During the extended school closures resulting from COVID-19, New Jersey school districts remain legally obligated to provide a free and appropriate public education (FAPE) to students with disabilities.
During the extended school closures resulting from COVID-19, New Jersey school districts remain legally obligated to provide a free and appropriate public education (FAPE) to students with disabilities. As the regular school year winds down, school districts should begin to consider whether Extended School Year (ESY) programming must be provided for students with disabilities and how it will be provided if schools remain closed this summer.
Extended School Year Requirements
The New Jersey Department of Education (NJDOE) defines “extended school year” as educational programming beyond the traditional 180-day school year for eligible students with disabilities as set forth in the Individuals with Disabilities Education Act (IDEA).
During the annual review of a child’s individualized educational plan (IEP), schools are required to consider the need for ESY. The determination must be made by the child’s IEP team and be based on the individual need of the child. Accordingly, ESY should not be limited to a particular category or type of disability.
The primary standard for determining eligibility for ESY is regression/recoupment, which evaluates the amount of regression a student experiences as a result of an interruption in educational services with the amount of time required to regain the prior level of skill. Services are recommended if, in accordance with a student’s IEP, an interruption in educational programming may cause the student’s performance to revert to a lower level of functioning such that recoupment cannot be expected in a reasonable amount of time.
Once the IEP team decides that ESY is necessary, the team must then determine the ESY services that the child requires, including the type, duration, and frequency of services. ESY service do not have to mimic the classroom experience. Options may include, but are not limited to:
Support services for maintenance of skills, such as math, reading, etc.;
Home instruction or consultation to provide parents with support and materials to prevent regression;
Individual or group instruction;
Recreational services to provide for the maintenance of identified IEP skills; and
Services during periods of school vacation.
COVID-19 and ESY 2020
Given the limited instruction that many special education students have received during the extended school closures due to COVID-19, it is likely that many more students would benefit from ESY services. School districts should, therefore, be diligent in evaluating the need for ESY in 2020. Additionally, a good argument could be made that if ESY had not been provided in the past and is offered and provided during ESY 2020, a claim for compensatory services made during the 2021 school year could be defeated.
During these unprecedented times, the ESY analysis is very much the same. What is different is how schools will deliver services/instruction if schools remain closed for the summer. At this point, although there have been discussions about opening schools in July and August, no decision has been made. Therefore, it is prudent for school districts to consider how to provide an ESY remotely. While we all work to navigate this public health crisis, there are a lot of unknowns. Going forward, it imperative that school district officials, educators, and parents keep lines of communication open. We also encourage school districts to work with experienced counsel when navigating these complex and rapidly evolving educational law issues.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Nathanya Simon, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
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