The document provides an overview of extended school year (ESY) services for students with disabilities: 1) ESY services are provided beyond the regular school year to prevent regression of skills over breaks and support receipt of a free and appropriate public education. 2) The IEP team determines if a student needs ESY based on likelihood of regression and recoupment difficulties, not on category of disability. 3) ESY services must be comparable in quality and scope to the student's program during the regular school year.

1. 1
Spotlight On Practice
The ABCs of ESY

2. 2
What We’ll Focus On. . . .
 Overview of General Principles
and Legal Framework of ESY
 Determining Need for ESY
 Role of IEP Team
 ESY Eligibility Standard
 Determining Adequacy of ESY Offer
 Services and Placement
 Relationship Between ESY and LRE

3. 3
I. Overview of
General Principles
and Legal Framework of ESY

4. 4
Some Background
 ESY authorized under both federal (IDEA)
and state law
 Not mentioned in IDEA statute, but appears in
regulations under FAPE provisions
 No specific legislative criteria for determining need
 Eligibility and determination of nature and
extent of ESY services is IEP team decision

5. 5
Some Background
 ESY is not:
 Based on category of disability
 A child care service
 An automatic program provision from year to year
 Summer school, compensatory program or enrichment
services
 Required to be provided in traditional classroom setting
 Required to maximize student’s potential

6. 6
So What Is ESY?
 Special education and related services that:
 Meet state standards
 Are provided to a special education student beyond the
district’s normal school year
 Are provided in accordance with student’s IEP
 Are provided at no cost to parents
 Are provided only if IEP team determines that services are
needed for student to receive FAPE
(34 C.F.R. §300.106)

7. 7
Extension of Academic Year
 Any district (or SELPA or COE)
that offers special ed programs
during regular academic year
must make programs available
beyond normal school year
 ESY “extends preceding academic school year; it
does not anticipate the year to come”
(Cal. Code Regs., tit. 5 §3043; Lucia Mar Unified School Dist. v. Student (OAH 2012)
No. 2011070196))

8. 8
Length of ESY Services
 Minimum of 20 instructional days (including holidays)
 Depending on IEP, ESY may need to be provided
for more than 20 days
 Same length of time as school day for students of
same age level attending summer school in district
(unless otherwise specified in IEP)
 May also be provided during spring and winter
breaks, as well as after regular school hours
(5 C.C.R. §3043; 71 Fed. Reg. 46582 (Aug. 14, 2006))

9. 9
Length of ESY Services
 Case Example: Garvey USD (OAH 2012)
 8-year-old with intellectual disability
 ESY offer: June 27 until July 28
 Parent asked for additional five weeks of ESY until
beginning of new school year (“summer gap”)
 ALJ: No indication that Student needed ESY beyond that
offered by District
 Rationale: Five-week break during summer would not
impact Student’s performance
(Student v. Garvey School Dist. (OAH 2012) No. 2012061193)

10. 10
ESY vs. Summer School
 Summer school is not ESY
 Summer school typically focuses on
developing skills for students at risk
of being retained or allowing students
to regain credits
 Districts can choose not to provide summer programs
 Special ed students may attend summer school as part of
their ESY services as determined by their IEP team

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II. Determining the Need
for ESY

12. 12
Role of IEP Team
 No legal obligation to discuss
or offer ESY to every student
 But since ESY services cannot
be limited to particular categories of disabilities,
prudent best practice is to raise possible need for
ESY at each annual IEP meeting
(34 C.F.R. §300.106; Student v. Dublin Unified School Dist. (OAH 2008) No.
N2007100454))

13. 13
Timeframe for ESY
Decisions Decisions must be made in
“timely manner” when IEP team
becomes aware that student
may need ESY
 Failure to determine need
for ESY in timely manner
can deny FAPE
 But no requirement to determine need for ESY
at same time that team develops annual IEP
(Reinholdson v. School Bd. of Indep. School Dist. 11 (D. Minn. 2005) 44 IDELR 42)

