ESY was denied and the skills did not come back: the six provisions in the Texas rule, and who owns each one
A denied Extended School Year (ESY) request in the spring and a loss of skills over the summer are one connected sequence under the Texas rule, not two separate events. The same rule that governs the ESY decision also governs what the Admission, Review, and Dismissal (ARD) committee is required to do when skills were lost after that decision and have not come back. Several of those obligations are keyed to the first eight weeks of the regular school year, which is the window you are in.
Nothing announces this. No notice arrives at the start of the school year saying the rule has a second half, and no office is responsible for checking whether the first half was applied correctly. That is a feature of how the rule is administered, not a request you failed to make.
The six provisions
| What is required | Who owns it | When it applies | Where it is written |
|---|---|---|---|
| ESY must be considered at the annual review of the IEP | ARD committee | Every annual review, since the amendment effective July 23, 2024 | 19 TAC §89.1065, as amended (adopted rules, July 19, 2024) |
| The current IEP must be reconsidered when lost critical skills are not regained and the loss interferes with the IEP | ARD committee | After the reasonable period of time for recoupment | 19 TAC §89.1065(6) |
| The recoupment period must not exceed eight weeks | Set by rule, applied by the ARD committee | Determined individually, capped at eight weeks in any case | 19 TAC §89.1065(3) |
| Critical skill loss is defined by five named outcomes | ARD committee | The first eight weeks of the next regular school year | 19 TAC §89.1065(4) |
| ESY need must be documented using data from the district and the parents, formally or informally | District and parents, jointly | Whenever ESY need is determined | 19 TAC §89.1065 |
| ESY may not be limited by disability category or unilaterally limited in type, amount or duration, and may not supplant another agency's responsibilities | School district | Whenever ESY need is determined and services provided | 19 TAC §89.1065 |
Two of these can be checked today against paperwork already in your file: whether ESY was considered at the last annual review, and how many weeks have passed since the school year resumed.
Provision 1: ESY must be considered at the annual review
For years, ESY was something a parent had to know to ask about. Under the version of the rule adopted effective July 23, 2024, the ARD committee must consider ESY services at the annual review of a student's IEP. The Texas Education Agency's own rulemaking record describes this as replacing the prior framing, in which the parent requested a discussion of ESY at the ARD meeting (Texas Secretary of State, adopted rules, July 19, 2024).
The obligation moved. If ESY was never discussed at your child's last annual review, that is worth raising.
Where this goes wrong: ESY is discussed in the meeting but nothing in the paperwork records that it was considered, which leaves no document to point to later.
Provision 2: the IEP must be reconsidered when skills are not regained
Texas defines Extended School Year services as individualized instructional programs beyond the regular school year for eligible students with disabilities (19 Texas Administrative Code §89.1065). The same rule, at §89.1065(6), sets out what is required when the decision not to provide ESY costs a student a skill:
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.
Three phrases in that sentence carry the weight.
- Must reconsider. Not may. Not should, if the parent requests it.
- After the reasonable period of time for recoupment. A defined window with a ceiling, set out in the next provision.
- Interferes with the implementation of the student's IEP. This is the condition. The question the rule asks is not whether the summer was hard. It is whether the skill loss is getting in the way of the plan the district already agreed to.
Where this goes wrong: the loss is described as a difficult summer rather than as an obstacle to implementing the IEP, so the record never connects the two.
Provision 3: the recoupment period cannot exceed eight weeks
The recoupment period is determined individually based on each student's IEP. The rule then sets a hard outer limit at §89.1065(3):
In any case, the period of time for recoupment must not exceed eight weeks.
The rule also carries a bypass. If the loss of skills would be particularly severe or substantial, or if the loss results or may reasonably be expected to result in immediate physical harm to the student or to others, ESY may be justified without any consideration of recoupment time at all.
Where this goes wrong: the ceiling is treated as a waiting period to sit through rather than an outer limit, and the reconsideration request is filed after the window the rule is written around has closed.
Provision 4: what the rule counts as a critical skill
The rule does not leave this to interpretation. At §89.1065(4), a skill is critical when its loss results, or is reasonably expected to result, in any of the following during the first eight weeks of the next regular school year:
- Placement in a more restrictive instructional arrangement
- Significant loss of acquired skills necessary for the student to appropriately progress in the general curriculum
- Significant loss of self-sufficiency in self-help skill areas, as evidenced by an increase in the number of direct service staff or the amount of time required to provide special education or related services
- Loss of access to community-based independent living skills instruction, or to an independent living environment provided by noneducational sources, as a result of regression
- Loss of access to on-the-job training or productive employment as a result of regression
The third item defines loss of self-sufficiency by a measurable operational change: more staff, or more staff time. That is not a subjective judgment about how a child seems. It is an observable change in what the school has to do.
