BULLETIN NO. 96.01                                                                                         March 1996

Over the years, there have been a number of issues and questions raised concerning school districts' responsibilities to provide special education during the summer and at other times not within the school term. In addition, the U.S. Department of Education during its onsite compliance review of Wisconsin's special education programs found deficiencies regarding extended school year services. Further, the U.S. Department of Education stated that districts cannot exclude children from consideration for extended school year services based solely on category of disability. Learning Support: Equity and Advocacy Information Update Bulletin No. 96.01 addresses these concerns. Information included in the bulletin is based upon U.S. Department of Education policy letters and court decisions. This bulletin is intended to assist school districts, parents, and other interested parties in understanding extended school year services. It replaces bulletins #89.5, Summer School for Exceptional Educational Needs Students and #84.5, Information Update - Extended School Year and Summer School.

The bulletin distinguishes between required extended school year services and permissive summer school. Also the bulletin redefines the requirements for permissive summer school programs. School districts will have greater flexibility in providing permissive summer school programs for children with exceptional educational needs (EEN). For example, a school district is not required to develop and implement an individualized education program for permissive summer school. Also the district is not required to provide related services, such as transportation, for permissive summer school. In general, district policies governing summer school also govern permissive summer school offerings for children with EEN.

Extended school year services are required special education and related services provided beyond the limits of the school term. These services are provided consistent with a child's individualized education program in order for a child to receive a free appropriate public education. There are no state or federal regulations addressing when a child needs extended school year services. There have been several court cases which have provided some guidance in this area. In these cases, the key issues are skill regression during a break in services and limited skill recovery after services resume. Therefore, it is reasonable for extended school year services to concentrate on skill regression and recovery problems. Thus, extended school year services may differ from the services during the regular school term.

State EEN categorical aid is granted to school districts to offset the costs of providing required special education and related services. Extended school year services are required special education and related services identified in a particular child's individualized education program. Therefore, extended school year services will continue to be eligible for state EEN categorical aid. Permissive summer school classes are not required special education and related services. Consequently, effective with the summer of 1997, the costs incurred in providing permissive summer school classes will no longer be eligible for state EEN categorical aid.

Questions regarding this bulletin can be addressed to the Exceptional Education Team, Division for Learning Support: Equity and Advocacy, 125 South Webster Street, P.O. Box 7841, Madison, WI 53707-7841, (608) 266-1781 or TDD (608) 267-2427.

The Wisconsin Department of Public Instruction does not discriminate on the basis of sex, race, religion, age, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation or physical, mental, emotional or learning disability.

This information update can also be accessed via Internet: Access

http://www.dpi.state.wi.us/dpi/dlsea/een/bulindex.html

1. What are extended school year services?

   School districts must provide each resident child with exceptional educational needs a free appropriate public education. In order to provide a free appropriate public education, districts must ensure that all children with exceptional educational needs receive special education and related services consistent with the provisions of their individualized education programs (IEPs). Special education and related services provided pursuant to an IEP beyond the limits of the school term are extended school year services.

2. What is the school term?

   Section 115.01(7), Wis. Stats., defines "school term" as the time commencing with the first school day and ending with the last school day that the schools of the district are in operation for attendance of pupils in a school year, other than for the operation of summer classes.

3. When is a school district required to provide extended school year services to a child with exceptional educational needs?

   A school district is required to provide extended school year services to a child when the child requires such services to receive a free appropriate public education. If the child requires extended school year services to receive a free appropriate public education, the school district must develop an IEP for the child that includes extended school year services. These requirements apply to all children with exceptional educational needs between the ages of three and 21 who have not graduated from high school.

4. Who decides whether a child requires extended school year services in order to receive a free appropriate public education?

   The participants in a meeting to develop the child's IEP, held pursuant to s. PI 11.05(2), Wis. Admin. Code, must consider, as appropriate, whether a child needs extended school year services in order to receive a free appropriate public education. One way to comply with the extended school year requirement is for the district to establish a practice of routinely discussing at each IEP meeting whether extended school year services are required. The department recommends that determinations regarding extended school year services during the summer be made prior to the end of April to permit adequate time to arrange for needed services.

5. Must the district consider extended school year services for each child at an IEP meeting?

   The district is not required to consider extended school year services for each child at an IEP meeting. If extended school year services are an issue, raised by a parent or another IEP meeting participant, then the IEP meeting participants must determine whether the child requires extended school year services in order to receive a free appropriate public education.

6. What substantive standard should the IEP meeting participants apply to determine whether a child requires extended school year services in order to receive a free appropriate public education?

