Extended School Year Services in New Hampshire: ESY Eligibility and How to Advocate

Every June, thousands of New Hampshire families hear some version of the same thing: "Your child didn't qualify for summer services this year." Sometimes there's a checklist. Sometimes there's a brief explanation. Often, there's no Written Prior Notice and no clear data.

Extended School Year services — commonly called ESY — are not summer school. They're not a bonus. And they're not the district's decision to grant or withhold based on budget or staff availability. Under federal IDEA and New Hampshire's Ed 1100 rules, ESY is a component of FAPE that the IEP team must consider for every student with a disability. If a student needs ESY to receive an appropriate education, the district must provide it.

What ESY Is — and Isn't

ESY refers to special education and related services delivered beyond the standard school year — typically during the summer, but potentially during any extended break — when necessary to provide a student with FAPE. The services must be consistent with the student's IEP goals.

ESY is not:

• A recreation program
• Optional enrichment
• Summer school for students who are behind academically
• A program the district offers if it feels like it

ESY is an individually determined component of special education. The IEP team — including the parents — must decide based on data whether each student needs ESY to prevent significant regression during breaks and whether the time required to recoup that regression would prevent the student from making meaningful annual progress.

The Legal Basis in New Hampshire

Federal regulations under IDEA (34 CFR §300.106) require that ESY services be provided to students with disabilities if the IEP team determines they are necessary to provide FAPE. New Hampshire's Ed 1100 rules incorporate this requirement.

The ESY determination is an IEP team decision — not an administrative one. The district cannot have a blanket policy that excludes categories of students from ESY consideration, and it cannot limit ESY based on budget or staffing constraints. Under RSA 186-C:9, a lack of local resources is not a legal basis for denying a service required for FAPE.

How Eligibility Is Determined

There is no single bright-line test for ESY eligibility. The IEP team considers several factors, and the weight given to each depends on the individual student. Common factors include:

Regression and recoupment. Will the student lose critical skills during an extended break, and if so, how long will it take to recover those skills? A student who regresses significantly over the summer and takes several months to return to baseline may be losing the benefit of an entire school year's instruction. That's a strong indicator for ESY eligibility.

Degree of progress. A student who is making slow, fragile progress on critical skills may be at greater risk of losing ground during a break than a student who has consolidated those skills.

Nature of the skill being learned. Skills in certain areas — communication, behavioral regulation, daily living — can deteriorate more rapidly and cause greater long-term harm than other types of skills. Loss of emerging communication is qualitatively different from losing ground on a social studies benchmark.

Severity of the disability. Students with more complex needs often require continuity of services that a standard school calendar cannot provide.

Special circumstances. A student in the middle of a critical transition — from early intervention to public school, or from high school to adult services — may need summer services to maintain continuity during a vulnerable period.

The Data You Need to Make the Case

The most common reason ESY requests fail is that the parent presents the argument emotionally while the district presents it (or dismisses it) without adequate data. To advocate effectively, you need:

Progress notes and data across academic years. If your child's teachers document strong progress in May but struggle to return to that level in September or October, that's regression-and-recoupment evidence.

Report cards and progress reports from fall months. A pattern of lower performance at the start of each school year — relative to where the child ended the previous year — supports an ESY argument.

Private provider records. If your child receives private therapy (speech, OT, ABA) over the summer, ask those providers to document what skills they worked to maintain and which ones the child lost despite that support.

Input from teachers. Ask current teachers in writing whether they observe the student losing skills over breaks and how long recovery typically takes. Put the question in writing so the response is documented.

What to Do If the District Denies ESY

Request Written Prior Notice immediately. Under Ed 1120, a refusal to provide ESY is a refusal to initiate or change a student's program, which triggers the PWN requirement. The notice must document the data the district relied on, alternatives it considered, and why those alternatives were rejected.

Review the rationale. A district that denies ESY saying "insufficient regression data" while simultaneously failing to track progress data during the school year has a problem. If the district has not been measuring and documenting progress on IEP goals, it may not be in a position to make a credible regression argument either way.

Request an IEP meeting to revisit. You can request an IEP meeting at any time to discuss ESY. Bring the data you've gathered. Put your concerns in writing before the meeting so the team must address them during the meeting and document their responses in the PWN.

File a state complaint. If the district has a blanket policy that prevents ESY consideration, or if it denied ESY without following the required IEP process, that's a procedural violation that the NHDOE's Dispute Resolution Office can investigate.

Consider the Neutral Conference. If the dispute is about whether the student's needs qualify for ESY rather than a procedural violation, the Neutral Conference under RSA 186-C:23-b may be the most efficient way to get an independent determination without a full due process hearing.

Timing Matters

The IEP team's ESY determination should happen early enough that services can be arranged before the school year ends. If you want to raise ESY at an IEP meeting, do it well before spring — ideally in February or March — so there's time to gather data, hold the team meeting, and arrange services if eligibility is determined.

Waiting until May often results in a rushed, data-light discussion. Districts sometimes use the time pressure as cover for a denial, knowing that appealing would take longer than the summer.

The New Hampshire IEP & 504 Advocacy Playbook includes letter templates for formally requesting ESY consideration at an IEP meeting, demanding Written Prior Notice after a denial, and building the documentation trail that supports an appeal. The goal is to get the conversation on record early — and to arrive at the meeting with more data than the district expects.

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