On August 9, 2021, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the ### (district). This is the department’s decision regarding that complaint. The issues are whether the district, beginning August 9, 2020, properly determined whether a student with a disability required additional services as a result of extended school closures, and properly determined whether the student required extended school year (ESY) services.
In May 2020, the department issued Bulletin 20.01 requiring school districts to consider for each student with an individualized education program (IEP) whether additional services were required due to the impact of the spring 2020 COVID-19 pandemic statewide school closures to ensure each student was provided a free appropriate public education (FAPE). Districts were directed to hold IEP team meetings or, with parent agreement, follow procedures for making changes to IEPs without a meeting, in order to identify students that regressed or failed to make progress during the period of the school closure and determine needed additional services. The department further directed districts to make these determinations as soon as possible and no later than within the first six months of the start of the 2020-21 school year. DPI COVID-19 Special Education Question and Answer Document, revised 8/6/2020.
In Information Update Bulletin 20.01, the department stressed that the need for ESY and the need for additional services are two separate determinations. School districts are required to provide ESY services to a student with a disability when the student requires these services to receive FAPE. If the parent or any other member of the IEP team expresses a desire to discuss the student’s need for ESY, the IEP team, including the parent, must determine, on an individual basis, whether the student requires ESY services in order to receive FAPE. 34 CFR § 300.106. In determining whether ESY is required for a particular student, the IEP team should use a multi-factored determination including, but not limited to regression during an interruption in services, recoupment of skills after services resume, and predictive data based on the opinion of professionals. Todd v. Duneland School Corp., 229 F.3d 899, 907 (7th Cir. 2002).
At the beginning of the 2020-21 school year, the district offered students in 4k through grade 2 the option of morning or afternoon in-person instruction, or virtual instruction. Additionally, the district offered some students with IEPs in-person instruction. The student’s parents elected for the student to begin the year with virtual instruction. On September 3, 2020, a district staff person communicated with the student’s parents via email to arrange a schedule for the student to go to school two half-days per week to receive instruction and therapies. The staff person stressed that this was important given the amount of therapy the student missed during the second semester of the 2019-20 school year due to the statewide school closure. The parent and school staff communicated via email and worked out a schedule, and during the week of September 14, 2020, the student began attending school two half-days per week. Despite the extensive communication to arrange the student’s schedule and staff concerns regarding the impact on the student of so much missed therapy, the district did not reconvene the student’s IEP team to discuss the student’s current functioning or revise the student’s IEP.
The student’s IEP team met for the first time during the 2020-21 school year on December 2, 2020, to conduct an annual IEP team meeting. While the team updated the student’s IEP to reflect the student’s current levels, the IEP team did not consider whether the student needed additional services due to the statewide school closure during the second semester of the 2019-20 school year.
The IEP team next met on June 1, 2021. The purpose of this IEP team meeting was to amend the IEP to include recovery [additional] services for the student and consider the student’s need for ESY services. The IEP team determined the student would receive speech therapy, occupational therapy, and physical therapy during the summer session. The IEP indicates the student required the services to assure the student maintains skills. While the IEP team included documentation of these services in the section of the IEP dedicated to ESY, it later refers to them as “recovery services.” It is unclear whether the IEP team intended the services to be additional services due to extended school closures or ESY services. The IEP does not differentiate between the two and does not include a description of consideration of the factors the team considered to determine the student’s need for either additional services or ESY. Additionally, despite the department’s guidance that the need for additional services be determined within the first six months of the 2020-21 school year, the district did not consider the potential need for these services until June 1, 2021. The district did not properly determine whether the student required additional services as a result of extended school closures, nor did the district properly determine whether the student needed ESY services.
Within 20 days of the date of this decision, the district must reconvene the student’s IEP team to review the student’s current progress and the effect of services provided during the summer of 2021. Based on that determination, the IEP team must consider whether compensatory services are required due to the failure to properly consider additional services and ESY services during the 2020-21 school year. The district must submit a copy of the revised IEP to the department within 10 days of the IEP team meeting. Additionally, within 30 days of the date of this decision, the district shall submit to the department a corrective action plan to review all district IEPs to determine whether IEP teams properly determined each student’s need for additional services due to spring 2019-20 school closures. Where IEP teams did not properly determine the potential need for additional services, each student’s IEP team must consider whether compensatory services are required due to the failure to not provide additional services for those students who needed them due to the school closures.
Additionally, within 30 days of the date of this decision, the district shall submit to the department a corrective action plan outlining the steps it will take to ensure all staff who participate on IEP teams are trained on properly determining ESY services for students.
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. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution.
Assistant State Superintendent
Division for Learning Support