   Neither state nor federal special education regulations establish a standard for determining whether a child is eligible for extended school year services. There have been no cases decided by the Court of Appeals for the 7th Circuit, which includes Wisconsin, that articulate an eligibility standard for extended school year services. Some states have established extended school year eligibility rules and some court decisions have addressed the issue. In most court cases, the fundamental issue in determining eligibility is regression during an interruption in services and limited recoupment of skills after services resume. In Alamo Heights Independent School District v. Texas Board of Education [EHLR 557:315], the Fifth Circuit Court of Appeals articulated the following standard for determining whether a child requires extended school year services:

   ...if a child will experience severe or substantial regression during the summer months in the absence of summer programming, the handicapped child may be entitled to year-round services. The issue is whether the benefits accrued to the child during the regular school year will be significantly jeopardized if he is not provided an educational program during the summer months.

   A similar standard has been adopted by other courts considering the issue, including the Sixth Circuit in Cordrey v. Euckert [17 EHLR 104] and the Tenth Circuit in Johnson v. Independent School District No.4 [17 EHLR 170]. The Sixth Circuit in Cordrey observed:

   The best rule is that which recognizes that the school district has no purely custodial duty to provide for handicapped children while similar provision is not made for others. We therefore begin with the proposition that providing an extended school year is the exception and not the rule...

   Further, the Court observed that it is incumbent on the participants in the IEP meeting to determine "...in a particularized manner relating to the individual child, that an extended school year is necessary to avoid something more than adequately recoupable regression."

   The 10th Circuit in Johnson further explained that multiple factors are relevant in considering a child's need for extended school year. The Court listed possible factors including:

   ...the degree of impairment, the degree of regression suffered by the child, the recovery time from this regression, the ability of the child's parents to provide the educational structure at home, the child's rate of progress, the child's behavioral and physical problems, the availability of alternative resources, the ability of the child to interact with nonhandicapped children, the areas of the child's curriculum which needs continuous attention, the child's vocational needs, and whether the requested services is (sic) extraordinary for the child's condition, as opposed to an integral part of a program for those with the child's condition. This list is not intended to be exhaustive, nor is it intended that each element would impact planning for each child's IEP.

   The department recommends that districts consider all appropriate factors in determining whether the benefits accrued to a child during the regular school year will be significantly jeopardized if the child is not provided extended school year services.

7. When there is no documentation of past regression-recoupment problems, may a child be eligible for extended school year services?

   Yes. A child may still be eligible for extended school year services even though there is no documentation of past regression-recoupment problems. In analyzing a child's potential regression-recoupment problems, the district needs to consider predictive information as well as any information obtained from prior experience with recoupment and regression, along with other appropriate factors. See question #6.

8. Does the fact that extended school year services were provided to a child in a prior year mean extended school year services are needed in the current year?

   The provision of extended school year services in a prior year does not mean extended school year services are needed in the current year. Similarly, the fact that no extended school year services were provided in a prior year does not mean that extended school year services are not needed in the current year.

9. If the IEP meeting participants decide that the child requires extended school year services in order to receive a free appropriate public education, how does the school district ensure that the services are provided?

   If the IEP meeting participants decide that the child requires extended school year services in order to receive a free appropriate public education, then they must include a description of the necessary extended school year services in the child's IEP. The district is obligated to provide the extended school year services consistent with the IEP. The board representative who attends the IEP meeting should ensure that the extended school year services in the IEP are made available.

10. May extended school year services be limited to children with certain disabilities or limited to children who require a minimum number of hours of extended school year services?

    No. Any child who requires extended school year services in order to receive a free appropriate public education must be provided with needed extended school year services. A district may not have a policy that prohibits or inhibits full consideration of the educational needs of each child. Consideration for extended school year services may not be limited to children with certain disabilities or to children labeled as "severely" or "profoundly" disabled. Eligibility for extended school year services may not be limited to children who require a certain minimum number of hours of extended school year services.

11. When a school district receives a transfer pupil from another Wisconsin school district or a Department of Health and Social Services (DHSS)-operated facility, what is the obligation of the receiving school district or facility to provide the extended school year services described in the child's IEP?

    Under s. PI 11.07(1), Wis. Admin. Code, when a school district or a DHSS-operated facility receives an exceptional educational needs transfer pupil from within Wisconsin, the receiving district or facility must implement the IEP from the sending school district or facility. This requirement includes implementing IEP provisions relating to extended school year services. The receiving school district or facility may adopt the IEP of the sending district or facility or it may develop its own IEP. Once the district develops its own IEP, the new IEP provisions relating to extended school year services are controlling. For more information regarding exceptional educational needs transfer pupils, see Information Update Bulletin No. 95.5.

12. What extended school year services should be included in a child's IEP?

    Extended school year services are intended to minimize the effects of regression and recoupment problems. Therefore, it is reasonable for the extended school year services to concentrate on areas of regression and limited recoupment. Because the emphasis in extended school year programming is on preventing regression and recoupment problems, the extended school year services may differ markedly from the services provided to a child during the school term. The extended school year services may or may not be school-based. The specific extended school year services provided, including the amount and the duration of the services, must be determined by the IEP meeting participants and be based upon the child's individual needs. Any changes to the amount or duration of the extended school year services cannot be made without holding another IEP meeting.

