Times Are a Changin  . . The Law on ESY Too?

The State Board of Education (SBE) issued a notice of proposed rulemaking on April 15, 2022.  At issue are potential amendments to Title 5, California Code of Regulations section 3043 (5 CCR § 3043) which pertains to extended school year (ESY) services for students with disabilities.

The Individuals with Disabilities Education Act (IDEA) and California state law require school districts to provide a free and appropriate public education (FAPE) to eligible children with exceptional needs. The FAPE mandate extends to the provision of ESY services if an individualized education program (IEP) team determines that such services are necessary for a child to receive a FAPE.  Receipt of a FAPE also requires that services are provided in the least restrictive environment (LRE).

Currently, California law does not require that districts make available opportunities for integration into regular classes during ESY if a school district is not offering regular summer school programs over the summer.  The current regulation as to that topic is found in Title 5 CCR § 3043 and reads as follows in subsections (g) and (i):

(g) If during the regular academic year an individual's IEP specifies integration in the regular classroom, a public education agency is not required to meet that component of the IEP if no regular summer school programs are being offered by that agency.

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(i) This section shall not apply to schools which are operating a continuous school program pursuant to Chapter 5 (commencing with Section 37600) of Part 22, Division 3, Title 2, of the Education Code.

The above provisions are considered “settled law” and are relied upon by public school districts throughout California.  Despite this, the SBE is proposing to remove those two sections in response to concerns that they may be incorrectly interpreted to preclude IEP team consideration of the requirement that ESY services be provided in the LRE.  If the proposed changes are adopted, subsections (g) and (i) would be removed entirely.

The California Department of Education (CDE) and the SBE acknowledge that ESY services are provided during summer months when a full continuum of placement options may not be available and that neither federal nor state law mandate the offering of an optional “regular education” summer school program to students.  However the proposed amendments create an appearance that could subsequently be interpreted by some to mean that local educational agencies are required to provide certain ESY services in regular classrooms, even if general education summer school programming is not offered.

The SBE’s proposal asserts that existing federal and state law are sufficient to address ESY and rather than clarifying the law, the current regulation may be confusing the field.  A virtual public hearing facilitated by CDE staff is scheduled for 9:00 a.m. on May 31, 2022.  Additionally, CDE is expected to issue a Frequently Asked Questions to address concerns about ESY, including consideration of the LRE concept in relation to such. 

In light of the anticipated changes and to assist administrators with the development of timely and legally compliant offers of ESY programming, we invite your participation in a two-part Webinar series, “Summer’s Around the Corner and the ESY Law May be Changing! – Do Your IEPs Include Appropriate Extended School Year (ESY) Programming?” to be convened May 6, 2022 from 8:00 -8:45 a.m. and May 9, 2022 from 8:00 a.m. - 8:45 a.m.  More information. 

Administrators with questions regarding this alert may also contact the authors or their usual counsel at Atkinson, Andelson, Loya, Ruud & Romo.