What is ESY?

ESY stands for Extended School Year and is special education and related services provided to a student with a disability during periods the public school is not in session.  The following will break this down into more specifics.

The Law

The regulations for the Individuals with Disabilities Education Act (IDEA) provide as follows:

“Each public agency must ensure that extended school year services are available as necessary to provide FAPE.”  34 C.F.R. §300.106(a)(1).

ESY is defined as “special education and related services that are provided to a child with a disability (i) beyond the normal school year of the public agency; (ii) in accordance with the child’s IEP; and (iii) at no cost to the parents of the child; and meet the standards of the [State].”  34 C.F.R. §300.106(b).

“Extended school year services must be provided only if a child’s IEP Team determines, on an individual basis [at an IEP meeting] that the services are necessary for the provision of FAPE to the child.”  34 C.F.R. §300.106(a)(2).

How do we know if the services are necessary for FAPE? Most courts have said that  “ESY is necessary to avoid regression so severe that the child would not be able to catch up during the following school year.”  See, e.g., Board of Educ. of Fayette County, Ky. v. LM, 478 F. 3d 307, 315 (6th Cir. 2007) citing Cordrey v. Euckert, 917 F.2d 1460, 1473 (6th Cir. 1990);  M.M. ex rel. D.M. v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 537-38 (4th Cir.2002) (“the benefits a disabled child gains during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer months”); Johnson v. Dist. of Columbia, 873 F.Supp.2d 382, 386 (D.D.C.2012); Polk v. Central Susquehanna Intermediate Unit 16, 853 F. 2d 171 (3rd Cir. 1988) (“such regression will substantially thwart the goal of meaningful progress.”)

Essentially, ESY is necessary if the child regresses during breaks in the school year to the extent that the benefits gained during the school year are lost and/or the child cannot recoup those benefits when school resumes.

“In implementing the requirements of this section, a public agency may not – limit extended school year services to particular categories of disability; or unilaterally limit the type, amount, or duration of those services.”  34 C.F.R. §300.106(a)(3).  In other words, a school district cannot, on its own, change the services, quantity or time simply because it is ESY.  ESY must be essentially the same as what the IEP provides during the regular school year.

Open Questions

These are questions that have not been answered clearly by the courts:

  • Does “beyond the normal school year” include winter break, spring break, or other periods when school is not in session?
  • What happens when school is closed for non-standard reasons, such as repairs to the building, a health crisis, or staffing issues?
  • How do we measure regression?
  • Is regression in areas of behavior as well as academic progress?

Conclusion

While we cannot answer these questions definitively, we believe that an IEP Team at a duly formed IEP meeting should discuss these issues openly and honestly to decide them on an individual basis for each child.  The answers may be different for each child with an IEP, hence the “I” meaning Individualized.

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