denied speech for summer... advice?

[Guest guest]

I'm sure this has been answered many times, but we had an IEP for my daughter

several months ago and it went well. As summer is approaching they told me she

doesn't qualify for the Extended program during the summer. The therapists

reasoning is because she is also getting private speech (my mistake I shouldn't

have said anything about her getting speech elsewhere) and doesn't think it will

be necessary for her to receive speech with them for the summer months.

I went back and forth with her about why my daughter would need to continue

having speech 4x week.

What do I do? Do I request another IEP? I don't want to just let it go she is

making such great progress.

Thanks in advance for all your help.

ne

[Guest guest]

There's much in the archives about this -here's just a bit:

Actually this is from The Late Talker book but rest from the archives

" Many children with severe speech impairments regress without continued therapy,

so make sure your child gets enrolled in the Extended School Year (ESY) program,

especially for the long summer break. ESY services must be considered at the

annual IEP meeting and documented in the IEP. The ESY also has to be the same as

what your child receives during the regular school year. For example, if he

normally has a ten hour a week schedule, his ESY should also be for ten hours a

week. "

The Late Talker book 2003 Agin, Geng, Nicholl

Re: [ ] ESY Services

As with any special education school service, please remember one thing.

Special education is funded by the state. The school district may want to

provide many things. But if state funding is not provided, it is probably

not going to happen.

FYI - It's getting time to schedule those meetings with your schools to discuss

ESY. Do not let the schools jump past the ESY portion in your IEP meeting and

merely tell you your child doesn't qualify (no regression), so no need for ESY.

Regression is NOT the only requirement for ESY, I've bolded important

information below.

Also, don't let the school tell you ESY is traditional summer school, it is not,

although it can be if it is appropriate to meet the child's IEP goals.

I often use ESY services to negotiate additional services for children where the

school has " Failed to Identify " , appropriately remediate a child's learning

problem, and/or failed to provide identified spec. ed. support or related

services. I've used it to give the school one more chance to teach a child to

read or to teach a child appropriate social skills, before pulling out and

privately placing the child at public expense. The school system can pay for

traditional summer school classes as ESY services for instance, if a school

failed to identify a child with a disability, and the child failed the first

semester of High School, and now needs to make up courses during Summer School.

Extended School Year can look at many things. Don't let the schools tell you no

automatically, and don't let them tell you it is only for the severely disabled.

NOT TRUE! Talk with an advocate, attorney, or disability organization to find

out more information.

Carol Sadler

Special Education Consultant/Advocate

GA Advocacy Office PLSP I Graduate

770-442-8357

1105 Rock Pointe Look

Woodstock, GA 30188

CarolSadler@...

www.IEPadvocate4You.com

http://iepadvocate4you.blogspot.com/

CONFIDENTIAL AND PRIVILEGED

Information contained in this communication is confidential and privileged. It

is not meant to represent legal or medical advice, but rather advice given based

on my knowledge as a trained Parent Advocate by the GA Advocacy Office, Council

of Parent Advocates & Attorneys, CHADD, LDA, and the GA DOE Parent Mentor

program as an invited guest. Please do not forward without my permission.

Extended School Year (ESY)

The Individuals with Disabilities Education Act (IDEA) regulations requirethat

ESY services be considered annually for every child with a disability.An ESY

Program of services in the summer or weekends, must be provided if needed to

make a student's education program appropriate. " Under the law, aschool district

may not limit ESY services for children with particular categories of

disabilities, and may not limit the type, amount or duration of ESY. " (Ed Law

Center - PA)

A school system cannot use a " lack ofavailable funds " argument to deny ESY

services to a child with a disability.School districts must look at issues

beyond regression or recoupment whendetermining ESY eligibility.

ESY is NOT traditional summer school, but rather an extension of an individual

child's education plan!

The following is taken

from:http://www.ppmd.org/publications/extended_school_year.html It is a summary

of judicial decisions regarding ESY.

Extended School Year

by Rose Kraft

Since the precedent for extended school year programming was set in the

Armstrong v. Kline case in Philadelphia, in a large number of instances the

courts have been asked to determine the eligibility of individual children for

extended school year services. This summary looks at the judicial decisions that

have been rendered regarding this issue.

Judges and lawmakers have made significant decisions during the last 20 years,

which define extended school year (ESY) services for childen with disabilities.

