How many times have you sat in an IEP meeting and thought, “I don’t think [what they are saying] is true?” How many times have you received your child’s IEP, the N1, or an email from the District and thought, “Is this accurate? Can school do this? What are my child’s rights?”
Let’s start with Extended School Year. The daily duration of a student's program must be equal to that of the regular school day, unless a Team states that a different duration is necessary to provide a free appropriate public education (FAPE) to a student. In such case, the Team shall specify the daily duration of the program, and the Team shall state on the IEP the reason for such different duration. Extended school year services must be provided only if a child's IEP Team determines, on an individual basis, that the services are necessary for the provision of FAPE to the child. “An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.”
Let’s examine this statement from a student’s N1:
Image: “The District rejects the option of providing Extended School Year (ESY) services for ___. In order to qualify for ESY, a student who has an active IEP must demonstrate substantial regression following a school vacation.”
Let’s unwrap this. Is this statement true? Technically, yes. Is this the standard for a child to qualify for ESY services? No. Fortunately for parents in Massachusetts, DESE drafted a helpful Q&A Guide on Special Education ESY. The document is very informative; let’s look at Q#3 & #4:
“AT least once annually, the IEP Team MUST consider the need for ESY. The determination must be made on an individual basis. May the Team wait and see? No - The Team MUST NOT put off a determination to offer ESY programming until the end of a break in services (i.e. summer vacation). The Team must consider the need for ESY prior to the beginning of the break in service by anticipating whether substantial regression and problems with recoupment will occur in the absence of ESY services.”
DESE’s Guide on ESY specifically states that the Team must not put off a determination to offer ESY until the end of a break? Did I also read that School must (…it says, must?) consider the need for ESY prior to the beginning of a break in service? Wait, did I also read that when a child’s IEP was marked “NO” for ESY prior to any team discussion that the Team predetermined the ESY qualification? And, this decision must be made on an individual basis and discussed at the meeting? Hmm, this seems to contradict this District’s statement above? Let’s continue… Q#9
DESE breaks down the term "recoupment" and "significant regression" for the Team in Q#9. Specifically, significant regression and recoupment consist of the following inter-related elements:
(1) the loss of performance levels that were attained before a break in service,
(2) the child's limited learning rate, which lengthens the amount of time the child requires to review and/or relearn previously attained objectives, and
(3) the fact that the time for that child to accomplish such recoupment is greater than the period of time the school district allows all other children for review and/or relearning.
Really! It is interesting that DESE gives three elements for significant regression, yet this Team gave one - “must demonstrate significant regression following a school vacation.” Let’s Continue to Q #10:
So, this is interesting, too? Q #10 states that any decision regarding ESY must (hey - there’s that word again!) take into account the child's history of significant regression and limited recoupment capability. “In other words, a child's Team must look backward and forward when considering the need for ESY programming.” In addition to significant regression and/or limited recoupment, courts also look at other ESY criteria to be applied by a Team, as follows:
• the degree of the child's impairment
• the parents' ability to provide structure at home
• the child's rate of progress
• the child's specific behavior and/or physical problems
• the availability of alternative resources
• the child's ability to interact with non-disabled children
• the specific curricular areas in which the child needs continuing attention
• the vocational and transition needs of the child
• whether the service requested is "extraordinary" rather than usual in consideration of the child's condition.
“Only when all factors are considered together by the child's Team can a determination be made as to how much service will be offered.” Wait, again. So, is this saying that it is not just substantial regression. It is not just limited recoupment capacity, but it entails criteria such as the nature and severity of the disability? Interfering behaviors? Specific curricular areas which require continuing attention? Meaning, what is likely to happen to this child without these services? Interesting, because when I read the IEP and the ESY box was just checked off prior to us sitting at the table, none of this was discussed? [CRICKETS].
What if the Team said they do not have enough data and deny ESY? Let’s look to Q#11:
“The unique nature…” That sounds like a cue for an individualized Team decision? Yes! ESY must be individualized. It must be driven by needs. ESY does not just refer to summer school. It is not just the predetermined 4 hours, 5 weeks that every school offers a student. ESY includes any day that is not a school day. This means weekends, holidays, early morning, late afternoons. And, just like regular school year placements, the principles of LRE apply to the provision of ESY services. Fact: Many Districts used ESY qualification as criteria for receiving “in-person” Cohort services this Fall. Parents, it would be wise to request (now) for data to be taken on your child the first two+ weeks of school so you have data regarding if he or she retained information from the summer and Covid/March. You should request for quantitative and qualitative data regarding your child, including anecdotal records on the rates of both learning and relearning, as well as your child's attainment of his/her IEP goals and objectives.