On May 26, 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, beginning the 2022-23 school year, properly determined whether a student with a disability was eligible for the extended school year (ESY) services and properly developed the individualized education program (IEP) to enable the student to participate in extracurricular activities.
ESY services are required special education and related services provided beyond the limits of the school term, in accordance with a student’s 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). 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).
On April 27, 2023, the IEP team met to discuss whether the student required ESY services during the summer of 2023. The student had not received ESY services in prior summers. The IEP team discussed information provided by team participants to determine whether the student required ESY. The speech and language pathologist described the student’s steady growth and appropriate progress toward meeting their annual communication goals. The occupational therapist noted the student made appropriate gains toward an annual goal of following a high school routine and participating in activities throughout the school day and explained ESY services would not reflect the typical school day and would not provide an opportunity for the student to maintain their progress in following typical high school routines. The physical therapist noted the student made gains throughout the transition to high school and had shown no signs of regression in motor skills over prior school breaks. The adaptive physical education (APE) teacher indicated that the student demonstrated growth in stamina and duration of physical activity and noted that the student was making appropriate progress toward meeting their annual APE goals. The special education teacher also noted the student was increasing independence in all academic and functional performance areas. The IEP team reviewed data about the student’s progress before and after school breaks and determined it did not indicate the student experienced academic or behavioral regression. The IEP team determined the data did not show the student experienced difficulty recouping skills after school breaks. The IEP team discussed the differences between summer school and ESY services and reviewed the various factors outlined in department ESY guidance regarding recoupment and regression. The staff noted the parents were upset at the meeting and raised concerns about the lack of structure and routine for the student during the summer months. The IEP team discussed various opportunities in the community where the student could have structured activities during the summer. The IEP team determined the student did not require ESY services.
On April 30, 2023, the parents emailed the district’s director of special education, asking the IEP team to reconsider their decision on the student’s eligibility for ESY. On May 2, 2023, the director offered to meet again with the parents to discuss the factors related to ESY the parents felt were not adequately discussed. The parent responded by email on May 3, 2023, indicating they did not believe a meeting was necessary and asked the director to find the student eligible for ESY. The director responded that the student’s eligibility for ESY had to be determined by the IEP team and that the director could not make that decision unilaterally. The director offered to hold an IEP meeting to discuss the parent’s concerns. On May 11, 2023, the parent emailed the director indicating an interest in having another meeting. The director noted she would reach out to the special education teacher to schedule the meeting as soon as possible with the parent. The district scheduled the IEP team meeting for May 16, 2023.
On May 16, 2023, the parent wrote to the teacher indicating she would not be attending the IEP meeting. The district sent the parent an M-1 Prior Written Notice to document its proposal to reconvene the IEP team to reconsider ESY and its decision not to revise the IEP without a meeting.
The IEP team documented its review of the student’s progress and, based on that information, made a reasonable determination that the student was unlikely to experience regression or skill recoupment issues sufficient to require ESY. When the student’s parents expressed interest in reconvening to discuss the student’s potential eligibility for ESY, the district offered to convene an IEP team meeting. The student’s parents declined to meet. As such, the district properly determined the student’s eligibility for ESY.
Whether the district properly developed the student’s IEP to enable the student to participate in extracurricular activities.
School districts must ensure that each student with a disability participates with nondisabled children in nonacademic and extracurricular activities, including meals, recess periods, and other activities, to the maximum extent appropriate given the student’s unique needs. Each student's IEP team must determine whether the student needs supplementary aids and services in order to participate in nonacademic and extracurricular activities. 34 CFR § 300.117. Summer school is an optional program typically operated on a set schedule for a number of weeks during the summer. Wis. Stat. § 118.04. School districts are not required to provide a summer school program. School districts have obligations to ensure students with disabilities have equal opportunity to participate in educational programming available to all students by providing reasonable accommodations under Section 504 of the Rehabilitation Act of 1973. The district's Section 504 obligation is distinct from its obligation to provide special education and related services in accordance with a student's IEP. Voluntary participation in summer school activities falls under Section 504, which cannot be addressed through the Individuals with Disabilities Education Act (IDEA) State Complaint Process.
The student’s IEP indicates the student requires “adult support for community outings and field trips to assist with safety, transportation, communication, emotional regulation, bathroom and social skills”. The team also noted the amount and frequency as “entire duration of the field trip or community outing”. There is no evidence suggesting that this was insufficient to enable the student to participate in extracurricular activities. The district properly developed the student’s IEP to enable the student to participate in extracurricular activities.
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.