Recently, the Pennsylvania Department of Education issued an updated Basic Education Circular (“BEC”) regarding Extended School Year Services (“ESY”) that provides guidance to School Districts and Parents about the interpretation of the state regulations that govern students. Prior to release of this updated ESY BEC, there was no clear guidance for students who had turned 21 during the school year regarding their entitlement to ESY services for the upcoming summer. The new BEC makes clear that students are entitled to ESY services as part of their educational program during the year that they reach the age of 21.
As the BEC makes clear, the IEP team must determine, in accordance with the appropriate time lines, whether that student is eligible for extended school year. Pennsylvania statues have set forth factors for determining whether a student with disabilities requires ESY as part of the student’s program. Specifically, 22 Pa. Code §14.132 provides seven factors IEP teams must consider:
“(i) Whether the student reverts to a lower level of functioning as evidenced by a measurable decrease in skills or behaviors which occurs as a result of an interruption in educational programming (Regression).
(ii) Whether the student has the capacity to recover the skills or behavior patterns in which regression occurred to a level demonstrated prior to the interruption of educational programming (Recoupment).
(iii) Whether the student’s difficulties with regression and recoupment make it unlikely that the student will maintain the skills and behaviors relevant to IEP goals and objectives.
(iv) The extent to which the student has mastered and consolidated an important skill or behavior at the point when educational programming would be interrupted.
(v) The extent to which a skill or behavior is particularly crucial for the student to meet the IEP goals of self-sufficiency and independence from caretakers.
(vi) The extent to which successive interruptions in educational programming result in a student’s withdrawal from the learning process.
(vii) Whether the student’s disability is severe, such as autism/pervasive developmental disorder, serious emotional disturbance, severe mental retardation, degenerative impairments with mental involvement and severe multiple disabilities.”
In determining a child’s eligibility, IEP teams should consider “[r]eliable sources of information” to review the student’s: 1) progress on goals in consecutive IEPs; 2) progress reports maintained by educators, therapists and others having direct contact with the student before and after interruptions in the education program; 3) reports by parents of negative changes in adaptive behaviors or in other skill areas; 4) medical or other agency reports indicating degenerative-type difficulties, which become exacerbated during breaks in educational services; 5) observations and opinions by educators, parents and others; 6) results of tests, including criterion-referenced tests, curriculum-based assessments, ecological life skills assessments and other equivalent measures. See, 22 Pa. Code §14.132.
ESY cannot be provided for students whose sole needs revolve around the desire or need for: day care or respite care services, summer recreation program and or for other programs or services that, while they may provide educational benefit, are not required to ensure the provision of a free appropriate public education. See, 22 Pa. Code §14.132.
If the IEP team determines that the student requires ESY services as part of the IEP, that student must be provided with extended school year services during the summer after the end of the school year.
Interestingly, the BEC states that School District should not issue a Notice of Recommended Educational Placement/Prior Written Notice exiting the student from special education until the conclusion of the ESY program.
Parents who believe that the School District has failed to offer ESY services or has offered ESY services that are not appropriate to meet their child’s needs, may pursue any administrative remedy such as mediation or request a due process hearing.