Possible Elimination of Automatic Eligibility for Extended School Year

State Department of Education to decide this summer on removal of automatic 230-day school year rule for students with SXI and SC-I eligibility:

Oral or written comment may be submitted in writing by mail, e-mail, or facsimile no later than 5:00, July 20, 2007. All comment will be reviewed and considered in the final version of the rules. Comments may be submitted to the following:

Special Education Rules (2007-015 ED) Public Comment
Office of Special Education and Early Intervention Services
Michigan Department of Education, P.O. Box 30008, Lansing, MI 48909
Email: mde-ose@michigan.gov
Fax: (517) 373-7504.

Question:

Is it true that federal law will no longer allow the State of Michigan to provide year-round special education for students who are either Severely Multiply Impaired (SXI) or Severely Cognitively Impaired (SC-I)?

Answer:

No, however, it will no longer be automatic. Specifically, the culprit is contained within last summer’s new federal regulations implementing the I.D.E.I.A. (Individuals with Disabilities Education Improvement Act of 2004). After nearly 36 years of providing automatic 230-day school programming for SXI and SC-I students, the State of Michigan must move to align its administrative rules governing special education services with that of the federal interpretation and direction.

IDEIA 2004 is all about providing education and services to all children with special needs.  Generally speaking, things available to a general education student must be provided to one with special needs.  This even includes the school day itself.  Michigan’s School Aid Act requires that “each district shall provide at least 1,098 hours of pupil instruction.”  On a six-hour instructional school day, this equates to a minimum of 183 days of school for all students in Michigan.It is important to note that the law uses the words “at least” to describe the number of hours.  The concept of legally stating a minimum number of hours in school is nothing new.

A nationally recognized professor of special education law and public policy, H. Rutherford Turnbull, III, cites in his 1986 book entitled, “Free Appropriate Public Education: The Law and Children with Disabilities,” a 1979 federal court case known as Armstrong v. Kline.  That court held a state’s refusal to pay for more than 180 days of schooling each year for severely and profoundly retarded and severely emotionally disturbed children violated their rights to an appropriate education under federal law.  In its argument the court noted that some children will regress significantly during breaks in their education, recoup their losses more slowly than non-handicapped children, and thus are denied an appropriate education when they are not given year-round education.  Three years later, the U.S. Supreme Court in Board of Education v. Rowley demanded that individualization of education be based on professionally developed programs in order to be appropriate.  Yet, politicians and bureaucrats continue to fiscally and politically defend a fixed number of school days each year.

Thus was born the concept of the Extended School Year (ESY).

The “[s]chool day has the same meaning for all children in school, including children with or without disabilities.”  A state is allowed to provide more.  According to commentary on the federal regulations, because Extended School Year (ESY) services are only provided to students with disabilities, days on which ESY services are provided cannot be counted as a school day.  Therefore, only an Individualized Education Planning (IEP) team in accordance with the IDEIA rules and regulations can give more than the minimum number of school days.

ESY must be considered by each IEP Team, but is not automatically provided merely because a request is made. Federal regulations implementing the I.D.E.I.A. 2004 clearly state that, “[e]xtended school year services must be provided only if a child’s IEP Team determines, on an individual basis … that the services are necessary for the provision of FAPE [Free Appropriate Public Education] to the child.”  Further, a state or local educational agency may not, “limit extended school year services to particular categories of disability, or unilaterally limit the type amount, or duration of those services.”

As noted in the article above, according to a Michigan special education law attorney and parent, Laura Athens, “[s]chool districts often have their own ESY guidelines or policies.  If guidelines or policies exist, the school district must follow them to ensure procedural due process.  To the extent that the guidelines conflict with federal law, they would be preempted.”

Ms. Athens continues that, “[a] student does not, in fact, have to regress in order to be eligible for ESY services.  The United States Court of Appeals for the Sixth Circuit has ruled that a parent does not need to prove that the child has regressed over the summer, and empirical evidence of regression is not required.  The court reasoned that requiring the parent to empirically prove prior regression would be unfair.  Conscientious parents who provide summer programming should not be punished for doing so and children should not have to suffer regression to prove their right to ESY services.  Under circumstances in which there is no empirical data available, the need for ESY may be proven through expert opinion based on a professional individual assessment.  The Sixth Circuit has acknowledged that the regression-recoupment is one consideration, but has also stated that the ESY standard should be open to developments in special education field, and not bound to any particular standard.  Cordrey v. Euckert, 917 F.2d 1460, 1471-72 (6th Cir. 1990).”

Finally, attorney Athens states that the IEP Team, when contemplating ESY, must consider things like: (1) the degree of impairment, (2) the child’s rate of progress, (3) behavioral or physical problems, (4) availability of alternative resources, (5) the child’s ability to interact with non-disabled peers, (6) vocational needs, and (7) the curricular areas needing continuous attention emerging skills and breakthrough opportunities.  Johnson v. Independent School District No. 4, 921 F.2d 1022 (10th Cir. 1990; Reusch v. Fountain, 872 F. Supp. 1421 (D. Md. 1994).

By Thomas F. Kendziorski, Esq.

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