I remember my first public school IEP meeting when my son was in kindergarten. Before that, he had been placed in a year round developmental preschool so ESY was never an issue. In general education (inclusion) kindergarten, though, I knew that at his annual IEP in March, we should be discussing the ESY issue. But, when I got the draft IEP, the ESY box was marked “No”. Why? The computer was defaulted to mark "no" as my son’s district was a don’t ask, don’t tell district. If you didn’t ask about ESY, they did not tell you what that box meant and if you asked, they told you that your child was ineligible.
I kid you not. When I asked, they told me he was not eligible. I said, “Excuse me, when did the IEP team make that determination as I am on the IEP team and I never participated in any ESY determination."
And the backpeddling began.
First they said “Well, we need to have a meeting to determine ESY”. I said, “you bet we do, so why is this box marked “no”? They claimed it must be a mistake and I said, “Well, no, you told me 30 second ago, he was not eligible so apparently, this was simply documenting the predetermined decision already made without a meeting”. They said, “No, that was not the case” and they would have to set a meeting to determine ESY. I said, “We are here to have that meeting, a meeting that must be convened no later than 45 days prior to the end of the school year so you are already beyond the deadline, again, suggesting that you had no intent on telling me about ESY and simply marking this box “No” and hoping I would not figure it out”. They again denied what was the obvious conclusion and said they would set a meeting.
I then turned to the teacher and said “Do you have ESY data?”. He said, “What data would that be?” This was a general education teacher as my son was placed in a full inclusion classroom with NO resource/SAI support (just speech, OT, and APE). I asked: “Were you asked to keep track of his baselines from the day before winter and spring break and then daily data upon his return to see how many days it took for him to recoup to where he had been?” He admitted he was never asked to keep that data and did not keep the data. I then said, “Well, regardless of the failure to actually have objective evidence to substantiate the regression issue, does my son experience regression and delayed recoupment after periods of long break?” And his answer makes clear why you don’t want to let them get time to prepare for this issue: “Ms. Langerman, you son demonstrates significant regression every Monday and it takes 2 to 3 days for him to recoup that weekend loss." Without missing a beat I asked: “And what about after winter break?” And again, the amazing truth came out of this great teacher’s mouth: “He still hasn’t caught back up". It was late February as my son's birthday was March 1 and we were meeting for his annual review.
So, I turned to the administrator (the fabulously inept school psychologist) and said “Okay, so my son is eligible for ESY – what is available in the district?” Her response was priceless: “We need to have a meeting to determine if he meets the eligibility standards”. I asked: “Where have you been? We just made that determination”. She said we had not and everyone sat there just staring. I then announced that I would privately place my son in a summer ESY program that I determined would meet his needs and submit the bill for reimbursement at public expense as the district failed to timely determine ESY eligibility for my son and left it at that.
The next day a meeting notice came down for 10 days later for a meeting “to determine ESY eligibility”. The director showed up for this meeting and started off by saying that we were meeting to determine ESY eligibility. When I said we had already done that, she said we had not and were there to determine eligibility that day. I turned to the teacher and said “Did we already do this?” He said “Yes”. I then said, “After we made that determination, did the district pro-offer any ESY program?”. He said, “No, mam, they did not”. I turned to the director and said “You had your chance and offered nothing and I made a unilateral placement”. She said that ESY can not be determined without her being present; I then said, “Gee, then why weren’t you invited to our annual meeting when ESY is supposed to be discussed? (another dead ringer for the fact that it had been predetermined that my son would get no ESY). She said it must have been a mistake. I then said “Well, this is no mistake – you are here, you heard he is eligible – what do you have?” She said “Well, I will have to research appropriate programs.” I said, "You are the director, you don’t know what programs are out there? It is for the team to determine what is appropriate – you are simply to tell us what exists to implement it.” She then said “Our ESY calendar is 4 weeks and I need to check was is available for your son”. I responded: “It is up to the IEP team to determine the scope of ESY based upon needs – you can’t predetermine either the length or type of ESY”. I then turned to the teacher and asked: “Do you think a 4 week ESY program would meet my son’s needs?” He said, “I think your son needs to be in school year round”.
Done. End of issue.
I placed him in a 4 week ESY program in Arizona and then came to California, which had a later ESY calendar for a 6 week program and sent them the bill. Every summer until we moved here permanently. Each summer they paid.
I tell you this story simply so you can see how cavalier these folks can be. ESY is a team determination and, it turns out, that a student’s regression and delayed recoupment of skills, the basis upon which my son “qualified” when he was little, is not the only standard (although many districts claim it is). In fact, you cannot simply have one standard for ESY. And the code of federal regulations makes clear that a district cannot limit ESY to particular disabilities (e.g. significant cognitive disabilities, low functioning students) and cannot unilaterally limit the type, amount or duration of ESY services. 34 CFR 300.309 (a)(3)(i)and(ii).
