As attorneys representing families and students with disabilities, we are often asked about the differences between compensatory education and Extended School Year (“ESY”) services for students with disabilities. While both types of education can be awarded under the Individuals with Disabilities Education Act (“IDEA”) and involve educational services provided in addition to the standard curriculum, they serve very different purposes and arise under different circumstances.
IDEA Generally
Students with disabilities may fall under the protections of the IDEA where the student, due to a disability, requires “specially designed instruction,” a legal term of art. The IDEA defines Specially Designed Instruction (“SDI”) as:
“Adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction— (i) To address the unique needs of the child that result from the child’s disability; and (ii) To ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children.”
In simpler terms, SDI means customizing teaching methods, materials and strategies to help a student with a disability access the curriculum and make meaningful educational progress. Students with disabilities may receive accommodations, for example, through a Section 504 plan, but not necessarily be entitled to an Individualized Education Plan (“IEP”).
Only children who are deemed to require SDI receive special education services through an IEP. The IDEA’s purpose is to “assure that all handicapped children have available to them . . . . a free appropriate public education,” or “FAPE.” Under the IDEA, FAPE is “provided in conformity with the individualized education program” or “IEP.” An IEP generally includes a statement of the services to be provided to the student, assessment of the student’s current educational levels and the annual goal(s) set for the student. The IEP is a document developed jointly by parents and school officials. Students with IEPs may require additional instruction through ESY or compensatory education in certain circumstances, as outlined below.
Extended School Year Services Are Intended to Prevent Regression Over Breaks
Extended School Year (ESY) services are proactively provided to students with disabilities during scheduled school breaks, typically over summer vacation. The purpose of ESY is to prevent regression of the student’s skills and to ensure continuity in a student’s education when a break in services would significantly harm the student’s educational progress, typically including both academic progress and progress towards IEP goals. Importantly, ESY is not the same thing as summer school—it is instead a tailored service that must align with the child’s IEP goals.
When May ESY be Implemented?
Under the IDEA, ESY services must be provided if the IEP team determines that these services are necessary for the child to receive FAPE. The team typically considers factors such as, 1) whether the child is likely to lose critical skills during a break and suffer regression; 2) whether the child can regain the regressed skills within a reasonable time once school resumes, also called “recoupment;” 3) whether the skills of concern are emerging such that they may be lost without ongoing support; and 4) whether the student has underlying behavioral or physical issues that make regression more likely.
The team may consider previous ESY data or professional assessments supporting the need for continued instruction to prevent regression in skills and academics.
Compensatory Education Addresses Past Deficiencies in Services
Compensatory education is an award of education services that are offered prospectively to compensate for a previously inadequate program that did not meet the child’s needs. This type of award is usually only awarded once a violation of the IDEA is established. At that point, a student is entitled to appropriate relief intended to address the harm he or she suffered. As stated in Petitioners of Student W. v. Puyallup Sch. Dist. No. 3, compensatory education is “relief designed to ensure that the student is appropriately educated within the meaning of the IDEA.” Hearing officers, as well as courts, may award compensatory educational services.
Jurisprudence in some circuits around the country award compensatory education only in the case of “gross violations” of the IDEA, but the Sixth Circuit provides that compensatory education is not a remedy that is limited to those cases of “gross” violations. Several courts have addressed this, including the Board of Education of Fayette County v. L.M, Woods v. Northport Public School and Gibson ex rel. Gibson v. Forest Hills School District Board of Education.
When May Compensatory Education be Implemented?
Compensatory education may be necessary in cases in which a student was inappropriately subjected to discipline that removed the child from the educational environment for a period of more than ten days without conducting a manifestation determination review. Under IDEA, a school district may remove a student with a disability from their current placement for up to 10 consecutive school days for a violation of the student code of conduct without triggering special procedural protections. However, once a student has been removed for more than 10 cumulative school days in a school year, the school must conduct a manifestation determination review (MDR) before further disciplinary action—such as suspension or expulsion—can proceed. The MDR is a legal safeguard designed to determine whether the student’s behavior was a manifestation of their disability. If the behavior is found to be related to the disability, the student cannot be subjected to the same disciplinary measures as nondisabled peers, and the IEP team must consider changes to the student’s behavior plan or placement. This 10-day limit ensures that disciplinary removals do not circumvent the protections IDEA provides to ensure students with disabilities receive FAPE.
In the case of removals, school districts are strongly encouraged to review, as soon as possible, the circumstances that lead to the child’s removal and consider whether the child was being provided services in accordance with the IEP and whether the behavior could be addressed through minor classroom or program adjustments, or whether the IEP team should be reconvened to address possible changes to the IEP.
Key Differences at a Glance
| Feature | Extended School Year (ESY) | Compensatory Education |
| Purpose | Prevent skill regression | Remedy for denial of FAPE |
| Timing | Provided during breaks, usually summer | Provided after a failure in service delivery |
| Decision-Maker | IEP team | Hearing officer, court, or through negotiation |
| Trigger | Anticipated regression or ongoing progress need | Past failure to provide required services |
| Legal Basis | IDEA – proactive support | IDEA – compensatory relief |
Parents and advocates must understand the distinctions between these two services when seeking appropriate support for students. Asking for ESY when a child has already missed services due to school inaction is not likely to address the issue. Conversely, seeking compensatory education when the issue is anticipated regression misses the mark.
If your child has been denied critical services under IDEA, or if you’re unsure whether they qualify for ESY or compensatory education, our experienced special education attorneys are here to help navigate these issues. Contact us at 216-716-5630. We can work with you to assess your child’s rights and pursue the services they need to succeed.