The Individuals with Disabilities Education Act (“IDEA”) provides eligible children with disabilities a right to a free appropriate public education (“FAPE”), which includes special education and related services designed to meet the student’s individual needs. As part of the FAPE mandate, school districts may be required to provide special education and related services beyond the typical 180-day school year. These services are known as extended school year (“ESY”) services. While it is clear from the courts and the federal IDEA regulations that states are required to consider the need for ESY services, the federal regulations do not identify specific factors for determining a child’s need for ESY, instead relying on the states to determine the proper standard for assessing ESY eligibility. This article begins with a 50-state review of the various standards that have been applied, which reveals that some states have applied a single-factor analysis that focuses primarily on the student’s regression during a break in instruction, while others consider a variety of factors including the nature and severity of the child’s disability, the child’s progress in reaching his or her goals during the school year, and whether a child’s ability to master a particular skill is emerging. Given the statute’s purpose of ensuring that children with disabilities receive an education designed to meet their individual and unique needs, this article argues that a single-factor analysis - particularly one that looks only at regression - fails, as it does not recognize that children with disabilities - even those with the same disability - face a variety of challenges and have different needs depending on their individual abilities. Further, limiting the analysis to the regression factor raises significant challenges for parents. Parents seeking ESY services based on regression are often disadvantaged as they, unlike the school district, are likely unable to obtain empirical proof of regression and are typically unfamiliar with the education system. Parents are also disadvantaged under the regression analysis as they are likely unwilling to allow their child to regress in order to obtain evidence to meet the school district’s ESY requirements. As such, this article concludes that a multi-factored standard that evaluates the degree of the child’s impairment, the rate of the child’s progress during the school year and whether a critical skill is emerging at the end of the academic year, would provide a more comprehensive analysis of the child’s needs for ESY services.
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