Summertime and the Livin`s ESY

Summertime…
And the Livin’ is E-S-Y
ACSA 2013 Student Services,
Every Child Counts Symposium
January 17, 2013
Presented By: Laurie E. Reynolds
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Overview
Federal law
 California law
 Case law
 Guiding Principles

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Federal Law
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Federal Definition of ESY:
not in the IDEA
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Federal Definition of ESY:
Per the U.S. Department of Education,
however, a “longstanding interpretation of
the Act”




Landmark case: Battle v. Pennsylvania
(3rd Cir. 1980)
Part of FAPE entitlement for some children
Districts must have such services available
Must make decision about each child’s need for
such services
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Federal Regulations:
Definition of ESY services
Special education and related services
 Provided to a child with a disability
 Beyond the normal school year
 As provided in IEP
 At no cost to parents
 Meet state standards

34 C.F.R. § 300.106
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But . . .
“Only” if necessary for FAPE
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A district may not:
Limit ESY to particular disabilities
 Unilaterally limit type, amount, or duration
of services

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Otherwise,
states retain flexibility regarding

Determining
eligibility for ESY

Establishing state
standards
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State Law
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Education Code: ESY services
In the IEP if required for FAPE
 Individualized decision

Ed. Code §56345(b)(3)
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State Regulations:
Definition of ESY
Time between one academic year and
the next
 More limited than comments to federal
regulations suggest

5 C.C.R. § 3043
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ESY services must be provided by
Districts  SELPAs  County Offices
that provide services during the regular year.

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For state reimbursement:

Minimum of 20,
and maximum
of 30 to 55
instructional
days
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Other funding-related
(ADA) requirements



School day is same length as regular summer
school (unless IEP specified otherwise)
Services are comparable in standards, scope and
quality to regular year
No integration into regular classroom required if
regular summer school not offered
. . . But these are not the generally applicable
criteria.
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When are services necessary?
Regression/Recoupment
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Elements of
regression/recoupment standard:
Disabling condition likely to exist for a long period
of time
and
Interruption of programming will cause regression
and
Student has limited recoupment capacity
such that . . .
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Without ESY:

Impossible or unlikely
for student to attain
self-sufficiency and
independence
otherwise attainable,
despite disability
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Look at the IEP year
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Case Law
Substance and Procedure
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Case Law - Substance:
Regression/Recoupment (Eligibility)
 Related assessment issues
 FAPE, with reference to regular year services
 Individualized decisions

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Regression/Recoupment



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Regression = decline in knowledge and skills due
to interruption in education
Recoupment = time it takes to regain prior level of
functioning
Decisions regarding regression should be based on
empirical and qualitative data
Decisions regarding recoupment should be based
on predictive data
Battle v. Commonwealth of Pennsylvania (1980) 629 F.2nd 269
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ESY Eligibility
Six-year-old boy with autism
 District offered SDC, plus ABA and S/L
 For ESY, District offered SDC

Orange Unified School District v. C.K. (2012)
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Hearing Officer:
His autism was likely to continue indefinitely
 Each testified that behavior and compliance
regressed significantly during summer
 Further, parent’s expert testified regarding
need for year-round services
 District ordered to provide compensatory
education and reimbursement

Orange Unified School District v. C.K. (2012)
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Eligibility


8-year-old boy with ADHD and PDD behavioral
difficulties
On school breaks, boy was suicidal, aggressive
and attempted to kill sister
Hearing Officer concluded that ESY was not
required
Regression not the only question
 Must consider progress in school

East Providence School Department (SEA RI 2012) 59 IDELR 240
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Eligibility
16-year-old girl with intellectual disability
 Truancy caused regression
 Placed in self-contained class to limit
opportunities to skip school
 Magistrate Judge held no ESY required

Jackson Johnson v. District of Columbia (USDC DC) 112 IDELR 36774
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ESY Eligibility

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Third grade student with Asperger’s Syndrome
District denied ESY
ALJ’s historic statement: “The parent’s novel
assertion that her own mental and physical
maladies constitute unique needs to justify the
provision of ESY lacks any support in law.”
Buffalo-Lake Hector School District, (SEA MN 2010) 55 IDELR 238
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Length of ESY
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14-year-old girl with autism
In a part-time home, part-time school program
For ESY 2011, District offered
 Placement in SDC for 20 days, starting in June
 Four additional days of ESY in August
Part of transition to full-time school
Lucia Mar Unified School District (OAH 2012)
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Parents Argued



ESY offer failed due to being
on elementary campus
It was a different school than
she had attended
Too long of a break without
services
Lucia Mar Unified School District (OAH 2012)
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Hearing Officer:
ESY attaches to the preceding year
 The girl could use a break!
 The District prevailed on this issue!

