9. How is the concept of "recoupment" used by a Team in determining the need for extended school year programming?

The Department of Elementary and Secondary Education interprets a child's difficulties with "recoupment" to be an aspect of "significant regression". Specifically, significant regression and recoupment consist of the following inter-related elements:

(1) the loss of performance levels that were attained before a break in service,

(2) the child's limited learning rate, which lengthens the amount of time the child requires to review and/or relearn previously attained objectives, and

(3) the fact that the time for that child to accomplish such recoupment is greater than the period of time the school district allows all other children for review and/or relearning.

10. What other criteria should a Team apply in making a determination for needed ESY programming?

Any decision regarding needed ESY programming must take into account the child's history of significant regression and limited recoupment capability.  In other words, a child's Team must look backward and forward when considering the need for ESY programming.

In addition to significant regression and/or limited recoupment, courts have set forth other ESY criteria to be applied by a Team, as follows:

Only when all factors are considered together by the child's Team can a determination be made as to how much service will be offered.

11. Should ESY programming be considered by a Team even if there is no previous record of substantial regression over a summer vacation period?

When there is no previous record of a child's substantial regression after a significant break in service, a Team should still consider the need for an ESY program if the following circumstances are present:

1. there is lack of progress in meeting short-term objectives over two marking periods, resulting in little or no progress made over the school year
2. there are significant regression/recoupment problems over short-term vacation periods or other breaks in the school year, and /or

3. the unique nature of any specially designed instruction or related services due to the disability of the student requires such extended school year programming.

Since proposed ESY programming must take into account the probability of substantial regression, school districts should ensure that special education service providers maintain quantitative and qualitative data regarding the child, including anecdotal records on the rates of both learning and relearning, as well as a child's attainment of IEP goals and objectives.

Question and Answer Guide on Special Education Extended School Year Programs
(The old location: http://www.doe.mass.edu/pqa/ta/esyp_qa.html)

A.  These six factors include (See Exhibit B, Extended School Year Eligibility Standard, November 1994):

1. Regression and recoupment - "is the child likely to lose critical skills or fail to recover these skills within in a reasonable time;"   The Team determines whether, without ESY services, there is a likelihood of substantial regression of critical life skills caused by the school break and a failure to recover those lost skills in a reasonable time following the school break.

2. Degree of progress toward IEP goals and objectives; - The Team reviews the student's progress towards IEP objectives on critical life skills and determines whether, without ESY services, the student's degree of progress toward those objectives will prevent the student from receiving some benefit from his/her educational program during the regular school year. 

3. Emerging skills/breakthrough opportunities - "Will a lengthy summer break cause significant problems for a child who is learning a key skill, like reading"; - The Team reviews all IEP objectives targeting critical life skills to determine whether any of these skills are at a breakthrough point.  When critical life skills are at this point, The Team determines whether the interruption of instruction on those objectives caused by the school break is likely to prevent the student from receiving some benefit from his/her educational program during the regular school year without ESY services. 

4. Interfering Behavior - "does the child's behavior interfere with his or her ability to benefit from special education;" - The Team determines whether any interfering behavior (s), such as stereotypic, ritualistic, aggressive or self-injurious behavior (s) targeted by IEP objectives have prevented the student from receiving some benefit from his/her educational program during the previous school year without ESY services or whether the interruption of programming which addresses the interfering behavior (s) is likely to prevent the student from receiving some benefit from his/her educational program during the next school year without ESY services. 

5. Nature and/or severity of disability; - The Team determines whether, without ESY services, the nature and/or severity of the student's disability is likely to prevent the student from receiving some benefit from his/her educational program during the regular school year.  (The Federal law states that no particular categories of disability; or unilaterally limit the type, amount, or duration of those services for ESY.) 

6. Special circumstances that interfere with child's ability to benefit from special education; - The Team  determines whether, without ESY services, there are any special circumstances that will prevent the student from receiving some benefit from his/her educational program during the regular school year.

("The information in quotes" are from Wrightlaw's May 22, 1998 newsletter, (no longer avaiable on their website).

The information that follows is from the Exhibit B, of the case and under Other findings (See VIII. Conclusion, "a - f"):

The District Court wrote 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.

Notice and Timing - The importance of making a decision about ESY early enough in the school year to allow the parents adequate time to exercise their rights administrative review or appeal in a timely fashion.  That the explanation about ESY contained in a brochure distributed to all students was not sufficient and ordered that the student's eligibility for ESY be considered at each annual review meeting, and the parents sign a form acknowledging their receipt of this information.  The district must document the discussion and the decision reached after consideration of ESY eligibility at each annual review meeting.

Content and Duration - The content of child's ESY program must be determined on an individual basis.  The duration is also based on individualized determinations of the number of weeks, days per week, and hours per day that each student receiving ESY should be provided.
 
Click here to link to court case summary:
The Reusch v. Fountain, 872 F.Supp. 1421, 21 IDELR 1107 (D. MD 1994)

This next case decision includes good discussion about extended school year, (ESY), regression and recoupment, autism and neurological windows of opportunity are from Wrightlaw's April 23, 2002 newsletter:

Click here to link to court case summary:
Lawyer v. Chesterfield County School Board, 19 IDELR 904, 1 ECLPR  297 (D. VA 1993)

IDEA-2004 Federal Register 34 CFR, 303.106 Extended school year service.

(a) General.

(1) Each public agency must ensure the extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section.

(2) Extended school year services must be provided only if the child's IEP team determines, on an individual basis, in accordance with 300.320 - 300.324, that the services are necessary for the provision of FAPE to the child.

(3) 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 type, amount, or duration of those services.

(b) Definition. As used in this section, the term extend school year services means special education and related services that -

(1) Are provide to a child with a disability -

(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 of the child;

(2) Meet the standards of the SEA.

(notice: reread #3, notice the 'NOT', and note '(ii)').

Here are some other advocacy articles with their updated link names:

. Tactics and Strategy Session with Pete Wright:
http://www.wrightslaw.com/advoc/articles/Tactics_Strategy_IEPs.html

. CRISIS, EMERGENCY, HELP - The Parent's First Crisis Call to the Attorney!
http://www.wrightslaw.com/advoc/articles/Crisis.html