Collect Data Now and When Special Education Students Return from Break to Provide Documentation for ESY Service Decisions

December 20, 2012

By Julie E. Lewis

 A key factor in any Extended School Year (“ESY”) services determination is a regression-recoupment analysis. This ESY analysis generally entails a consideration of whether a child will experience significant regression in the absence of an educational program and whether the time it will take to relearn the skills is excessive. If the child will experience regression during the break from school so that he will not be able to recoup within the required time frame upon return, then school districts will likely need to provide ESY services. Teachers should be collecting data shortly before and after winter and spring breaks to assist the IEP Team in making decisions regarding the need for ESY services.  In East Providence School Department, the mother of an 8-year-old with ADHD, pervasive developmental disorder, and behavioral difficulties filed for due process alleging a denial of FAPE.  The student’s mother asserted that her child needed ESY services to avoid behavioral regression. However, the hearing officer found that the regression the mother observed while the student was on breaks did not appear to jeopardize the child’s progress at school based on data collected before and after school breaks, which demonstrated that the child regulated himself within a few minutes of being in class and was not having difficulty recouping skills. In addition, the hearing officer noted that the student was identified as having an average rate of learning and had mainstreamed himself with peers without support. Finally, noting that none of the student’s service providers recommended ESY services, the hearing officer concluded the district’s decision that ESY services were not necessary could stand.

Staff should collect data the week before a break and the week after a break to document whether or not there are any regression-recoupment difficulties.   One way to determine whether the student has regression-recoupment difficulties is to ascertain whether the student has regressed over the school break to the point that it takes longer than the break itself to recoup the skill.   For example: On December 21, before the two-week winter break, Susie was reading 60 words correctly per minute.  On January 7, when Susie returned from winter break, Susie was reading 55 words correctly per minute.  On January 14, Susie was reading 60 words correctly per minute.  In this example, Susie would not have regression-recoupment problems because she recouped this particular skill in an amount of time that was shorter than the break.   Because the regression-recoupment analysis cannot be used as the sole criteria for determining the child’s eligibility for ESY services according to the comments and discussion to the 2006 IDEA Part B regulations, the IEP Team should also consider some of the following factors when making a determination regarding ESY services: whether a student’s level of achievement would be jeopardized by summer break; predictive data based on professionals’ opinions; parent information; the student’s home and community situation; child’s rate of progress; child’s  behavioral  and  physical  problems;  availabilityof  alternative  resources;  ability  of  child  to  interact  with nondisabled children; areas of child’s curriculum that need continuous attention; child’s vocational needs; and/or whether the requested services are extraordinary for the child’s condition, as opposed to an integral part of a program for populations of students with the same disabling condition.

If you have any specific special education questions, please do not hesitate to contact an attorney at Scariano, Himes and Petrarca.