Appropriately Ambitious:

A Special Education Legal Blog 

“But [the student’s] educational program must be appropriately ambitious in light of his circumstances …. The goals may differ, but every child should have the chance to meet challenging objectives”

Endrew F. v. Douglas Cnty. Scl. Dist. RE-1, 137 S.Ct. 988, 1000 (2017).

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  • Patrick G. Radel, Esq.

Two Minute Tip for a Better IEP: Stopping the Summer Slide


Teachers, therapists, and parents can spend an entire school year helping a student with special needs make progress, only to see skills slip away over summer break. This perennial problem is an even bigger concern this year, with students having missed significant school time and therapies due to the COVID-19 pandemic.


What does special education law say about summer? How can we advocate for students to receive the extended school year services they need, now more than ever?


A quick summary and some suggestions.

The Law Requires Consideration of Summer Services.


IDEA (the main federal special education law) doesn't specifically mention summer, but Federal Regulations require schools to provide extended school year ("ESY") services to students who need such services to receive a free appropriate public education ("FAPE"). 34 CFR § 300.106.


In many states, including New York, students with disabilities are entitled to summer services if they have intense needs OR if they are likely to experience "substantial regression." 8 NYCCRR § 200.6 (k)(1)(v).


The Committee on Special Education ("CSE") makes the ESY decision and the school may not "unilaterally limit the type, amount, or duration of ... services." 34 CFR § 300.106 (a)(3)(ii).

Radel's Ruminations.


1. Insist on a Student-Centered, Data-Driven Decision. ESY is often the last item discussed at a CSE meeting and is sometimes forgotten entirely. Don't let that happen. Also, if the school says "No" - remember that, according to law, (a) the decision is made by the Committee, which includes the parent(s), (b) the decision must be evidence-based (the school needs data), (c) the CSE should consider the entire picture, not just the risk of regression, and (d) the focus should be on the student's needs, not on a fixed formula. (For example, New York's Education Department says that the likelihood of regression is present if the student is expected to lose skills over the summer that will take at least 8 weeks to recover once school starts. But this is guidance, not the law).


2. Think Inclusive. The law requires that students with disabilities be educated with their non-disabled peers "to the maximum extent appropriate." This applies to summer too. Schools must locate their ESY programs in settings where typical students are present during the summer or provide appropriate opportunities for ESY-eligible students to participate in other summer programs (for example, a community-based camp or program in a neighboring district) that include typical peers.


3. Summer 2020 Should Be Different. The U.S. Department of Education has said that schools should consider whether students with disabilities need "compensatory services" to make up for skills lost as a result of pandemic-related school closures. Some States have already recognized that summer provides an opportunity to get a start on providing some of those compensatory services (NJ, ND, OK, VA, CT, CO), while others have said that decision should wait until schools re-open (MN, WI). On June 5th, New York Governor Cuomo issued an Executive Order allowing in-person special education services and instruction over the summer, subject to State and Federal safety guidelines. However, as of this writing, it's not clear how New York schools will deliver services. If you've seen pandemic-related regression, consider requesting summer services as "compensatory education" (even if your student wouldn't normally qualify) and ask your school how they plan to prevent a "summer slide" of important skills and knowledge.

For legal education only.  This does not constitute legal advice or establish an attorney-client relationship.

ATTORNEY ADVERTISING. Prior results do not guarantee a similar outcome. 

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