By Candace Cortiella, The Advocacy Institute
Who Is Eligible for ESY Services?
Any student who is eligible to receive special education and related services may be eligible for ESY. A student’s need — or eligibility — for ESY is determined by his IEP team, including the parent(s). The decision is based solely on the individual needs of the student.
While federal IDEA regulations provide little specific guidance about how to determine a student’s eligibility for ESY, they do offer a few general requirements. These are:
- All school districts must ensure that ESY services are available as necessary to provide FAPE to eligible students. This doesn’t mean that every school district must provide the services, but rather, each district must ensure availability. So, for example, a district might provide ESY services to eligible students by contracting with a nearby district or a private provider.
- The student’s specific type of disability does not determine eligibility. School districts are not allowed to limit ESY services to particular categories of disability. So, for example, a school district cannot have a policy that prohibits ESY services for all students with learning disabilities.
- School districts may not unilaterally limit the type, amount or duration of ESY services. So, for example, a school district may not have a policy that restricts ESY services to the same period of time that it conducts its regular summer school program for all students.
- A school district may not use a lack of resources as a reason for not examining a student’s possible need for ESY services or for not providing ESY services to an eligible student.
How Is Eligibility for ESY Determined?
As noted earlier, the federal IDEA law and regulations provide little guidance on how to determine the need for ESY services. Therefore, the eligibility procedures and considerations have evolved from case law — the body of law created by judges’ written opinions in cases involving ESY services.
Determining a student’s need for ESY services must be part of the IEP process. Ideally, the IEP team should consider the need for ESY services at the initial IEP meeting for a student who is newly eligible for special education and at each IEP meeting thereafter — generally annually. This makes the consideration of ESY an integral part of any IEP meeting. However, if necessary, an IEP meeting can be called for the express purpose of considering the student’s need for ESY services.