the student in a private setting to obtain services. Second, if the school district operates a summer school program for students, a student with disabilities could receive the summer school program as his or her extended school year services or as a component of the extended school year services. For example, a student who is in self-contained reading and math classes but included in general education for all other classes during the school year could receive part of her extended school year services in a self-contained "ESY program" and part of her services in a general summer school program. Students could also receive extended school year services at a camp or other recreational facility.
Generally, advocacy efforts probably will be necessary to ensure that these types of arrangements are made to facilitate the least restrictive environment requirements of the IDEA. See, for example, Greenwich (CT) Pub. Sch. (2000), 34 IDELR 69.
In some circumstances, a family might seek an ESY program that is more restrictive than the program the student receives during the school year. In this situation, it will be necessary to explain how the student's unique needs necessitate a more restrictive environment for the provision of ESY.
B. Cookie-Cutter, One-Size-Fits-All Programs:
Despite the requirement that extended school year services be individualized to meet a student's unique needs, school districts often tend to be rigid, offering generic programs for a set period of time that does not span the break between the end of one school year and the beginning of the next. It is not at all unusual for parents to be told, for instance, that the district's extended school year services for third and fourth graders will be at a particular site, or that the students with severe disabilities are served at a particular school. Additionally, the school system might limit services to 2 ½ hours or 5 hours per day for five weeks. While a standard program might meet the needs of some students with disabilities, families and their advocates should not feel constrained by these types of artificial parameters imposed by the school system. Depending on the student's needs, it may be possible to obtain services to supplement the standard program. For instance, a student who benefits from the district's standard five week program, offered during July and the first week of August, but who will regress with no services for the remaining weeks before school starts, might receive tutoring at home or at a camp or recreational program. Students who use assistive technology devices might qualify for extended school year services on the basis that they need to continue to use the devices in a structured setting, so they will not lose valuable academic time in the fall focusing on re-learning mechanics such as keyboarding. Even if formal extended school year services are not necessary for a student, assistive technology devices and, perhaps, some or all of a student's physical therapy equipment, may be needed during the summer for home use, whether or not the student receives extended school year services.
C. Narrow Eligibility Criteria
Often, even though multiple eligibility criteria must be considered, IEP teams will look only at regression/recoupment or will interpret other eligibility criteria restrictively. For example, while many situations might constitute "special circumstances" that would qualify a student for ESY services, some school systems define "special circumstances" in a particular way, such as lack of services during the year because of extended illness, and refuse to consider a student as eligible unless he or she meets that particular definition. Strong advocacy may be needed to persuade the IEP team to broaden its perspective. If a state has clear regulations or guidelines about ESY eligibility criteria, consideration could also be given to filing an IDEA complaint with the state education agency. If the law in a particular state is not clear, consideration could be given to litigating a case similar to those discussed in the first section of this document.
If a student needs transportation in order to attend an extended school year services program, then the school district is responsible for providing transportation as a related service, as it would be during the school year. See, e.g., Brent v. San Diego Unified District, No. 96-1377 (S.D. Ca. 1996) (25 IDELR 1)(temporary restraining order issued to require transportation of students to IEP recommended day treatment programs during the summer).
E. Lack of Service Providers
Sometimes IEP teams may make decisions about ESY services that are patently based on the availability of services and service providers, rather than on the needs of the individual student. Clearly, this is illegal. In the context of placement in the least restrictive environment, OSEP has repeatedly stated in policy letters that placement cannot be based on administrative convenience or the availability of service providers. See, e.g., Letter to Earnest (July 18, 1986), EHLR 211:417 (1978-87 Rulings, Policy Letters); Letter to Boschwitz (September 26, 1988), 213:215. Additionally, question 31 in Appendix A of the IDEA regulations specifically states that a public agency must ensure that all services set forth in a student's IEP are provided, consistent with the child's needs as identified in the IEP. As with other IEP-based services, the school district is obligated to provide needed ESY services. The district can do this by contracting for those services, purchasing them from another school program, or hiring staff, for example. See, e.g. 34 C.F.R. Part 300, Appendix A, question 31. While the issue of ESY services based on service provider availability is certainly an issue that could be addressed in a due process hearing, if the student lives in a state with a viable complaint resolution process, consideration could be given to filing an IDEA complaint on behalf of the student or on behalf of the student and all other similarly situated students.
