POLICY LETTER: February 4, 2003 to West Virginia Advocate Susan Given
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February 4, 2003 to West Virginia Advocate Susan Given (MS Word)
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February 4, 2003 to West Virginia Advocate Susan Given (MS Word)
Dated February 4, 2003Susan GivenWest Virginia AdvocatesLitton Building 4th Floor1207 Quarrier StreetCharleston, West Virginia 25301-1842Dear 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. Reg. 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 wi/s/ Patricia J. Guard forStephanie S. LeeDirectorOffice of Special Education Programscc:Dr. Dee BraleyState Director of Special EducationEnclosureMs. Susan Given - Page PAGE 2
TOPIC ADDRESSED: Individualized Education Programs
SECTION OF IDEA: Part B—Assistance for Education of All Children With Disabilities; Section 614 - Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements
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Last modified on April 27, 2017