Who is eligible for ESY services?

All students with disabilities who have a current IEP must be considered for ESY services at least annually. To ensure FAPE, the IEP team must consider and document whether ESY services are needed for each student regardless of the student’s disability. A school may not limit ESY services to particular categories of disabilities. These requirements apply to all students with a disability between the ages of three and twenty-one.

Who determines the need for ESY services?

Determination of need rests with the IEP team, which must be composed of the following individuals: parent/ guardian(s) of the student, the student if appropriate, general education teacher(s), special education and related service providers, administrator or school representative who has the ability to commit resources, and others as appropriate. All persons involved in the IEP process should be active participants. Each person fulfills an important role by bringing and sharing critical information about the student and his or her need for ESY services. The first standard that has been determined by federal courts is that no single criterion can be used as a sole qualifying factor.

What factors determine the need for ESY services?

The primary criteria in determining a student’s need for ESY services are the likelihood of significant regression of previously learned skills during a break in services and limited or delayed recoupment of these skills after services resume. The courts have found that the regression/recoupment measures are an integral part of the determination of need for ESY services, although they are not the only measures.

The IEP team must consider regression/recoupment measures, in addition to all appropriate factors, in determining whether the learning that occurred during the regular school year will be significantly jeopardized if the student is not provided ESY services.

REGRESSION- A decline to a lower level of functioning demonstrated by a decrease of previously learned skills that occur 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.

What other factors should be considered when determining need for ESY services?

Schools should use regression/ recoupment criteria in determining the need for ESY services, but a broad range of relevant factors must also be considered. The factors to be considered in making ESY services decisions shall include, but are not limited to, the following:

Category of Disability. Students with disabilities requiring consistent, highly structured programs may be predisposed to regression when their educational program is interrupted. These students may also have limited recoupment capacity.

Emerging Skills. If the child is at a critical stage of developing a skill which has great potential for increasing his/her self-sufficiency; it should be incorporated into the eligibility analysis.

Nature & Severity of Disability. Although limited recoupment capacity can occur among students with moderate disabilities, it is more likely to be a learning characteristic of students with severe disabilities. Students with the most severe disabilities are more likely to revert to lower functioning levels when their programs are interrupted. Finally, students with severe disabilities are more likely to have difficulty attaining the goals of their IEP and may require additional instruction and support to meet their goals. Nature and severity of a disability is a key factor in ESY eligibility determination.

Student’s rate of progress. Just as every student’s rates of learning, regression, and recoupment are different from that of other students, an individual’s rate of learning specific skills or behaviors may differ from his or her rate of attaining other skills. Certain skills or behaviors are particularly essential to meeting the goals of self-sufficiency. For example, building self-help skills, such as toileting or eating, are essential for minimal independence. Therefore, for students with severe disabilities, a Team should consider the need for an ESY program if there is a lack of progress in meeting short-term objectives over two marking periods, resulting in little or no progress made over the school year.

How is the need for ESY services measured?

Determination of the need for ESY services cannot be based on a formula. Formulas lack the individualization to ensure that students with disabilities have appropriate educational planning to accommodate their unique needs. Case law supports this conclusion: the determination of the need for ESY services cannot be based on a policy that prohibits or inhibits full consideration of the needs of each student with a disability.

The information that is needed by an IEP team to determine a student’s need for ESY services is gathered through ongoing measurement of the student’s progress toward the current IEP goals. An essential component of a student’s goals is the method to measure progress. Information can be gathered through a variety of informal and formal measures. Those measures may include a record of daily performance, criterion-referenced and norm referenced test data, anecdotal records from information collected throughout the year, behavior checklists, test results, report cards, homework, or other student work samples. Measurement information should be gathered during the student’s performance after long weekends, vacations, and past summer breaks.

When is regression/ recoupment considered severe or significant?

Research shows that regression and recoupment occur in all students and will vary across skills, people, and circumstances. The concern is that for some students with disabilities, the regression is so severe and the recoupment period so long that without ESY services, the learning that occurred during the regular school year would be significantly jeopardized if ESY services are not provided. The determination of need for ESY is made on an individualized basis after careful and critical analysis of the ongoing data gathered by the IEP team.