District Wins: No ESY Obligation When Parent Rejected IEP and Enrolled Child Privately

What Happened

Student was a teenager with an intellectual disability who had been eligible for special education since age three. In July 2008, the district held a triennial IEP meeting and offered Student a program in a general education setting with related services. Parent rejected that IEP because it did not include occupational therapy (OT) or the Lindamood Bell reading program — two services Parent believed Student needed. Rather than filing a due process complaint to challenge the 2008 IEP, Parent voluntarily enrolled Student at Our Lady of the Assumption (OLA), a private Catholic school outside the district's boundaries. Student attended OLA through sixth grade, where she received only a general education program with minor accommodations under a 504 Plan, not special education. In June 2010, OLA informed Parent that Student could no longer access the general education curriculum and needed special education — which OLA did not provide. Parent disagreed and insisted Student could succeed with a modified 504 Plan.

Student did not attend ESY services in summer 2010. Parent filed a due process complaint in July 2012 — nearly four years after rejecting the 2008 IEP — alleging that the district failed to provide ESY, conduct assessments, convene an IEP meeting, or provide required written notices during summer 2010. Because of the two-year statute of limitations, Student's claims for the 2009–2010 school year were dismissed, and only the ESY period from July 13, 2010 through August 2010 remained at issue.

What the ALJ Found

The ALJ ruled in favor of the district on every issue. On the ESY claim, the ALJ found that Student simply did not prove she needed extended school year services. ESY is required only when an IEP team determines — based on current information — that a student is likely to significantly regress over the summer and will struggle to recoup those skills when school resumes. Here, there was no evidence of Student's skill levels at the end of the 2009–2010 school year, no documentation of regression over prior summers, and no credible testimony establishing that Student would have been unable to recoup lost skills. The Lindamood Bell director's testimony did not support a finding of significant regression, and Mother's own account that Student "pretty quickly" returned to prior levels after a summer gap actually undermined the claim. The fact that ESY had been offered in a prior (rejected) IEP was not sufficient — ESY eligibility must be determined fresh each year based on current data.

On the procedural violations, the ALJ found the district had no obligation to conduct new assessments (the next triennial wasn't due until 2011 and Parent never requested one), no obligation to develop a new IEP (because Parent had rejected the 2008 IEP and placed Student in a private school without requesting further services), and no obligation to provide prior written notice (because the district had not proposed or refused to change anything after the 2008 IEP was rejected). The ALJ also noted that there was no evidence Parent would have accepted any IEP that did not include OT and Lindamood Bell — services the district was not required to provide.

What Was Ordered

1. All of Student's requests for relief were denied.
2. The district prevailed on all issues heard and decided.

Why This Matters for Parents

1. Rejecting an IEP and enrolling privately creates significant legal risk. When a parent rejects a district's IEP and voluntarily places their child in a private school outside district boundaries without requesting further services, the district generally has no continuing duty to develop new IEPs, conduct assessments, or offer ESY — unless the parent asks. Silence is not a standing request for services.

2. ESY eligibility must be proven with current evidence, not past offers. The fact that a prior IEP included ESY does not automatically entitle a student to ESY in future years. Parents seeking ESY need documented evidence — progress data, teacher observations, or professional testimony — showing that their child is likely to regress significantly over the summer and will struggle to recover those skills.

3. The statute of limitations can eliminate years of claims. Parents have only two years from the date they knew or should have known about a violation to file a due process complaint. Waiting to challenge an IEP — or a district's failure to act — can result in losing the ability to raise those claims entirely.

4. Asking matters — districts must respond to requests. The ALJ found that had Parent requested assessments, an IEP meeting, or ESY, the district would have been required to respond. Parents who believe their child needs services should put requests in writing rather than assuming the district will act on its own.