Several district court cases, beginning with Armstrong v. Kline (1979) and

culminating with Reusch v. Fountain (1994), shaped thecurrent federal

regulations. For the first time in the history of the Individuals with

Disabilities Education Act (IDEA), these regulations require that ESY services

be considered annually for every child with a disability. Each team that

develops an individual education plan (IEP) for achild must decide if ESY

services are necessary so that the child can avoid regression, a lengthy

recoupment of lost skills, or other difficulties that could interfere with the

education plan.

The first significant case in this arena was the Armstrong case, in which the

judge ruled that a mandated 180-day school year violated a child's right to a

free appropriate public education (FAPE), specifically in reference to children

with severe and profound impairments or severe emotional disturbances. The court

stated that, " By its terms, the Act (meaning the Education for All Handicapped

Children Act) appears to demand that the state supply instruction designed to

meet all of the handicapped child's " unique needs " without limitation. " The

court also required state and local school districts " to provide an education to

handicapped children in excess of 180 days, " as determined by each child's

needs.

This case defined that a school system's goal for these severely affected

children should be self-sufficiency, which could require providing more thanthe

same 180 days to disabled children that is provided to non disabled children.

This case was upheld on appeal by the circuit court, which agreed that, " For

some, but not all, SPI and SED children, standing in the way of the attainment

of some of these objectives (for self-sufficiency) is the effect of breaks in

the educational program which are created, at least inpart, by the 180 day

rule. " The court also noted that recoupment time for lost skills is " usually

much greater " for children with disabilities.

Once the courts ordered state and local school systems to provide more than 180

days of school per year to some children with disabilities, families across the

nation began taking their school systems to court. In Stacey G.v. Pasadena

Independent School District (1982), a 12-month program without major breaks was

ruled necessary for a child with autism and severe mental retardation. In

Georgia Association for Retarded Citizens v. Mc (1983), the court ruled

that a school system cannot use a " lack of available funds " argument to deny ESY

services to a child with a disability. A school system must look at the child's

needs, rather than at its budget, when determining summer services for a child.

The judge in Alamo Heights Independent School District v. State Board of

Education (1986) noted that transportation services must be part of the ESY

package for a child, even if the bus must get that child from a babysitter's

out-of-district home.

The case of Bucks County Public Schools v. Commonwealth of Pennsylvania (1987)

showed that academic regression isn't the only qualification for ESY

eligibility. The judge in the Bucks County case stated that regression in

emotional development for severely emotionally disturbed children is often

" caused by interruptions in the educational programming, " and ordered that

prediction of regression in emotional development qualifies as a need for ESY.

Holmes v. Sobol (1988) was a significant case because it found that physical

therapy was a related service that could be provided for ESY, and further ruled

that a related service can be a sole special education program. This case stated

that without the maintenance of physical strength through therapy, the child

would not be able to benefit from his general education. In v. Gering

Public Schools (1990), the parents of a child with multiple disabilities

believed that a 12-month program could only be provided for their child in a

residential placement. This court agreed that the child needed a 12-month school

program in order to receive a free appropriate public education, but did not

require that it be provided in a residential facility. The court ordered the

school district to provide the12-month program at a local facility for multi

handicapped children, specifying that an interruption from one school to another

just for a summer program would provide an unacceptable level of regression for

the child.

Reusch v. Fountain (1994) blasted a land school district for deceptive and

purposeful policies which sought to deprive children of ESY services.The school

district had (a) refused to notify parents of a child's eligibility for ESY

services, ( written misleading letters recommending asummer program that

required tuition from the parents, © told schooladministrators to refer

parents to central administration when they asked for ESY services, (d)

purposely didn't mention ESY services until it was too late to deliver them, and

(e) never told parents they had a right to request ESY services. The judge used

strong language as he set the parameters for ESY policies for children with

disabilities. " The MCPS practice of inadequate and untimely ESY notice must

cease. Notice of ESY designed to fully explain such services must be provided to

parents of disabled childrenin a timely fashion before annual review meetings.

The notice must not disguise or downplay the true nature of ESY or attempt to

confuse parents between free extended year services and tuition-charging summer

enrichmentprograms. " The court went further and required that additional

criteria be considered in addition to regression and recoupment time when

considering achild for ESY services. The court decided that " emerging skills "

and " breakthrough opportunities " (as when a child is on the brink of learning to

read) -- can and should be incorporated into the eligibility analysis. " A

fixed-length program was also ruled illegal by this court, which ordered the

school district to " make individualized determinations of the number of weeks,

days per week, and hours per day that each student receiving ESYshould be

provided.

