Extended School Year Eligibility  

22 Pa. Code §14.132

22 Pa. Code §711.44

DATE OF ISSUE:             April 1, 2003         

DATE OF EXPIRATION:  June 30, 2008

REPLACES:  Extended School Year Eligibility,

                     22 Pa. Code Section 14.34, February 1, 1999

This memorandum presents Department policy concerning timelines and other issues related to Extended School Year (ESY) services for children with disabilities. It is based on 22 Pa. Code Chapters 14 (14.132 ESY) and 711 (§711.44 ESY) and relevant federal regulations and court decisions. This policy is effective immediately.

I.    Background

Armstrong v. Kline and Other Federal Requirements

          The federal court decision in Armstrong v. Kline, 476 F. Supp. 583 (E.D. Pa. 1979), established the mandate in Pennsylvania for ESY programming for children with any type or severity of disability who meet the court's eligibility standard. Local Education Agencies (LEAs), IEP teams and hearing officers should refer to the Armstrong Remedial Order No. 2 Guidelines, 22 Pa. Code Chapters 14 (§§14.102(a)(2)(ix), 14.132), Chapter 711 (§§711.3(b)(8) and 711.44), and this BEC to determine whether a student qualifies for ESY.

          Federal special education regulations now include a requirement that children with disabilities receive extended school year programs in certain circumstances from their school districts or public charter schools.  Specifically, those regulations provide:  “Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, …that the services are necessary for the provision of FAPE to the child.”  34 C.F.R. §300.309(a)(2).  The regulations further state that:

           In implementing the requirements of this section, a public agency may not

     (i)                 Limit extended school year services to particular categories of

               disability; or

     (ii)               Unilaterally limit the types, amount, or duration of those services.

34 C.F.R. §300.309(a)(3).

          For all students with disabilities ESY eligibility must be considered at each Individualized Education Program (IEP) meeting. This determination must be made even if the child's parents have not specifically requested that their child be evaluated for ESY programming. This consideration also applies to students who are attending Approved Private Schools (APS) or other such facilities, and charter schools. APSs must share necessary information with the responsible LEA so that a timely decision can be made by the IEP team. However, the ultimate responsibility for timely IEP review and revision rests with the LEA.

II.    Policy on Timing and Method of ESY Determinations

      A.    Timing

             Target Group Students

             The timing of an ESY determination is dependent on whether the student is a member of the “target group” [as defined by the Armstrong guidelines].  Students in the “target group” are those students with a severe disability, such as:

·         Autism/pervasive developmental disorder

·         Serious emotional disturbance

·         Severe mental retardation

·         Degenerative impairments with mental involvement

·         Severe multiple disabilities

  The parents must be notified by their LEA of the annual review meeting in order to ensure their participation. For purposes of an extended school year eligibility determination, the LEA must make the determination of the need in a timely manner so that children with disabilities who require ESY services in order to receive FAPE can receive the necessary services.  The IEP review meeting must occur no later than February 28 of each school year for the "target group" (as described above). This date may require the LEA to reschedule the annual IEP review, or conduct a separate ESY IEP meeting for this review.

  Notice of Recommended Educational Placement (NOREP), containing the IEP team's determination regarding ESY eligibility, is to be issued to the parent in a timely manner.  If the child has been determined to be eligible, the program specifics must be included in the IEP.  This is to be done no later than March 31 of the school year for students in the target group. 

           It may not be possible to meet the recommended February 28 consideration for a student in the “target group” if the student transfers into the LEA after that date. However, districts and charter schools should remember that if a student enrolls who has an ESY program listed on his/her IEP from another PA school district, that determination of eligibility and program content constitute the student’s “status quo” and must continue to be provided until the parent agrees to a change, or a change is authorized through the special education hearing and appeal system.  For a late enrolling student for whom an ESY determination has not been made, the decision as to ESY service eligibility or non-eligibility and program content must be determined at the IEP meeting.

 Non-target group students

            As stated above, LEAs (including charter schools) must consider the eligibility for ESY of all children with disabilities at the IEP meeting, not just those in the "target group." ESY determinations for children other than those in the “target group” are not subject to the timelines set out above.  However, these determinations must still be made in a timely manner in accordance with the requirements in Chapter 14 and Chapter 711. If the parents of those non-"target group" children disagree with the LEA's recommendation, the parents will be afforded an expedited due process hearing. 

Moreover, whenever the parent of any student with a disability requests that the LEA consider a student for an extended school year program, the request must be treated as a request for a change in the provision of a free appropriate public education (FAPE), and an IEP meeting must be conducted. Following the IEP meeting, the NOREP, which indicates the team's recommendation concerning whether the student is or is not eligible, is to be issued to the parent.

