The end of the school year can bring relief for many students and parents, but also uncertainty and trepidation about the summer months. The new school year technically beings on July 1, 2015, although most students will not begin school until September. Many students do regress academically, behaviorally or emotionally during the summer months and require Extended School Year (“ESY”) services over the summer. 
Only certain students with disabilities qualify for ESY or summer services, which generally run for six weeks from July 6th through approximately August 14th this year, although some districts may have different dates and shorter programs. The Individuals with Disabilities Education Act and New York State Regulations technically allow Extended School Year services for students likely to experience substantial regression, as measured by whether the student has regressed academically during breaks during the school year. The CSE may allow ESY services for students who regress emotionally or behaviorally, if appropriate. Specifically, the law provides that the CSE must consider ESY services to prevent substantial regression for students:
• In special classes with management needs that are highly intensive and require a high degree of individualized attention;
• in special classes with severe multiple disabilities, whose programs consist primarily of habilitation and treatment
• who are recommended for home and/or hospital instruction whose special education needs are determined to be highly intensive and require a high degree of individualized attention or who have severe multiple disabilities;
• whose needs are so severe that they can be met only in a seven-day residential program; or
• receiving other special education services who, because of their disabilities, exhibit the need for twelve-month special service and/or program in order to prevent substantial regression.
An ESY program is very different from summer school which high schools may offer for typical students. Summer school credit recovery programs focus on the needs of students who have failed classes or need support during the summer months.
For students who are in summer ESY programs, it is important for parents to monitor closely and take immediate steps to rectify any concerns, as the six weeks passes quickly . Too often, school districts throw ESY programs together too quickly and do not ensure appropriate groupings or activities. Be sure to monitor your child’s progress and put all complaints in writing.
Here are some questions our parents have asked about summer programs:
Q: My child’s program only has very disabled peers and looks very different from her school year program. Is this appropriate?
A: Your child’s summer program should allow her to progress in the Least Restrictive Environment. Consider what type of public program your child needs to have interaction with non-disabled peers. The CSE should offer a continuum of placements and the program should have essentially the same level of inclusion as his or her school year program. The Second Circuit Court of Appeals in 2014 found that an ESY program was substantively inadequate, as the CSE failed to consider an appropriate continuum of alternative ESY placements and place the student in his LRE on that continuum. The District claimed the program was appropriate and noted that it only offered certain limited programs in the summer months. But the Court held that: “a child’s LRE is primarily defined by the nature of the child’s disabilities rather than by the placements that the school district chooses to offer.” T.M. v. Cornwall Central School District
Q: How can I monitor my child’s progress?
A: Work closely with your child’s teacher to monitor the work and how he is doing. Pay close attention to the level of supervision and monitoring. Make sure any concerns about bullying are addressed promptly. Here are some questions to start with, in a dialogue with your child’s teacher:
• Is my child working on his or her goals?
• Does this class provide an appropriate group of students?
• Is the program addressing the specific areas of weakness?
• Are staff appropriately trained on her area of disability?
• Is there adequate supervision?
• What about field trips?
Q: My child needs a break from school and we have long family vacations. Can I pull her out of the summer program?
Speak with the CSE and the District and notify staff that you are considering removing your child from the summer program because of needed family time or simply down time. You may also decide that your child needs a recreational program to develop social skills. Ask if you think removing her will have an impact or affect her progress. If your child is in a school district program, it is unlikely that this will cause difficulties. However, do keep in mind if you do not access the summer program for your child and complain about lack of progress or regression in the fall, the CSE may consider the fact that she did not attend the summer program. Also, if your child is in a specialized school, this will probably not be appropriate and the school may state attendance is mandatory. If your child is in a twelve month residential program, this will not be an option.
Q: My child’s CSE in May stated my child did not regress during breaks, but I see significant regression. They had no data. What can I do?
Whenever you disagree with any decision of a CSE, you have the right to file for due progress. While it is late in the year to file for summer, you may file for compensatory services. It’s best to talk to an attorney about the options. Also, in the next school year, be sure to ask the teachers before each break to measure regression. Keep your own records as well, as to basic skills your child has before each break and after.
