March 11, 2021- Ask an Attorney

 DOES A DISTRICT HAVE TO OFFER ESY? 

As this month promises warmer temperatures and longer days, it is apropos that we start with a question about extended school year services, commonly known as ESY.  A reader from a small school district writes that her district has not provided ESY programming in the past and wonders if this is okay or if districts are required to have programs.

 Whether a student requires ESY to receive a free appropriate public education (FAPE) is a determination made by a student’s IEP team and is not dependent on whether there is an ESY program in place at the student’s school district. This illustrates a phrase we often hear in special education, that student needs drive programming and services.

 In our post last month, we talked about the standard to determine whether a student needs ESY. To be proactive in making individualized ESY determinations, IEP teams should use data and ask the right questions. While progress monitoring data is always critical, it is especially important for the regression/recoupment analysis, which is the primary reason for ESY eligibility. This analysis involves two main considerations: (1) whether the student shows inordinate regression when school is not in session; and (2) whether it takes an extraordinary length of time for the student to recoup the skills that have been lost. Teams should ask whether the student required reteaching of skills after a break to the extent that their ability to progress toward existing IEP goals was hindered. For students with more significant disabilities, teams should also consider whether a student’s progress toward developing critical life skills would be interrupted by a break in educational services.

If a team determines that an individual student requires ESY, a district must provide those services. One way to do that is to design an in-district program tailored to the needs of the student. But small districts may also meet this obligation by seeking out programs run by public special education cooperatives or private therapeutic day schools. And districts of all sizes should remember that even if they have an ESY program, individual students may need more or less support to receive FAPE.

CAN THE REMOTE LEARNING OPTION BE ENTIRELY ASYNCHRONOUS? 

Our next question is about everyone’s favorite subject, remote learning. Our reader asks, “May a school district provide only asynchronous learning when it has resumed in-person instruction, and a student has chosen to remain remote either full or part-time?” As we start to see the light at the end of the pandemic tunnel, and districts plan to get more students back into school buildings, many administrators are asking to what extent they will need to continue offering remote options and what those options need to look like. At this time, the Governor’s Order requiring school districts to provide remote instruction based on parent request remains in effect. And the Illinois State Board of Education has not withdrawn or revised its initial guidance for remote learning, which includes, at all grade levels, real-time synchronous instruction with the interaction between the teacher and students. While that guidance may change as we approach the summer and next fall (some states are already moving in this direction), at this time, cutting remote programming or limiting it to asynchronous-only, may invite a challenge. And for students with 504 plans and IEPs, that challenge may be difficult to defend given the ongoing obligation to provide FAPE. Accordingly, we recommend that school districts continue to offer remote learning programs that include various modalities.

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