Question:       When must a school system provide extended school year services under the Individuals with Disabilities Education Act (“IDEA”)?                                                          

Answer:         Extended school year (“ESY”) programming must be provided if necessary to provide a child with a free appropriate public education meeting IDEA standards. This longstanding requirement has been incorporated into the recently promulgated IDEA regulations. See 64 Fed. Reg. 12451 (March 12, 1999) (new 34 C.F.R. §300.309). Many states and school systems have adopted policies limiting ESY services to those students who will regress significantly during the summer break, and have unacceptable difficulty in recouping skills when school resumes. The regression/recoupment standard appears nowhere in IDEA or the implementing regulations, however, and has been faulted as too narrow by a number of courts. See Johnson v. Independent School District No. 4, 921 F.2d 1022 (10th Cir. 1990), cert. denied, 111 S.Ct. 1685 (1991); Cordrey v. Eukert, 917 F.2d 1460 (6th Cir. 1990); Reusch v. Fountain, 872 F. Supp.1421 (D. Md. 1994); Lawyer v. Chesterfield Co. School Bd., 19 IDELR [Individuals with disabilities Education Law Report] 904, 907 (E.D. Va. 1993).

            The early ESY cases focused on state policies that either precluded services beyond the 180-day school year, or limited ESY services to children with certain types of disabilities, or certain kinds of programmatic needs. These policies were uniformly rejected on the ground that they violated the IDEA (then the EHA or EAHCA) requirement that FAPE be individually determined for each child, on the basis of his or her unique needs. See, e.g., Yaris v. Special School District of St. Louis County, 728 F.2d 1055 (8th Cir. 1984), affirming 558 F. Supp. 545; Georgia Assoc. for Retarded Citizens v. McDaniel, 716 F.2d 1565 (11th Cir. 1983), modified in part, 740 F.2d 902 (1984), cert. denied, 469 U.S. 1228 (1985); Crawford v. Pittman. 708 F.2d 1028 (5th Cir. 1983); Battle v. Commonwealth of Pennsylvania, 629 F.2d 269 (3rd. Cir. 1980), cert. denied, 452 U.S. 968 (1981). Some of these cases also addressed the circumstances under which ESY services might be deemed necessary in order to provide a particular child with FAPE meeting federal standards. For example, the Third Circuit in Battle, rather than adopting the regression/recoupment approach that the lower court had adopted, reasoned instead that a child's unique needs "are necessarily determined in reference to goals," 629 F.2d at 276, and that for some children, limiting services to 180 days might preclude attainment of "reasonable educational goals" developed for the child and "be wholly inappropriate to the child's educational objectives." Id. at 280.

            The Fifth Circuit subsequently held in Alamo Heights Ind. Schl. Dist. v. State Bd. of Ed., 790 F.2d 1153, 1158 (5th Cir. 1986), that "if a child will experience severe or substantial regression during the summer months in the absence of a summer program, the...child may be entitled to year-round services. The issue is whether the benefits accrued to the child during the regular school year will be significantly jeopardized if he is not provided an educational program during the summer months." The Alamo Hts. formulation assumes that the "regular school year" program affords the child sufficient benefit to constitute FAPE, but for the summer regression. Where nine months of programming will not in and of itself afford sufficient benefit, or FAPE, a child should be entitled to ESY programming regardless of whether regression would otherwise occur. See Lawyer v. Chesterfield County. Cf. Battle, 629 F.2d at 276 n. 9; Cordrey, 917 F.2d at 1473.

            Consistent with the duty to provide FAPE, ESY standards must be flexible, and permit consideration of a variety of factors, including but not limited to whether the child’s current level of performance indicates that he or she will not make meaningful progress during the regular school year in the general curriculum or in other areas pertinent to his/her disability-related needs, or whether the benefits accrued during the regular year might be jeopardized by a break in the structured educational program. As the above-cited cases provide, these determinations may be based upon professional opinion, predictive data gleaned from relevant aspects of the child’s educational, home and community life, or retrospective data such as past regression and rate of recoupment. A child’s developmental needs and status are also relevant. See Lawyer, 19 IDELR at 907 ("[T]here is a small, but vital, window of opportunity in which...[he] can effectively learn...Therefore, jointly considering the area of Danny's curriculum which needs continuous attention and his vocational needs, the Court concludes that it is extremely important that at this critical stage of development, Danny receive uninterrupted speech language therapy.”).