Consideration of a student’s eligibility for Extended School Year Services (“ESY”) is integral to the provision of FAPE. School districts should be mindful of the timelines associated with the determination of ESY eligibility so that the IEP team is afforded ample time to analyze a student’s individual needs.
What Is ESY?
Extended School Year services (ESY) are services that are provided to a child with a disability beyond the regular 180-day school year, in accordance with a child’s IEP. The Individuals with Disabilities Education Act (IDEA), prescribes that local educational agencies must provide ESY when the IEP Team determines that an interruption in the school schedule, such as summer break, may result in a regression of skills.
Similar to the process of developing and implementing services and supports pursuant to the IDEA, determining ESY eligibility is a collaborative, data-driven decision-making process customized to a student’s unique needs.
Eligibility
ESY must be considered each year for every student with a qualifying disability. Once the IEP team reviews specifically defined factors and any additional ancillary information, it must issue a determination as to whether a student is or is not eligible for ESY services.
The following seven factors are taken into consideration with equal weight. No one factor can or should determine eligibility.
1 – Regression. This first factor contemplates the likelihood of a student reverting to a lower level of functioning. Regression may be evidenced by a measurable decrease in skills occurring as a result of interruptions in programming.
2 – Recoupment. Recoupment analyzes whether the student has the capacity to recover skills or behavior patterns and whether they will likely need a longer period of time to recoup such skills to their previous levels.
3 – Regression/Recoupment. This factor measures whether the student’s difficulties with regression and recoupment make it unlikely that the student will maintain the skills and behaviors relevant to the IEP goals.
4 – Mastery. Mastery relates to the extent to which the student has mastered an important skill or behavior at the point when educational programming would be interrupted.
5 – Self-sufficiency and independence. As its name suggests, factor five considers the extent to which a skill or behavior is particularly crucial for the student to meet the IEP goals of self-sufficiency and independence from caretakers. This is especially important when a student reaches the age of fourteen when transition planning will help address goals after high school.
6 – Successive interruptions. This factor contemplates how successive interruptions to programming will result in a student’s withdrawal from the learning process and the extent to which this may affect the student’s progresstoward IEP goals.
7 – Severity of disability. Lastly, the IEP team should take into account whether the student’s disability is categorized as severe, as this will affect the timeline to determine ESY eligibility.
The IEP Team should consider all relevant data including progress monitoring data, parental input, reports by medical or other agencies indicating degenerative-type difficulties, observations and opinions by educators, results of curriculum-based testing, ecological life skills assessments, or equivalent measures. The IEP team’s determinatoni regarding ESY eligibilty must be documented in the student’s IEP. The District should issue a NOREP/PWN if the IEP Team agreed on any of the following:
– Proposal to add ESY services to an IEP that did not previously include services
– Proposal to remove the provision of ESY services from an IEP
– Refusal to initiate the provision of ESY services via parent request
– Proposal or refusal to change the provision of the ESY program
The Pennsylvania Department of Education requires the IEP team to convene to review ESY eligibility no later than February 28 and thereafter, issue an NOREP to Parents by March 31 for those students with severe disabilities. Termed the Armstrong Target Group, PDE proffers that students with the following disabilities qualify as having a “severe” disability and must conform to the aforementioned timeline; Autism/Pervasive Developmental Disorder, Serious Emotional Disturbance, Severe Intellectual Disabilities, Degenerative Impairments with Mental Involvement, and Severe Multiple Disabilities.
For all other students, the Pennsylvania Code does not proffer a deadline but states that ESY determinations should be made in a “timely manner.”
ESY services can include related services, instructional academic goals and materials, training for parents and program staff, consultations, tutorials, etc. This variety exemplifies why data-driven, multi-member collaboration is integral to developing an ESY model that provides FAPE to each student.
Importantly, Pennsylvania guidance reiterates that the need for ESY services should not be based on the desire or need for daycare, a summer recreation program, or programs and services not designed to ensure the provision of FAPE. ESY services are an important tool for districts to ensure retention of skills and overall, student success.
As an important member of the IEP team, Districts should remember that parents may disagree with an ESY determination. In such an event, it is important that the District issue the NOREP/PWN along with the Procedural Safeguards Notice informing parents of the IEP team’s decision if such disagreement proceeds to a due process hearing.
Bottom Line For Schools
Districts should ensure IEP teams maintain proper collaboration and participation in all discussions related to ESY services while being mindful of the impending February 28 deadline for those students eligible under the Armstrong Target Group.
If your school has a question, please consult your local counsel or one of the Special Education attorneys at KingSpry.
