Criteria Used to Determine Eligibility for ESY

By Candace Cortiella, The Advocacy Institute

Criteria Used to Determine Eligibility

The most widely used criteria for determining the need for ESY services are regression and recoupment. This involves two findings:

  • The IEP team must determine if the student is likely to lose critical skills during the time when services are not delivered — called regression.
  • If the likelihood of regression is established, then the IEP team must determine whether the time the student will require to re-learn the skills lost — called recoupment — is excessive, particularly when compared to the time it takes a nondisabled student to regain skills lost during a school break.

Many students lose some skills over school breaks, and then must relearn those skills when back in school. This applies to short breaks like holidays as well as the traditional long summer break. The important distinction is whether the student with a disability will experience significantly more regression and will take significantly more time to recoup lost skills than the student without disabilities.

Determinations about regression and recoupment can be either retrospective (looking back at documentation of a student’s previous rates of regression and recoupment) or prospective (looking forward at the potential rate of regression and recoupment based on such information as expert judgments and observations regarding the student’s performance after very short breaks such as long weekends). It’s not necessary for a student to demonstrate previous regression in order to be eligible for ESY services. However, the determination should be based on objective data from a variety of sources.

Several states continue to use a regression and recoupment model for ESY eligibility. The U.S. Department of Education has clarified that states have the option of using recoupment and retention as their sole criterion in ESY eligibility decisions, but do not have to do so. Many states have established additional criteria based on cases in their respective circuit courts.

Along with regression and recoupment, the IEP team might consider:

  • The nature and severity of the student’s disability. While the student’s type of disability alone does not determine whether or not there is a need for ESY services, the IEP team should examine whether the nature and severity of his disability are likely to significantly jeopardize his ability to benefit from the instructional program if he experiences a lapse in instructional support.
  • The student’s degree of progress toward IEP goals. How quickly is the student progressing from year to year without ESY services? Will the loss of services during the school break significantly jeopardize the student’s progress toward the goals? Failure to achieve one or more IEP goals does not necessarily mean that the student is eligible for ESY services.
  • The student’s emerging skills and breakthrough opportunities. Is the student at a breakthrough point in a critical skill or skills, such as reading? Will the interruption of services and instruction significantly jeopardize the educational benefit the student is receiving from the specialized instruction or related service(s)?
  • The student’s behavior(s). Does the student exhibit interfering behaviors — such as aggressive, violent or self-injurious behaviors – that prevent him from receiving education benefit from the instructional program during the normal school year? If so, he may need ESY services to keep the interfering behaviors from significantly jeopardizing the educational benefit he can derive from his instructional program during the next school year. Management of such behaviors should be part of the student’s current IEP.
  • Special circumstances or other factors. Are there other special circumstances or factors that will significantly jeopardize the student’s receipt of educational benefit during the normal school year?

These factors might include:

  • The student’s opportunity to interact with children without disabilities in what IDEA calls the “least restrictive environment.” In other words, will a break in services set him back so much that, once school resumes, he’ll need to spend less time in the general education classroom and more time receiving intensive/specialized instruction elsewhere?
  • The specific areas of the student’s curriculum that need continuous attention.
  • The educational structure in the student’s home (e.g., having parents who are willing and able to give the child adequate learning support and reinforcement).

Several types of information should be reviewed, such as:

  • Current and previous IEP goals
  • Classroom tests and grades
  • Classroom observations (by qualified professionals such as a school psychologist or social worker)
  • Standardized tests, including statewide assessments in key academic subjects such as reading and math
  • Student work samples
  • Progress monitoring data
  • Attendance information (e.g., frequent illness that has kept the student out of school, causing him to lose ground academically)
  • Parent interviews and input
  • Expert opinions from professionals outside the school

Some additional factors to keep in mind are:

  • The determination of whether a student is eligible for ESY should not be made so late in the normal school year that the family would not be able to exercise its due process rights to challenge the decision.
  • Eligibility for ESY services one year does not guarantee future eligibility. The determination is made every year — preferably as part of the student’s annual IEP meeting.
  • Eligibility for ESY services includes the provision of transportation to and from the location of the services. If the IEP team determines the student needs specialized transportation from home to the location where the child receives ESY services, such transportation must be provided.
  • ESY services are not required in order to maximize a student’s potential. Just as students without disabilities do not have a right to an education designed to maximize their potential, neither are school districts required by IDEA to maximize the potential of students with disabilities.

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