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Part I
The Primary Authorities for ESY inSevier County Schools In preparing this document, we
have relied on the newest directives in IDEA 97, as well as the most recent and
the most authoritative precedents and policy directives at our disposal. This part
identifies those authorities and explains why they are deemed to be
particularly important. Individuals interested in a more complete analysis of
some of the issues discussed may wish to consult these authorities directly. Authority No. 1: IDEA Amendments of 1997 34 CFR Section 300.309 and Analysis of Comments and
Changes 34 CFR Section 300.309 Extended school year services. (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 individualized education program (IEP) team determines, on an
individual basis, in accordance with Section 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) Definitions. As used in this section, the term
extended school year services means special
education and 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; and (2) Meet the standards of the SEA. As can be seen above, the
final regulations specify that states may not limit eligibility for ESY services based on
disability or severity level and may not limit types, amounts, or duration of
services. Authority No. 2: Other Case Law The IDEA Amendments of 1997
and implementing regulations (1999) reflect several well established principles
intended to guide individualized education program (IEP) teams in considering
the need for ESY services. This includes the responsibility IEP teams have for
providing meaningful benefit for students receiving special education, the need to carefully consider
program decisions that may mitigate such benefit and the broad criteria for
judging what constitutes an appropriate program for a given student. As stated elsewhere in this
document the decisions made by an IEP team, on an individual basis, of what
constitutes an appropriate program for a given student serves as the lynchpin
for deciding the need for ESY services. The Supreme Court in Rowley established that this appropriateness decision is
governed by the standard of whether the student is receiving some benefit (a “basic floor of
opportunity”) rather than a maximum
benefit standard that may be sought by parents and advocates. Subsequent
decisions (Polk v. Central Susqueshannan, Third Circuit, 1988) have asserted that this “basic
floor” is intended to extend beyond minimal benefit to require a program that
provides for meaningful benefit.
As stated in Polk: Although the tenor of the Rowley opinion reflects the Court’s reluctance to involve the
courts in substantive determinations of appropriate education and its emphasis
on the procedural protection of the IEP process, it is clear that the Court was
not espousing an entirely toothless standard of substantive review. Rather, the Rowley Court described the level
of benefit conferred by the Act as “meaningful.” The particular reference to the Rowley decision relates to the Supreme Court’s assertion that:
By passing the Act, Congress sought primarily to make public education
available to handicapped children. But in seeking to provide such access to
public education, Congress did not impose upon the States any greater
substantive educational standard than would be necessary to make such access
meaningful. The Polk decision
went on to caution educators about applying too weak a standard of benefit. In
reversing a lower court ruling the court stated: . . . in our view, the danger of the district court’s
formulation is that under its reading of Rowley the content of any benefit, no
matter how small, could qualify as “appropriate education” . . . Just as Congress did not write a blank check,
neither did it anticipate that states would engage in the idle gesture of
providing special education designed to confer only trivial benefit. This meaningful benefit criteria would seem to lie at the heart of decision
making in ESY services matters in which the IEP team must decide whether the
failure to provide these ESY services leads to a program that does not provide
such benefit. Other courts (Alamo Heights v. State Bd. of Ed., 1986) have spoken to this issue: The some-educational-benefit
standard does not mean the requirements of the Act are satisfied so long as a
handicapped child’s progress, absent summer services, is not brought “to a
virtual standstill”…. The issue is
whether the benefits accrued to the child during the regular school year
will be significantly jeopardized if he is not provided an educational
program during the summer months. This is, of course, a general standard,
but it must be applied to the individual . . . in the same way that juries
apply other general legal standards such as negligence and reasonableness. This document will address in Part V the
standards recommended in Tennessee and Sevier County for examining the need for
ESY services. The standards have relied on guidance from courts regarding such
decision making, including Johnson v. Bixby (1990),
a decision from the Tenth Circuit. This case asserts that, in addition to
regression-recoupment criteria, there is a need to consider many factors in
applying the appropriateness threshold.
