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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Parents of a child with special needs will do anything they can to make sure their child is happy and in a supportive environment. When it comes to discussing your child’s education with his or her teachers and the school’s administration many parents feel they can handle it on their own.
Here are ten reasons why you should consider hiring an advocate or attorney to help get everything you want for your child.
1. Level the Playing Field
Have you ever been to a Committee on Special Education (CSE) meeting for your child and been told by the school district “we cannot do that?” Did you ever wonder whether what they were saying were true? When you work with a special education attorney or qualified special education advocate you will understand your rights and the school district’s obligations. This will level the playing field for you.
2. Alphabet Soup
FAPE, LRE, IDEA, 504, NCLB, IEP, IFSP, CSE, CPSE, EI etc. etc etc. In order to effectively advocate for your child you must know the lingo. Terms may be used at a CSE or IEP meeting that you do not understand. This immediately puts you at a disadvantage. A special education attorney or qualified advocate can help you understand how these terms apply to your child.
3. Understanding Testing
School psychologists, special education teachers, and other related services professionals have gone to school for many years to understand how to test and interpret results. Most parents are not trained in the language that is used to report data.
A special education attorney or qualified special education advocate can review your evaluations, progress reports, and other data and explain to you what they mean, how they apply to your child, and what services your child may or may not be entitled to based on those results.
4. Did the District Forget Anything?
Do you think your child would benefit from Assistive Technology? Is it time to discuss transition? Has your child been having behaviors in school that impact his or her learning and you believe that the district has not tried everything they could? A special education attorney or qualified advocate can assist you in ensuring you have gotten all appropriate services for your child.
5. Goals!
Your child’s goals are one of the most important, yet also one of the most overlooked, components of the Individualized Education Program (IEP). Goals need to be meaningful, should not be the same from year to year, and should be individualized. Additionally, goals should be developed with parental input. A special education attorney or qualified advocate can assist you in developing individualized and meaningful goals for your child.
6. The IEP Document
Did you ever receive your child’s IEP and it did not accurately reflect what occurred at your meeting? Your IEP is your “contract” with your school district. If something does not appear in the IEP then it does not have to happen whether it was discussed at the CSE meeting or not. A special education attorney or qualified special education advocate can help you review your IEP and make sure that all necessary information and services are contained in it.
7. You have So Many Roles
As a parent of a child with special needs you have many roles at the CSE meeting; these include being the parent, the listener, the questioner, the active team member, the creative thinker and an advocate. It is virtually impossible to do all these roles well. You also may not be comfortable with one or more of these roles. Bringing a qualified special education advocate, and in certain circumstances, a special education attorney, to your CSE meeting takes the burden off of you in having to serve in all of these necessary, yet different, capacities.
8. Take the Emotions out of It
Let’s face it; we get emotional when speaking about our children. Even though I have been a special education attorney for many years, being a parent of a special needs child myself, I have been known to cry at my own son’s CSE meeting and am not always able to get my point across when I am emotional. I cannot stress enough that this is a business meeting and parents need to keep emotions out if it.
Having a qualified special education advocate, and in certain circumstances, a special education attorney, at your CSE meeting will allow you to participate taking the emotions out of it.
9. Your Child is Not Making Meaningful Progress
As a parent you know your child better than anyone else. You may feel that your child is not making progress in their current program. If this is the case, it is important that you speak with a special education attorney or qualified special education advocate to do an analysis of your child’s progress, or lack thereof, and assist you in obtaining the program and/or services your child requires to make meaningful progress.
10. You Do Not Agree
In a perfect world we would all come out of a CSE meeting with everything our children are entitled to. Many parents wrongly walk away without needed services when they are initially denied by the CSE. If you feel that your child is not receiving all of the appropriate services from your school district, it is extremely important to speak to a special education attorney to know whether you have a right to a particular service or accommodation for your child and what your next steps should be.
For more information about our legal services or special education advocacy, visit www.specialneedsnewyork.com.