14. 14
Timeframe for ESY
Decisions Case Example: St. Helena USD (OAH 2009)
 During October IEP meeting, team determined it would
defer ESY decision for 14-year-old with SLD until spring
 Wanted to wait to review progress and grades following
third quarter of academic year
 ALJ: Decision not to make ESY offer in October was
neither procedural nor substantive denial of FAPE
 Rationale: Decision to wait for information was consistent
with obligation to offer program based on Student’s unique
needs
(Student v. St. Helena Unified School Dist. (OAH 2009) No. 2008110533)

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Predetermination
 Occurs when IEP team
 Decides on its offer prior to IEP meeting; or
 Presents “take it or leave it” option; or
 Does not allow parents adequate opportunities to present
opinions or proposals; or
 Makes “blanket” decision not to offer services to particular
groups of students

16. 16
Predetermination
 Case Example: Spencer Valley USD (OAH 2014)
 Program specialist believed full-time placement in special
ed classroom was not appropriate without some inclusion
 But District offered such placement outside of IEP meeting
in contradiction of opinion and without Parents’ input
 ALJ found predetermination
 Case Example: Fresno USD (OAH 2012)
 Team members believed Student would benefit from ESY
 No offer made because District did not offer ESY to any
student in adult transition programs
 ALJ found predetermination

17. 17
Practice Pointer
 Ensure sure team members understand what
ESY is – and what it is not
 Make sure any decision not to offer ESY is
supported by appropriate data
 Always focus on students’ unique needs,
not on district resources
 Discuss appropriate ESY options and alternatives
with parents

18. 18
ESY Eligibility Standard
 California regulations:
 Student has disabling condition likely to continue
indefinitely or for prolonged period; and
 Interruption of program during summer break may cause
regression, when combined with limited recoupment
capacity, makes it unlikely that student will attain level of
self-sufficiency and independence that would otherwise
be expected
 Clear lack of evidence of such factors may not be used to
deny ESY if IEP team determines a need and includes it in
IEP
(5 C.C.R. §3043)

19. 19
Regression/Recoupment
 Regression = Decline in
knowledge or skills that
can result from
interruption in education
 Recoupment = Amount
of time it takes to regain
prior level of knowledge
or skills

20. 20
Regression/Recoupment
 Mere indication of “possible” regression does not
necessarily mean student requires ESY services
because all students “may regress to some extent
during lengthy breaks”
 Some courts: ESY services are only necessary if
benefits student gains during school year will be
“significantly jeopardized” without ESY program
(MM v. School Dist. of Greenville County (4th Cir. 2002) 37 IDELR 183; Alamo
Heights Indep. School Dist. (5th Cir. 1986) 557 IDELR 315)

21. 21
Regression/Recoupment
 May regression/recoupment analysis be sole criteria
for ESY eligibility?
 OSEP: Yes, purpose of ESY is to prevent
regression/recoupment problems
 USDOE: Yes, states may use such criteria but also have
flexibility for making ESY determinations; criteria may not
be applied in manner that denies ESY to students who
need it for FAPE
 OAH: Consistently has applied regression/recoupment
standard found in state regulations
(Letter to Myers (OSEP 1989) 16 IDELR 290; 71 Fed. Reg. 46582 (Aug. 14, 2006))

22. 22
Other Factors
 Some courts have identified other factors that IEP teams
should consider, in addition to regression/recoupment:
 Degree of impairment
 Ability of parents to provide educational structure at home
 Rate of progress
 Behavioral and physical problems
 Availability of alternative resources
 Ability to interact with nondisabled students
 Areas of curriculum needing attention
 Vocational needs
 Emerging skills/breakthrough opportunities
(Johnson v. Independent School Dist. No. 4 (10th Cir. 1990) 17 IDELR 170;
Reusch v. Fountain (D. Md. 1994) 21 IDELR 1107)

23. 23
ESY Eligibility
 Case Example: Elk Grove USD (OAH 2014)
 3-year-old with cerebral palsy
 Parents demonstrated:
 Disabling condition likely to continue indefinitely
 Likelihood that gross motor skills might regress over
summer without ESY physical therapy services
 ALJ: But Parents did not establish that Student had limited
recoupment capacity when school started in fall
 Rationale: While lack of evidence of regression/recoupment
may not be used to deny ESY if IEP team offers it, no offer
was made . . . therefore no denial of FAPE
(Student v. Elk Grove Unified School Dist. (OAH 2014) No. 2014040312)