The remainder of this document is intended to provide guidance to Sevier
County educators and parents regarding the strategies critical to considering
such retrospective and predictive data in this area of decision making. Part IIThe Definition of Extended School Year Services The interpretation and
application of ESY services has proven confusing and difficult for the Sevier
County Department of Special Education and parents for several reasons, the
most notable of which is that the law has been in the process of change. The
1997 IDEA statute does not specifically mention ESY services, but the
requirements for ESY services are made very clear under the description of a
free appropriate public education (FAPE) in the regulations 20 U.S.C. 1412
(a)(1). ESY services appear
for the first time in the IDEA regulations (1999). Another issue, which adds
some confusion, is that decisions rendered by administrative law judges (ALJs)
and courts just a few years ago may no longer be an accurate guide to resolving
the ESY services question. Comments
from the federal regulations reinforce the necessity of making individualized
determinations regarding the provision of ESY services. The Comments explain
that states should have flexibility in determining eligibility for ESY
services, but that those decisions must be made in accordance with IEP and
placement requirements. The Comments further note that state standards should
ensure that FAPE is provided consistent with the individually oriented focus of
the Act and that they do not limit eligibility for ESY services to children
in particular disability categories.
Because the legal authority for ESY services is an appropriate education, this
does not mean that ESY services
duplicate the programs provided
during the regular school year. The Comments section of the regulations
state: Typically ESY services would
be provided during the summer months.
However, there is nothing in the definition of ESY services in Section
300.309(b) that would limit the ability of a public agency to provide ESY
services to a student with a disability during times other than the summer,
when school is not in session, if the IEP team determines that the child
requires ESY services during these time periods in order to receive FAPE.1 1 Comment
Section IDEA 97, page 12576. Extended School Year (ESY) Services, 2001 11 Any services provided beyond
the regular school year by the LEA and/or AEA constitute an ESY services
program if the following conditions are met: (1) The IEP team has made an individualized determination
that there is a need for such services to ensure an appropriate education for a
student with a disability. (2) The need and the services are documented in the
individualized education program (IEP). (3) The services are accessed or provided by a public
educational agency. (4) There is no cost to the parent. (5) The student’s progress is monitored by appropriate
special education personnel. While the discussion has
focused on extended school year services it should be noted that a similar
analysis could be applied in situations in which an extended day program is
determined to be necessary in order for a student with disabilities to receive
FAPE. This could be applied, for example, in a situation involving a
kindergarten student attending a districtwide partial day program who requires
a more intensive program. Depending on
the needs of the individual child, the ESY services provided might be
significant–such as extended tutoring or full-time structured programming. On
the other hand, those services might be relatively minor and inexpensive–such
as the provision of a computer program accessible at the local library. Perhaps computer program or student training
in skills maintenance techniques will meet the need; perhaps accessing an
existing community resource such as a summer recreation program will meet the
need. If so, the provision of those services will satisfy the requirements of
the rule. Part IIIThree Basic Requirements of ESY Services Under IDEA 97 federal
regulations, the provision of ESY services is made up of three basic
components. School districts, such as Sevier County, are encouraged to emphasize these three when training their
personnel. Because these basic principles are so important to the legal
provision of ESY services, each of them will be discussed and explained in this
part. (1) All children who are eligible for special education
and related services are to be considered for ESY services. The basis for determining
eligibility for ESY services is identical to the basis for determining FAPE: A
child is eligible for and entitled to ESY services to the full extent that he
or she needs those services to secure FAPE. The legal basis including the
procedural and substantive requirements for ESY is derived from the concept of
FAPE. Eligibility is determined by
individual need, guided by the criteria for an appropriate education. The
extended program–which will allow the child to secure the benefits of a free
and appropriate education–has the same procedural and substantive requirements
as the IEP developed for the school year. The
comment section of the federal IDEA regulations clarify that every child is not
entitled to receive ESY services, but all are entitled to consideration of
such. Children with disabilities who
transition from Tennessee Early Intervention Services (TEIS), (Part C early
intervention program for infants and toddlers ages birth to three), to Part B,
(students with IEPs), also must rely on FAPE for ESY services eligibility. The
Part C lead agency or grantee designee and the family of the two-year-old must
meet with the district to discuss the child’s transition to Part B services at
least 90 days (and at the discretion of the parties, up to six months) before
the child turns three. This occurs through the preschool program at the Trula
Lawson Early Childhood Center in Sevierville.
