Compliance Corner – November 2022

By Cindy Soo Hoo, TAP Consultant


I believe it’s safe to say that many students, including students with disabilities, lose skills following breaks from instruction.  For some students with disabilities, this may result in a loss of skills for which it requires an extensive amount of time to recover.  To that end, the Individuals with Disabilities Education Act (IDEA) provides extended school year (ESY) services for these students in order to address the loss of skills when there is a break in educational programming.  Specifically, IDEA states:

(34 CFR §300.106 (a) General)

(1) Each public agency must ensure that extended school year services are available as necessary to provide FAPE, …

(2) Extended school year services must be provided only if a child’s IEP Team determines, on an individual basis, in accordance with §§ 300.320 through 300.324, 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) Definition. As used in this section, the term extended school year services means special education and related services that are –

(1) 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;…

You might be wondering why we’re discussing extended school year services so early in the school year.  Actually, this is not early at all.  IEP Teams are responsible for determining whether a student requires extended school year services at each student’s annual Individualized Education Program (IEP) meeting.  There are many considerations an IEP Team would take into account, including:  whether the student would be at risk of losing previously learned skills when breaks in educational programming occur resulting in an extended period of time to recover those skills as well as whether the student’s progress toward his/her goals would be jeopardized if ESY services were not provided.  These would be considerations for all students regardless of the nature or severity of their disability. 

Extended school year services are provided in order for the student to maintain previously learned skills.  The services are never meant to provide instruction in order for a student to learn new skills. The purpose of ESY is to prevent the student from losing ground when breaks from educational programming occur and be able to return to the same skill level when instruction resumes. 

While some IEP Teams are able to determine the need for ESY, other teams may find it necessary to schedule another IEP later in the school year in order to collect data necessary for making such decisions.  Data, both formal and informal, should come from a variety of sources. This data might include progress towards goals taken throughout the year following breaks from instruction, information from the student’s daily work, anecdotal information, behavioral checklists, unit tests, daily work samples, etc. 

Information to consider should come from parents, various school personnel and other professionals.  Data to be analyzed would be available at the end of instruction (perhaps at the end of the current school year), at the beginning of subsequent instruction (perhaps the beginning of the next school year) and at the time of recoupment (the date of regaining skills).  While we often consider instructional breaks as those that occur during the winter, spring and summer recesses, IEP Teams must not limit their considerations to just those periods of time.  Some students lose skills following holidays or even weekends.

The New Mexico Public Education Department provides a technical assistance manual on its website entitled Primer on the Provision of Extended School Year Services for Parents and Educators.  This manual, published in 2006 by the Mountain Plains Regional Resource Center, defines regression and recoupment below:

Regression—A decline to a lower level of functioning demonstrated by a decrease of previously learned skills that occurs as a result of an interruption in educational programming

Recoupment—The ability to recover or regain skills at the level demonstrated prior to the interruption of educational programming

While regression and recoupment concerns are the most common considerations for ESY, other factors need to be taken into account as well.  IEP Teams may need to consider whether the student’s home environment is conducive to providing the necessary supports and instruction during breaks from educational programming for a student whose needs are extensive.  The absence of such supports could lead to the student being unable to maintain the skills previously learned. 

The loss of skills are not exclusive to academics.  Students may exhibit losses in functional skills  such as communication, behavior, mobility, daily living skills and so on.  Therefore, not all areas for which the student is receiving instruction may result in a need for extended school year services.  IEP Teams need to assess the areas in which the student exhibits these losses.

Since ESY services are provided outside the regular school day/year, parents may elect not to have their child(ren) participate.  Should an IEP Team determine ESY services to be necessary for the student in order to receive a Free Appropriate Public Education (FAPE) but the parent indicates his/her child will not be attending, the IEP Team should indicate this on the Prior Written Notice (PWN).   

While ESY services are not necessary for FAPE for every eligible student with a disability, they are required to be considered at each student’s IEP.  One cannot assume because the student required ESY services before, that they would require ESY services each year. Conversely, just because a student has not received ESY services in the past does not determine whether the student will receive subsequent ESY services.   Decisions must be made on an individual basis at each and every IEP. 

Should you need additional resources or perhaps a checklist of what to consider when determining if ESY services are necessary for a student, please consult the Addendum for Determining Eligibility for Extended School Year Services located in the Developing Quality IEPs Technical Assistance Manual (October 2011), located on the New Mexico Public Education Department website. 

The information included herein is not intended to provide legal advice.  Should you need legal advice or guidance on any issue involving special education, please contact the appropriate person for your district.