Extended School Year Services in South Dakota: ESY Eligibility and How to Request It

Extended school year (ESY) services are among the most frequently denied IEP supports in South Dakota — and among the most frequently misunderstood. Districts sometimes present ESY as an optional enrichment program that requires special justification. It is not. Under South Dakota law and federal IDEA, ESY is a component of Free Appropriate Public Education (FAPE), and if your child needs ESY to avoid significant skill regression over the summer, the district must provide it at no cost to you.

The disconnect between what parents are told and what the law actually requires is where most ESY disputes begin.

What ESY Is (and Is Not)

ESY services are special education and related services that extend beyond the standard school year — typically summer services, though they can include any break during which skill regression is a documented concern. ESY is not summer school in the traditional sense, and it is not the same as tutoring or enrichment programming. ESY is individualized instruction specifically designed to maintain the skills your child has built during the regular school year, tied directly to their IEP goals.

South Dakota's administrative rule on ESY is found at ARSD 24:05:25:26. It requires districts to provide ESY services when the IEP team determines they are necessary for FAPE. The determination is made by the IEP team — which includes you as the parent — not unilaterally by the school.

How South Dakota Determines ESY Eligibility

The primary framework South Dakota uses to evaluate ESY eligibility is regression and recoupment.

The question the IEP team must ask is: will this child lose critical skills during a break from school, and if so, will it take an unreasonably long time to recoup those skills once the school year resumes? If the answer is yes on both counts, ESY is required.

"Regression" means the student loses a skill or falls back in a documented area of performance. "Recoupment" refers to how long it takes to get back to baseline once instruction resumes. A student who loses two weeks of progress every summer and recovers in two weeks is not the same candidate as a student who loses two months of skill and takes four months to recoup — the latter case strongly supports ESY.

South Dakota's rules also contemplate other factors the IEP team may consider, including:

• The degree of progress the child makes toward IEP goals during the regular school year
• The child's emerging skills or breakthrough points that might be disrupted by a break
• The nature and severity of the disability
• Special circumstances such as behavioral regression or significant changes in communication skills

Importantly, the district cannot require that a student actually experience a summer of regression before granting ESY. The IEP team is supposed to make a prospective determination based on available data — progress monitoring records, teacher observations, past break patterns, and any regression documented between school years or during winter and spring breaks.

What the District Is Not Allowed to Do

Several ESY denial tactics show up repeatedly in South Dakota, and none of them are legally defensible.

Blanket denials. A district policy that limits ESY to certain disability categories, or that says ESY is only available for students with "severe" disabilities, is illegal. IDEA prohibits categorically excluding children from ESY consideration. Every child must be individually evaluated by their IEP team based on their unique needs.

Using cost to deny ESY. A district cannot deny ESY because summer services are expensive, difficult to staff, or logistically inconvenient. South Dakota's staffing shortage is real, but it does not eliminate the ESY obligation any more than it eliminates the regular-year IEP obligation.

Requiring a full school year before ESY is considered. Some districts tell parents that ESY cannot be discussed until after the student has completed at least one full school year. This is not a rule under IDEA or ARSD. ESY should be discussed as part of every annual IEP meeting for any child whose disability creates a regression risk.

Offering a reduced version without IEP team agreement. If the district proposes ESY services that you believe are insufficient — for example, two hours per week when your child's needs clearly require more — you are not obligated to accept that offer. You are a required member of the IEP team and your disagreement must be documented.

How to Raise ESY at the IEP Meeting

The annual IEP meeting is the primary place where ESY should be discussed. If ESY has not been on the agenda at your child's most recent IEP meeting, you have the right to request an IEP meeting specifically to address it, or to raise it as an agenda item in writing before the next meeting.

Before the meeting, gather data that supports your child's ESY need:

• Progress monitoring reports from the current and prior school years, including any documented drops in skill after extended breaks
• Teacher observations of regression following winter break, spring break, or the previous summer
• Notes from related service providers (speech therapists, occupational therapists) documenting skill loss across breaks
• Any independent evaluations or reports that address the nature of your child's disability and its susceptibility to regression

At the meeting, ask the team directly: "Has the team considered whether [child's name] needs extended school year services to avoid regression?" If the district's position is that ESY is not warranted, ask them to document their reasoning in the IEP or in a Prior Written Notice. Under ARSD 24:05:30:04, South Dakota requires districts to issue Prior Written Notice when they refuse to initiate or change a service — and denying ESY qualifies.

A Prior Written Notice refusing ESY must state:

• The action the district is refusing to take (providing ESY)
• Why the district is refusing
• The data and evaluations it relied upon to make that decision
• Other options the IEP team considered

This document becomes critical if you escalate to a state complaint.

When ESY Is Denied and You Disagree

If the district denies ESY and you believe your child qualifies, you have two primary paths.

State complaint. File a written state complaint with the SD DOE's Special Education Programs office within one year of the denial. A state complaint must describe the specific IDEA violation, the relevant facts, and your proposed resolution. The SD DOE must resolve state complaints within 60 calendar days. If your complaint is well-documented — particularly if you have Prior Written Notice showing the district's reasoning and data showing the regression — the complaint has a meaningful chance of success.

Due process hearing. For more significant disputes, a due process hearing allows a formal legal proceeding before an impartial hearing officer. Under House Bill 1220 (2024), any party dissatisfied with a South Dakota due process decision can appeal to state or federal court within 30 days.

Disability Rights South Dakota (DRSD) at 1-800-658-4782 provides free legal guidance for ESY disputes and can advise on which path is most appropriate for your situation.

If you want a step-by-step guide to raising ESY at your IEP meeting, the letter templates to request Prior Written Notice, and the South Dakota-specific complaint process laid out in plain language, the South Dakota IEP & 504 Advocacy Playbook covers all of this in one place — without the 170 pages of dense legal text the state guide requires you to wade through.

ESY for Children in Rural and Reservation Schools

ESY delivery in South Dakota's rural and tribal school settings presents additional practical challenges. When a child's regular-year services are delivered by an itinerant therapist who drives out from a cooperative two days per week, summer services often involve even more fragmented delivery schedules or longer travel distances.

None of these logistical constraints eliminate the ESY obligation. If the cooperative cannot staff summer services, the district must find an alternative provider. If no in-person option is geographically feasible, the district may need to explore telehealth delivery of related services or fund placement at another site — but simply providing no ESY is not a permissible outcome when the IEP team has determined services are necessary.

For families on reservations attending BIE schools, ESY obligations apply under IDEA the same way they do for public school students. If your child's BIE school has not discussed ESY as part of the IEP process, raise it directly with the special education coordinator and request that it be addressed at the next IEP meeting.

The key fact to hold onto: if your child's IEP team determines ESY is necessary for FAPE, the district or BIE school must provide it. The size of the district, the difficulty of staffing, and the cost of summer programming are the district's operational problems to solve — not a reason to deny your child services they are legally owed.

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