Students in special education may also be entitled to special education instruction and related services known as Extended School Year (“ESY”) services during the summer break.1 ESY services, however, are not meant to function as a summer school for any special education student who would benefit from additional instruction or services in the months between school years. Rather, ESY services are only available to a student in special education if the IEP team determines they are required for FAPE based on any of three specific criteria: Regression-Recoupment, Critical Point of Instruction, and Special Circumstances.2
Regression-Recoupment applies to students with significant cognitive disabilities when performance data demonstrates a pattern of problems with recouping performance on any objective or skill across any two breaks within the current IEP.3
Students can qualify for ESY under Critical Point of Instruction (“CPI”) in two ways. A student qualifies under CPI-1 if the student would be at risk of losing general education class time or of increasing special education service time because of a lack of academic or social skill development without ESY services.4 A student qualifies under CPI-2 if the student would be at risk of losing significant progress made toward acquisition, fluency, maintenance, and/or generalization of skills relevant in the pursuit of critical life areas like self-help, community access, or social and behavioral skills.5
Finally, a student can qualify for ESY services based on Special Circumstances for a number of different reasons, including the need to support older students so they can maintain a summer job, the need to maintain performance skills and prevent regression for students transitioning from Early Steps to preschool, the need to complete action steps that are part of a transition plan that have not been completed by the LEA by the end of the student’s final year in school, and the need to catch up on projected progress for students with excessive absences for health-related conditions.6 Special Circumstances also include a broad category of Extenuating Circumstances in which a student can qualify for ESY when unusual situations or circumstances create a need for ESY services, but the student does not meet other eligibility criteria.7 Extenuating Circumstances exist if there is a determination that a break in instruction will negatively impact or cause the student skill loss that will restrict the student’s ability to function as independently as possible.8
In conclusion, in order to provide FAPE to a special education student, an LEA must develop and faithfully implement an IEP that includes appropriately ambitious goals and the related services, modifications, and other supports needed to achieve those goals.