3 do’s and 2 don’ts for planning summer 2020 ESY offerings

As districts plan how they will deliver extended school year services, they must make these important considerations to ensure IDEA compliance and transparency with parents
By: | May 28, 2020
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In Connecticut’s Norwalk School District, special education administrators are preparing three potential scenarios to provide extended school year services to students with disabilities this summer: all in-person classes; a mix of in-person and virtual classes; and all virtual classes.

Five states away, the Lake Bluff (Ill.) School District 65 is planning for a virtual ESY program but rethinking its format, which could potentially include a mix of online one-on-one and group instruction.

Like Norwalk and Lake Bluff, school systems around the country are planning to offer ESY services this summer, but because of the public health crisis brought on by the COVID-19 outbreak, the format and timing may look very different from years past.

In a typical year, the administration of ESY in summer months is far from predictable but usually has dependable and similar structures from year to year. This year, special education administrators are planning for the unknown, including uncertain levels of funding, location, and timing of services, as well as teacher and student availability.

“We’re all in this process of this unique situation, and we’re trying to do our best,” says Kevin Rubenstein, director of student services, technology, and assessment for the Lake Bluff School District 65.

Many localities have already determined which students qualify for ESY summer sessions based on decisions made by each student’s IEP team. While many IEP teams look at the regression of skills to determine qualification for ESY, states have different standards that advise team members in those states on ESY decisions.

Yvette Goorevitch, chief of specialized learning for the Norwalk School District, says the district is considering adding two weeks of ESY services this summer to the five-week program for those students who have significantly regressed during distance learning. It’s been challenging to plan staffing levels for the different ESY modalities the district is considering. The final determination for the ESY format will depend on recommendations from local and state health experts, Goorevitch says. “We’re delivering services the best way we can. We’re all in this together, and no one has the playbook.”

Here is advice offered by an attorney and several state education departments regarding summer 2020 ESY offerings:

• Do provide ESY services. Even though there’s uncertainty around the opening of schools, funding, and staffing levels, schools must still provide ESY services to qualified students. The Washington Office of Superintendent of Public Instruction points to the Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary, and Secondary Schools While Serving Children with Disabilities, 76 IDELR 104 (OSERS/OCR 2020), as an affirmation that districts should not expect to be “held harmless” with respect to providing FAPE or providing ESY services. In that fact sheet, the Office of Special Education and Rehabilitative Services and the Office for Civil Rights reminded districts that efforts to shift school online during the pandemic shouldn’t stop due to IDEA or Section 504 worries.

The Mississippi Department of Education said districts should take the health and safety of students and staff into consideration when planning for ESY. Delivery of services could include a combination of providing printed learning materials (packets), online learning options, teletherapy, itinerant services in homes or daycare centers, or small-group meetings if districts allow the use of buildings, the department said.

• Do collect, analyze data. Heather Pierson, a school attorney with Udall Shumway in Mesa, Ariz., says it’s important for schools to collect data at the end of the fourth quarter to verify whether students progressed or regressed so you know what to do in the fall. Data collection should also occur at the start of the new school year.

Those two data collections should be organized separately so schools can determine if regression was due to having limited services in the spring or due to downtime over summer break, Pierson says. Otherwise, the analysis for ESY could get mixed up with the compensatory education analysis, if needed.

• Do communicate with parents. Even if the student’s ESY plan was developed months ago, it’s wise to review that document and consult with parents to better understand areas where the student needs the most support. ESY services are based on what the IEP team determines is necessary for the provision of FAPE.

The Missouri Department of Education advises local educational agencies to initiate conversations with parents regarding the provision of ESY services. “Anything that LEAs can do over the summer to limit regression and mitigate recoupment time through provision of ESY services will benefit both teachers and students when in-school services resume,” the department’s COVID-19 and Summer School 2020 Questions and Answers for Local Education Agencies guidance said.

• Don’t automatically offer ESY to every student. Decisions about ESY eligibility and services are made by each student’s IEP team based on individualized data. 34 CFR 300.106 (a)(2). ESY should not be automatically offered to all students with IEPs. The IDEA does not mandate when ESY determinations should be made, but these decisions should be made in a timely fashion.

Some IEP teams may determine that a student who didn’t qualify for ESY before extended school closings now meets the standards, according to the Mississippi ED. Check local or state deadlines for determining qualification for 2020 offerings.

Also note that the IDEA does not mandate that ESY offerings take place exclusively in the summer. The law says ESY should be provided “beyond the normal school year of the public agency,” which could mean before or after school during the school year or during vacation breaks.

• Don’t confuse ESY and compensatory services. The purpose of ESY is to help students maintain skills for the provision of FAPE. Whereas compensatory services enable students to make progress and are a way to address the denial of FAPE as outlined in a student’s IEP. Both are determinations made on an individual, case-by-case basis.

The obligation to provide compensatory service may not be fulfilled by only providing ESY services; however, IEP teams may decide that a combination of both is needed to benefit the student. Additionally, ESY is not a supplemental or related service. A student’s goals and objectives for ESY programming should be reflected in a student’s IEP, according to the Missouri ED.

Kara Arundel is a writer for Special Ed Connection, a DA sister publication. Joseph L. Pfrommer, Esq., contributed to this report.