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School districts are required to ensure that extended school year (“ESY”) services are available as necessary in order to provide a free appropriate public education (“FAPE”) in accordance with federal and state law. (Title 34 Code of Federal Regulations (“C.F.R.”) Section 300.106(a)(1)) An individual education plan (“IEP”) team must make the determination on an individual basis. (Title 34 C.F.R. Section 300.106(a)(2); Education Code Section 56345(b)(3))

Students Eligible for ESY

The Title California Code of Regulations (“CCR”) mandates that ESY services be provided to the following students in order to receive a FAPE:

Such individuals shall have handicaps which are likely to continue indefinitely or for a prolonged period, and interruption of the pupil's educational programming may cause regression, when coupled with limited recoupment capacity, rendering it impossible or unlikely that the pupil will attain the level of self-sufficiency and independence that would otherwise be expected in view of his or her handicapping condition. (Title 5 CCR Section 3034)

The purpose of ESY is to prevent regression and recoupment problems over the summer months. (Letter to Myers (OSEP 1989) 16 IDELR 290) A student’s placement and services for ESY, therefore, might differ from placement and services during the regular school year. (Id.) In fact, Title 5 CCR Section 3034 offers the following break to school districts that do not operate general education summer school programs: If a student requires ESY, that program must be in the LRE. However, districts are not obligated to create a general education summer school program just to satisfy the LRE requirement. Specifically, if a student’s IEP specifies that he/she be integrated into a general education requirement, a district is not required to meet that component of the IEP if it does not offer regular summer school programs and hence can offer specialized academic instruction in the form of a special day class placement.

While this standard does not require that children with disabilities actually experience regression in their skills before they can become eligible for summer programs and services, there must be a reasonable basis for concluding that regression would occur without the provision of summer programs or services, “when coupled with limited recoupment capacity, rendering it impossible or unlikely that the pupil will attain the level of self-sufficiency and independence that would otherwise be expected in view of his or her handicapping condition.” (Title 5 CCR Section 3034)

Are your IEP Teams Appropriately ESY Standards/Requirements?

To ensure that your IEP teams are appropriately addressing the standards for eligibility, below are some questions that you should be considering when determining a student’s eligibility for ESY:

1.   Is the student’s handicap likely to continue indefinitely or for a prolonged period?

2.   Without ESY programming, is it likely that the student will experience significant regression in his or her skills?

3.   Is the student likely to experience a limited (including unduly delayed) recoupment capacity following a summer break without ESY programming?

4.   If the student is eligible for ESY, but is fully included or significantly in general education, can the District offer an SDC program in lieu of any general education? As indicated above, the answer to that question may indeed be “yes”

If the team answered yes to all four of the above questions, it is highly likely the student in question will qualify for ESY services. Of course each specific case will turn on the unique facts and circumstances related to both the student and potential ESY program options available.