North Dakota Extended School Year (ESY): Who Qualifies and How to Request It

Extended School Year — usually called ESY — is one of the most misunderstood provisions in a North Dakota IEP. Schools sometimes describe it as "summer school," parents sometimes assume it's optional enrichment, and districts sometimes apply it so sparingly that families don't realize it exists as a right rather than a privilege. ESY is neither summer school nor optional. For students who qualify, it is a legally required component of a free appropriate public education under IDEA and NDCC 15.1-32.

What ESY Is (and Isn't)

ESY is special education and related services provided beyond the standard school year — typically during the summer, though it can cover any break in the regular school schedule. It is individualized to each student's needs, not a generic program.

What it is not:

• A full summer school program that all students can attend
• Remediation or enrichment based on academic performance
• A reward for good behavior or parent advocacy
• Something the district can decide not to offer at all

The IEP team must consider ESY for every student with a disability at every annual review. The question they must ask is not "does our district offer ESY?" but "does this specific student require ESY to receive FAPE?" If the answer is yes, the district must provide it.

The Regression-Recoupment Standard

North Dakota uses the regression-recoupment analysis to determine ESY eligibility — the most common framework used by states nationwide. The analysis asks two questions:

1. Regression: Will the student regress significantly on critical IEP skills or behaviors during an extended break?
2. Recoupment: Will the student be unable to recoup that regression within a reasonable time after returning to school?

Both factors must be present for ESY eligibility under this standard. A student who regresses somewhat but recoupes quickly is different from a student who regresses severely and takes the first three months of every school year to climb back to where they were in May.

The challenge is that regression-recoupment is inherently prospective — you're predicting what will happen during a break that hasn't occurred yet. Evidence typically used to make this determination includes:

• Progress data from previous year-end to the following school year, documenting the regression that occurred over summer and how long recoupment took
• Teacher and therapist observations about skill maintenance patterns
• Parent reports of performance at home during breaks
• The nature of the student's disability and what research says about regression patterns for that population

A student with significant autism-related communication needs or a student with severe intellectual disabilities is generally at higher risk for significant regression than a student with a mild learning disability in a stable environment. But ESY determinations must always be individualized — generalizations about disability categories don't substitute for analysis of the specific student's data.

The District's Obligation to Collect and Use Data

Here's where ESY advocacy often runs into trouble: the data used for the regression-recoupment analysis has to come from somewhere, and many districts don't systematically collect it. If the district doesn't track where a student's skill levels are in June and then reassess in September to measure regression, they don't have the data to make an evidence-based ESY determination.

When the district says "we don't think ESY is necessary" without being able to point to specific data, ask:

• What data did the team use to make this determination?
• Has the team specifically assessed this student's skill levels at the end of the previous school year and at the beginning of this school year?
• Are there documented progress monitoring data points from May and September that were compared?

If the district can't answer these questions with specific data, their ESY determination isn't individualized — it's a default. You can request an IEP meeting to revisit the determination with data that you provide (parent observations, therapist notes, any assessment data you have from summer or fall).

Other Criteria Beyond Regression-Recoupment

While regression-recoupment is the dominant framework, ESY eligibility can also be established through other criteria:

• Emerging skills at a critical period: If a student is on the cusp of achieving a critical skill (communication, self-care, behavioral regulation) that an extended break would interrupt at a pivotal moment, this can support ESY eligibility.
• Behavioral and social-emotional needs: A student whose behavioral or social-emotional regulation requires intensive, consistent support may regress behaviorally rather than academically during extended breaks.
• Medical or health needs: Some students have health conditions managed in the school environment that require continuity over breaks.

How to Request ESY

ESY should be raised at the annual IEP review. The district must document in the IEP whether ESY was considered and why it was or was not recommended. If the meeting occurs without any discussion of ESY, that's a process failure.

If you believe your child needs ESY and the team disagrees:

1. Request that the team's determination be documented in writing with the specific evidence and reasoning used.
2. Submit your own data — parent observations, any outside assessment data, therapist notes from previous summers — at the IEP meeting or in writing before it.
3. Request Prior Written Notice under 34 CFR § 300.503 if the team refuses to provide ESY.
4. Consider requesting an IEE if you believe the district's evaluation of ESY-relevant skills was inadequate.
5. File a state complaint with NDDPI if the district failed to consider ESY at all, or if the determination was clearly not individualized.

What ESY Services Look Like When Provided

ESY is not required to replicate the full school-year program. It must be sufficient to prevent the anticipated regression — which means it's typically focused on the specific skills identified as most vulnerable to summer regression. A student who receives speech therapy, OT, and academic instruction during the year might receive only speech therapy during ESY if speech is the area where regression is the greatest concern.

The IEP specifies ESY services just as it specifies school-year services: type, frequency, duration, provider, and setting. ESY services delivered by unqualified staff or as watered-down versions of school-year services don't meet the standard.

The North Dakota IEP & 504 Advocacy Playbook includes an ESY request template and guidance on how to document regression patterns effectively — the specific types of parent observations that carry the most weight in an ESY determination, and how to frame the request at the annual review before the district has a chance to skip over it.

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