And What Parents Need to Know in Light of the COVID-19 Pandemic
Thursday, April 30, 2020
Noelle Vinson Saint Jean, J.D., MS. Ed. Birgit Fisher, Advocate
Extended School Year services are available for those students who have a qualifying disability and need specialized instruction beyond the normal school hours and traditional academic school year. In the article below, Noelle Vinson Saint Jean and Birgit Fisher explain the importance of Extended School Year services, methods to request such services, and options available in the event a school improperly denies services to a student. The authors also provide insight and recommendations for families in need of Extended School Year services during the Covid-19 pandemic.
Ms. Birgit Fisher is an Advocate for special needs parents. Ms. Noelle Vinson Saint Jean is a lawyer at Vinson Saint Jean Law, PLLC. She practices in the area of special education law. As a child, she qualified for special education services and supports under the Individuals with Disabilities Education Act. She is now devoted to helping other students with disabilities receive the services and supports they need to thrive.
Sometimes the approximately 36 weeks of school that make up an academic year are not enough time to provide students with disabilities the learning opportunities they deserve and schools are required to provide. For this reason, federal and state laws require schools to provide Extended School Year services when the educational program provided during the regular school year is not enough to meet the unique learning needs of a student with disabilities.
The law that provides for Extended School Year (ESY) services is the Individuals with Disabilities Education Act (IDEA).¹ This is a federal law that applies to all states. Under IDEA, students who have a qualifying disability and need specialized instruction have the right to a Free Appropriate Public Education (FAPE).² An Individualized Education Program (IEP) is a legal document that is required for students with disabilities who qualify under the IDEA. Each child’s IEP must be (1) designed to meet the student’s unique learning needs, (2) provided at no cost to the child’s parents or guardians, and (3) implemented as planned.³ Importantly, the IEP must be “appropriately ambitious” for each individual child.⁴ According to the United States Supreme Court, whose decisions apply to all states, special education services must be designed to provide a student with disabilities the opportunity to pursue goals that are challenging in light of the student’s unique circumstances.⁵ This means that public schools must provide IEPs that give students a real chance to achieve challenging goals.
What are Extended School Year services? Extended School Year services are special education services provided outside of the regular school year.⁶ They include specialized instruction based on the child’s unique learning needs free of cost to the child’s family or guardian.⁷ ESY services must be based on the student’s IEP, provided at no cost to the parents or guardians, and meet the state education agency’s standards.⁸ ESY services are different from summer school.⁹ In fact, ESY services can be provided at any time of the year that is not part of the usual academic calendar.¹⁰ Some examples of ESY services are individualized multi-sensory literacy instruction, individualized social skills instruction, occupational and speech therapy, private out-of-district summer programs, community-based independent living skills instruction and more. The possibilities are as diverse as the individual children! For example, if a child lacks the social and language skills to appropriately interact with peers, ESY services could be provided after school for a child to participate in Boy or Girl Scouts. The school could pay the troop fees and if the child needs more individualized support, the school could send a social skills instructor to troop meetings and activities to help guide the child while interacting with peers.
When are Extended School Year services required by law in Texas? The IDEA says that ESY services must be provided when necessary to provide a student with FAPE. The IEP team—which includes the student’s parents or guardians–must evaluate and decide whether ESY services are needed to provide a student with FAPE. In Texas, it has been long established that FAPE requires a student to receive “some educational benefit.”¹¹ Most recently, the United States Supreme Court ruled that a student receives an educational benefit when their individualized education program is appropriately ambitious and contains goals that are challenging in light of their unique circumstances.¹² Therefore, when determining whether ESY services are needed, IEP teams should consider whether the IEP is appropriately ambitious and gives the student the opportunity to achieve challenging goals in light of the student’s circumstances.
Texas law requires documentation of certain information in order to grant ESY services.¹³ Specifically, Texas regulations say that documentation must show that the student might lose one or more critical skills without ESY services.¹⁴ Parents can use formal or informal evaluations to show that without ESY services, the student will not be able to maintain at least one acquired skill, and that this skill will not be regained in a reasonable period of time.¹⁵ A reasonable period of time is said to be eight weeks or less.¹⁶ If loss of a critical skill could result in immediate physical harm, there is no need to consider how long it would take to regain the critical skill.¹⁷ There is not a single evaluation that determines eligibility for ESY services. Existing data, such as progress reports, report cards, parent and teacher input, work samples, and more may be used to determine the need for ESY services. If new assessments are needed, the IEP team should establish a timeline for completion of these evaluations that will allow for necessary ESY services to be delivered.
Other federal courts have come up with different rules for ESY service consideration, qualification, and provision. Some of these include: (1) that no single criterion should be used as the sole determining factor of whether or not ESY services are provided; (2) whether there are emerging skills and breakthrough opportunities; (3) whether notice and timing of ESY service considerations are sufficient; and (4) whether the content and duration of services are based on the individual student’s needs.¹⁸ These factors are helpful to consider as guidelines while contemplating ESY services.
When is it improper for a school to deny Extended School Year services? According to both federal and Texas law, ESY services cannot be denied based on a student’s disability category.¹⁹ In addition, schools cannot make a one-sided decision to limit the type, amount, or duration of ESY services.²⁰ It would also be improper for schools to deny ESY services based on a single factor, or because a student has not yet lost a skill. Furthermore, ESY services should not be denied when a student’s skill level could fall further behind the skill level of students without disabilities if not provided with ESY services. In addition, some schools across the country, including Texas, wrongly offer ESY services only in a specific place, at a specific time, and for a specific limited length of time for every student who qualifies. However, ESY services should be offered at any time and in any place the IEP team decides ESY services are needed to provide a child with FAPE. This could be before or after school, during winter and spring breaks, at baseball camp, and wherever and whenever services are needed.
