By Attorney Judith C. Saltzman
How do you cope with those mountains of snow and frigid temperatures? For my part, I have started dreaming of summer, and it has reminded me that January is the right time to also start thinking about Extended School Year services, or ESY.
ESY refers to summer services necessary to ensure that children who are on IEPs receive a Free Appropriate Public Education (FAPE). ESY is a continuation of special education services under an IEP and is provided at school district expense.
Some children with disabilities cannot make sufficient progress during the nine-month school year. Like pre-school eligibility and the right to remain in school until the age of 22, ESY gives such children the extra school time necessary to achieve their goals. If your child has not met his goals, this suggests that he needs additional time to receive FAPE. Schools are most likely to provide ESY, however, if you can persuade your IEP team that summer services are needed to prevent significant regression of skills or knowledge. If you are able to show the school district that it is likely to take such a long time for your child to regain skills lost during the summer months that his educational progress overall would be seriously delayed, you are more likely to obtain ESY for your child.
Why worry about ESY now? Our children have just returned to school after a lengthy winter vacation—made even lengthier for many of them by the snow days prior to Christmas. January is a good time to begin evaluating your child’s regression after being gone from school and to gather evidence that you may use a couple months down the road to persuade your IEP team that your child needs ESY.
Start by asking yourself whether you notice regression in your child following the winter break. Has he had more behaviors at home and in school since the weeks prior to the vacation? Is he talking less, reading or comprehending at a lower level, declining in math performance, exhibiting decreased adaptive skills, or showing any other declines that concern you? If so, make an effort to document these changes, and compare his current abilities not only to his performance prior to vacation, but also since the beginning of the school year.
How can you document regression? Your own notes are legitimate data, so date and record your observations. Keep all the school work your child brings home and compare it to his performance at the beginning of the year. Hopefully, your school is also monitoring progress (or lack of progress). Ask to review your child’s educational records (your right, under IDEA) and see whether there are charts or data that show regression. In cases in which I have been involved, schools have found an absence of regression without even looking at their own data that documents a problem—so be sure to take a look at what they’ve got.
If you don’t see any data, ask to meet with the teacher or intervention specialist, tell them of your concerns, and ask them to assess your child in the area(s) of concern. (It is always wise to confirm your verbal requests in writing.)
Consider an appointment with a private provider who can update and compare present and past performance and make appropriate professional judgments. If the doctor or therapist advises that ESY is required, you will be in a stronger position. While school districts are most likely to respond to data showing regression, in Cordrey v. Euckert, the U.S. Court of Appeals for the Sixth Circuit made clear that ESY can be based upon an appropriate professional opinion, and that parents need not allow their child to regress over one summer in order to prove that ESY is necessary the following summer. The Court in Cordrey also said that ESY should be open to developments in special education law. One such development is educational research showing that early intervention is essential in addressing certain disabilities, making ESY necessary before a “window of opportunity” closes. Hence, with the support of your doctor or therapist (and also, possibly, your advocate or attorney), you can make such arguments, and hope to win them on behalf of your child.