24. 24
ESY Eligibility
 Case Example: Vista USD (OAH 2013)
 12-year-old with OHI (ADHD)
 Not provided ESY as District had no indication that Student
could not recover information lost over summer when
teachers reviewed material at beginning of school year
 Parents pointed to low assessment test score for sixth
grade, but that information was not yet available at time of
IEP meeting
 ALJ upheld District’s decision of no ESY eligibility
 Rationale: No regression/recoupment issues
(Vista Unified School Dist. v. Student (OAH 2013) No. 2013070169)

25. 25
ESY Eligibility
 Case Example: Oak Park USD (SEHO 2002)
 Student with autism received home discrete trial training
services (DTT) during summer of 2001 and during breaks
 District refused to fund DTT for summer 2002 but did not
first assess Student to determine if regression would occur
 Hearing Officer: District should have offered ESY
 Rationale: Because Student had received DTT during
previous summer, continuing the service was likely
necessary to prevent regression; District had burden to
show Student no longer needed services
 Would this case be decided same way today?
(Student v. Oak Park Unified School Dist. (SEHO 2002) No. SN02-01186)

26. 26
Practice Pointer
 Determining need for ESY services should not be
made as “game time” decision at annual IEP
meeting
 Instruct teachers and service providers at beginning of
year to collect data and record any decline in Student’s
performance following breaks/vacations
 Analyze data periodically throughout school year
 Develop (and keep current) ESY “worksheet” with
summaries of observations, evidence of regression,
indications of recoupment difficulties and list of other
available options

27. 27
III. Determining Adequacy of
the ESY Offer: The FAPE
Standard for ESY

28. 28
ESY Programs and Services
 Districts must provide ESY services that meet
student’s individual needs in order to provide FAPE
 Services offered during ESY must be comparable in
“standards, scope and quality” to regular year special ed
program
 But remember: Criteria for determining whether
student needs ESY services to receive FAPE is
different (purpose of ESY is to prevent regression)
(Cal. Code Regs., tit. 5, § 3043(f)(2))

29. 29
ESY Programs and Services
 Case Example: Sacramento City USD (OAH 2014)
 ESY services offered to high school Student with ED
 Designed to prevent regression in areas of mental health
and safety
 Parents disputed offer, claiming academic program at ESY
location was not sufficiently rigorous
 ALJ: Upheld District’s offer
 Rationale: No indication academic program at ESY
location offered by District was below state standards and
Student did not have ESY needs related to academics
(Student v. Sacramento City Unified School Dist. (OAH 2014) No. 2013100405)

30. 30
ESY Programs and Services
 Case Example: Yucaipa-Calimesa USD (OAH 2014)
 District offered ESY to 16-year-old Student with visual
impairment, but did not provide Braille instruction or
orientation/mobility instruction
 District argued such services were not necessary to
prevent regression, but no documentation in IEP notes
 Rather, IEP notes documented that vision impairment and
orientation/mobility staff did not work during the summer
 ALJ: Student needed those services during ESY and
District had obligation to make appropriate personnel
available
(Student v. Yucaipa-Calimesa Unified School Dist. (OAH 2014) No. 2013100045)

31. 31
ESY Programs and Services
 Case Example: Eureka City USD (OAH 2010)
 District offered ESY to ninth-grader for reading
remediation (20 days for two hours per day)
 Parents rejected offer and sought funding for
Lindamood-Bell summer program
 ALJ found for District
 Rationale:
 No evidence that District’s offer was inadequate to
prevent regression of reading skills
 Lindamood-Bell program focused on advancement,
not preventing regression
(Student v. Eureka City Unified School Dist. (OAH 2010) No. 2010070151)