Parents of a child with special needs will do anything they can to make sure their child is happy and in a supportive environment. When it comes to discussing your child’s education with his or her teachers and the school’s administration many parents feel they can handle it on their own.
Here are ten reasons why you should consider hiring an advocate or attorney to help get everything you want for your child.
1. Level the Playing Field
Have you ever been to a Committee on Special Education (CSE) meeting for your child and been told by the school district “we cannot do that?” Did you ever wonder whether what they were saying were true? When you work with a special education attorney or qualified special education advocate you will understand your rights and the school district’s obligations. This will level the playing field for you.
2. Alphabet Soup
FAPE, LRE, IDEA, 504, NCLB, IEP, IFSP, CSE, CPSE, EI etc. etc etc. In order to effectively advocate for your child you must know the lingo. Terms may be used at a CSE or IEP meeting that you do not understand. This immediately puts you at a disadvantage. A special education attorney or qualified advocate can help you understand how these terms apply to your child.
3. Understanding Testing
School psychologists, special education teachers, and other related services professionals have gone to school for many years to understand how to test and interpret results. Most parents are not trained in the language that is used to report data.
A special education attorney or qualified special education advocate can review your evaluations, progress reports, and other data and explain to you what they mean, how they apply to your child, and what services your child may or may not be entitled to based on those results.
4. Did the District Forget Anything?
Do you think your child would benefit from Assistive Technology? Is it time to discuss transition? Has your child been having behaviors in school that impact his or her learning and you believe that the district has not tried everything they could? A special education attorney or qualified advocate can assist you in ensuring you have gotten all appropriate services for your child.
5. Goals!
Your child’s goals are one of the most important, yet also one of the most overlooked, components of the Individualized Education Program (IEP). Goals need to be meaningful, should not be the same from year to year, and should be individualized. Additionally, goals should be developed with parental input. A special education attorney or qualified advocate can assist you in developing individualized and meaningful goals for your child.
6. The IEP Document
Did you ever receive your child’s IEP and it did not accurately reflect what occurred at your meeting? Your IEP is your “contract” with your school district. If something does not appear in the IEP then it does not have to happen whether it was discussed at the CSE meeting or not. A special education attorney or qualified special education advocate can help you review your IEP and make sure that all necessary information and services are contained in it.
7. You have So Many Roles
As a parent of a child with special needs you have many roles at the CSE meeting; these include being the parent, the listener, the questioner, the active team member, the creative thinker and an advocate. It is virtually impossible to do all these roles well. You also may not be comfortable with one or more of these roles. Bringing a qualified special education advocate, and in certain circumstances, a special education attorney, to your CSE meeting takes the burden off of you in having to serve in all of these necessary, yet different, capacities.
8. Take the Emotions out of It
Let’s face it; we get emotional when speaking about our children. Even though I have been a special education attorney for many years, being a parent of a special needs child myself, I have been known to cry at my own son’s CSE meeting and am not always able to get my point across when I am emotional. I cannot stress enough that this is a business meeting and parents need to keep emotions out if it.
Having a qualified special education advocate, and in certain circumstances, a special education attorney, at your CSE meeting will allow you to participate taking the emotions out of it.
9. Your Child is Not Making Meaningful Progress
As a parent you know your child better than anyone else. You may feel that your child is not making progress in their current program. If this is the case, it is important that you speak with a special education attorney or qualified special education advocate to do an analysis of your child’s progress, or lack thereof, and assist you in obtaining the program and/or services your child requires to make meaningful progress.
10. You Do Not Agree
In a perfect world we would all come out of a CSE meeting with everything our children are entitled to. Many parents wrongly walk away without needed services when they are initially denied by the CSE. If you feel that your child is not receiving all of the appropriate services from your school district, it is extremely important to speak to a special education attorney to know whether you have a right to a particular service or accommodation for your child and what your next steps should be.
For more information about our legal services or special education advocacy, visit www.specialneedsnewyork.com.
