June 2017

In 1972, much to every student's desire, Alice Cooper released a popular hair metal hit called "School's Out." Even today, it remains a classic in films, at summer kick-off events, and among students with the following lyrics: "school's out for summer, school's out forever." Unfortunately for Mr. Cooper (and his fans), the law does not "sing along" to this popular hit, and school districts often work during the summer months to offer services to students under certain circumstances. In this Issue of the Month, we explore Extended School Year and Compensatory Services.

Under the Individuals with Disabilities Education Act ("IDEA"), districts are required to provide Free Appropriate Public Education ("FAPE") to students with disabilities. Often, this requires districts to offer special education services outside of the normal school year to accommodate the needs of each student.

One way districts can provide adequate services to a student who requires additional supports outside of the regular school year is through Extended School Year ("ESY") services. These services ensure that a student's progress during the school year is maintained and that the student does not regress If the student's IEP team determines that ESY is necessary for the student to receive FAPE, the district is responsible for providing such services, in accordance with the student's IEP, at no cost to the student's parents/ guardians. Once the team determines that ESY is necessary, an addendum outlining the ESY services must be developed including the following: (1) the goals and benchmarks from the current IEP; (2) the type of services that will be provided during ESY, the location and duration of the services, and proposed starting and completion dates; and (3) the necessary transportation, if applicable.

Though ESY is most often provided during the summer months, the IDEA does not limit ESY from being offered during other times such as before or after school, or on days when school is not in session. The IDEA allows the IEP team flexibility in determining when ESY are appropriate for the student to receive F APE.

Models for providing ESY during the summer should be determined by the IEP team. However, it is important to note that a district cannot delegate its responsibilities to the student's parent/guardian simply because it is summer. Though the IEP team may determine that sending educational materials home with the student may aid in the progression, those services must be monitored by a teacher to ensure appropriate progress. The IEP team must develop viable options for the student to receive services in a way that best accommodates that needs of the student. Data from the ESY services must be gathered to properly assess the student's progress.

Compensatory Education Services:

A Helpful Checklist

Compensatory services aren't just for students who have an IEP. Compensatory education is a remedy owed to students have been denied, a free appropriate public education (FAPE). A student does not need to have an IEP already in place to be entitled to compensatory services. When the initial determination of the student's need is made, compensatory services might be appropriate to make-up for the time the student lacked an IEP.

√ School districts are responsible for identifying students with a disability.

School districts must identify students who need services and accommodations because of a disability. Students cannot receive a FAPE if the school district fails to identify a student's disability and will likely owe compensatory educational services to put the student in the position he would have been had the district identified his disability appropriately.

√ Be proactive. Don't wait for a parent to show concern before initiating necessary changes to an IEP.

Schools and districts should initiate services and correct inappropriate IEPs as soon as soon as possible. A parent's approval of an IEP or a parent's failure to object to an IEP does not excuse the school's inaction. The school district must provide a FAPE for every student whether his parents are informed or vigilant.

√ Compensatory services are not services the student already has a right to receive.

Compensatory services can be one of the following: (1) a service the student did not previously have the right to receive or (2) increased access to a service the student already receives but has limited access. For example, if a student's IEP includes Extended School Year (ESY) services, then an ESY program would not be an appropriate compensatory service. If all students have the right to attend summer school, then summer school cannot be a compensatory service, even if the student does not normally attend. An updated IEP is never a compensatory service; IDEA requires schools to correct IEP deficiencies. Compensatory services must correct a past denial of FAPE. An IEP dictates accommodations for the future only.

√ Students with a disability should not arrive to school late or leave school early (unless the change to the regular school day is included in the IEP).

Students with disabilities should not have a shortened school day unless the student's IEP specifically requires it. In several instances, students received compensatory educational services when they had less instruction per day to allow the school bus to pick up students with disabilities before all other students. This discriminatory practice denied students the needed instructional time that amounted to over 100 hours of missed instruction over a two-year period.

√ More hours of service per week ≠ compensatory educational services.

More instruction does not always equal more learning. If a student's ability to learn and retain new information and skills is maximized through the IEP, adding more instructional time to his day will not compensate for the previous denial of FAPE. Instead, schools and parents should consider other times to add services, such as during the weekend, school holidays, and summer break. Also, compensatory services could be reserved to use if there are ever differences of opinion about a student's ongoing right to receive services.

√ Consider choosing a third party to implement compensatory services.

When possible, an outside party should provide compensatory services. Do not leave the same person who first denied services to compensate for the past denial and correctly implement the IEP in the future. Consider delegating all compensatory action to another qualified teacher or a paid professional outside the school. The person responsible for the denial of FAPE and the person responsible for implementing compensatory services should not be the same.

Should you have any questions about your district's policies or practices related to ESY, compensatory services, or special education-related matters, please feel free to contact this firm. White & Story, LLC hopes that everyone has a safe and enjoyable summer.