Eligibility for extended school year (ESY) services for students with disabilities is likely to be a topic of significant discussion in many IEP Team meetings. But IEP Teams should not assume ESY is required simply due to the past 12 months of COVID-related school closures and remote or hybrid learning modes. Instead, decisions about whether and what type of ESY is required to provide a free appropriate public education (FAPE) to a student should be based on data and a student’s individual needs.
School officials should not conflate ESY services with compensatory education or with what MDE termed “recovery services.” ESY is an integral IEP consideration. Recovery services are optional, and are not the same as, or a substitute for, compensatory education resulting from a FAPE denial during a COVID-19 closure or for IEP-required ESY services.
ESY services are required if a student’s IEP Team determines that special education programs or services beyond the normal school day or school year are necessary to provide the student a FAPE. In September 2020, the U.S. Office of Special Education Programs emphasized that “IEP Team determinations regarding ESY services are prospective and not intended to make up for past denials of FAPE.” The Michigan Administrative Rules for Special Education clarify that ESY is necessary for FAPE if the student’s annual goals address one or more skills that require ESY services. To make an ESY determination, the IEP Team must consider whether the data shows that: (1) without ESY, the student will regress on an annual goal beyond a reasonable period of recoupment; (2) the severity or nature of the student’s disability shows a need for services in the identified goal during scheduled breaks in the school year; or (3) the student is at a critical stage or in a critical area of learning as to an identified annual goal and failure to provide ESY will affect the student’s ability to acquire a particular skill. School officials also must consider the need for transportation, related services, and supplementary aids as part of any required ESY. ESY decisions also must be made in sufficient time to plan for service delivery.
As MDE noted in its June 2020 “Comparison of Compensatory Education and Recovery Services due to COVID-19” chart, determining whether ESY services are necessary for FAPE “is a predictive analysis based on how the student has fared in the past during periods of breaks in instructional time.” MDE also encouraged IEP Teams to use existing data, including whether a student was previously eligible for ESY services and the impact that school closures have had on a student’s ability to make progress on IEP goals, when making an ESY determination.
IEP Team members should be able to articulate the rationale behind the decision to provide ESY services, which must be more than simply “COVID-19 closure.” To avoid summarily checking the “yes” or “no” box for ESY without discussion, the IEP Team should discuss the following questions:
The COVID-19 school closures and unavailability of certain in-person services caused by COVID-19 mitigation measures may have created a need for ESY for many students, but IEP teams should remember that ESY services should be geared towards maintaining skills, not progressing on new goals. For younger students, ESY may focus on addressing a student’s regression in reading or math skills, where, for older students, ESY may focus on vocational or transitional needs. Although ESY services are traditionally provided over a school’s summer break, the IEP Team can also consider providing ESY by extending the student’s school day.
Holding – and documenting – a detailed discussion about ESY during an IEP Team meeting will help defend against complaints alleging failure to consider or provide ESY. It is, however, critical to ensure that IEP Teams make and document informed decisions about ESY based on data and each student’s individual needs and not try to use ESY services to compensate for potential FAPE denials resulting from COVID-19 closures.