Children with disabilities who have their third birthday during the
summer months are not automatically entitled to receive special education and
related services during the summer. ESY services are provided during the summer
only if the IEP team determines that the child needs ESY services during the
summer in order to receive FAPE. In
special circumstances, the transition plan and IEP team could determine that in
order to ensure a smooth transition with no interruption of services, Part C
funds and IFSP services could continue until the IEP programs are implemented. Further clarification will be available from TEIS
(rules, guidance papers, policies and procedures). The Tennessee Department of
Education, Division of Special Education, reasserts the expectation that all children who qualify for special education and related
services are automatically eligible for ESY services; thus, an eligible
individual is an individual with a disability who is handicapped in obtaining
an education and who is entitled to receive special education and related
services. As was stated earlier, this is
not limited to students in specific disability categories, levels of need or
severity of disability. In addition,
the Tennessee Department of Education requires IEP teams to consider ESY
services not only for eligible students who receive special education
instructional and related services but also for those receiving support services. Related services include transportation and
developmental, corrective, and other supportive services as are required to
assist eligible students to benefit from special education. (2) All relevant information relating to the individual
needs of the child must be considered. All information relevant to
the question of what constitutes FAPE for a child with a disability must be
considered by the IEP team as a basis for entitlement to an ESY services
program under the IDEA. Relevant information includes consideration of data from independent educational evaluations.
Any rule, policy, or procedure which purports to restrict this full
consideration of all relevant information is contrary to the IDEA. In fact, the Comments section of the
regulations state, …the examples of
standards that were included in Note
2 (e.g., likelihood of regression, slow recoupment, and predictive data
based on the opinion of professionals) are
derived from well established judicial precedents and have formed the basis
for many standards that states have used in making [ESY services] determinations . . . It also should be
pointed out that nothing in this part is intended to limit the ability of
states or districts to use variations of any or all of the standards listed in
Note 2. This tenet has been well
understood for more than a decade, but executive and judicial authorities have
recently become more active in enforcing its full implications. As the U.S.
Department of Education has determined, “it
would not be permissible for a state
to adopt a policy of refusing to consider information, such as predictive data, that may be relevant to the
determination of whether a preschool child needs ESY services.” It should be noted that whenever a reference is made to
the use of data in ESY decision making, these data should reflect multiple sources and that ESY decision making considers both predictive and retrospective data. (3) Parents have the right of full participation in the
development of the IEP, which includes the ESY services decision, and they must
be fully advised of their rights. The opportunity for parental
participation in the development of IEPs for their children is a requirement of
the IDEA. This emphasis is evident when considering the specific mention of the
IEP team in Section 300.309 (a)(2) which states that ESY services must be
provided only if a child’s IEP team determines, on an individual basis, in
accordance with Section 300.340–300.350, that the services are necessary for
the provision of FAPE to the child.
Parents are entitled to a meaningful opportunity to participate in the
discussion of their child’s needs and the formulation of that child’s
educational plan, which includes being informed about standards for determining
eligibility for ESY services. The Comments section of the regulations states, …it is important that states inform parents
about standards for determining eligibility for ESY services…Since this
matter is relevant to the provision of FAPE, it already would be included in
the information contained in the written prior notice to parents provided under
this part for children for whom ESY services are an issue. In order for parents to be
full participants, they must be adequately informed of their rights— a duty which can be confusing unless a
distinction is made among three types of notice: (1) notice of rights, (2) notice
of meetings, and (3) notice of decision. These notices are discussed in greater
detail in Part VI. Part IV Specific StandardsFor Implementing Sevier County’s
ESY Services Rule In response to the federal
IDEA 97 requirements that states must establish standards for ESY service
eligibility, this part sets forth what these standards are. The standards
include: (1) Need for Continued Skill
Acquisition and Maintenance without Interruption (2) Regression/Recoupment
Concern (3) Rare and Unusual
Circumstances (4) Other Considerations (1) Need for Continued Skill Acquisition and Maintenance
without Interruption Historically, the cornerstone
of the Sevier County ESY services has been the determination and identification
of critical skills. On its face, this definition suggests that critical
skills are identical to the
developmental priorities identified in the IEP. As ALJ Daniel J. Reschly
observed in 1993, “[every IEP goal] would
be a critical skill if the only criterion was developmental priorities.” Difficulty has arisen, therefore, whenever critical
skills were interpreted as a
determinative eligibility requirement.
