On May 13, 2019, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). This is the department’s decision regarding that complaint. The issue is whether the district, during the 2018-19 school year, properly determined whether a student with a disability requires extended school year (ESY) services.
A school district is required to provide ESY services to a student when the student requires these services to receive a free appropriate public education (FAPE). If the parent, or any other individualized education program (IEP) team member, expresses a desire to discuss the student’s need for ESY, the IEP team, including the parent, must determine, on an individualized basis, whether the student requires ESY services in order to receive FAPE. The IEP team must determine and clearly describe the ESY services to be provided, including the amount, frequency, location, and duration of the services (34 CFR §§ 300.106 and 300.324).
The district’s internal process for projecting ESY needs instructs case managers to gather and provide information regarding the need for ESY services to an assistant director of pupil services, including the reasons why the student might require ESY services and a description of potential services. The assistant directors review the information to determine whether additional information is needed and whether they will attend the IEP team meeting.
The student who is the subject of this complaint received ESY services for several consecutive summers. In early spring of 2019, the student’s case manager contacted the parent to discuss ESY services for the summer of 2019. Through this discussion, the parent expressed that the student needed ESY services. Shortly after the discussion, the case manager initiated the district’s process for projecting ESY services.
At the time of the complaint, the district’s most current guidance and policies related to ESY services were contained in a memorandum issued in March of 2010. Specifically, the ESY memorandum contained the district’s guidance related to the purpose of ESY services, process guidelines, and key questions for IEP teams considering the need for ESY services. The district sent the ESY memorandum to all special education staff, building principals, special education coordinators, and assistant superintendents. The ESY memorandum identifies four priority areas for which a student might qualify for ESY services: to prevent skill regression during the school break requiring excessive time for the student to recoup those skills; when a student is in a critical stage of acquiring a skill that would be jeopardized by the school break; when a student requires the services to sustain paid employment; and when services are necessary to facilitate vocational transition.
During the 2018-19 school year, the district automated portions of the ESY projection process, and an automation error occurred whenever an assistant director determined that the information the case manager submitted was insufficient. Under these circumstances, case managers received an automated communication titled “Projection Rejection Email.” The title of the email led case managers to erroneously believe the district determined, without an IEP team meeting, that the student was not eligible to receive ESY services. Upon learning of the error, the district corrected the automated system.
When the student’s case manager received the projection rejection email, the case manager interpreted the communication to mean that the district had rejected the request for ESY services without an IEP meeting. However, after the case manager shared this information with the student’s parent, the parent requested an IEP meeting to discuss ESY services, and a meeting was promptly scheduled. The IEP team met twice in April 2019 to discuss ESY services. An assistant director served in the role of LEA representative at these meetings. The meetings focused on the student’s need for ESY services to prevent skill regression during the school break and excessive time to recoup those skills when school started again in the areas of math, reading, and school routines. The IEP team also discussed whether the student was at a critical stage in skill acquisition related to expressive communication skills. At these meetings, the student’s parent raised concerns about the unavailability of district and community summer programs, the lack of instructional tools accessible to the student at home, and student achievement data from prior years; however, the IEP team did not discuss or consider these topics in determining the student’s need for ESY services. The parent, and at least one staff member on the IEP team, believed the ESY memorandum instructed IEP teams to focus only on the four priority areas identified in the memorandum and that other considerations, such as the unavailability of summer programs or the lack of instructional tools, were impermissible considerations.
The April IEP team meetings concluded with the IEP team determining that the student did not require ESY services. In making this determination, the IEP team considered regression and recoupment data from breaks during the 2018-19 school year related to math, reading, and school routines, as well as information provided by the speech and language pathologist related to whether the student was at a critical stage of acquisition for an expressive communication skill. The parent disagreed with the IEP team’s determination and filed this complaint.
The IEP team met again in May after the parent filed the complaint. An assistant director served as the LEA representative at the meeting. The IEP team considered all factors raised by the IEP team members, including the concerns the IEP team failed to consider in the April meetings. The IEP team used a newly developed worksheet to discuss and consider the need for ESY services. The worksheet clearly indicates that the IEP team can consider any factor in relation to the retention of knowledge and skills acquired during the regular school year. The IEP team determined that the student did not require ESY services.
Initially, the district, during the 2018-19 school year, did not properly determine whether a student with a disability required ESY services. At the April IEP team meetings, the IEP team did not consider the factors raised by the parent in determining whether the student required ESY services. However, during the May IEP team meeting, the team properly considered all factors raised by the parent in determining the student did not require ESY services. No student specific corrective action is required.
The error in the district’s automated ESY process resulted in district staff improperly making unilateral ESY services determinations. Additionally, the ESY memorandum, in isolation, creates confusion leading to improper determinations of ESY services.
As corrective action, within 30 days of this decision, the district must develop and submit to the department a corrective action plan to review and, as necessary, revise the ESY memorandum to resolve confusion and align with the ESY worksheet. The corrective action plan must also include how the district will ensure staff understand the district’s ESY policy and that IEP teams properly make determinations regarding ESY. Lastly, the corrective action plan must identify students affected by the automation error and the steps the district has or will take to ensure that those students are not adversely affected.
All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint. This decision is final for the IDEA State Complaint process.
Sincerely,
//signed BVH 7/11/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:nam