Dated February 4, 2003

Susan Given

West Virginia Advocates

Litton Building 4^th^ Floor

1207 Quarrier Street

Charleston, West Virginia 25301-1842

Dear Ms. Given:

This is in response to your letter to the Office of Special Education
Programs requesting clarification on determining a student's eligibility
for extended school year services (ESY) under Part B of the Individuals
with Disabilities Education Act (IDEA). You asked whether West Virginia
schools may consider factors other than the retention and recoupment of
critical skills in determining whether children are eligible for ESY
under Part B. You specifically cited two court decisions that have
enumerated the retention factor as well as other factors and asked
specifically whether lack of progress alone may be considered in
determining whether a child needs ESY.

As you know the Part B regulations require that "extended school year
services must be provided only if a child's IEP \[individualized
education program\] team determines, on an individual basis, in
accordance with §§300.340-300.350, that the services are necessary for
the provision of FAPE \[a free appropriate public education\] to the
child." 34 C.F.R. §300.309(a)(2). "\[A\] public agency may not (i) limit
extended school year services to particular categories of disability; or
(ii) unilaterally limit the type, amount, or duration of those
services." 34 C.F.R. §§300.309(a)(3)(i) and (ii). Furthermore, ESY are
services that are provided "(i) beyond the normal school year of the
public agency; (ii) in accordance with the child's IEP; and (iii) at no
cost to the parents; and (2) meet the standards of the SEA." 34 C.F.R.
§§300.309(b)(1) and (2).

Further discussion on ESY is provided in Attachment 1 (Analysis of
Comments and Changes) to the Part B regulations promulgated on March 12,
1999. 64 [Fed.]{.underline} [Reg.]{.underline} 12405, 12537 (March 12,
1999). The Discussion in the Attachment on §300.309 states that
"individualized determinations about each disabled child's need for ESY
services are made through the IEP process." The Discussion makes clear
that §300.309 does not "require the provision of ESY services to every
disabled child, regardless of individual need." However, it states
further that "\[I\]n most cases, a multi-factored determination would be
appropriate, but for some children, it may be appropriate to make the
determination of whether the child is eligible for ESY services based
only on one criterion or factor. In all instances, the child's IEP team
must decide the appropriate manner for determining whether a child is
eligible for ESY services in accordance with applicable State standards
and Part B requirements."

The Discussion on ESY in Attachment 1 states that States may establish
State standards for use in making these determinations as long as the
State's standards ensure that FAPE is provided consistently with the
individually-oriented focus of the Act and the other requirements of
Part B and the State standards do not limit eligibility for ESY services
to children in particular disability categories. The Discussion also
acknowledges "the requirement to provide ESY services to children with
disabilities under this part who require such services in order to
receive FAPE is not a new requirement, but merely reflects the
longstanding interpretation of the IDEA by the courts and the
Department...."

As noted in the Discussion in Attachment 1, some of the factors that
States use in making these determinations (the following factors were
listed in the note following the prior regulation but identified as not
exhaustive \-- likelihood of regression, slow recoupment, and predictive
data based on the opinion of professionals) are derived from
well-established longstanding judicial precedents. *See, e.g., Johnson
v. Bixby ISD* 4, 921 F.2d 1022 (10th Cir. 1990); *Crawford v. Pittman*,
708 F.2d 1028 (5th Cir. 1983); GARC v. McDaniel, 716 F.2d 1565 (11th
Cir. 1983).

The U.S. Court of Appeals for the Fourth Circuit (which includes West
Virginia) acknowledged in a recent decision that it has "not developed a
standard for determining when ESY services are appropriate under the
IDEA." *M.M. v. School Dist. Of Greenville County*, 303 F.3d 523,
537-538 (4^th^ Cir. 2002). However, the *M.M*. Fourth Circuit decision
agreed with the lower district court's standard in the *M.M.* case which
required parents to demonstrate that "ESY would prevent significant
regression of skills or knowledge retained by the child so as to
seriously affect his progress toward self-sufficiency, or that benefits
accrued to the child during the regular school year would be
significantly jeopardized if he were not provided an educational program
during the summer." 303 F.3d at 537. Thus, regarding your question as to
whether lack of progress alone can be the basis for an ESY
determination, the *M.M.* case requirement that parents demonstrate
either "significant regression" or a jeopardization of benefits accrued
during the school year, would be inconsistent with relying on lack of
progress as the sole criterion for determining that ESY services are
necessary. The Fourth Circuit Court also noted that an ESY determination
is necessarily fact and case specific and that a showing of actual
regression is not required in order to find a child eligible for ESY.
303 F.3d at 537-538. A copy of the *M.M.* decision is enclosed for your
reference.

I hope this information is helpful. If you have any questions, please
contact Dr. JoLeta Reynolds of my office at 202-205-5507.

> Sincerely,
>
> /s/ Patricia J. Guard for
>
> Stephanie S. Lee
>
> Director
>
> Office of Special Education Programs

cc: Dr. Dee Braley

State Director of Special Education

Enclosure