How and when should ESY services be requested for a student? A parent or guardian can request an IEP meeting at any time to discuss ESY services. For summer ESY services, it is best to start planning early in January or February so there is time to dispute a school’s decision if a request for ESY services is denied.
The school may have improperly denied ESY services. Now what? If you believe your student was improperly denied ESY services, you can file a complaint with your state’s education department or agency. In Texas, you can file a complaint with the Texas Education Agency, request mediation, or request a Due Process Hearing.²¹
Special Education and ESY services during the COVID-19 Pandemic IDEA’s requirements for FAPE must be followed by every school district during the COVID-19 pandemic.²² If students without disabilities are being educated in some form, special education services and support, including specialized instruction, must be provided with reasonable faithfulness to the IEP.²³ Parents and guardians can still request IEP meetings to discuss ESY services. In fact, providing ESY services during the summer months is especially important during the COVID-19 pandemic, because students may have gone without some of the special education services they would normally receive during the academic school year. The summer could provide a great opportunity to help keep students with disabilities on track and progressing toward their challenging goals.
Another approach to securing additional services in light of COVID-19 would be to request compensatory education in the summer and during the upcoming 2020-2021 school year. The purpose of compensatory education is to remedy violations of FAPE, including violations that parents did not realize were occurring at the time.²⁴ For example, some parents may not be aware that schools would be violating their requirement to provide FAPE if they are educating students without disabilities remotely–but not providing special education services to students with disabilities during the COVID-19 pandemic.
Parents and guardians of students with disabilities must be especially proactive by collaborating creatively with their schools to find solutions for remote specialized instruction and ESY services during the COVID-19 pandemic. For example, a student who receives speech therapy at school may be able to continue speech therapy sessions via video conferencing. A student who receives occupational therapy at school may also continue therapy through video conferencing. For instance, perhaps the therapist could instruct the student’s caregiver on how to support the physically interactive components of the therapy session. It is time to be creative like never before because we are all in this together!
Sources: ¹ 20 U.S.C. § 1400. ² Id. at § 1400(d)(1)(A). ³ See 20 U.S.C. § 1401(9). ⁴ Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 1000 (2017). ⁵ Id. at 1001. ⁶ 34 C.F.R. § 300.100 et seq. ⁷ Wrightslaw, Should Your Child’s IEP Include Extended School Year Services (ESY)?, The Wrightslaw Way (March 24, 2020 3:00pm), https://www.wrightslaw.com/blog/should-your-childs-iep-include-extended-year-services-esy/ ⁸ 34 C.F.R § 300.106 (b). ⁹ Wrightslaw, Should Your Child’s IEP Include Extended School Year Services (ESY)?, The Wrightslaw Way (March 24, 2020 3:00pm), https://www.wrightslaw.com/blog/should-your-childs-iep-include-extended-year-services-esy/ ¹⁰ Id. ¹¹ Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1158 (5th Cir. 1986). ¹² Endrew F., 137 S. Ct. 992. ¹³ Texas education regulations on ESY have been written to mirror the special education decisions of the Fifth Circuit Court of Appeals dating back to the 1980s. This court is the second highest federal court with authority in Texas, second only to the U.S. Supreme Court. However the ESY decisions from the Fifth Circuit came out without the benefit of the clarity we now have from the Supreme Court about the necessity of appropriately ambitious individualized programs. The fact that Texas education regulations still mirror this old case law may detrimentally affect how Texas schools allocate ESY services. The reasoning behind the U.S. Supreme Court’s recent Endrew F. decision provides needed clarification about the importance of creating IEPs that facilitate educational opportunity for each student to achieve goals that are challenging given the student’s unique circumstances rather than goals that may open the door for minimal progress and stagnation. The Court’s “appropriately ambitious” standard should be the guiding philosophy for IEP teams as they consider ESY services for each and every individual student. To learn more, see https://sites.ed.gov/idea/files/qa-endrewcase-12-07-2017.pdf; to review Texas education regulations side by side with the federal rules see https://framework.esc18.net/Documents/Side_by_Side.pdf. ¹⁴ 19 Tex. Admin. Code § 89.1065(2). ¹⁵ 19 Tex. Admin. Code § 89.1065(6). ¹⁶ 19 Tex. Admin. Code § 89.1065(3). ¹⁷ Id. ¹⁸ See Wrightslaw, Nissan B. Bar-Lev, Standards for Extended School Year (ESY), The Wrightslaw Way (April 13, 1998), https://www.wrightslaw.com/info/esy.standards.barlev.htm. ¹⁹ 34 C.F.R § 300.106(3)(i); 19 Tex. Admin. Code § 89.1065(1)(A). ²⁰ 34 C.F.R § 300.106(3)(ii); 19 Tex. Admin. Code § 89.1065(1)(B). ²¹ See Center for Parent Information and Resources, The Due Process Hearing, in Detail, Parent Center Hub (Oct 1, 2017), https://www.parentcenterhub.org/details-dueprocess/. ²² See U.S. Dep’t of Education, Report to Congress of U.S. Secretary Betsy Devos recommended Waiver Authority Under Section 3511(d)(4) of Division A of the Coronavirus Aid, Relief, And Economic Security Act (“Cares Act”) (Apr. 27, 2020). ²³ Texas Education Agency COVID19 and Special Education in Texas (Updated March 26, 2020), https://tea.texas.gov/sites/default/files/COVID19%20Special%20Ed%20Q%26A_Updated%20March%2026_Revised.pdf. ²⁴ See Yael Z. Cannon, Chapter 10: Remedies. Special Education Advocacy, 379 (Ruth Colker and Julie K. Waterstone, 2011).