" While litigation continued in courtrooms across the country, the Office of

Special Education Programs and the Office of Special Education and

Rehabilitative Services wrote policy letters, which provided interpretation of

the federal regulations for school districts. The Office of Civil Rights wrote

letters of finding which defined when the denial of ESY services violated a

person's civil rights. Together these letters provided parallel support for the

court decisions by (a) defining ESY criteria and related services in an ESY

program, ( requiring school districts to look at issues beyond regression or

recoupment when determining ESY eligibility, ©emphasizing the need to set

higher ESY standards than simply working toward self-sufficiency, (d) refusing

to allow school districts to offer ESYprograms that were available only to the

most severely disabled children,and (e) requiring that integration with

nondisabled peers be provided in ESYprograms if required by the IEP.

The result of the court cases and substantive letters has led to the written

federal regulations, which describe how ESY services are to be implemented

according to IDEA. The regulations define ESY as " special education and related

services " which (a) go beyond the normal school year, ( are addressed and

mandated by the IEP, and © are free to the parents. The regulations also

require that ESY services are available to each child with a disability and,

" The determination of whether a child with a disability needs extended school

year services must be made on an individual basis by the child's IEP team. " 34

CFR ? 300.309 (1997).

The regulations also add two notes clarifying these definitions. The first note

states that school districts cannot limit ESY services to " particular categories

of disability or unilaterally limit the duration of services. " The second note

gives states the authority to set standards for use in determining ESY

eligibility " on an individual basis, " suggesting the consideration of factors

such as the " likelihood of regression, slow recoupment, and predictive data

based on the opinion of professionals.

" References:

Alamo Heights Independent School District v. State Board of Education,

Education for the Handicapped Law Report 554:315 (5th Cir. 1986).

Armstrong v. Kline, Education for the Handicapped Law Report 551:195 (E.D.Pa.

1979). Baltimore (MD) City Public Schools (1986).

Office of Civil Rights Letter of Finding, Education for the Handicapped Law

Review 352:185.Battle v. Commonwealth,

Education for the Handicapped Law Report 551:647(3rd Cir. 1980).

Bucks County Public Schools v. Commonwealth of Pennsylvania, Education forthe

Handicapped Law Report 559:153 (Commonwealth Ct. of Pa. 1987).

Davila, R. R. (1990, Nov.).

Office of Special Education and RehabilitativeServices Policy Letter, 17

Education for the Handicapped Law Review 419.

Georgia Association for Retarted Citizens v. Mc, Education for

theHandicapped Law Report 555:251 (11th Cir. 1983).

Holmes v. Sobol, Education of the Handicapped Law Report 559:463 (W.D. Ny.1988).

Mesa (AZ) Public Schools (1989).

Office of Civil Rights Letter of Finding,16 Education for the Handicapped Law

Review 316.

Reusch v. Fountain, 21 Individuals with Disabilities Education Law Report1107

(D. Md. 1994).

Schrag, J. A. (1989, Aug.). Office of Special Education Programs PolicyLetter,

Education for the Handicapped Law Review 213:255.

Stacey G. v. Pasadena Indep endent School District, Education for theHandicapped

Law Report 554:206 (S.D. Tx. 1982).

Turnbull, H.R. III, & Turnbull, A.P. (1998).

Free appropriate public education: The law and children with disabilities (5th

ed.).

Denver, CO:Love Publishing Company.Will, M. (1987, Aug.).

Office of Special Education and Rehabilitative Services Policy Letter, Education

for the Handicapped Law Review 211:481.

v. Gering Public Schools, 17 Education ofthe Handicapped Law Report427

(Ne. S. Ct. 1990).

Extended School Year Services (ESY) - Info from www.slaw.com

http://www.wrightslaw.com/info/esy.index.htm

Many parents have questions about extended school year services. If you have

questions about a legal issue, you should do your own legal research. Do not

accept legal advice from school personnel. While they may tell you what they

believe is true, in many cases, they have not read the law and regulations for

themselves. You need to know what the law and regulations say!

Read what the IDEA statute says about your issue. Next read the federal

regulations and your state special ed regulations about your issue. (the IDEA

statute and regulations are in slaw: Special Education Law and in the

Statute and Regs section of the slaw site)

Next read a case or two about your issue (check the Caselaw Library). If you

take these steps, you will have a clear understanding of the issues and

variables.

You will find that extended school year (ESY) is not mentioned in the IDEA

statute, but is in the IDEA regulations. Read the IDEA regulation about ESYat 34

CFR Section 300.309 (page 165, slaw: Special Education Law).