It is now clear that the critical skill determination
cannot be used to limit the availability of ESY services. In response to a
system-wide attack on an ESY services rule, the U.S. District Court for the
District of Maryland decreed that, if critical skills were defined in a rigid manner, so as to prevent the IEP team from fully
considering a child’s individual needs for an appropriate education, the
construct would violate the IDEA. “Such a practice–designed to misfocus ESY
service analysis and prevent deserving children from qualifying for it–would
certainly raise an issue under the IDEA.” When considering eligibility
for ESY services and applying the Tennessee and Sevier County standards, an IEP
team should ask several lead questions. Thus, the lead question when examining
the need for continued skill acquisition and maintenance without interruption
is: Are there goal areas of concern, which need to be
acquired or maintained without interruption for the child to meaningfully
benefit from a FAPE? - Due to child developmental
level necessitating continuation of programming (e.g., language development). - Due to need to facilitate
independent functioning (e.g., continued mobility training will decrease the
reliance on and necessity of an assistant). Whenever a reference is made
relating to the use of data in ESY services decision making, this data shall
reflect multiple sources and ESY services decision making considers both
predictive and retrospective data.
Instead of considering the critical skills concept,
an IEP team will need to address goal areas of
concern when examining whether
a child or student is eligible for ESY services. First and foremost there must be a goal area where
significant concerns exist regarding skill acquisition or maintenance of skills
during a break in services. Goal
areas should represent skills essential to the progress of the student. If
the current IEP does not contain identified goal areas of concern, but there
are new concerns not
addressed, a new IEP may need to be written to reflect new goals, if deemed
appropriate by the IEP team. The very nature of the IEP document requires it to
be dynamic and rewritten to reflect new needs that in turn will require a
consideration of ESY services. The identification of goal areas of concern is only the first step in an ESY services decision
process. The identification of goal areas of concern does not, in and of itself, establish or preclude the
need for ESY services. (2) Regression/Recoupment Concern The Comment section of the IDEA regulations clarifies that states may establish standards such as likelihood of regression for determining eligibility for ESY Services. In a 2001 memo from Dr. Joe Fisher, Tennessee Director of Special Education, regression/recoupment play a prominent, though not exclusive, role in determining eligibility and services for ESY. Regression refers to the inability of a student to maintain an acquired skill, in an identified goal area of concern, as a result of an interruption of special education instruction or support services in an IEP goal area. In addition, a significant amount of reteaching as determined by the IEP team will be required to regain previous competence. In these cases ESY services programming shall be designed to provide for maintenance of skill level. The lead question the IEP team needs to ask when addressing the regression/recoupment standard is: Has there been (or is there a potential for) significant
regression during periods of interruptions that would require significant
recoupment? The regression-based standard
is best viewed as a general guide to identifying those students who need programming
beyond the normal school year because these students may experience significant
skill regression and require significant recoupment time. Recoupment refers
to the amount of time it takes to regain the prior level of functioning. Several criteria should be
considered when applying the regression-based standard. _ First, the availability of ESY services cannot be limited to children who
have actually experienced serious regression. _ Second, ESY services regression analysis cannot be limited to empirical data. More than
one court case on this issue confirms the necessity of allowing for expert
opinion or professional judgment which takes into account not only
retrospective data but predictive data. For example, the Johnson court concluded: The analysis of whether the child’s level of achievement
would be jeopardized by the summer break in his or her structured educational
programming should proceed by applying not only retrospective data, such as
past regression and rate of recoupment, but also should include predictive data
based on the opinion of professionals in consultation with the child’s parents
as well as circumstantial considerations of the child’s individual situation at
home and in his or her neighborhood and community. In using such predictive data,
it is important to consider multiple data sources such as progress monitoring
data on current IEP goals and data provided by the parents. _ Third, some children’s needs may be so great that they cannot suffer even
the modest regression and recoupment
times that would otherwise be acceptable. The matter must be judged on a
case-by-case basis. For example, the severity of a child’s intellectual or
physical impairments may minimize that child’s incremental developmental gains
to such a degree that services must be virtually continuous for the child to
progress and benefit from the educational experience or to achieve the
independence from caregivers he or she might otherwise be unable to achieve. Accordingly, guidelines for determining ESY services “must be very flexibly applied to each
individual case.” (3) Rare and Unusual Circumstances A guiding presumption of
public education is that the educational needs of most children, both disabled
and nondisabled, can be met within the normal school year of the public
agency. For must public agencies, the
normal school year is 180 school days. Indeed, the provision of ESY
services is the exception, not the rule.
