February 9, 2021- ESY Determinations in an Uncertain Year

 

ESY Determinations in an Uncertain Year

Franczek P.C.: Dana Fattore Crumley & Kendra Yoch                                            

Despite the piles of snow and frigid temperatures outside, it is time to start thinking about summer! As teams convene IEP meetings this spring (and circle back on meetings from the fall where the team agreed to collect more data…), we are hearing questions about how to think about ESY determinations this year. As you know, the IEP team must determine whether a student needs special education and related services beyond the normal school year to receive a free appropriate public education. While the legal framework for ESY remains the same, teams should consider a few quirks this year.

The main factor for the team to consider when making an ESY determination is regression/recoupment: Will the student lose skills over the summer break and take an extraordinary time to recoup those skills in the fall? Teams can also consider other factors, such as the nature of the disability, degree of impairment, emerging skills, or skills crucial for independence. ISBE has advised that teams discuss whether “the benefits accrued during the school year would be significantly jeopardized in the absence of a summer program.” These considerations all remain in place.

What if a student has not made expected progress on IEP goals, or even regressed, during remote or hybrid learning – does that qualify a student for ESY? Generally, no. A student’s progress or lack of progress during the school year is not directly relevant to the ESY analysis – though if a student is not progressing, an IEP meeting may be warranted.

That said, offering additional summer programming may be a way to provide compensatory services (if there was a denial of FAPE) or to generally shore up skills all students may have missed during this extraordinary year. Some districts are planning to offer summer instruction beyond what they would typically provide through summer school and ESY. We have also seen districts working on expanded summer programming in collaboration with a cooperative or other groups of districts. When considering who will be eligible to participate in such programs, make sure that students with IEPs and 504 plans have an equal opportunity to participate and benefit. However, if ESY is not required for FAPE, the summer program should not be written into the IEP. And if you are considering the summer instruction to be compensatory education, be sure to communicate that with parents and clearly document it.

ASK an ATTORNEY

Please continue to send us your questions. We look forward to answering.

COOPERATIVE SURVEY

If you are a Cooperative Executive Director/Superintendent please take a moment to complete the attached survey by Tuesday, February 16, 2021. This survey is targeting cooperative access to CARES Act funds.