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At this time of year, a lot of kids on IEPs are attending or getting ready to attend Extended School Year. In California, where I’m located, it seems to be standard operating procedure for school districts to designate a set number of days in pre-defined classes for ESY, usually 20 days at 4 hours each in an SDC, often with a reduction in related services. This appears to be done this way based on the availability of teaching staff and the willingness of individual districts to finance these classrooms over the summer months.
However, this way of doing business doesn’t appear to be based on the language of the implementing regulations of the IDEA. In fact, it’s my argument that it doesn’t even come close.
Title 34, Code of the Federal Regulations, Section 300.106 defines ESY. What I find particularly interesting is the language found at 34 CFR Sec. 300.106(a)(3)(ii) that reads: “In implementing the requirements of this section, a public agency may not … Unilaterally limit the type, amount, or duration of those services.” [Emphasis added.]
So, what is all of this cookie-cutter programming 20 days of 4 hours in an SDC with reduced related services? Is this going on in other states, as well? The feedback I get from parents who place their children in these classes is that it’s a joke and their kids don’t learn or retain much of anything.
In California, the most common method of determining whether ESY is even offered to students is what is referred to as the “Regression/Recoupment Model.” That is, will the child regress significantly during the summer break such that the amount of time that it would take for the child to recoup the lost knowledge would put him/her really far behind once he/she returned to school in the fall?
If the amount of time it would take for the child to recover lost learning would significantly cut into the new learning that should be happening once school starts back up again in the fall, then ESY is theoretically warranted. But, then what gets offered is boilerplate programming rather than individualized programming and that isn’t compliant at all.
34 CFR Sec. 300.106(b) states in part: “… extended school year services means special education and related services that are provided to a child with a disability beyond the normal school year of the public agency … in accordance with the child’s IEP.” An IEP is required to be individualized – that’s what the “I” in “IEP” stands for.
The way school districts get around all of this is by verbally representing to the parents that ESY is basically summer school for special education students and presenting it as a canned program, writing it into the IEP as such, and having the parents sign their consent to the IEP not realizing that the District’s verbal representations of what ESY can entail have been disingenuous. Then, the education rendered comports with the IEP when the student is trucked off to some Godforsaken SDC for 20 days, 4 hours a day, thereby satisfying the “… in accordance with the child’s IEP …” portion of the regulations.
The issue here is that 34 CFR Sec. 300.106(a)(2) says: “Extended school year services must be provided only if a child’s IEP Team determines, on an individual basis, in accordance with Sec. Sec. 300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.” That means understanding what Sections 300.320 through 300.324 say. So, let’s look at them.
34 CFR Sec. 300.320 states the requirements of all IEPs, regardless of what time of the year it is. There’s nothing in there that says, “unless it’s summer, in which case the LEA can throw together some kind of Mickey Mouse SDC and put everybody in there together with one teacher for 20 days, 4 hours a day and reduce their related services.”
Whenever the discussion is held at the IEP meetings I’ve attended, the examination of ESY has always looked at what services are necessary to prevent regression that would lead to significant recoupment time, not what will continue the delivery of FAPE over the course of the summer.? In other words, “What will maintain the student over the summer so that he/she comes back in the fall ready to pick up where he/she left off at the end of the previous school year?” Not, “What is necessary to keep delivering a FAPE over the summer such that progress is made towards the student’s IEP goals?” It’s total BS, if you ask me.
Children in special education are already behind. Any gains they can make over the summer will help them become more fully functioning members of society. Special education – or education in general – should never be about maintaining a stationary position; it should be about new learning and growth.
34 CFR Sec. 300.321 states the requirements of the IEP team that decides the content of a child’s IEP and what the team should consider. Again, nothing in there suggests that the programming offered during ESY should be anything less than what is offered during the course of the school year.
34 CFR Sec. 300.322 is hugely significant because it describes meaningful parent participation. This is really important, and the reason why I’m writing and podcasting on this topic today because if the parents have no idea what kind of flexibility the IEP team actually has when it comes to planning ESY, they are prohibited from meaningful parent participation. When school districts make “take it or leave it” offers of anything, whether it’s the whole IEP or just a part of it, a FAPE has been denied because the parents have had no meaningful input in what the IEP says.
This is bolstered by 34 CFR Sec. 300.501(b), which states: “The parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to .. the identification, evaluation, and educational placement of the child; and the provision of FAPE to the child.” There is plenty of case law to back this up.
Far too many IEPs are “take it or leave it offers” made without meaningful parent participation. Parents are told, “This is what we’re offering,” and they can either sign the IEP or not, in which case what was offered will not be delivered at all. This is why parents have the right to partially consent to IEPs – partial consent prevents districts from making “take it or leave it” all-or-nothing offers that hold a child’s education hostage unless the parents agree to everything, including the parts they don’t like.
But, many parents have no idea that this is the case and in some states, state regulations make it very unclear that this is the case and parents are told that other than the initial IEP that finds their child eligible in the first place, their consent isn’t needed for any subsequent IEPs that are developed, leaving them at the mercy of school district administrators with self-serving agendas. These are the families I worry about the most when it comes to stuff like this.
34 CFR Sec. 300.323 speaks to when IEPs must be in effect, who must have access to children’s IEPs, and what happens when children with IEPs move from one school district to another. Suffice it to say that if the child attends ESY, the IEP is in force at that time and everybody responsible for implementing any part of it should have access to it.
34 CFR Sec. 300.324 speaks to what the IEP team must consider when determining what constitutes a FAPE for an individual child. This includes “The concerns of the parents for enhancing the education of? their child,” per 34 CFR Sec. 300.324(a)(2). [Emphasis added.] “Enhancing” a child’s education and maintaining knowledge already learned are definitely not the same thing. This language seems to me to preclude a mere regression/recoupment consideration.
So, what does this all mean? Often when discussions are had at IEP meetings about ESY, parents are looking at family vacations and plans over the summer and find the lame offer of ESY not worth arguing over. A lot of times, if the offer is inappropriate, they’ll just decline it rather than argue over it. I’m not always okay with that, but it’s not ultimately my decision.
There doesn’t seem to be a whole lot of case law out there that addresses this issue, though maybe I’m just not finding it. If anyone has any good authorities on the subject, please post them as comments to this blog or email us at firstname.lastname@example.org.
I think it’s something that definitely deserves more attention. Given that cookie-cutter ESY offers are being made to many children at the end of each year within individual school districts, it seems to me that if a school district couldn’t be reasoned with, the real solution might be a class action lawsuit. Not that I’m pro-litigation; I’ve just seen too many situations where the odd parent that fights this issue will succeed in getting an appropriate ESY offer for his/her child, but all the other kids in the lame summer SDC continue to languish because their parents don’t have a clue that they’ve been had and their children are failing to receive educational benefit as a result.
I think this is a subject worth discussion and your ideas and input are encouraged. Please let us know what your ESY planning experiences have been and how you’ve tackled these issues by posting a comment to this article. This is something on which we all have to put our heads together in order to figure out a solution.