On March 14, 2023, 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 properly determined whether a student with a disability was eligible to receive extended school year (ESY) services and properly responded to the student’s guardian’s request for a functional behavioral assessment (FBA) and behavior intervention plan (BIP).Whether the district properly determined whether a student with a disability was eligible to receive ESY services.
ESY services are required special education and related services provided beyond the limits of the school term, in accordance with a student’s individualized education program (IEP), that are necessary to ensure the student receives a free, appropriate public education (FAPE). If a student’s parent or any other member of a student’s IEP team raises the issue of ESY eligibility for a student, the IEP team must determine whether the child requires ESY services in order to receive FAPE. Extended school year services must be provided only if a student's IEP team determines, on an individual basis, that the services are necessary for the provision of FAPE to the student. 34 CFR § 300.106.
IEP teams should engage in a multi-factored determination of eligibility for ESY services, including “the likelihood of regression, slow recoupment, and predictive data based upon the opinion of professionals.” Todd v. Duneland Sch. Corp., 229 F.3d 899, 907 (7th Cir. 2002). Lack of regression and ability to progress supported the school district’s rejection of an extended school year. Id. While regression and recoupment analysis does not require that children with disabilities actually experience regression in their skills before they can become eligible for ESY, there must be a reasonable basis for concluding that regression would occur without the provision of ESY. See Letter to Anonymous (OSEP 1995). Consistent with the Seventh Circuit, the Tenth Circuit explained in Johnson v. Independent School District Number 4, 921 F.2d 1022 (10th Cir. 1990) that multiple possible factors are relevant in considering a child's need for ESY services, 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 children without disabilities, the areas of the child's curriculum which needs continuous attention, the child's vocational needs, and whether the requested service is 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 ESY services. See Department Informational Bulletin 10.02.
Summer school is a permissive program typically operated on a set schedule for a number of weeks during the summer. In general, district policies governing summer school also govern permissive summer school offerings for students with disabilities. 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. Wis. Stat. § 118.04. School districts must also ensure students with disabilities have an equal opportunity to participate in educational programming available to all students, including summer school, by providing reasonable accommodations under Section 504 of the Rehabilitation Act of 1973.
The student that is the subject of this complaint currently attends third grade in the district. The complainant is the student’s guardian. On May 16, 2022, toward the end of the student’s second-grade year, the student’s IEP team met to discuss the student's reevaluation and conduct an annual IEP meeting. The IEP team determined the student continued to meet the educational eligibility criteria for autism. As part of the annual meeting, the IEP team considered the student’s progress towards seven annual goals during the 2021-22 school year. The student met all applicable short-term objectives toward annual IEP goals during the fall of 2021. Progress slowed as the year continued. The student met two of the seven annual goals. The IEP team developed goals and services for the 2022-23 school year to address the lack of progress. The student’s guardian expressed concern that the student would fall behind their peers. One point of contention between the guardian and the district was agreeing upon appropriately ambitious expectations, given the significance of the student’s disability and participation in a curriculum aligned with alternate achievement standards. The guardian also reported challenges in providing educational opportunities in the home and community. During the IEP team meeting on May 16, 2022, the guardian verbally requested extended school year services for the summer of 2022 between second and third grade. The complaint alleged that the district’s director of special education decided without consulting other IEP team members that the student did not qualify for ESY services.
The student had not previously received ESY services nor participated in the district’s summer programming. After the guardian’s ESY request, the director spoke first, noting that the student had not regressed during previous breaks. Other district staff reported the student’s ability to maintain skills and behavior. The IEP team considered the student’s assessment scores. The student’s English and Math assessment scores were higher in the fall of 2021 than in the spring of 2022. Anecdotally, district staff did not detect regression in the student’s academic performance following winter breaks or spring breaks. The IEP team found that the biggest barriers to assessing the student's recoupment skills were behavior concerns and lack of routine. When a consistent routine was in place, district staff believed the student could make measured, steady progress on skills. An ESY worksheet indicated the student had not regressed in academic performance, had gained academic skills, and was not expected to regress more than non-disabled peers over the summer months.
The IEP team considered the student’s regression during breaks, recoupment after breaks, and overall behavior challenges in reaching its decision. The IEP team discussion in the same meeting addressed other appropriate ESY factors, such as the student’s significant impairment and the guardian’s difficulty providing educational structure at home. The IEP team discussed summer school and community programs as alternatives to address these concerns. Given the finding that the student had not previously regressed during breaks, the prediction that the student would not regress during the summer of 2022 was a reasonable, individualized determination. The district properly determined whether the student was eligible to receive ESY services.
Whether the district properly responded to the student’s guardian’s request for a functional behavioral assessment (FBA) and behavior intervention plan (BIP).
School districts meet their obligation to provide a FAPE to each student with a disability, in part, by developing a program based on the student's unique, disability-related needs that is reasonably calculated to enable the student to make progress appropriate in light of the student's circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. 34 CFR § 300.324. A student's IEP team must consider whether the student's behavior impedes their learning or that of others. If the team determines the student's behavior does impede their learning or that of others, the team must document the student's behavioral needs and specify positive behavioral interventions, strategies, and supports to address those needs. 34 CFR § 300.324(a)(2). Functional behavioral assessment is a continuous process for identifying (1) the purpose or function of the behavior, (2) the variables that influence the behavior, and (3) the components of an effective behavioral intervention plan (BIP). If the hypothesis about the function or purpose of problem behavior is correct, it results in ideas for alternative skills or strategies that can be taught, as well as ideas for effective support for the student.
The student experienced a difficult start to the 2022-23 school year. The student would become dysregulated, and the intensity of some of the student’s behaviors increased, including hitting staff. Three incidents resulted in the district sending the student home for the remainder of the day. The guardian emailed the district requesting a functional behavioral assessment and a behavior intervention plan on October 12, 2022. Staff reviewed existing data, including academic, attendance, discipline records, and prior evaluations. The district provided a consent form to conduct an assessment, which the guardian signed on October 19, 2022. A school psychologist conducted observations, assessed the student, surveyed district staff, and created a functional behavioral assessment report. The parties scheduled an IEP team meeting for December 15, 2022. Due to inclement weather, the meeting occurred on the next mutually agreeable date, January 12, 2023.
During the meeting, the psychologist led the discussion and review of the FBA report. It identified defiance and aggression as the main behaviors. The psychologist provided hypotheses for the functions of these behaviors, including escaping undesired situations, obtaining preferred activities, fulfilling sensory needs, and expressing frustration. The IEP team reviewed past school interventions and existing positive behavioral supports. They reviewed the report’s recommendations, including a BIP, consistent language to discuss behavior regulation terms at school and home, communicating behavior expectations in value-neutral terms with an assertive voice, providing consistent and unchanging routines with visual schedules, and implementation of social stories to provide proactive support.
As a result of this meeting, the IEP team developed an additional annual goal for behavior with three components. The IEP team developed a BIP that identified recommendations for the physical environment, curriculum, teacher responses to best implement the existing use of visual schedules, and consistent expectations in the classroom and at home. The IEP team created procedures and responsibilities for district staff and a schedule for reviewing the student’s progress toward the behavior goal. Since the IEP team meeting, no significant behavior incidents have occurred at school, but the guardian reported that behavior is still challenging in the home. The IEP team is scheduled to meet this month to review the student’s behavioral progress. The district properly responded to the guardian’s request for a functional behavioral assessment and behavior intervention plan.
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 or contact the special education team at (608) 266-1781.