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Obtaining Extended School Year Services for Your Child with Autism or Other Special Needs

Students with autism or other special needs may require extended school year services when school is not in session, to avoid regression and loss of skills. In this article, a special education lawyer provides practical advice on requesting extended school year services (ESY) for your child with autism or other disability.

By David A. Sherman, author of Autism: Asserting Your Child's Right to a Special Education.

Extended school year services (ESY) are often thought of as services provided by the logical educational agency during the summer. However, extended school year services can be for any days that are not regular school days, such as weekends and holidays.

ESY can encompass all the services that might be afforded a special education student during the regular year and services that are not available while school is in session. Special summer camps can be provided, tutoring, home programs, life skills, speech and language, occupational therapy, vocational programs, summer camp (sometimes with an aide) and other services. Extended summer school year services can e provided for any type of disability the student has qualified for under special education. ESY should be set forth in the student's IEP.

Students with autism often need ESY< and it can be critical for young children. The National Research Council (NRC) in Educating Children with Autism recommends early intervention services for a minimum of 25 hours per week for 12 months a year. A good expert report and this NRC report should be presented to the IFSP or IEP team when requesting extended school year services for young children with autism.

Sometimes school districts tell a parent that extended school year services can only be provided for a certain number of weeks during the summer. Or, they tell parents that the services cannot be provided during school holidays, such as winter break. Under the law, extended school year services must be provided for the entire time that they are appropriate.

School districts cannot limit services provided during the extended school ear. Sometimes the school will tell parents that they can have some services, but other services, such as speech and language, are not available during the summer. If your child needs a certain service during the extended school year, the school must provide the service.

Another statement the schools sometimes make is something like this, "We can give you services for July and the first week of August, but between then and when school starts, there is no one available." If there will likely be regression during that time period (when the school claims they do not have anyone available), the school must provide the service.

Generally speaking, parents must show that the child would regress if the child does not receive extended school year services. ESY will generally not be awarded for the purpose of maximizing the child's education. For instance, in Tuscalloosa County Bd. of Education, 35 IDELR 172 (SEA AL 2001), the haring officer held that a student with autism was not entitled to ESY to maximize the student's educational opportunities. Some of the services the parent was seeking were beyond the scope of the Goals and Objectives in the child's last IEP. While experts testified that the child would benefit from ESY, the hearing officer determined the student could recover skills lost during the summer within an acceptable period of time. (This case also demonstrated the importance of Goals and Objectives.)
It is not necessary to prove lost skill or that there was regression in the past to qualify for ESY, although this would certainly be helpful to your claim. If you can convince the school (or a hearing officer) that there will likely be regression in the coming summer, regardless of what has taken place in the past, you are entitled to extended school year services. If you claim that regression is likely to occur if extended school year services are not provided, you will most likely need an expert's opinion. Only an expert would have knowledge of predictive regression.

Whether or not your child is offered extended school year services for upcoming summer, you may wish to have standardized testing performed before and after th summer program. Your private expert can perform the assessments or you can make a written request to the school. If you do not receive extended school year services and the tests show your child regressed, you may have a good argument for compensatory education and/or extended school year for the next summer.

If you do not have standardized tests from the previous summer, you can still secure the testimony of teachers, experts, or others working with your child as evidence of your child's regression.

Although regression is one factor in determining whether ESY should be provided, the courts have considered other factors such as "emerging skills" and "breakthrough opportunities." Reusch v. Fountain 21 IDELR 1107 (D. Md. 1994) Johnson v. Independent School District No. 4 held that a single standard could not be used as the sole criteria for ESY services.

If you intend to request ESY, you should plan early. By the mid-winter, you should start thinking about what evidence is needed. Reports, teacher recommendations, tests, experts, or others who observed your child before the past summer and after the summer ended, should be considered. (The same is true for ESY provided to your child during school breaks and holidays.)

Your request for ESY, of course, should be in writing. It is generally best to schedule an IEP in the beginning of March to allow enough time for the school to consider your request, time for negotiations, and time for a mediation or due process, if necessary.

Make sure the teachers and service providers in the extended school year summer program are qualified. (Letters are provided in ….). Many times the teachers and staff in the summer program are much less qualified than those in the regular school year.

Whenever the school district agrees to ESY services, all of the terms should be set forth in an IEP. The services should be specified with the dates of service, the requirements and description of the services and the start and stop dates. Goals and objectives should be developed and set forth in the IEP. Before and after testing can also be requested. Additionally, it is advisable to have the school commit to keeping a log of the services provided each day, including the hours of service, who provided them, the progress or lack of progress, and a brief description of the services provided.

One interesting question is whether "stay put" can apply to ESY services. ESY is generally considered to be interim services and, therefore, stay put is not applicable. However, one case held that where discrete trial training was provided to the student during summer and extended holiday periods and the school does not consider whether regression might occur during the next summer without ESY, the school was obligated to provide those services during that summer. The school was ordered to reimburse the parents for private services and to provide compensatory speech and language.

Another hearing officer held that a school must have an expert observe an autistic child before denying ESY because it otherwise deprived the child of possible eligibility for ESY. Since the summer had already passed, the hearing officer ordered the school to retain the expert and follow the expert's recommendation to address regression if it occurred. (Corpus Christi Independent School District, 37 IDELR 205 SEA TX 2002)

ESY is not limited to students with severe disabilities. If your child has Asperger's or high functioning autism, this does not preclude your child from receiving extended school year services. Whatever is appropriate for the child must be provided. Research, however, has shown that students with more severe handicaps showed more signs of regression during school vacations. [Research by Tiley, Cox and Staybrook (1986)].

The law regarding ESY is still in the developmental stage and different courts in different parts of the country may set different tests as to whether a child is entitled to ESY in that court's jurisdiction. Check your state education code and case law.

ESY also can be awarded to Section 504 students, although it is generally more difficult. 934 CFR 104.33, Clark City Sch. Dist. 16 IDELR 311).

David A. Sherman, is a special education attorney. This article on autism and cognitive function is copyright to David A. Sherman and excerpted with permission from his book, Autism: Asserting Your Child's Right to a Special Education. Learn more about his book in our review.

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