Q: I do not believe that my child’s ESY program is appropriate and am sending him to a private camp. Can I seek reimbursement from the school district?
Yes. You do have the right to file for due process and may seek reimbursement for private services. If the private summer program you chose offered individually tailored special education services, you may prevail in a claim. Keep in mind that it is the law does not allow recovery for camping and recreation programs, however. A hearing officer could order reimbursement if: 1) there has been a denial of a free appropriate public education; 2) the private services are appropriate and 3) equitable considerations support the claim.
In short, ESY services represent an important aspect of your child’s special education program. If you have questions or do not believe the program is appropriate, it is best to speak to an experienced special education attorney about your child’s case.
Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.
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The Individuals with Disabilities Education Act, (IDEA), statute expressly provides that students with disabilities are to be educated and included with their non-disabled peers to the “maximum extent appropriate.” This requirement is sometimes referred to as the “least restrictive environment” (LRE) mandate of the Act, and it is one of only two “maximizing” provisions in the entire statute. With this language, Congress intended to protect students with special needs from being ostracized or isolated from the general population and requires that students with special needs be included in the general education population to the greatest extent possible.
Specifically, the IDEA provides that States must have in place procedures assuring that, “to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” See 20 U. S. C. §1412 (5) (B) as implemented by the Department’s regulations at 34 CFR §§300.550-300.556.
Recent Decision Mandates Inclusive Setting for Summer Program
Recently, the Second Circuit Court of Appeals, in T.M. v. Cornwall, 12-4301, held that the Congressional LRE standard applies to extended school year (ESY) services for students who are approved for twelve-month programs and who benefit from the LRE. T.M., a student with autism was succeeding with support in a general education preschool setting during the school year. However, for the summer, the district only offered placement in a self-contained special education classroom and offered T.M. related services only as part of the self-contained classroom experience. T.M.’s parents rejected the summer placement because it was too restrictive and filed an Impartial Hearing. The Impartial Hearing Officer (IHO) ruled in the parents’ favor and the district appealed. The State Review Officer (SRO), who tends to rule in favor of school districts, reversed the IHO’s decision and the parents appealed to the federal district court. The federal district court affirmed the SRO decision. T.M.’s parents then further appealed to the Second Circuit Court of Appeals and received the relief requested.
Like the drafters of the IDEA, the Second Circuit judges who ruled in T.M.’s favor intended to draft a decision that would help the many children diagnosed with Autism and other disabilities who have been approved for a 12-month program and who obtain a meaningful educational benefit from an inclusive environment.
LRE Mandate Can Have Unintended Effect
However, school districts often use the LRE provision against parents. For example, recently, a parent filed an impartial hearing against a school district for failure to provide a free and appropriate education to a student with severe social, emotional and psychiatric conditions whose conditions were exacerbated due to the inappropriate program. His psychiatrist, the district representative and his parent recommended a residential therapeutic placement for him, but the school district would not approve a residential placement arguing that it is not the LRE. The school district then issued a placement at a non-public state approved therapeutic day program although his doctors and other professionals maintained that he would further regress there and that it was not appropriate. Such a position by school districts causes unnecessary delay in providing the student with FAPE, burdensome litigation and extensive costs to both parties that could have been avoided.
In my legal practice, I have encountered several similar situations with regard to students who require specific accommodations, a 1:1 paraprofessional, have severe disabilities, or are diagnosed with Autism, but are high functioning. In these cases, an inclusive environment may not be appropriate because the student will obtain a meaningful educational benefit only if a restriction is provided. A mainstream or integrated setting does not work for all students with disabilities. Each student’s needs are unique and must be treated as such. It is important for school districts, IHOs and legislators to consider that the IDEA limits LRE only to situations when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services can be achieved satisfactorily. A cookie cutter approach can be more harmful than beneficial when applying the LRE provision of the IDEA to a student’s individualized educational program.
The special education team at Littman Krooks LLP has extensive experience advocating for parents of children with various special needs and helping them to navigate the labyrinth of special education law including cases where school districts may use the LRE against the student.
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