16 Questions and Answers. Extended School Year. Sweet

Transcription

1 16 Questions and Answers Extended School Year Sweet Michigan Council for Exceptional Children March 2010

2 About the Author Sharon L. LaPointe Sharon is the founding partner of LaPointe & Butler, P.C. She received her undergraduate degree from Central Michigan University as well as her master s in clinical psychology and specialist degree in school psychology services. She served as a school psychologist for 10 years prior to entering law school. She graduated from the University of Nebraska School of Law cum laude in 1983 and has practiced in the area of disability law since Sharon has also served as an adjunct professor at Central Michigan University, Northern Michigan University and Saginaw Valley State University with respect to learning disabilities, 504, the ADA and state and federal special education law. She has written a 504/ADA manual for school districts entitled Ways Through the Maze, and was co-editor of the MAASE book Response to Intervention: Enhancing the Learning of All Children. Sharon served as legal consultant to the MDE Part C Procedural Safeguards Task Force, and as a member of the MDE ADHD and Restraint/Seclusion referent groups. j j j j j This publication does not offer legal advice. When faced with a question regarding the rights of students with disabilities, school districts should seek the advice of school counsel knowledgeable in disability laws. j j j j j 2010 Michigan Council for Exceptional Children School districts in Michigan are hereby given permission to copy this document for use within their district provided proper credit is given and copies are not sold. Any other infringement upon this copyrighted document is strictly forbidden. This document is also available online at: For further information or inquiries about this document, contact Dr. Lucian Parshall at: Lucian_Parshall@ameritech.net

3 1. What is Extended School Year? Extended school year (ESY) is a term used to describe services that are provided to certain students with disabilities beyond the normal school year calendar. 2. What is the trigger for considering ESY? Can an Individualized Education Program (IEP) Team pass on a discussion of ESY if the parent doesn t ask for it? Both federal IDEA regulations and Michigan administrative rules for special education have specific language mandating that IEP Teams consider the need for ESY for each student with an IEP. A parent s silence on the question of ESY does not excuse the district from this responsibility. 3. Why do the federal regulations and Michigan special education rules require IEP Teams to consider the need for ESY? For many years there was no specific language in state or federal law regarding ESY. Rather, ESY was first recognized in case law where parents argued that in the case of their particular child, discontinuing services during school breaks would or did cause such loss of skill that the student would be unable to receive the benefit of a free appropriate public education (FAPE) during the ensuing school year. 4. Is the district off the hook in considering/providing ESY if it does not typically provide educational services beyond the normal school year to students without disabilities? No. Consideration of ESY is part of considering whether the IEP is reasonably designed to provide FAPE. If necessary for FAPE, the IEP Team must figure out how to address the student s needs whether or not nondisabled students have access to services when school is not normally in session

4 5. When does an IEP Team look at ESY? There is no specific deadline in the federal regulations or Michigan rule. There are times when the IEP Team may feel it has enough data upon which to make a decision, and considers ESY in the IEP meeting. If the initial IEP Team meeting is held at the beginning of the school year, however, the Team may want to defer the ESY question to later in the school year when it has more data on the possible impact of breaks in service. However, ESY should be addressed early enough in the spring to allow the parent an opportunity to engage in dispute resolution before the upcoming ESY timeframe. It is recommended that the ESY consideration regarding summer breaks in service be concluded on or before April 1st. When the IEP Team is not ready to address ESY, the MDE suggests that the Team identify the date by which it will reconvene to consider the ESY question, and that the Team may also want to identify the data that will be collected in the meantime to assist in making later ESY decisions. 6. What are the criteria for determining whether a student requires ESY for FAPE? In April 2009, Michigan special education rule e was amended to specifically incorporate three criteria for ESY consideration. These include: potential for regression of skills beyond a reasonable period of recoupment; the nature or severity of the student s disability indicates a need to provide services during breaks; the student is at a critical stage of learning or in a critical area of learning where cessation of services would severely limit the acquisition of skills. 7. How does the IEP Team begin its consideration of the possible need for ESY services? Step 1 of the IEP Team s ESY consideration process is to identify if there are any current goal areas of concern. This is done by

5 asking the question: Is there a significant concern that the break in services will create a barrier to achieving essential skills that are targeted in one or more IEP goals? If the answer is no, the ESY consideration stops. If the answer is yes, the ESY consideration proceeds to step If there is a goal area of concern, what does the IEP Team do at step 2 of the ESY consideration process? The IEP Team examines student performance in the goal area(s) of concern to determine if there are data to indicate that there is a serious potential for regression of skills beyond a reasonable period of recoupment; the nature and severity of the disability requires structured or consistent programming; or the student is in a critical stage or area of learning where timing of instruction is of the essence. 9. What data would the IEP Team look at for the regression/recoupment criterion? The IEP Team is not allowed to postpone ESY deliberation for a year so it can collect data over the summer break to see what would actually happen from a regression/recoupment standpoint. Instead, the IEP Team must often make its best judgment based on its experience with the student during shorter breaks in service that occur within the normal school year. If there is regression, the IEP Team will need to examine recoupment data to see if the student is able to recover skills within a reasonable period of time. In its ESY guidance document, MDE left the determination of what constitutes a reasonable versus unreasonable recoupment period up to the judgment of the IEP Team, noting that this was a determination best made on an individualized basis.