A system which required all children with disabilities to attend summer
school would not be acceptable to either parents or educators. If IEP teams
identify large numbers of children in need of ESY services, it may, in fact, be
a signal that the normal school year programs presently offered
should be reevaluated.
Obviously, other factors, including the development of new programs
serving targeted populations, movement of families from one district to another
who are seeking a desired program, or new emerging interventions that offer
significant benefits for students with disabilities may contribute to this
pattern as well. Since the object is “to move away from a strict and narrow
determination to a broader consideration of all relevant information concerning the
unique needs of a child,” it is apparent that rare and
unusual must be thoughtfully
applied. On the one hand, since only a
minority of children have disabilities which qualify them for special
education, each and every child could legitimately claim that his or her case
is rare and unusual. This argument is not
acceptable. On the other hand, it is
equally unacceptable to argue that, although a particular child has multiple
disabilities, some of which are extremely rare, his or her case is not rare and
unusual compared to other children
with identical disabilities. Under this argument, virtually no child would
qualify for ESY services. Given the
fact that rare and unusual can
be interpreted to support equal and opposing extremes, these Sevier County
(Tennessee) standards establish a series of criteria that should be used to
determine if a child’s circumstances are such that ESY services should be
awarded. These criteria are derived from case law and should be viewed as a
practical elaboration of what constitutes rare and unusual circumstances within the meaning of the standard. The lead
question the IEP team needs to ask when addressing the rare and unusual
circumstances standard is: Are there rare and unusual circumstances that
necessitate continuous instruction or service? _ First, the case is rare and unusual and ESY services may be awarded when
the child is in a critical stage of
development–when there is a window of opportunity that will be lost if services are not provided. For example, there are
circumstances in which a child with the diagnosis of autism may have a given
window of opportunity for learning specific behaviors. The case for ESY
services may be strong in this circumstance. Other examples include a student
who requires immediate mastery of a skill (e.g., safety, swallowing) or
requires continuous programming due to abrupt changes in physical, sensory,
mental capacity (e.g., visual training or using a wheelchair). As stated earlier, ESY services may be
awarded when such services will significantly enhance a child’s ability to function
independently. A child is eligible for
ESY services if, with the aid of those services, he or she is reasonably likely
to make significant advances toward the goal of self-sufficiency. _ Second, the case may be rare and unusual and ESY services may be awarded
when continuous or year-round treatment is an integral part of the methodology
deemed to be appropriate for the child. Thus, one criteria for awarding ESY
services is “whether the requested service is ‘extraordinary’ to the
child’s condition, as opposed to an integral part of a program for those with
the child’s condition.” As an example, where the methodology chosen for a child
was “designed to be administered
year-round,” a federal court ruled that ESY services were mandated. Where the benefit derived from a program is related to its
“intensity” or continuity over time, the selection of the appropriate program
itself may determine whether uninterrupted services are necessary for the child
to progress. Given the broad mandate of
this language, the most viable interpretation of Tennessee’s ESY services
standards is one in which the IEP team considers all relevant information
pertaining to a child’s need for services beyond the normal school year in
order to secure the benefits of FAPE. If the need is there, ESY services must
be provided– and the circumstances are, by definition, rare and unusual. (4) Other Considerations The lead question the IEP team
needs to ask when addressing other considerations is: Are there other factors to be considered in determining
the child’s need for ESY services? ESY services may be awarded
when there are special needs for summer services arising out of a child’s
individual circumstances. In Johnson v. Independent School District No. 4, the Tenth Circuit offered the following list of
possible factors justifying ESY services: - The degree of impairment of the child. - The degree of regression suffered by the child. - The child’s recovery time from regression. - The ability of the child’s parents to provide
educational structure at home. - The child’s rate of educational progress. - The child’s behavioral and physical problems. - The availability of alternative resources. - The ability of the child to interact with nondisabled
