Recommendation for immediate action
Extended School Year
We recommend the board immediately authorize the use of stimulus funds to restore ESY to its previous levels and expand the duration and hours for severely handicapped students.
It is with some alarm that the CAC reports to the board that this year district staff made a unilateral decision to cut Extended School Year for all students in the district to 20 days, three hours per day. Additionally, the autism collaborative was exempted from this cut. Staff informed the CAC that the decision was made “because of the budget” and stated that if students had more time than this specified in their IEPs, parents would be called in for IEPs and the IEPs “would be revised.” When asked what would happen if parents did not agree, the staff member replied, “we’ll see” and smiled. In April, when asked why the autism students were exempted from the cuts, the staff member said the district had data to support the claim of regression. The staff member presenting quoted a clause of a section of the California Education code to CAC to demonstrate the legality of this decision:
California Education Code 5 CCR 3043 - Extended School Year Services (d) An extended year program shall be provided for a minimum of 20 instructional days, including holidays.
The CAC is deeply concerned about this decision and urges immediate action. We believe that this unilateral cut, in addition to discriminatory levels of service provided to severely handicapped students without autism, raises the district’s risk for litigation and jeopardizes community relations over an issue that is well addressed in statute and case law. The following information is provided by members of the committee to support this decision making process. This is a friendly reminder that we are a citizen committee and not attorneys, and this is not intended to be legal advice. We are however, struck by the volume of fairly consistent case law and statue in this area.
With respect to the California Education Code:
1. The California Ed Code provides explicit guidance on how to determine ESY services:
3043. Extended School Year.
Extended school year services shall be provided for each individual with exceptional needs who has unique needs and requires special education and related services in excess of the regular academic year. Such individuals shall have handicaps which are likely to continue indefinitely or for a prolonged period, and interruption of the pupil's educational programming may cause regression, when coupled with limited recoupment capacity, rendering it impossible or unlikely that the pupil will attain the level of self-sufficiency and independence that would otherwise be expected in view of his or her handicapping condition. (b) Individuals with exceptional needs who may require an extended school year are those who: (1) Are placed in special classes or centers; or (2) Are individuals with exceptional needs whose individualized education programs specify an extended year program as determined by the individualized education program team.
2. The district may not use lack of evidence for regression to deny ESY services:
The lack of clear evidence of such factors may not be used to deny an individual an extended school year program if the individualized education program team determines the need for such a program and includes extended school year in the individualized education program pursuant to subsection (f).
3. ESY must meet certain standards to qualify for reimbursement:
(g) In order to qualify for average daily attendance revenue for extended year pupils, all of the following conditions must be met: (1) Extended year special education shall be the same length of time as the school day for pupils of the same age level attending summer school in the district in which the extended year program is provided, but not less than the minimum school day for that age unless otherwise specified in the individualized education program to meet a pupil's unique needs. (2) The special education and related services offered during the extended year period are comparable in standards, scope and quality to the special education program offered during the regular academic year. [Authority cited: Section 56100(a) and (j), Education Code] [Reference: Sections 37600, 41976.5 and 56345, Education Code; and 34 CFR 300.346]
With respect to federal statute and case law:
1. IDEA requires the district to make decisions regarding special education services on an individual basis, not on fiscal concerns nor the convenience of the district.
In Reusch v. Fountain, citing Pete's case, Florence County School District Four v. Shannon Carter, 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."
2. Refusing to provide notice that students have a right to request extended school year services and requiring attendance at futile IEP meetings is hostile.
Hostility to Providing ESY: Reusch v. Fountain (1994)
In Reusch v. Fountain (D. MD 1994), a federal court addressed the school district’s "hostility to providing ESY." The court found that parents were prevented from advocating for their children by the district’s 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.
3. There are precedents in addition to the statutory provisions in the California Education Code that guide the planning Individualized Education Plans for ESY.
In Reusch v. Fountain, the court listed six factors that the IEP team should consider 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, like reading;
4. Interfering Behavior - does the child’s 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 child’s ability to benefit from special education.
"Window of Opportunity:" Lawyer v. Chesterfield School Board (1993) 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. "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 is minimized by the interplay of continuous regression and recoupment."
4. The District may not make unilateral decisions regarding ESY outside of the IEP process:
In an opinion letter to Given (2/4/2003), the Department of Education stated that IDEA Part B regulations require: “[A] public agency may not (i) limit extended school year services to particular categories of disability; or (ii) unilaterally limit the type, amount or duration of those services.” 34 C.F.R. 300.309 (a)(3)(i) and (ii). Furthermore, ESY are services that are provided “(i) beyond the normal school year of the public agency; (ii) in accordance with the child’s IEP; and (iii) at no cost to the parents; and (2) meet the standards of the SEA.”
The CAC believes it is in the district’s best interest to provide Extended School Year in compliance with the laws of the nation and the state of California.