Extended school year (ESY) services are defined as individualized instructional programs beyond the regular school year for eligible students with disabilities.
  (1) The need for ESY services must be determined on an individual student basis by the admission, review, and dismissal (ARD) committee in accordance with 34 Code of Federal Regulations (CFR), §300.106, and the provisions of this section. In determining the need for and in providing ESY services, a school district may not:
    (A) limit ESY services to particular categories of disability; or
    (B) unilaterally limit the type, amount, or duration of ESY services.
  (2) The need for ESY services must be documented using data collected by the district and the student's parents using formal or informal assessments. The documentation must demonstrate that in one or more critical areas addressed in the current individualized education program (IEP) where the student has previously demonstrated acquired progress, the student has exhibited, or reasonably may be expected to exhibit, severe or substantial regression that cannot be recouped within a reasonable period of time. Severe or substantial regression means that the student has been, or will be, unable to maintain previously acquired progress in one or more critical IEP areas in the absence of ESY services.
  (3) The reasonable period of time for recoupment of acquired critical skills must be determined on the basis of needs identified in each student's IEP. If the loss of acquired critical skills would be particularly severe or substantial, or if such loss results, or reasonably may be expected to result, in immediate physical harm to the student or to others, ESY services may be justified without consideration of the period of time for recoupment of such skills. In any case, the period of time for recoupment must not exceed eight weeks.
  (4) A skill is critical when the loss of that skill results, or is reasonably expected to result, in any of the following occurrences during the first eight weeks of the next regular school year:
    (A) placement in a more restrictive instructional arrangement;
    (B) significant loss of acquired skills necessary for the student to appropriately progress in the general curriculum;
    (C) significant loss of self-sufficiency in self-help skill areas as evidenced by an increase in the number of direct service staff and/or amount of time required to provide special education or related services;
    (D) loss of access to community-based independent living skills instruction or an independent living environment provided by noneducational sources as a result of regression in skills; or
    (E) loss of access to on-the-job training or productive employment as a result of regression in skills.
  (5) The ARD committee must consider ESY services at the annual review of a student's IEP. If a student for whom ESY services were considered and rejected at the annual IEP review meeting later demonstrates a need for ESY services based on the criteria described in this section, the parent and school district must determine either through an IEP amendment by agreement in accordance with 34 CFR, §300.324(a)(4), or during an ARD committee meeting the location, duration, and frequency of ESY services the student requires.
  (6) If a student for whom ESY services were considered and rejected loses critical skills because of the decision not to provide ESY services, and if those skills are not regained after the reasonable period of time for recoupment, the ARD committee must reconsider the current IEP if the student's loss of critical skills interferes with the implementation of the student's IEP.
  (7) For students enrolling in a district during the school year, information obtained from the prior school district as well as information collected during the current year may be used to determine the need for ESY services.
  (8) The provision of ESY services is limited to the educational needs of the student and must not supplant or limit the responsibility of other public agencies to continue to provide care and treatment services pursuant to policy or practice, even when those services are similar to, or the same as, the services addressed in the student's IEP. No student will be denied ESY services because the student receives care and treatment services under the auspices of other agencies.
  (9) Districts are not eligible for reimbursement for ESY services provided to students for reasons other than those set forth in this section.
  (10) If a student whose IEP notes that ESY services are required withdraws from one district and registers in another district during the summer months, the new district will be responsible for ensuring those services are provided. This may include the direct provision of those services or contracting with the previous district or another entity to provide the services or payment for the services.

Source Note: The provisions of this §89.1065 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective January 1, 2015, 39 TexReg 10446; amended to be effective July 23, 2024, 49 TexReg 5347