children. - The areas of the child’s curriculum that need
continuous attention. - The child’s vocational needs. - Whether the requested service is extraordinary for the
child’s condition, as opposed to being an integral part of a program for
children with the same condition. The Johnson court also expressly stated
that “[t]his list is not intended to be
exhaustive.” It must be noted at this
point, that the Comments section of the regulations states, “In most cases, a multi-factored
determination [regarding the necessity for ESY services] would be appropriate…” The Comments
continue by stating, “…but for some
children, it may be appropriate to
make the determination of whether the child is eligible for ESY services based
on one criterion or factor” further emphasizing the importance of making
individualized ESY services decisions. Part V Related Issues of Concern The Applicability of the LRE Principle IEP teams are obligated to consider the least restrictive environment (LRE)
principle during ESY services decision making in the same manner as during the
regular school year. As the U.S. Department of Education has observed, “if the participants on the IEP team
determine that the child requires an extended school year program in order to
receive FAPE, that program must be provided to the child in the least restrictive educational setting that is appropriate to educate the child.” In
short, it is important that summer programs for children with disabilities
should be designed to provide for participation in services and activities with
children without disabilities to the maximum extent appropriate. While ESY services must be
provided in the LRE, public agencies are not required to create new programs as a means of providing
ESY services to students with disabilities in integrated settings if the public
agency does not provide services at that time for its nondisabled children. However, consistent with its obligation to ensure that
each disabled child receives necessary ESY services in order to receive FAPE,
nothing in this part would prohibit a public agency from providing ESY services
to an individual disabled student in a noneducational setting if the student's
IEP team determines that the student could receive necessary ESY services in
that setting. Notice to Parents (1) Notice of IEP Rights and Procedures Regarding notice to parents
involving ESY services, the Comments section of the regulations states, “Although it is important that States inform
parents about standards for determining eligibility for ESY services, a
regulatory change is not necessary. Since this matter is relevant to the
provision of FAPE, it already would be included in the information contained in
the written prior notice to parents provided under this part for children for
whom ESY services are an issue.” Prior written notice must be provided at the following
times: (1) When a student has been
determined to need ESY services by the IEP team (2) When a parent requests ESY
services, but the other IEP team members decide ESY services are not warranted It also is essential that
parents be advised of their rights before the IEP meeting at which ESY services
are discussed. This is accomplished by providing parents with, and making
reasonable efforts to ensure that they understand, the brochure entitled Rights of
Children with Disabilities and Parent Responsibilities provided by the Tennessee Department of Education or the
LEA. Available online at: http://www.slc.sevier.org
. Parents have a right to appeal any
decision made by the IEP team relating to ESY services, and an administrative
law judge has at least 45 calendar days before rendering a decision. The IEP
team needs to provide a formal decision at least 45 calendar days before the
services would possibly commence. A rigid 60-calendar day requirement before
the interruption of services cannot be established. (2) Notice of Meetings Parents are to be “afforded
the opportunity to participate” by being notified of the meeting “early enough
to ensure they have an opportunity to attend” and by being advised of the
“purpose, time and location of the meeting and who (name and position) will be
in attendance.” These procedural safeguards exist to ensure that parents
are “equal participants,” who, along with school personnel, are involved in
developing, reviewing, and revising the child’s IEP. Among these procedural safeguards, there is also the
requirement that parents are advised, prior to the meeting, of their parental
rights. This is accomplished by providing parents with a copy of Tennessee’s
rights brochure. A consideration of ESY
services should be a part of any IEP meeting, and therefore does not
necessitate being listed separately in the purpose statement when notifying
parents about an upcoming IEP meeting. However, if a separate meeting was to be
held to consider ESY services only or a
discussion has already occurred that indicates ESY services will be a specific
and significant area for decision making, ESY considerations would need to be
