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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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not in the IDEA

Federal Definition of ESY:

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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

Per the U.S. Department of Education, however, a “longstanding interpretation of the Act”

Federal Definition of ESY:

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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

Federal Regulations: Definition of ESY services

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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

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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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)

ESY Eligibility

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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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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

Eligibility

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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

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

ESY Eligibility

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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)

Length of ESY

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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

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

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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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)

ESY and LRE

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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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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

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

Clarity of Offer

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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

Timing of Offer

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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’sprocedures regarding ESY

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

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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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

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 child-centered. However, this is not without risk.

Parent’s mental health issues are NOT part of the analysis

Guiding Principles

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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.