We selected two cases about ESY to help you understand these issues:

Lawyer v. Chesterfield and Reusch v. Fountain. For more information, check the

Topics Pages - especially the FAPE and IEP pages.

" Windows of Opportunity " : Lawyer v. Chesterfield School Board (1993)Danny Lawyer

is a young child with autism. At age six, he had expressive language and

phonological processing problems. The experts who evaluated and treated Danny

advised his parents that his ability to beself-sufficient and independent later

in life would depend on his ability tocommunicate. During the summer, Danny

regressed in his ability to communicate. His behavior deteriorated. His school

district refused to provide any speech language therapy during the summer months

- and refused to reimburse his parents for the services they purchased for their

son. The parents requested a special education due process hearing and

prevailed. The school district appealed. The Review Officer overturned the

Hearing Officer's decision. The case was appealed to Federal Court.

After reviewing the record and hearing new testimony, Judge Spencer concluded,

" Regression is not the only factor " in deciding if a child needs ESY services.

The judge listed several additional factors that IEP teams should consider in

making ESY decisions:

Recoupment in the Fall;

Child's rate of progress;

Child's behavioral or physical problems;

Availability of alternative resources;

Areas of the child's curriculum that need continuous attention;

Child's vocational needs.

In " Lawyer, " Judge Spencer discussed regression and recoupment. He also

discussed the need to take advantage of " windows of opportunity " in educating

children with disabilities: " Danny's regression in the summer, coupled with

nominal recoupment, severely limits the educational benefits he receives from

instruction during the school year. His rate of progress isminimized by the

interplay of continuous regression and recoupment. " " Moreover, Danny's behavioral

problems are compounded by his severe language deficit. His inability to

effectively communicate triggers unacceptable behavior. Therefore, it is

critical that Danny be provided with continuous speech and communication

services. " " Finally, the evidence provided by expert witnesses indicates that

for children who suffer from moderate to severe childhood autism, there is a

small, but vital, window of opportunityin which they can effectively learn. Such

period is generally between theages of five and eight years old....The Court

concludes that it is extremely important that at this critical stage of

development, Danny receive uninterrupted speech language therapy.

" Read the decision in Lawyer v. Chesterfield.

Hostility to Providing ESY: Reusch v. Fountain (1994) In Reusch v. Fountain, 872

F.Supp. 1421 (D. MD 1994), a federal court addressed the school districts

" hostility to providing ESY. " In this case,the court found that parents were

prevented from advocating for their children by the districts refusal to provide

parents with notice about their right to request these services. The district

also engaged in delaying tactics by requiring parents to attend futile meetings.

The court found that, in this district, administrative convenience took

precedence over providing FAPE to children with disabilities. Educational

decisions were not individualized according to the needs of the child.

Six Factors for IEP Teams to Consider

In Reusch v. Fountain, the court listed six factors that the IEP team

shouldconsider in deciding if the child is eligible for ESY as a related

service:

1. Regression and recoupment - is the child likely to lose critical skills or

fail to recover these skills within in a reasonable time;

2. Degree of progress toward IEP goals and objectives;

3. Emerging skills/breakthrough opportunities - Will a lengthy summer break

cause significant problems for a child who is learning a key skill, likereading;

4. Interfering Behavior - does the childs behavior interfere with his or her

ability to benefit from special education;

5. Nature and/or severity of disability;

6. Special circumstances that interfere with childs ability to benefit from

special education.

Citing Pete's case, Florence County School District Four v. , the

District Court found that: " In any contest between systematic efficiency and the

provision of FAPE to a disabled child, Congress and the Supreme Court have made

it clear that the child must prevail. "

Other findings:

Notice and Timing - The importance of making a decision about ESY early enough

in the school year to allow the parents adequate time to exercisetheir rights

administrative review or appeal in a timely fashion. That the explanation about

ESY contained in a brochure distributed to all studentswas not sufficient and

ordered that the student's eligibility for ESY be considered at each annual

review meeting, and the parents sign a form acknowledging their receipt of this

information. The district must documentthe discussion and the decision reached

after consideration of ESYeligibilty at each annual review meeting.

Content and Duration - The content of child's ESY program must be determined on

an individual basis. The duration is also based on individualized determinations

of the number of weeks, days per week,and hours per day that each student

receiving ESY should be provided.

Copyright 1999-2002, W. D. and Pamela Darr .

All rightsreserved. www.wrightlaw.com

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Posted by Carol Sadler to IEPadvocate4You at 3/14/2005 05:59:00 AM

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