32. 32
ESY Programs and Services
 Case Example: Monrovia USD (OAH 2008)
 District offered ESY to 16-year-old that focused on
reading and behavioral needs
 ESY reading teacher used reward system for behavior
and work completion that did not always work
 No IEP meeting was convened to address behavior
issues that arose during ESY
 ALJ: Failure to provide proper behavior strategies
resulted in inability for Student to benefit from ESY
program
(Student v. Monrovia Unified School Dist. (OAH 2008) No. N2007120717)

33. 33
Practice Pointer
 Consider the following to enable ESY service
providers to successfully implement program
developed by IEP team:
 Ensure providers have copy of completed IEP and
understand how to implement it
 Discuss targeted goals and regression/recoupment issues
 Make sure providers have access to supplementary aids
and services, including assistive technology
 Identify data that providers should collect so that team
can determine success of ESY services and address new
issues that might arise over the summer

34. 34
ESY Placement
 Placement criteria for ESY same as for regular
school year placement
 Determined annually in accordance with IEP and close
as possible to student’s home
 Unless IEP requires another arrangement, placement is
in school student would attend if not disabled
 No removal from age-appropriate general ed classrooms
solely because of needed modifications to general ed
curriculum
(34 C.F.R. §300.116)

35. 35
ESY Placement
 However, OSEP has acknowledged that student’s
ESY placement might differ from regular school
year placement because purpose of ESY is
typically to prevent regression and recoupment
problems
(Letter to Myers (OSEP 1989) 16 IDELR 290)

36. 36
ESY Placement
 Case Example: Lucia Mar USD (OAH 2012)
 District offered ESY services to 14-year-old Student with
autism at elementary school campus rather than middle
school where she would attend the following year
 District’s believed that Student was best served by
starting her transition in the program she had most
recently experienced
 ALJ upheld placement offer
 Rationale: Methodological choice; no evidence that
placement at elementary school would harm Student in
any way
(Lucia Mar Unified School Dist. v. Student (OAH 2012) No. 2011070196)

37. 37
IV. Relationship Between ESY
and LRE

38. 38
ESY and LRE
 Review of LRE principles
 Education must take place in general ed setting to
maximum extent appropriate
 Removal from general ed environment only if nature and
severity of student’s disability is such that education in
general ed classes with supplementary aids and
services cannot be achieved satisfactorily
 Continuum of services must be available
(34 C.F.R. §300.116)

39. 39
ESY and LRE
 Application of LRE to ESY
 No exception in LRE requirement for ESY
 OSEP: Does not interpret LRE to mean that districts
must establish public programs for nondisabled children
for sole purpose of being able to implement LRE during
ESY
 However, districts must meet LRE requirements by
alternative means, such a private placements, if
student must have interaction with nondisabled
students to receive FAPE
(Letter to Myers (OSEP 1989) 213 IDELR 255)

40. 40
ESY and LRE
 Application of LRE to ESY (California regulations)
 If student’s IEP during regular year specifies integration
in general ed classroom, districts that do not offer
regular summer school programs are not required to
meet that component of the IEP for ESY
(5 C.C.R. §3043(g))

41. 41
ESY Placement
 Case Example: San Francisco USD (OAH 2009)
 District offered ESY placement in SDC instead of
inclusion setting to Student with pervasive
developmental disorder
 Did not offer regular summer school program
 Parent asserted LRE violation; claimed state regulation
was contrary to IDEA LRE requirements and District
must offer regular class as part of continuum of
alternative placements
 ALJ found no violation; cited Letter to Myers that full
continuum not required solely for providing ESY
(Student v. San Francisco Unified School Dist. (OAH 2009) No. 2009040611)

42. 42
Finally . . . A Few Words About
504
 Student eligible under Section 504 may receive ESY
 OCR: Obligation to provide ESY programming derives
from Section 504’s FAPE requirement
 As practical matter, more difficult for 504-only students to
establish need for ESY when disabilities do not rise to level
of special ed eligibility
 Difficult for 504 teams to determine need for ESY in
absence of IEP with goals that would allow team to
measure past regression/recoupment
(Coachella Valley (CA) Unified School Dist. (OCR 1985) 311 IDELR 42)

43. 43
Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

44. 44
Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .