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Please remember that the law is always changing and may not apply to your particular matter. 
Do not rely upon this information as legal advice.

From Amy's summary in May 2002 Autism News:

Legal Requirements for Extended School Year

The sections of the IDEA regulations (34 CFR 300.309 Extended SchoolYear Services) that covers ESY services are as follows:

      (a) General

      (1) Each public agency shall ensure that extended school year services are available as necessary
      to provide FAPE, consistent with paragraph (a)(2) of this section.

      (2) Extended school year services must be provided only if a child's IEP team determines, on an
      individual basis, in accordance with 300.340-300.350, that the services are necessary for the
      provision of FAPE to the child.

      (3) In implementing the requirements of this section, a public agency may NOT-

      (i) Limit extended school year services to particular categories of disability; or
      (ii) Unilaterally limit the type, amount, or duration of those services.
      (b) Definition. As used in this section, the term extended school year services means special
      education related services that-
      (1) are provided to a child with a disability
      (i) beyond the normal school year of the public agency;
      (ii) in accordance with the child's IEP; and
      (iii) at no cost to the parents of the child.

What Are Some Factors That Could Mandate a Need For ESY?

These are by no means the only factors, just some to consider as a point of beginning......

      a.. Type and severity of the handicap.
      b.. Presence of medically diagnosed health impairments.
      c.. The child's age.
      d.. Attainment of self-sufficiency.
      e.. Need for recreational programs.
      f.. Respite care for parents.
      g.. Family environmental factors (family stress levels).
      h.. Family inability to provide educational programming during the summer

Delivery options for ESY services include but are not limited to the following:

      a.. The traditional 2- to 6-week school-based summer program.
      b.. Home consultation to provide support and instruction to parents in preventing regression.
      c.. Residential placement in a boarding facility.
      d.. Summer camp or recreational programs that provide opportunities for maintenance of skills.
      e.. Private summer school programs providing the least restrictive environment available.

Support services should also be made available when they are required for maintenance of skills. These services may include speech therapy, physical and occupational therapy, and adaptive physical education.

Now remember........the school district cannot limit the amount, duration or type of services!! is in direct violation of IDEA to limit or refuse services based on the school districts' inability to pay for them.
So if your school says, "We don't have the money to pay for ESY" or "It's not in the budget this year"
Write a state complaint!!!!!!!!!!!!

Just a brief listing of websites that have invaluable information about Extended School Year Services:
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Update from the Newsletter Dad: It's not just regression-recoupment anymore!

The 1997 reenactment of IDEA changed the requirements for ESY.  Most discussions of ESY emphasize  regression and recoupment, a standard which  arose out of pre-1997 law.  The actual language of the 1999 regulation (34 CFR 300.309) states that ESY must be provided if necessary to provide FAPE.  There is no requirement in the regulations that ESY must be provided only when a student will regress so much over the summer that  he cannot recoup the loss in the autumn.  Taken literally, the regulation implies that ESY must be provided if the student needs the extra time to meet the annual goals.  Few school districts have taken up this interpretation of the 1997 IDEA and 1999 regulations, relying upon the pre-1997 law of regression-recoupment.

On November 20, 2001, the Illinois State Board of Education issued a comprehensive memo describing when a District must supply ESY.  It is actually more imposing than many districts apply, and you may find it very helpful in getting a local district to supply ESY.  Also, many districts are more apt to follow ISBE guidelines than general Federal laws.

These are the topics of the eleven-page memo:

  • 1. What is the definition of Extended School Year (ESY) under federal and state requirements?
  • 2. What does case law tell us about the right to an ESY program?
  • 3. Can a local school district have a policy or practice that precludes the provision of ESY in any and all instances?
  • 4. What factors should be considered in determining the need for ESY services?
  • 5. What do the courts say about "regression-recoupment" learning criterion? Where is this derived from?
  • 6. Are children who turn three over the summer entitled to ESY services?
  • 7. If a child graduates from an elementary district at the close of a regular school term, is the elementary or the high school district responsible for the provision of ESY services during the summer?
  • 8. What questions might the IEP Team ask to determine on an individual basis the need for extended school year services?
  • 9. How should ESY services be documented on the IEP?
  • 10. Can the IEP for ESY include only related services such as occupational therapy?
  • 11. Must LRE requirements be considered by the IEP Team when determining needed ESY services?
  • 12. What is the difference between an ESY program and a summer school program
  • 13. Can special education ESY services be provided during a regular summer school program?
  • 14. Can a student with a disability be excluded from a regular education summer school program?
  • 15. Can a school district provide and receive reimbursement for the provision during the summer of only a related service?
  • 16. What reimbursement is available for special education ESY services provided during the summer
  • The ISBE in fact advises that regression-recoupment is not the only factor a school must consider:
    [The] regression recoupment analysis is one measure for determining whether a child may need extended school year services. It cannot be the sole means for determining ESY eligibility. In addition to the degree of regression and the time necessary for recoupment of previously learned skills and acquired knowledge, IEP teams must considered many other factors important in its discussions of what constitutes an “appropriate” educational program and the need for extended school year services. [Q&A.5.]
    The Virginia Department of Education makes an excellent observation:
    *        In general, extended school year (ESY) refers to special education
    and/or related services provided beyond the normal school year of a public
    agency for the purpose of providing FAPE [a free appropriate public
    education] to a student with a disability.  These services are distinct from
    enrichment programs, summer school programs, and compensatory services and
    are not simply an extension of time.  ESY services are not so much a
    regression and recoupment issue as they are an issue of FAPE.  Unrecouped
    regression, over time, may be evidence that FAPE is not being provided.  In
    other words, it is not the case that a student is entitled to extended
    school year services, but that the student will not receive FAPE if ESY
    services are not provided.  These services, at no cost to the parent, will
    vary in type, intensity, location, inclusion of related services, and length
    of time, depending on the individual needs of the student.  The
    consideration of extended school year services is a part of the
    individualized education program (IEP) process.
    (VADOE's 2000 ESY Technical Assistance Document.)
    OSEP, part of the U.S. Department of Education, recently (Feb. 4, 2003)  issued this guidance:
    "The U.S. Court of Appeals for the Fourth Circuit (which includes West Virginia) acknowledged in a recent decision that it has “not developed a standard for determining when ESY services are appropriate under the IDEA.”  M.M. v. School Dist. Of Greenville County, 303 F.3d 523, 537-538 (4th Cir. 2002).  However, the M.M. Fourth Circuit decision agreed with the lower district court’s standard in the M.M. case which required parents to demonstrate that “ESY would prevent significant regression of skills or knowledge retained by the child so as to seriously affect his progress toward self-sufficiency, or that benefits accrued to the child during the regular school year would be significantly jeopardized if he were not provided an educational program during the summer.” 303 F.3d at 537.  Thus, regarding your question as to whether lack of progress alone can be the basis for an ESY determination, the M.M. case requirement that parents demonstrate either “significant regression” or a jeopardization of benefits accrued during the school year, would be inconsistent with relying on lack of progress as the sole criterion for determining that ESY services are necessary.  The Fourth Circuit Court also noted that an ESY determination is necessarily fact and case specific and that a showing of actual regression is not required in order to find a child eligible for ESY.  303 F.3d at 537-538." (MS Word format) (pdf-image)

    The Indiana Department of Education has prepared a set of guidelines and worksheets with examples that they recommend for determining eligibility for ESY.
     If that link is missing, try this: IndianaESY.html
    Indiana  states:

    Do the new guidelines mean you do not have to collect data on regression?  No.  Your task in gaining ESY for next year will be considerably easier if you can document regression.  First, because schools are used to requiring it, and second, because the need is better demonstrated.  You should however, insist that ESY is necessary for your child to achieve FAPE, which the the courts say is meeting meaningful progress in progressing from grade to grade, when your child needs that extra effort.  September is a good time for documenting regression.
    Note that the MM case ruled : "We agree with the court's rejection of the District's position that the child must actually
    regress during the summer before ESY Services must be offered. This "Hobson's choice" has wisely been rejected by other courts,
    because parents should not be compelled to watch their disabled child regress in order to qualify for ESY Services."
    Because a showing of actual regression is not required, a disabled child's
    need for ESY Services may be established by expert testimony, based on a
    professional individual evaluation. However, the mere fact of likely regression
    is not a sufficient basis, because all students, disabled or not, may regress
    to some extent during lengthy breaks from school. ESY Services are required
    under the IDEA only when such regression will substantially thwart the goal
    of "meaningful progress." 303 F.3d 523.