F. Lack of Assistive Technology or Therapy Equipment:
If a student's ESY program requires the provision of assistive technology devices or therapy equipment, the devices and pieces of equipment must be provided to the student. If a student's ESY services are provided at a location other than the school the student attends during the year, there may be a delay transferring the required items to the ESY program site or a subsequent delay transferring them back to the student's regular school site. It is good practice to identify an IEP team member or other school district staff member who will be responsible for ensuring that necessary equipment and devices are transferred to and from the ESY or that duplicate items are provided during the ESY program.
It is also important to ensure that the ESY service providers are familiar with and trained to use whatever assistive technology devices or pieces of equipment are required for a student's ESY program. Particularly if a school district has an assistive technology specialist who is not a full-time employee, the IEP team will need to ensure that ESY service providers are appropriately trained and knowledgeable enough to permit the student to use the devices or equipment safely and effectively.
G. Consultative Versus Direct Services:
Sometimes, school districts attempt to shift the provision of ESY related services from a direct service model to a consultative model, in which the therapist consults with the special education providers, who then implement the related service. While consultative services are often provided during the school year and a continuation of consultative services might be perfectly appropriate during an ESY program, it is important to determine if goals or objectives that have been delivered by a related services provider during the school year are being recommended for consultative service provision for the summer. This is not necessarily illegal, but it may be a way for the school system to try to cover the fact that it does not have sufficient staff to provide necessary services.
As a general rule of thumb, a parent or advocate should ask if there is something about the objective or goal that requires it to be provided by a licensed related services provider for safety, clinical judgment, or other reasons. For example, a student whose IEP calls for her to learn to climb stairs might have an objective requiring her feet and hips to be aligned at a certain angle as she steps up or down a stair. If this objective is implemented by a physical therapist during the school year, but is recommended as an objective to be implemented by the ESY program teacher in consultation with the physical therapist during the summer, the parent or advocate may be able to argue successfully for direct service provision by the physical therapist by pointing out that the child could potentially be harmed by incorrect implementation of the objective. Improper alignment might lead to hip problems, or the child could be hurt if her weight is not balanced properly. These are issues that fall within the physical therapist's area of expertise and require a level of experience and clinical judgment that a special educator is unlikely to possess.
H. ESY Services v. Summer School:
Often, school districts run summer school remedial academic programs for students. These programs generally charge a fee and are open to student who have failed a course or are otherwise in need of summer services. These programs are separate from the ESY services offered by the district, and students with disabilities, if permitted to take summer school classes, do not have IEPs and are charged. This practice begs the question, however, of whether or not the summer school program is an appropriate component of ESY for a student with disabiliries. If so, the student must have an IEP and must be afforded the program at no cost because it is what constitutes a free appropriate public school education for the student. A school district cannot have a blanket policy or practice that denies students with disabilities access to regular summer school programs. The key, as with every other aspect of ESY and a free appropriate public education in general, is to determine what the individual needs of the student are and to design a program that meets those needs.
Advocating for ESY services for a student is similar to advocating for a regular school year IEP for a student. The program must be individualized to meet the student's needs and it must be provided at no cost to the family. The salient question to be answered , however, is a little different. In developing an IEP, the team must design a program of services that are intended to enable the student to make meaningful educational progress. In addressing a student's need for ESY services, the team must first determine, by looking at multiple factors, if services beyond the regular school year are necessary for the student to continue to make progress during the school year. If so, the team must then design an ESY IEP to accomplish this purpose. While strenuous advocacy efforts may be necessary, it is possible to design creative, individualized ESY programs for students with disabilities.
Produced by Leslie Seid Margolis of the Maryland Disability Law Center with a grant from the Training Advocacy Support Center (TASC) at the National Association of Protection and Advocacy Systems, Inc., and presented at the NAPAS Conference, May 28-31, 2003, Washington, D.C.
Support for the development of this handbook comes from a federal interagency contract with the Administration on Developmental Disabilities (ADD), the Center for Mental Health Services (CMHS), and the Rehabilitation Services Administration (RSA).
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