Assistive Technology Device

Extended School Year

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This Fact Sheet was prepared by the Disability Law Center For more information please call 1-800-478-1234

Key Points: Extended School Year (“ESY”) must be individually determined for each child with a disability.

Regulations: 34 C.F.R. 300.309 (1999 Regs); 34 C.F.R. 300.106 (Prop. Fed Regs); 4 AAC 52.144

Landmark Case: In the landmark ESY decision of Battle v. Pennsylvania, 629 F.2d 269 (3rd Cir. 1980), cert. denied, 452 U.S. 968 (1981), the Third Circuit concluded that "inflexible application of a 180 day maximum prevents the proper formulation of appropriate educational goals for individual members of the plaintiff class [of disabled children]."Id. at 281

What This Means?

Each school district must ensure that ESY services are available as necessary to provide a free appropriate public education if a child’s IEP team determines, on an individual basis, in accordance with 34 C.F.R. 300.309 that the services are necessary for the provision of FAPE to the child. ESY services must be clearly set out in a child’s IEP. ESY services means special education and related services that are provided to a child with a disability beyond the normal school year, in accordance with the child’s IEP and at no cost to the parents of the child. A school district or state may not limit ESY services to particular categories of disabilities or unilaterally limit the type, amount, or duration of those services. ESY services must meet the standards of the state educational agency.

School districts must involve parents in the determination of ESY services. Letter to Harkin, 213 IDELR 263 (OSEP 1989) and Letter to Myers, 213 IDELR 263 (OSEP 1989). Written or unwritten policies restricting all children to a fixed school year violate the IDEA. Gebhardt v. Ambach, IDELR 130 (W.D. N.Y. 1982).

As one court explained: “One of the related services that must be considered, and included in a disabled child's IEP when appropriate, is an extended school year program. The provision of ESY as part of an IEP is not simply the extension of time in school. Rather, it is the inclusion of extended services designed for the particular child as part of that child's individualized education program. There is no requirement that ESY be made a part of every disabled child's IEP even if there would be some educational benefit. Indeed, it appears that ESY would appropriately be part of an FAPE for a relatively small number of disabled children. Nevertheless, while there is no requirement that all disabled children have ESY in their IEP, there is a legal obligation to consider and fairly evaluate the appropriateness of ESY in developing every IEP for every disabled child.” Reusch v. Fountain, 21 IDELR 1107 (D. Md 1994).

Factors to Determine a Child’s Need for ESY.

Courts have recognized that a child’s need for ESY services will vary depending on the child and the child’s disability. Proven regression is not required. Nor is risk of regression and limited ability to recoup the only standard. Instead, a variety of nonregression-based factors---for example, "emerging skills" and "breakthrough opportunities" (as when a child is on the brink of learning to read)---can and should be incorporated into the eligibility analysis. Courts have held repeatedly that the regression-recoupment analysis is not the only measure used to determine the necessity of structured summer program. In addition to degree of regression and the time necessary for recoupment, courts have considered many factors important in their discussions of what constitutes an "appropriate" educational program under the Act. These include the degree of impairment and the ability of the child's parents to provide the educational structure at home, Battle, 629 F.2d at 280; the child's rate of progress, his or her behavioral and physical problems, the availability of alternative resources, the ability of the child to interact with non-handicapped children, the areas of the child's curriculum which need continuous attention, and the child's vocational needs, Yaris v. Special School Dist., 558 F. Supp. 545, 551 (E.D. Mo. 1983), aff'd, 728 F.2d 1055 (8th Cir. 1984); and whether the requested service is "extraordinary" to the child's condition, as opposed to an integral part of a program for those with the child's condition. Polk, 853 F.2d at 182. Johnson v. Independent School District No. 4, 17 IDELR 170 (10th Cir. 1990)

Failure to Notify Parents of ESY and Time to Appeal: The failure to give adequate notice of ESY and to provide parents adequate time to individually appeal any ESY decisions violates the IDEA. Reusch v. Fountain, 21 IDELR 1107 (D. MD. 1994).

Lack of Staff Cannot be Used as a Basis for Reducing a Child’s Services for ESY.
A school district cannot reduce services to a child during the summer solely on the basis of the availability of staff. Union School District v. Smith 15 F.3d 1519 (9th Cir. 1994).

Recent Case Example

There are presently no court cases in Alaska directly deciding the issue of ESY services. One case is pending in court after a hearing officer decision. That case applied the standards above, but found the school district had made an individualized determination appropriate for the child contrary to what the parents believe occurred. A.M. v. FNSBD (2006)(appeal pending).

Contact us!

If you have questions about any of the information in this fact sheet or wish to learn more about your child’s special education rights, contact the Disability Law Center of Alaska at 1-800-478-1234 (toll-free Voice/TTY).

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