Those five items are anchored to the first eight weeks of the school year, which is August and September.
Where this goes wrong: the loss is written up in general terms that map onto none of the five named outcomes, so nothing in the record answers the question the rule asks.
Provision 5: parent data is part of the required documentation
The rule requires that the need for ESY be documented "using data collected by the district and the student's parents using formal or informal assessments."
Parent-collected data is named in the regulation. It is not a courtesy the district extends, it is part of the required documentation. And the assessments can be informal. When TEA adopted the 2024 amendment, it deliberately changed the word "evaluations" to "assessments," and explained the reasoning in the rulemaking record: assessments are typically viewed as less formal than evaluations, student data is critical to determining ESY need, and formal evaluations are not needed to collect that data.
The notes you keep at home qualify, which means how you keep them matters. The rule asks whether a previously acquired skill has been lost and whether it has come back, so a record that answers that directly is more useful than a general account of the summer.
- Name the specific skill, not the general area. "Was dressing independently in June, now needs help with buttons and fasteners" is usable. "Regressed on self-care" is not.
- Tie it to something in the current IEP. The rule is about critical areas addressed in the IEP where your child had previously demonstrated acquired progress. A skill that was never in the plan is a harder argument.
- Date it. When was the skill solid? When did you notice it slipping? Where is it now?
- Note what it costs. If a task now takes three prompts instead of one, or twenty minutes instead of five, write that down. That maps onto the rule's own standard for self-help skills.
- Keep it short and keep it dated. A running note on your phone is fine. It does not need to look official.
If your child receives ABA therapy, their team is already tracking skills across settings and may hold data covering the same period.
Where this goes wrong: the home record exists but is undated and general, so it cannot be read as a before-and-after account of a named skill.
Provision 6: limits the district may not place on ESY
Services from other agencies do not displace ESY. The rule states that ESY is limited to the student's educational needs 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 child's IEP." The rule further provides that a student will not be denied ESY because they receive "care and treatment services" from another agency. If your child receives ABA therapy or other outside services, that is not a reason to deny ESY.
ESY cannot be limited categorically. In determining need, a district may not limit ESY services to particular categories of disability, and may not unilaterally limit the type, amount, or duration of ESY services.
Where this goes wrong: either limit is stated informally in a meeting and never appears in writing, so there is no record of the reason given.
What to check
- The paperwork from the last annual ARD, checked for whether ESY was considered. Since the amendment effective July 23, 2024, that consideration is the committee's obligation.
- The date of that annual review.
- The IEP goal or critical area the lost skill sits under. Not the skill in general, the line in the plan.
- The date the skill was last solid, and the date you first noticed it slipping.
- What the skill now costs, in prompts or minutes, written down and dated.
- Which of the five outcomes named at §89.1065(4) the loss maps onto.
- The date the school year resumed, and the weeks since. The recoupment period cannot exceed eight.
- A dated written request to the ARD committee to reconsider the current IEP, naming the skill loss and its effect on implementation of the IEP.
- A written request to your child's BCBA for data on the same skills over the same period.
Seeing skills slip that were solid in the spring?
Our care team can talk through what your child's therapy team is tracking and how it fits alongside school.
Forta provides Online ABA therapy in 43 states, and In-Home ABA therapy in select cities including Houston, TX.
Sources
- 19 Texas Administrative Code §89.1065, Extended School Year Services. Adopted effective July 23, 2024 (49 TexReg 5347). Link
- Texas Secretary of State, Texas Register, Volume 49, Number 29, July 19, 2024, 49 TexReg 5347. Adopted amendments to 19 TAC Chapter 89, effective July 23, 2024. Recorded in the source note to the rule at Cornell LII.
- Texas Education Agency, SPEDTex. Extended School Year legal framework. Link
- Federal basis: 34 CFR §300.106, Extended School Year services.
About this article
Written by Megan Butler, VP of Clinical Operations · Clinically reviewed by Janelle Deveau, MA, BCBA, LBA · 2026-09-02
What this is. A summary of what Texas special education rules require for Extended School Year services, with links to the rule and to TEA's guidance. It is not legal advice, every ESY decision is made individually, and districts vary in how they apply these rules. If your district responds differently than this describes, that is worth raising at your next ARD meeting.