Lucia Mar Unified School District (OAH 2012)
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Aide During ESY

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19-year-old boy with CP and OHI
IEP included aide during regular
school year
2009 he attended 4 weeks of ESY, but no aide
until week 3
2010 did not attend because no aide
on bus
Los Angeles Unified School District (OAH 2011) 2011030278
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District argued that he received some benefit in
2009 because he received DIS
ALJ: Mere presence not sufficient
District argued no denial of FAPE since student
did not actually regress
ALJ: Don’t need to show regression or harm if
there is a material failure to implement IEP
Result: Student awarded compensatory
education
Los Angeles Unified School District (OAH 2011) 2011030278
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ESY and LRE
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6-year-old boy with PDD-NOS
Fully included in regular school year
ESY offer of SDC
ALJ: If not general ed summer school, then no
obligation to create one for ESY students
ALJ: Not even clear this student is eligible for ESY!
San Francisco Unified School District (OAH 2009) 53 IDELR 31
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ESY and LRE

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21 year-old student with ID, speech language
impairment and TBI, language disorder
District offered Futures Program, a
postsecondary functional skills program for
school year and ESY
Parent argued she should have academic,
general education environment
Saddleback Valley Unified School District (OAH 2012)
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Hearing Officer Split
Futures Program was NOT LRE or FAPE
for the regular school year
 But it WAS FAPE in the LRE for ESY

Saddleback Valley Unified School District (OAH 2012)
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Summer Camp as ESY
12-year old girl with autism
 District offered autism SDC
 Parent requested summer camp with
ABA as in previous years
 ALJ held for District

Wyoming Valley West
(SEA PA 2010) 55 IDELR 213
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Case Law - Procedure:
Clarity of offer
 Timing of offer
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Clarity of Offer
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Five-year-old student with autism and mild
mental retardation
As preschooler, received intensive ABA/DTT
home program
District offered transition to autism program
placement, 25 hours per week, for 2000-2001
school year
Conflict in testimony regarding timing of written
ESY offer, but witnesses agreed that there was
no IEP team discussion regarding ESY 2001
Clovis Unified School District (SEHO 2002) 102 LRP 10454
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Clarity of Offer
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Relying on Union v. Smith, no formal
specific offer
Only discussion at IEP team meeting was
acknowledgement of ESY eligibility
ESY program would not be an extension of
regular year program
District witnesses were unclear regarding the
nature of the ESY offer
Parental right to participate in IEP process was
seriously infringed
Clovis Unified School District (SEHO 2002) 102 LRP 10454
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Timing of Offer

Student with multiple
disabilities

Parent sought compensatory
education due to district’s
failure to develop ESY
program prior to spring
Reinholdson by Simon v.
School Bd. of Indep. Sch. Dist. No. 11
(8th Cir. 2006) 46 IDELR 63
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Court of Appeals
rejected parent’s argument
Purpose of ESY is to prevent regression,
not advance goals
 District’s decision to consider ESY services
in spring was reasonable

Reinholdson by Simon v. School Bd. of Indep. Sch. Dist. No. 11
(8th Cir. 2006) IDELR 63
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Class action suit alleged numerous
ESY violations, including:
Making ESY offers too late in school year
 Failure to address ESY at every annual
review

Reusch v. Fountain (U.S. Dist. Ct. 1994) 21 IDELR 1107
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Federal Court agreed that
District violated IDEA’s
procedures regarding ESY
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Two-step decisionmaking process meant most
ESY offers were made after May 1
Late offers purposefully denied parents right to
review process, and to ESY services
Failure to discuss ESY at every annual review
was contrary to Maryland state law
Reusch v. Fountain (U.S. Dist. Ct. 1994) 21 IDELR 1107
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Guiding Principles
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Eligibility for ESY services is determined through
regression/recoupment analysis
Such decisions should be assessment/data based,
particularly when district proposes change in ESY
eligibility or services
Once eligible, district must provide FAPE
during ESY
Part of substantive FAPE analysis will include
whether ESY was calculated to prevent significant
regression
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Guiding Principles
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Part of substantive FAPE analysis may also
include relationship of ESY program to regular
year program
ESY program should address child’s
identified needs
ESY offers must be individualized; may not be
made categorically (such as based on nature of
child’s disability or placement); may call for
services through full summer; and should be
considered annually
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Guiding Principles

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ESY offers must be clear and written; simply
determining ESY eligibility is insufficient
Decisions regarding ESY may be made closer to
summer break, if reason for doing so is childcentered. However, this is not without risk.
Parent’s mental health issues are NOT part of
the analysis
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Thank you!
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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.
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