13. Must the IEP meeting participants consider the provision of related services as extended school year services?

    Yes. The IEP meeting participants must consider whether the child requires related services, including transportation, in order to benefit from special education.

14. Is it necessary to make a separate showing of regression and poor recoupment of skills for extended school year related services?

    No separate showing of a regression-recoupment problem is required. What is required is a showing that related services are needed to assist the child to benefit from special education.

15. May a district provide related services as the sole component of an extended school year program?

    Yes. While a child may not need extended school year special education, a child may need extended school year related services in order to benefit from special education when school resumes during the school term. In this instance, the related services may be the sole component of the extended school year program. The decision as to whether the child should be provided related services as the sole component of an extended school year program is the responsibility of the IEP meeting participants. Those participants should consider whether, without such extended school year related services, there would be regression-recoupment problems in the child's special education program when school resumes.

16. Must a child receive extended school year services in the least restrictive environment?

    Children receiving extended school year services must be educated in the least restrictive environment in which the child's IEP can be implemented. However, because extended school year services are provided during a time when the full continuum of educational placements is not normally available, the district is not required to establish programs to ensure that a full continuum of educational placements is available solely for the purpose of providing extended school year services. Options on the continuum must be made available only to the extent necessary to implement a child's IEP. If the participants in the child's IEP meeting determine that interaction with non-disabled children is required, then the district must provide the child with an opportunity to interact with non-disabled peers.

17. If a parent disagrees with the school district's decisions regarding the provision of extended school year services, what recourse does the parent have?

    The department recommends that the parties attempt to resolve any disagreements locally through informal means. If a parent disagrees with the school district's decisions regarding the provision of extended school year services, the parent may request an IEP meeting to reconsider the decisions or the parent may request that the district enter into mediation to resolve the dispute. In addition to informal resolution processes, a parent has the right to request a due process hearing under s. PI 11.10, Wis. Admin. Code, to challenge the district's decisions regarding extended school year services.

18. When reporting extended school year to the Division for Learning Support: Equity and Advocacy (DLSEA), how should the operating agency calculate program staff full-time equivalencies (FTEs)?

    Staff FTEs should be calculated as a percentage of a regular-school-year day. For example, if the regular-school-year day is 6 hours, and extended school year services are provided 3 hours per day, then staff FTE should be reported as .5. If extended school year services are provided 3 hours per week, then staff FTE should be reported as .1. A school district is not required to report permissive summer school programming to the division.

19. What is summer school?

    Section 118.04, Wis. Stats., provides that a school board may elect to operate summer classes or to permit pupils to attend summer classes operated by another district on a tuition basis if the school district of operation will accept them. Also the statute provides that the compulsory attendance requirement does not apply to summer classes. A school district is not required to provide a summer school program. Summer school is a permissive program that typically is operated on a set schedule for a number of weeks during the summer.

20. Does participation by a child with exceptional educational needs in a permissive summer school class require an IEP?

    No. A child's IEP includes only those services required for the child to receive a free appropriate public education. If a child needs extended school year in order to receive a free appropriate public education, such services must be articulated in the child's IEP. If a child does not require extended school year in order to receive a free appropriate public education, the IEP should not include the child's participation in permissive summer school classes. Making summer school classes available to children with exceptional educational needs does not relieve a school district of its obligation to consider, as appropriate, and, if necessary, to provide extended school year services. Also see question #21.

21. May the child's extended school year services be provided in the district's summer school program?

    Extended school year special education and related services may be provided in the district's summer school by staff who teach summer school classes. The staff must be appropriately licensed, and the services must be provided consistent with the child's IEP. State exceptional educational needs categorical aid would be available only for the time that eligible staff devote to implementing the child's IEP. The extended school year services must be tailored to the unique needs of the child and cannot be based solely on the availability of services during the summer. The amount and the duration of extended school year services cannot be limited arbitrarily to the district's summer school schedule.

22. Are the costs incurred in providing extended school year and summer school eligible for state exceptional educational needs categorical aid?

    State exceptional educational needs categorical aid is granted to assist school districts to partially offset the cost of providing special education and related services. Special education and related services are designed to meet the unique needs of a child with exceptional educational needs and are provided pursuant to an IEP. If a school district determines that a child with exceptional educational needs requires particular special education and related services, the district is required to provide those services pursuant to an IEP. A district may determine that a child with exceptional educational needs requires extended school year special education and related services in order to receive a free appropriate public education. Consequently, the extended school year special education and related services qualify for the payment of state exceptional educational needs categorical aid.

    Summer school classes are not special education, because they are not required; they are not based upon the child's individual needs; and they do not require an IEP. In contrast to extended school year services, summer school classes are not required in order for a child to have a free appropriate public education. A school district may choose not to provide summer school. For these reasons, summer school classes do not qualify for state exceptional educational needs categorical aid. See question #21.