Predetermining Extended School Year Services Denies FAPE

What Happened

A young child with autism was receiving intensive in-home specialized academic instruction — 30 hours per week — from a highly specialized provider (IECP). The child had unique communication needs that required this particular provider's expertise.

In April 2009, the district convened an IEP meeting to discuss the upcoming summer. But the district had already decided what the ESY services would look like before the meeting even began. The parent's input about the child's specific needs and the importance of continuity with the specialized provider was not meaningfully considered.

What the District Did Wrong

The district predetermined the 2009 ESY services. This means the district arrived at the IEP meeting having already decided on the type, amount, and provider of summer services without engaging the parent in genuine discussion about the child's individual needs.

The ALJ found that the district's general education staff "had no practical understanding of Student's unique communication needs" and that the evidence did not demonstrate that anyone other than the specialized IECP provider was currently capable of delivering the services the student needed.

What the Judge Found

ALJ Richard Breen found that the district's predetermination of ESY services denied FAPE:

"The evidence at hearing did not demonstrate that the County or anyone else is currently capable of providing the services IECP had been providing."

By predetermining the ESY offer without meaningful parent participation, the district had both procedurally and substantively denied FAPE.

What Was Ordered

The remedies were substantial and specifically designed to compensate for the lost ESY:

• The IEP was modified to require that specialized academic instruction be provided by IECP at 6 hours per day, 30 hours per week
• Supervision of the specialized instruction by IECP was added
• The modified IEP became the student's stay-put placement
• 80 hours of compensatory specialized academic instruction (matching what should have been provided during ESY)
• 16 hours of compensatory supervision of that instruction
• These hours were banked for use during school holidays or the following summer

Why This Matters for Parents

ESY predetermination is one of the most common violations parents face — and one of the easiest to prove. Watch for these signs:

1. The district presents a completed ESY plan at the IEP meeting rather than discussing your child's individual needs first
2. The district refuses to modify the ESY proposal regardless of what you say about your child's needs
3. The district applies a blanket ESY policy (such as "all students get 20 days" or "ESY is only for regression/recoupment") without individualizing
4. The district won't consider your child's current provider for ESY services without evaluating whether they are the only ones capable of meeting the child's needs

If you see these red flags, document them. State clearly at the meeting — and follow up in writing — that you believe the ESY offer was predetermined. Request that the IEP meeting notes reflect your concern.

The compensatory education remedy here was calculated to replace what was lost: a full bank of hours equal to the ESY that should have been provided. This shows that ALJs will order dollar-for-dollar makeup services when a district predetermines ESY.