A great summary of ESY eligibility was written by the Director of Special Education at the Cooperative Educational Service Agency No. 7, in Wisconsin, reprinted with permission in the Resources Section of my Website (under Articles). An earlier version of the memo is available here (again, reprinted with permission): http://www.wrightslaw.com/info/esy.standards.barlev.htm. The Arizona Az-TAS from the Arizona Department of Education is also included in Resources/Articles on this website. These articles include numerous citations to regulations, cases, OSEP letters which all delineate the standards which make clear that a district can’t simply use a regression-recoupment formula and must consider the type and severity of the student’s disability, critical learning issues, a student’s behavior, rate of progress, and alternate resources (among other issues). For example, if a student simply needs more than 180 days of school in order to make “meaningful educational progress”, that might be a basis for ESY, not because the student will regress but FAPE required more than 180 days. A district might address those needs through ESY, in essence extending the 180 day school year for the student to receive FAPE. Another student might be at a critical time to learn an emerging skill – as when he or she has just finally gotten an AAC device and needs additional practice in a structured setting. The point is that whether a student is eligible is not simply a formulaic question.
Even in those districts that focus on regression after period of breaks and the extent of recoupment, it is critical to ask for the data. If you are at a meeting and they say something like “he did not demonstrate regression", ask to see their data. If they tell you it is in the classroom, say “Fine, let’s take 5 minutes and I will walk with you to get it”. Do not allow them to continue the meeting or delay giving it to you. It doesn’t usually exist and they need time to recreate it. So, you ask for it on the spot and don’t leave until you get it. If they tell you that they get 5 days to respond to a request for educational records, you say "We are here today to determine eligiblity for ESY and it is an issue of FAPE in the IEP - we need the data TODAY so let's get it NOW and have a collaborative discussion. If it doesn't exist, fess up. If it does, let's go and get it and you can share the details with the team".
As a practice pointer, it is important to have an ESY determination as early as practical. If your annual IEP is prior to winter break, you will need a second meeting. If it is after winter break and before Spring break, they may require you to wait until after Spring break to look at regression data. If your Spring break is late in the season, it may be too late for you to get a decision if you seek to file a complaint with the state or a due process request as they typically take too long to get an answer. Under those circumstances, your best and probably only remedy is to do what I did my first year – tell them you disagree with their decision and will unilaterally place your child in a summer program of YOUR choice and will seek reimbursement at public expense. If you then file for due process, wait until after the program begins or at least until you commit funds. Why? If you file for due process, a crafty school district will immediately make you a settlement offer of their lousy, one size fits all ESY program that you would have never accepted anyway (the one where they put all the seriously challenged behavior children). At that point, they say that even if you win, you did not “beat” their offer and would not be entitled to have your attorneys’ fees paid. So, there is a 2 year time limit to file for due process. Wait until the ESY program starts and then file for due process if you think you have a valid claim. Always seek counsel to advise you first on this or any issue.
What type of ESY program should you choose if you are funding it yourself? Well, if you place your child at the local JCC or parks and recreation program, they will say that it was not an appropriate program. And, it may, or may not be. If the skills that need work in the summer because they are at a critical learning phase or subject to regression are social/emotional, or language, a recreational group with typically developing children would be appropriate. And, many JCC’s (through a service grant they can apply for) and most public programs will provide requisite aide support if your child has a disability and needs it. If your child’s regression or critical needs are academic, a recreational program likely would not be found to be appropriate and in any due process you have to prove that your child needed ESY and that your chosen program was appropriate. So, at that point, a reading clinic, learning center, tutoring group, etc may be appropriate, even a private tutor hired to work with your child. But, make sure that the teacher/tutor is credentialed as that may be an argument that is raised against you – that the instruction was not “specialized academic instruction”. Most learning centers use public school teachers in the summer or they are providing services supervised by a teacher which is generally good enough.
So, don’t let them bully you or silence you into submission. Knowledge is power.
One last war story. After my own experience when my son was in kindergarten, I went to a parent support group meeting and asked: “How many of you know what ESY is?” No hands were raised. I then asked, “How many of you have IEPS that include ESY?” Again, no hands were raised. No one had any idea in a group of 50+ parents of children with Autism. Pretty sad. The next morning, special ed directors around the city received requests for IEP meetings to “review placement and services” from those parents, a request that must be met within 30 days. Each went in and asked for ESY and most had IEPS that had the ESY box defaulted to “No”. One parent later told me that when she asked about it at the meeting she requested, the administrator present said “The team already determined that your child was not ESY eligible”. The mom said, “How do you know that?” The administrator said, “Because the box for ESY eligibility was marked “no”. Mom said, “You mean it was defaulted to "no" because EVERYONE sitting in this room would tell you that we never discussed it – EVER”.
In California, where most districts use SEIS IEP software, there is an ESY eligibility worksheet that must be filled out. While that could be done secretly and a parent might never know, it is reviewed at every IEP meeting that I ever go to. Here, there are ESY programs so students are actually found eligible some of the time.