Education Law Notes  

On May 20, 2020, the state of Connecticut Department of Education’s Bureau of Special Education [“BSE”] issued guidance regarding the provision of extended-school-year [“ESY”] services to special education students during the COVID-19 pandemic.  While not particularly detailed, the guidance does provide some general recommendations.  More importantly, it acknowledges that ESY services may not look the same as they have in prior years, with virtual instruction perhaps continuing into Summer 2020 as the standard delivery model for instructional interventions.

The federal Individuals with Disabilities Education Improvement Act of 2004 [“IDEA”] requires school districts to provide ESY services to a relatively limited subset of special education students whose disabilities are so severe that the lack of summer instruction would cause them either to lose critical skills or fail to recover those skills upon the start of the new school year as promptly as their non-disabled peers.  Connecticut has also deemed ESY services appropriate for students whose “stereotypic, ritualistic, aggressive or self-injurious interfering behaviors prevent the student from receiving some educational benefit from the program during the school year.”  ESY services typically begin in July and are comprised of shortened days over a limited number of weeks, as their purpose is to stabilize or enhance the gains made during the prior year rather than to ensure reasonable educational progress – the rubric by which Individualized Education Programs [“IEP”] are measured during the regular school year. 

Connecticut schools are currently authorized to reopen their buildings on July 6, 2020, coinciding with what would usually be the start of ESY.  In its May 20, 2020 guidance, however, the BSE pragmatically acknowledged that school districts “may not be able to provide all services . . . in the same manner that they are typically provided.”  As the BSE noted, school districts face logistical hurdles, such as securing the necessary staff who would be willing to provide in-person ESY services as well as enough personal protective equipment for district staff and students.  There could also be state or local limitations on a district’s ability to provide in-person instruction to groups of students, even with social distancing measures.  Another consideration would be determining the pedagogical model contemplated by outside service providers with whom a district may have contracted to provide ESY services.  Consequently, the BSE recognizes that ESY services may need to be delivered virtually or, at best, in a “hybrid” format that would combine both in-person and virtual instruction.

Having administered its benediction upon virtual ESY services, the BSE then “recommends documenting ESY services in the IEP for implementation in a regular school building and as if schools were operating normally, including the specific services, start/end dates, and site(s).”  Say what?  Okay, well let’s consider this apparent paradox.  It could merely be BSE’s way of ensuring that the Planning and Placement Team [“PPT” – we love initialism in special education] not let the potentially virtual nature of the instruction crimp their delineation of ESY services.  While such an intent would be understandable from a theoretical perspective, in practical terms it seems at odds with the BSE’s admission that districts “may not be able to provide all services . . . in the same manner that they are typically provided.”  It is also somewhat akin to telling an architect to design a mansion even if you only have enough money for a bungalow. 

That, of course, is not to suggest that a district cannot provide adequate and appropriate services remotely; rather, it is intended to underscore the potentially problematic consequences of advising PPTs to craft IEPs in which certain elements will be knowingly inaccurate from the outset.  After all, the IEP is considered a binding legal document that districts must implement, so why would a PPT create an obligation it knows it cannot fulfill?  In short, if ESY services are to be delivered remotely, it would seem to make more sense for the PPT to reflect that in the IEP.

Another peculiarity of the guidance is found in the BSE’s directive:  “A summary of the student’s progress must be provided to the parent at the conclusion of ESY” (emphasis added).  As discussed, ESY is not designed to ensure educational progress; instead, it is intended primarily to prevent regression.  As such, “progress” would appear to be a lack of “regress,” about which districts will be required to advise parents at the close of ESY. 

For those students for whom the necessity of ESY services had not already been determined, the BSE advises PPTs to predicate the decision upon “the data collected from the beginning of the 2019-20 school year up until the March school closure.”  In other words, a student’s performance during the period of remote learning should not factor into the ESY determination.  This is a sensible calculus given the (hopefully) temporary nature of the virtual instruction.  Furthermore, it comports with the BSE’s desire to differentiate between ESY and recovery services – which the BSE defines “as services provided to a student to remediate lost skills due to school closure.”  In fact, the guidance expressly provides that the ESY eligibility process should not be used “to determine whether or to what extent recovery services may be needed.” 

This may lead one to ask what the practical difference is between ESY and recovery services.  In some ways, the latter is merely the former, but with a different name.  Unlike ESY, however, which is a perennial consideration, recovery services are a kind of one-shot intervention crafted in response to concerns that some children’s disabilities are so pronounced that even the most robust distance learning simply could not be as efficacious as in-person instruction. 

There is no modern precedent for educating disabled students in the midst of a pandemic, a reality that will continue during Summer 2020.  At best, and just as they have done since the March 2020 state-mandated school closures, districts must simply do their best to provide specialized instruction and related services in a manner that is both reasonable and safe.