6 10. What data would the IEP Team look at in applying the nature/severity criterion? The IEP Team would again look at progress monitoring data on IEP goals and objectives before and after breaks occurring during the school year, e.g., long weekends, winter and spring breaks. The IEP Team would look to see if interruption of structure or consistency in programming during breaks interacts with the student s mental, emotional, physical health, or chronic nature of the student s condition to result in: regression to lower-functioning academic/adaptive levels; or an increase in frequency, intensity or duration of maladaptive behavior; and skill loss that is not recoverable within a reasonable period of time. This is a variation on the classic regression/recoupment model. 11. What is a critical stage of learning? A critical stage is identified when there is data to indicate that learning the skills in the goal area(s) of concern must occur without delay to enhance independent functioning. Some key questions for the IEP Team include: If the identified critical skill is not mastered immediately is the degree of mastery likely to be permanently reduced? Is there a window of opportunity that will be lost if services are not provided? Are there changed circumstances in medical, physical, or sensory status predictive of an accelerated rate of learning during the break? Examples of critical stages include language development for students with ASD; language rehabilitation window following traumatic brain injury. 12. What is a critical skill area? MDE defines a critical area of learning as one that is essential to development in becoming self-sufficient and independent. Examples include toileting and eating necessary for self-suf-

7 ficiency; stable relationships, impulse control, and appropriate peer relationships necessary for community living. 13. What data might the IEP Team look at in determining critical stages or skill areas? MDE provides the following examples: Medical records of significant trauma or condition that requires immediate services Data that continuous or year-round programming is an integral part of teaching methodology used with the student Professional peer-reviewed literature in the area of concern providing research on the critical stage Developmental standards identifying critical stages 14. If an IEP Team identifies one or more goal area(s) of concern in Step 1, and in Step 2 identifies data that regression/recoupment, nature or severity of disability, or critical stage or area of learning necessitates ESY services in any of these goal areas of concern, how does the Team develop the ESY plan? In developing the ESY plan, the IEP Team should keep in mind the following: ESY is not a mere extension or continuation of the school year IEP. ESY services are provided only for those annual goals identified as areas of concern and which are determined to require ESY services. New annual goals are not developed for ESY services. ESY cannot be based on a formula, but is an individualized determination. LRE requirements for ESY are not identical to LRE requirements for the normal school year. A school is not required to create new programs as a means of providing ESY services to students with disabilities in integrated or inclusive settings if the school does not provide services at that time for its students without disabilities. Don t forget special transportation if that is necessary for the student to access the ESY.

8 ESY is cocktail of what, how much, and when. The IEP Team must assemble service of sufficient frequency and duration to address the concern triggering the decision to provide ESY. For example, in formulating ESY to address determinations based on regression and recoupment, the goal is not to eliminate all regression (since most students regress to some degree during breaks in instruction), but to reduce the severity of the regression so that recoupment can occur within reasonable timeframes. 15. What kinds of programs and services can be used to meet ESY requirements? MDE includes a non-exhaustive list in its guidance document: Traditional classroom setting School-based programs that vary in length of schedule Daily instruction in specific IEP goal areas Small-group instruction Related service(s) at community recreation program Cooperative programs with other agencies Intra-school cooperative program Consultation with a job coach Intensive short-term instruction at various points in the summer months Home-based programs that include parent training 16. Are districts required to consider the need for ESY for students receiving related services under the Auxiliary Services Act? Yes. These students will have an individual services plan (ISP) rather than an IEP, but the discussion of ESY is equally applicable to them.

9 Antonio An Illustrative Example Let s pretend that the IEP Team is conducting an annual review IEP for a hypothetical student by the name of Antonio. It is April of Antonio s 2nd grade year. By way of background, Antonio was determined eligible for special education in the area of learning disabilities due to a significant reading disability at the end of 1 st grade. He can understand age appropriate materials that are read to him, but despite strong motivation and effort has struggled with every aspect of reading since kindergarten. Antonio has had great difficulty remembering letter names and then learning sight words. He also has had great difficulty when presented with instruction in sound-symbol relationships. At Antonio s April annual review IEP meeting, the IEP Team reviews progress monitoring data on his current goals and objectives. These include improving basic sight vocabulary, developing recall of consonant and short vowel sounds for reading and writing purposes, and developing sound blending ability for consonant-vowel-consonant words. During 2 nd grade Antonio s special education teacher has focused on letter-sound relationships. The progress monitoring data indicates that Antonio made little progress until February, when his special education teacher tried another instructional approach. Following this instructional modification, something begins to slowly click for Antonio, and he begins to learn and recall some of the consonant sounds and some short vowel sounds. Despite a one week break in March, by April, Antonio demonstrates very slow but perceptible progress in beginning to blend two and three letter words in reading and spelling. The IEP Team determines that sound-symbol and sound blending goals remain appropriate for Antonio, but the Team has concerns about the effect summer break may have on Antonio s future performance in these goal areas. Specifically, Antonio s progress monitoring data in sound-symbol relationships, which has been very flat since kindergarten, is now suggesting that Antonio is developing an emerging glimmer of understanding

10 in this essential component of reading development. The Team is concerned that Antonio s sound-symbol skills are at a critical stage and/or comprise a critical area of learning where failure to provide instruction beyond the normal school year will severely limit Antonio s capacity to learn these essential skills. The Team determines that ESY services are needed to avoid an interruption in instruction in a critical skills area for Antonio at a time that basic skill acquisition is beginning to emerge. The IEP Team then decides on ESY services for Antonio that include: Thirty minutes per day tutoring in sound-symbol and blending goals at the Tuesday through Thursday summer program offered for elementary school students by Antonio s district. The program runs from the third week in June through the third week in August, minus the week that includes the 4 th of July. Provision of instructional support packet of materials for parents to use at home during the summer. Instruction to parents in how to use the packet (approximately one hour).

11 References Standards for Extended School Year Services in Michigan, Office of Special Education and Early Intervention Services, Michigan Department of Education, Approved by the State Board of Education, August 12, 2008 Guidance for Extended School Year Services in Michigan, Office of Special Education and Early Intervention Services, Michigan Department of Education, August 12, 2008

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