Written by Sussan, Greenwald & Wesler
What is ESY? If your child has a disability and receives special education and related services, you’ll want to know. The New Jersey Department of Education defines “extended school year” or “ESY” as educational programming beyond the traditional 180-day school year for eligible students with disabilities as outlined by the Individuals with Disabilities Education Act (IDEA).
As part of each annual review of a child’s individualized educational plan (IEP), the school is required to consider the need for ESY. ESY most commonly takes the form of a four week to eight week school program offered during the summer. It is not for every child with a disability or learning differences. But who is it for, and who should consider it? Let’s clear up some myths.
Myth #1: The case manager determines if a child is eligible for ESY.
As with any decision about your child’s Individualized Educational Plan, the federal statute, IDEA, requires that the IEP team work together to determine if ESY is necessary and, if so, to develop the ESY plan. ESY needs to be considered for every child and must be provided if necessary to provide the child with a free, appropriate public education. The team that makes the decision to provide ESY to a child, therefore, includes the parents, case manager, general education teacher (if relevant) and special education teacher. Case law upholds the federal statutory requirement that parents be offered the opportunity for meaningful participation in IEP decision-making including the decision to offer ESY services.
Myth #2: Only children who are severely disabled are entitled to ESY.
The nature and severity of the child’s disability is appropriate to consider; however, it is not the only consideration. All children who receive special education and related services under an IEP, as well as those children who receive accommodations pursuant a 504 Plan may be entitled to ESY. The determination is an individual one and must be based on needs of the particular child.
Myth #3: ESY is warranted only when the child will otherwise regress significantly over the summer and not be able to recoup those losses within a reasonable time when school resumes in the fall.
In fact, other factors may also indicate a child’s need for ESY. Regression is a frequently considered factor and important to understand. “Regression” means a decline in knowledge or skills that can result from an interruption in education. “Recoupment” refers to the amount of time it takes to regain the level of skills or knowledge the child had prior to the regression. However, parents need to know that “regression and recoupment” concerns are not the only criterion by which a child may qualify to receive ESY as part of his or her free, appropriate public education (“FAPE”). Federal courts have articulated that no one factor should ever be determinative in isolation, and the IEP team needs to examine the needs of the child in the context of achieving his or her stated IEP goals.
The New Jersey Department of Education has explicitly provided the following criteria for consideration in making ESY determinations:
- the degree of impairment;
- the degree of regression;
- the recovery time from the regression;
- the ability of the child’s parents to provide the educational structure at home;
- the child’s rate of progress;
- the child’s behavioral and physical needs;
- the availability of alternative resources;
- the ability of the child to interact with non-disabled children;
- the areas of the child’s curriculum which need continuous attention;
- the child’s vocational needs; and
- whether the requested services are extraordinary for the child’s condition as opposed to an integral part of the program for those with the child’s condition.
In addition, courts around the nation have discussed the importance of taking advantage of “windows of opportunity” for learning as another reason to consider ESY programming. The New Jersey Department of Education has stated that “a broad range of highly detailed information” is “essential” when determining the need for ESY. The NJ DOE recommends documenting a child’s functioning at various regular time intervals in order to assess the need for ESY.
So how can parents meaningfully participate in determining whether ESY is warranted? Parents can help make the case for their child to receive ESY services by keeping the data that evidences their child’s needs, progress, regression and learning style at these times:
- at the end of the regular school year;
- at the end of the summer program;
- at the beginning of the subsequent school year;
- before and after school vacations; and
- before or after the student has been out of school for other reasons; and
- an ongoing collection of information throughout the school year.
Parents can also bring to their school meetings reports from outside professionals who know the child and can set forth the child’s needs with respect to the need for ESY programming.
Myth #4: ESY services over the summer can be no greater than services in the IEP.
No. The IEP team determines the type, duration and frequency of services required to comprise an appropriate ESY program. What matters are the needs of the child. The NJ DOE has stated: “the goals and objectives should be a continuation of all or part of the school year IEP.” However, the amount of services provided during ESY may be modified from the levels prescribed in the IEP for the school year if the goals of the ESY program is to prevent regression, rather than to develop new skills.
Parents often do not realize that ESY can also consist of the provision of related services alone–such as speech and occupational therapy–even if the child does not meet the criteria for attending a more intensive classroom ESY summer program.
Myth #5: ESY can occur only during the summer.
ESY need not occur during the summer months. Technically, ESY are services beyond the traditional school year. They may also be used to meet the needs of students who failed to receive services to which they were entitled under their IEPs. In other words, ESY may be used as a means to accomplish compensatory education where warranted.
Myth #6: ESY can be offered only in a school setting.
The determination of where ESY services are to be offered should be made on a student by student basis. While ESY services are most frequently provided in school settings, ESY services may be provided in the home, or at an alternative location such as a local YMCA, library or Boys & Girls Club. What matters is that the environment is appropriate to meet the child’s needs.
Parents need to know they play a meaningful role in determining whether ESY is necessary for a child in order to accomplish IEP goals and provide the child with FAPE. Some IEP team members may not know the regulations relating to ESY; parents can help their child by bringing information to their IEP meeting and exploring with the team how to apply the requirements for ESY to their child’s unique needs.
Parents may wish to raise the possibility of ESY with their IEP teams late in the winter so that there is plenty of time to assess the child’s need. However, now can be the perfect time to address this issue. As with any denial of service to which a parent believes his or her child is entitled by law, when negotiations fail to result in a team decision about ESY that is appropriate for the child, parents have the options of pursuing mediation and due process.