Summer is upon us and so it’s the season for Extended School Year (ESY) services. What better time than now to brush up on the law in this area? Most special education school leaders are familiar with the regression/recoupment test, but many are less aware of the critical life skills test. What is it, and when does it apply?
Extended school year (ESY) services are special education and related services offered by public school districts beyond the normal school year. Extended school year services include traditional classroom experiences but may also include the continued provision of related services or enrollment in a program not offered by the public school district at the school district’s expense.
The generally accepted technique used to measure whether a student is entitled to ESY services is the regression/recoupment analysis. The analysis involves two steps:
- Identifying whether the student shows an inordinate or disproportionate degree of regression when school is not in session; and
- Assessing whether it takes an inordinate or unacceptable length of time for the student to recoup those skills that have been lost.
Courts recognize the importance of the regression/recoupment standard but also have made clear that other factors must also be considered. One of those factors is whether a student’s progress toward developing critical life skills will be interrupted. This “critical skills test” should therefore always be considered when assessing whether a student is eligible for ESY services.
Most special education school leaders are familiar with the regression/recoupment test, but many are less aware of the critical life skills test. What is it, and when does it apply?
What are critical life skills? A critical life skill is a behavioral, academic, social, or other skill that a student’s IEP team determines is critical to allowing the student to function independently. Examples include communicating, dressing, feeding, toileting and other self-help skills, as well as skills related to social/emotional learning and mobility. These skills may not be critical to a student’s academic progress but are important for reducing dependency on caregivers in the future.
How should the IEP team evaluate whether a critical life skill will be jeopardized without ESY? Much like regression/recoupment, the IEP team should start with a review of IEP goal data on the critical skill at issue. If data shows a loss of critical skills when instruction fades or during breaks, then ESY eligibility should be found. However, teams should not withhold services where their professional judgment is that ESY is necessary for maintaining skills. In other words, the school does not need to trial a gap without services to “gather data” where the service providers reasonably advise against a gap.
Isn’t consistency in instruction good for all kids? The measure is not whether the IEP student will benefit from ESY, but whether ESY is necessary to avoid disproportionate harm to the IEP student’s critical life skills.
It’s always important, of course, to keep in mind the goals for ESY services. Unlike during the school year where progress is required, ESY services only need to provide maintenance of skills. The District does not need to replicate school-year programming and can achieve maintenance through different supports such as related services, in-home support, or funding of community or private programs.