    Another topic for future discussion: does your school make enrollment into summer school more difficult for children with disabilities than it does for nondisabled children who have failed to meet the grade?  If so, there may be a discrimination claim made.  Why should failing nondisabled children have access to remedial summer programs and disabled children do not?


    Schools may not charge a materials  fee to ESY students even though they charge a fee for non disabled students attending summer school. See this 2002 OSEP memo: OSEP-ESY.pdf

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    Inclusive Summer Recreation:  An Alternative to Separate Extended Year Programs 

    by Cynthia Burkhour

    Students maintain friendships over the summer through leisure connections with peers in recreation activities. Kids with disabilities need to have these same experiences. The IDEA and the ADA both offer strategies and techniques to help us make it happen for our children. We have the same responsibilities as other parents do to make it happen for our children. We need to sign them up, pay the fee, car pool, take our turn bringing snacks, volunteer for special events, etc., just like all the other parents. The recreation providers have a legal, moral and ethical responsibility to welcome ALL participants and to provide accommodations, adaptations and supports to facilitate participation under the ADA. Under the IDEA, recreation is a related service just like occupational, physical, and speech therapies. Educators have a responsibility to assist students to access leisure and extracurricular activities to maximize the special education experience. As kids are being fully included in typical classrooms, the need for typical social and leisure experiences with classmates outside of the school day is increasing.

    Unfortunately, many students receiving special education services who are included in typical classrooms and qualify for extended year services only have separate/center- based summer program options available to them. Their classmates, who do not have disabilities, are participating in summer recreation activities and programs at their neighborhood parks, playgrounds, pools or recreation centers and at camp. These students maintain friendships over the summer through this leisure connection with their peers in summer recreation activities and programs. A tremendous amount of learning happens in these summer experiences that reinforces and demonstrates the application of academic as well as social skills acquired in the classroom. At this time, students with disabilities do not have the same summer opportunities. Typically, these students are served in summer school programs just for students requiring extended year services. This effectively segregates them from participation with their classmates, and does not afford them typical learning and social opportunities with their friends. Many students have expressed their displeasure with this "only option" and have said they want to do what their friends do, and not be "sent back," as one girl put it, to a segregated classroom for the summer.

    How do we change this scenario and afford kids with disabilities typical summer opportunities while still meeting our responsibility for providing extended year services? Spread the word! Educators, parents and recreation providers need to learn about the concept and the processes utilized to make it happen. They need to learn how to work together to make inclusive summer recreation opportunities a viable alternative to separate/center-based summer school programs. Each has responsibilities for taking the necessary steps to utilize this integrated option.

    Educators and families can put recreation, as a related service, on the I.E.P., writing goals and objectives for inclusive summer leisure services, in the community with classmates.

    Schools can utilize educational program funds typically spent on the student in separate extended year services to purchase inclusive leisure services and support services.

    Schools and families can work with recreation programs to provide education and training for the summer recreation program leaders on individual accommodations and support techniques to increase successful inclusion for students with disabilities.

    Wonderful stories are emerging as we begin to include recreation as an integral part of the educational experience. Kids are learning to value each other's contributions and focus on what each CAN do in the classroom, on the playground, in the neighborhood and at the park. Kids are learning to enjoy each other's uniqueness and learning how to cooperate and support one another. They are learning about "doing it differently" and still having fun.

    Getting our kids involved with recreation opportunities with their classmates is not only the right thing to do, it's a positive thing for all kids. Just think of the wonderful relationships there will be in the future for our children if we help them to become more than classmates, to become friends who share common leisure interests and experiences. These kids of today are the grown-ups of tomorrow. These kids of today will break down the barriers of segregation and will build welcoming communities for everyone.

     Reprinted from TASH Newsletter Vol. 24; Issue #4; April 1998

     You may come across references to  Reusch v. Fountain, 872 F.Supp. 1421, a court case involving ESY in the least restrictive enviroment.  The whole case can be found at:

    This link contains abstracts of studies showing the effectiveness of year-round services and / or ESY and links to some school sites:

    Please remember that the law is always changing and may not apply to your particular matter.  Do not rely upon this information as legal advice.
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