         B. Notice of Eligibility and Content of ESY Program

         LEA notice to the parent concerning ESY eligibility or ineligibility must be by NOREP. The NOREP only needs to be issued if the LEA is:

• Proposing to add ESY services to an IEP that previously did not have it.
• Proposing to delete the provision of ESY services from an IEP.
• Refusing to initiate the provision of ESY services requested by the parent.
• Proposing or refusing to change the provision of the ESY program.

When ESY services are offered by the LEA, the IEP that accompanies the NOREP must contain the following:

·         Description of the type and amount of ESY service;

·         Projected beginning dates and anticipated duration of service;

·         Frequency;

·         Location.

Of course, as with all IEP team decisions, the ESY components of the IEP must be individualized to meet specific child's needs, and must be developed with the participation of the parents at an IEP team meeting.

         C. Data and Other Sources of Information

         The importance of making an ESY determination based on data and other reliable sources is well established.  It should be noted that quantitative "data" are only one of the types of information that can be used to make ESY decisions. Predictive data, such as reports by parents, medical or other agency reports, observations and opinions by educators and others, can also provide a basis for an eligibility determination.  Some examples of information that can be helpful in making an eligibility determination are listed in 22 Pa. Code §14.132(3) and §711.44(9). Included in the regulations are:

• Progress on goals in consecutive IEPs.
• Progress reports maintained by educators, therapists and others, such as guidance counselors or staff supervising extracurricular activities, having direct contact with the student before and after interruptions in the education program.
• Reports by parents of negative changes in adaptive behaviors or in other skill areas.
• Medical or other agency reports indicating degenerative-type difficulties, which become exacerbated during breaks in educational services.
• Observations and opinions by educators, parents and others such as guidance counselors or staff supervising extracurricular activities.
• Results of tests including criterion-referenced tests, curriculum-based assessments, ecological life skills assessments and other equivalent measures.

         D. Criteria for Eligibility and Reliance Upon "Other" Factors

         As 22 Pa. Code §14.132(2) and §711.44(4) states, ESY determinations can be based on the traditional regression/recoupment criteria as well as other factors, such as:

• Extent to which the student has mastered and consolidated an important skill or behavior at the point when educational programming would be interrupted.
• Extent to which a skill or behavior is particularly crucial for the student to meet the IEP goals of self-sufficiency and independence from caretakers.
• Extent to which successive interruptions in educational programming result in a student's withdrawal from the learning process.

If these factors "make it unlikely that the student will maintain skills and behaviors relevant to IEP goals and objectives," or if the student otherwise requires ESY services to receive FAPE, the student is ESY eligible.

For a child to be found eligible for ESY, it is not necessary that the child have first experienced regression during an interruption in educational programming in order to receive ESY during the subsequent program break.

          The IEP team must make its decision concerning ESY eligibility and program content at the time of the IEP meeting, and in accordance with the timelines set out in Section II of this BEC. Doing otherwise leads to indefinite delays in decision making, so that due process is no longer a meaningful procedure for the parent seeking to challenge an LEA/IEP team's determination regarding eligibility and program.

          E. Types of ESY Programming

         While many ESY programs are held during the summer, children eligible for ESY services can require weekend or even virtually continuous programming. It is also important to note that ESY programs are not limited just to self-help and basic skills. Academic and vocational goals can also be part of a child's ESY IEP if appropriate. All decisions regarding types of programming must be made on an individual basis by the IEP team.

         F. Pendency 

         The pendency provisions of state and federal law apply to ESY eligibility determinations. Therefore, if an IEP team proposes by NOREP to change a student's ESY eligibility status or previous ESY program, and the parent requests due process, there must be no change in ESY eligibility or program from the previous year, unless agreed to by the parties, pending completion of due process procedures.

ATTACHED RESOURCE:

REFERENCES:

State Board of Education Regulations 

  22 Pa. Code Section 14.102(a)(2)(ix)      

       22 Pa. Code Section 14.132 

       22 Pa. Code Section 711.3(b)(8)

       22 Pa. Code Section 711.44

Federal Statutes

       20 USC Section 1400, et. seq. (IDEA)

Federal Regulations

       34 C.F.R. Section 300.309

Other 

      Armstrong v. Kline, 476 F. Supp. 583 (E.D. Pa. 1979)

BUREAU/OFFICE CONTACT:

Bureau of Special Education
Pennsylvania Department of Education
333 Market Street
Harrisburg, PA 1726-0333
Phone: 717.783.6913