Dispelling Myths – Part II

Patricia S. Phelan runs The Law Office of Patricia S. Phelan – a practice dedicated exclusively to the field of special education law and advocacy.  Ms. Phelan has been practicing law for eighteen years and is an experienced litigator as well as a parent of a child with a disability.  For guidance about your child’s rights under the law, please contact Ms. Phelan by email at PSPESQ@aol.com or telephone at 914-629-4707.  For more information about The Law Office of Patricia S. Phelan, go to www.Phelanspecialedlaw.com.MYTH: YOUR CHILD IS AUTOMATICALLY ENTITLED TO SUMMER SERVICES IF HE/SHE RECEIVES SPECIAL EDUCATION SERVICES DURING THE REST OF THE SCHOOL YEAR. 

FACT: Unfortunately, under the law, there is no automatic guarantee to summer services.

The IDEA does not set a standard for ESY services.  However, the Federal Regulations which interpret the IDEA grant ESY services “only if a child’s IEP Team determines, on an individual basis … that the services are necessary for the provision of FAPE [a free and appropriate education] to the child.”  34 C.F.R. §300.106(a)(2).

Keep in mind that the law does not permit a school district or other public agency to limit ESY services to only certain categories of disabilities.  They also cannot limit such services by type, amount or duration.  However, ESY services will only be provided if deemed appropriate under the law.

Eligibility for ESY services differs slightly among the states.  In New York State, a child with a disability is eligible for ESY services if necessary “to prevent substantial regression” [see 8 NYCRR §200.6(k) for the other factors involved in the ESY determination].

What is “substantial regression”?  “Substantial regression would be indicated by a student’s inability to maintain developmental levels due to a loss of skill, set of skill competencies or knowledge during the months of July and August.”

Indeed, typically, there is an ordinary period of time that children take at the beginning of the school year to catch up to where they were developmentally at the end of the preceding year (before the summer vacation).  NYS defines this accepted period of review or reteaching as ranging from 20-40 school days.  IF a child needs more than that – – a review period of eight weeks or more to re-gain the skills that they have lost over the summer – – under the law, he or she has substantially regressed, and therefore would be entitled to ESY services.

The determination as to whether your child qualifies for ESY services is ultimately made by the IEP team.  Remember that you, as the parent, are an active member of this team. If you feel your child might be eligible for ESY services, discuss this with your child’s teachers and other members of the educational team even before the IEP meeting.  In advance of the IEP meeting, request that one or more of the professionals working with your child (from school and/or privately) write a “Regression Statement.”   This would show why your child would need special services to catch up at the beginning of the next school year, to where he or she was functioning before the summer began.  Either before or at your child’s annual review IEP meeting, present this information to the other members of the IEP team in an effort to establish your child’s eligibility for ESY services.

Please do not hesitate to contact The Law Office of Patricia S. Phelan for help in analyzing your child’s appropriateness under the law for ESY services.

MYTH: YOUR CHILD IS NOT ENTITLED TO SUMMER SERVICES IF YOUR SCHOOL DISTRICT DOES N0T HAVE A SUMMER PROGRAM.

FACT: If your child is entitled to ESY services under the law, and your school has no programs to offer your child, your school district must look to other possible schools – – even those located outside of your district – – for an appropriate placement for your child.

MYTH: IF YOUR CHILD IS NOT ENTITLED TO SUMMER SERVICES UNDER THE LAW, HE/SHE WILL HAVE AN AWFUL, BORING SUMMER WITH NOTHING TO DO. 

FACT: With a little creativity, and hard work, even if your child is not entitled to ESY services, during the summer and other school breaks, you can still keep your child active and provide him or her with some fun and well needed structure.

Here are some general (and at times, low or no-cost) suggestions to explore, beyond ESY services, which you might consider for your child:

  • Participate in library summer reading programs
  • Attend story time at the library, book store, etc.
  • Day camps
  • Swim clubs (which often have smaller camp-like groups for their members to sign up for)
  • Art or music classes
  • Arrange for play dates
  • Periodic reinforcement of academic skills [Before the end of the school year, get some ditto sheets or other activities for reinforcing some of your child’s math, handwriting, spelling or other academic skills.  Then build in some educational activities within your child’s day
  • Make a visual/picture schedule with your child, and then use this over the summer

For some very useful local information about summer activities in and around Rockland County for your child with a disability, log onto:  http://clarkstownsepta.googlepages.com/summerprograms and http://clarkstownsepta.googlepages.com/links-socialskillsactivities

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