included as part of the purpose statement. In addition, parents should be made
aware, through the notice procedures, of any data the parents can bring to
meetings addressing ESY decision making that may contribute to the decision as
to whether a student requires ESY. (3) Notice of Decision The IDEA and the Tennessee
Department of Education rules require that parents be provided with written
notice a reasonable time before an agency proposes to initiate or change the
identification, evaluation or education placement of the child or the provision
of FAPE to the child. The
provision of ESY services–or the failure to provide ESY services–comes within
the embrace of this requirement. Accordingly, the notice of the IEP team’s ESY
services decision must include the following elements: a. A description of the action proposed or refused by
the agency. b. An explanation of why the agency proposes or refuses
to take the action. c. A description of any other options the agency
considered and the reasons why those options were
rejected. d. A description of each evaluation procedure, test,
record, or report the agency used as a basis for
the proposed or refused action. e. A description of any other factors that are relevant
to the agency's proposal or refusal. f. A statement that the parents of an eligible
individual have protection under the procedural safeguards of these rules and, if
this notice is not an initial referral for evaluation,
the means by which a copy of a description of the procedural safeguards can be
obtained. g. Sources for parents to contact to obtain assistance
in understanding the provisions of these rules. It should be noted that “a-e”
are longstanding requirements of written prior notice; “f” and “g” first
appeared in the IDEA 1997 statute. Part VI Recommendations The Sevier County Department
of Special Education believes in the simple proposition that every child’s
needs should be individually considered in making the ESY services decision.
The Sevier County Department of Special Education also believes that a best practice
approach should embrace the following
concepts: (A) Following the discussion
of the special education needs for any student with disabilities, the IEP team
should brainstorm to
identify and explore all available community options and other educational
opportunities that would be beneficial to the child during the summer months.
The full array of available options can then be considered. The IEP team should
then specifically identify any services that are necessary to ensure an
appropriate public education. These services identified as necessary for FAPE
must be provided at no cost to the parents and are referred to as ESY services.
Through this process, IEP team members and parents will also be made aware of
additional programs or activities which may be beneficial for their child
should they choose to pursue them independently. (B) IEP teams should have the
benefit of a consistent strategy within the Sevier County School System for
considering ESY services options for a child with a disability. This system
structure should encompass the concepts discussed in Part V of this document. (C) Schools in Sevier County
and the system should develop lists of community resources that can be accessed
by school personnel and parents for purposes of meeting the summer educational
needs of children with disabilities including ESY services. (D) Schools should
continuously work to develop innovative techniques for meeting the summer
educational needs of children with disabilities–techniques which require a less
intensive investment of both the school’s resources and the student’s time.
Several educators have identified maintenance strategies that could prove to be of great assistance in providing
summer services to children with disabilities. For example, if a junior high
student were secured a summer job reading stories to younger children at the
local library, that position alone might be sufficient to prevent a regression
of tenuously acquired reading skills. However, while pursuing
these best practices IEP teams must also keep in mind: 1) any extended school year
services program must be included within the student’s IEP; 2) goals, objectives, or
milestones related to ESY services must be present; 3) monitoring and supervising
ESY services, even if directly delivered by other community resources, are still
the responsibility of qualified special education personnel; and 4) ESY services must be at no
cost to the parent. As examples, there are times when ransportation must be at
no cost or enrollment fees would not be assumed by the parent if required for
access to a particular program. This document is not intended to be conclusive, but to suggest a direction for focusing cooperative efforts to provide ESY services for special education students. Sevier County personnel, parents, and IEP teams across the system need to pool ideas and to find creative and effective ways to stretch limited resources to meet the ESY services needs of all Sevier County children with disabilities. |