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IDEA Complaint Decision 23-047

On May 5, 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 issue is whether the district, beginning in the 2022-23 school year, properly determined whether a student with a disability was eligible to receive extended school year (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 who is the subject of this complaint completed the third grade in the district at the end of the 2022-23 school year. The complainant is the student’s guardian and grandparent.

At an IEP team meeting on March 7, 2023, the complainant requested the IEP team determine the student’s eligibility for ESY services for the summer of 2023. The IEP team discussed the student’s eligibility for ESY at that meeting and at another IEP team meeting held on March 30, 2023. The IEP team, including the complainant and community support professionals invited to the meeting by the complainant, reviewed the student’s standardized assessment data in reading and math and running reading records to determine whether the student had regressed in academic performance over recent school breaks. The data the team reviewed showed the student was making steady gains over time in reading and math as measured by the assessment data. The team also discussed whether the student’s disability would limit their recoupment capacity or lead the student to withdraw from the learning process. The team again referred to the assessment data, which did not demonstrate issues with recoupment as the student’s academic progress was steadily improving.

The IEP team also discussed whether the student required ESY to address behavioral needs. As part of this discussion, the community support professionals provided information about the student’s behavior. The IEP team reviewed data from district-wide behavior tracking software, including incident reports from the fall semester of the 2022-23 school year. According to the behavioral data reviewed at the IEP team meeting, the student had no significant behavior incidents after October 2022. The IEP team considered the student’s regression and recoupment following school breaks and determined that based on the student’s progress towards goals and lack of behavior incidents, the student was unlikely to regress during the 2023 summer break. Although the complainant and their community support professionals disagreed with the conclusion of the rest of the IEP team, they were provided an opportunity to contribute to the conversation. The IEP team determined the student did not meet the criteria for ESY and completed an Extended School Year Considerations Worksheet to document its decision. Based on this discussion and review of student progress during the IEP team meeting, the district properly determined whether the student was eligible to receive ESY service.

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 or contact the special education team at (608) 266-1781.

For questions about this information, contact (608) 266-1781