Franczek P.C.

Just as remote learning has become the new normal, we turn to planning for ESY and the 2020-21 school year. While the timeline for returning to school buildings remains uncertain, the eligibility of some students with disabilities for support over the summer remains clear. How should schools think about ESY eligibility this school year? We recommend starting with the same standards that have long governed ESY eligibility.

Under IDEA, the IEP team determines whether a student needs special education and related services beyond the normal school year to receive a free appropriate public education (FAPE). ISBE guidance from 2001 reviews the case law related to ESY eligibility and identifies the following key factors for IEP teams to consider:

  1. regression/recoupment;
  2. the nature of the disability and degree of impairment; and
  3. emerging skills, and areas of learning crucial for independence.

 

The guidance defines regression as “the amount of loss during a scheduled break in instruction of a learned skill or acquired knowledge” specified in IEP goals. Additionally, “ESY should provide for the maintenance of acquired skills and knowledge not the acquisition or continued development of new skills.” When determining ESY eligibility, teams should consider whether “the benefits accrued during the school year would be significantly jeopardized in the absence of a summer program.” Recent guidance from ISBE during the current school closure has not modified the standards set out in the IDEA and prior guidance.

How do these rules and factors apply in this new environment? Students likely fall in one of three buckets:

  • Students Already Eligible for ESY: The IEP team decision should not be reversed without data showing that the basis for the previous decision is no longer present—data that teams will be unlikely to collect during remote learning.
  • Students Already Deemed Ineligible for ESY: If a parent requests ESY now, the team should consider that request on an individual basis.
  • Students for Whom ESY Has Yet to Be Determined: The team should consider the factors outlined above, including reviewing regression and recoupment data from prior “scheduled breaks in instruction” to anticipate whether summer regression is anticipated to be significant enough that recoupment will impinge on continued learning next year.

ESY is not required based on a lack of expected progress on IEP goals (particularly considering the school closure and remote learning disruption impacting all students). And ESY is distinct from compensatory education. The school closure does not directly impact the analysis of ESY eligibility, and students should not qualify for ESY solely because of the school closure. However, the school closure may change parents’ desire to accept summer services for qualifying students. In typical years, parents decline ESY in favor of vacations, summer camps, or more convenient day care options. Those practical considerations may change and increase engagement and enrollment in ESY.

As we described in this post, we do not think that mass compensatory education claims are warranted, but to the extent a school is facing an allegation of a FAPE denial and entitlement to compensatory services, the analysis will turn on the services offered and the student’s progress or regression. Every effort to maintain student progress helps to minimize future compensatory education claims (as well as maintain good parent relationships).

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