Fourth Circuit Sets Standard for Extended School Year Services Under IDEA

Education Attorneys, December 01, 2002

The Fourth Circuit Court of Appeals recently ruled that extended school year (“ESY”) services are only necessary to provide a free appropriate education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”) when the benefits a disabled child gains during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer. MM by and through DM and EM v. Sch. Dist. of Greenville County, 303 F.3d 523 (4th Cir. 2002).

MM, an eleven-year old child diagnosed with moderate autism and myotonic dystrophy, a muscular disease in which muscles can contract but have decreasing power to relax, attended a preschool program in the Greenville County Schools during the 1995-96 school year pursuant to a mutually agreed upon and properly implemented IEP. The IEP did not provide for ESY services. During the 1995-96 school year, MM’s parents were also providing in-home Lovaas instruction to MM.1

The IEP proposed by the school system for the 1996-97 school year was never agreed to or signed by MM’s parents, even though two IEP meetings were held in an attempt to develop an IEP. MM’s parents cancelled a third meeting and MM did not return to school in the district after May 1996. The parents also failed to respond to written notice from the school system that it was holding a space open for MM during the 1996-97 school year. The disagreement over the IEP stemmed in part from the desire of MM’s parents that she spend more time in the Lovaas program. MM continued to participate in the Lovaas program and also attended kindergarten at a local church during the 1996-97 school year. MM’s parents requested reimbursement for Lovaas in May 1996.

The school system asked MM’s parents for permission to reevaluate MM in order to prepare an IEP for the 1997-98 school year. After MM’s parents refused permission for reevaluation, the school system did not develop an IEP for the 1997-98 school year.

MM’s parents requested a due process hearing in March 1998. The hearing officer concluded that the 1995-96 and proposed 1996-97 IEPs were legally sufficient because they provided FAPE and determined that the school system had no obligation to develop an IEP for the 1997-98 school year. He also held that the school system had illegally failed to offer ESY services to MM during the summer of 1997. After a review officer upheld the hearing officer’s decision regarding the IEPs and determined that the school district had no obligation to provide ESY services, MM’s parents sued the school system in federal district court. In their suit, the parents requested judicial review of the administrative action.

The district court upheld the review officer’s ruling in all respects except the 1995-96 IEP, which the court concluded did not provide MM with a free appropriate education (” FAPE”). The school district appealed the decision and the parents cross-appealed on the ESY issue.

The Fourth Circuit reversed the district court with respect to the 1995-96 IEP, ruling that the court should have accorded greater deference to the administrative findings, the progress made by MM during the school year, the professional opinion of the educators on the IEP team, and the IEP team’s effort to accommodate the parents’ desire to provide MM with more in-home Lovaas instruction. The court also determined that the proposed 1996-97 was procedurally and substantively sufficient to provide MM with FAPE and that the school district had no obligation to develop an IEP for MM for the 1997-98 school year. Finally, the Fourth Circuit determined that MM was not entitled to ESY services during the summer of 1997.

The court began its analysis by acknowledging that it had not developed a standard for determining when ESY services are appropriate under the IDEA. After reviewing the decisions of other federal courts, the Fourth Circuit held that “ESY services are only necessary to a FAPE when the benefits a disabled child gains during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer months.” The court went on to state that the need for services may be established by expert testimony based upon a professional individual evaluation. The court was careful to note that the fact that regression was likely is not a sufficient basis to require ESY services because all students, whether disabled or not, may regress to some degree during extended breaks from school. “ESY services are required under the IDEA only when such regression will substantially thwart the goal of ‘meaningful progress.'”

In the case of MM, the court decided to uphold the lower court’s decision that the parents failed to demonstrate that MM’s progress would be significantly jeopardized with ESY services. The facts introduced into the case indicated that MM regressed when a few sessions were missed over a three week period in 1999 but did not regress when she missed a greater number of sessions in 1998.


1The Lovaas method, a form of applied behavioral analysis, is a training program designed to teach skills to children with autism.  Children usually work for 30 to 40 hours a week one-on-one with a person trained in the Lovaas method.

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