IDEA Complaint Decision 24-077

On June 7, 2024, 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 this complaint. The issues identified are whether the district, since March 6, 2024, properly implemented the student’s individualized education program (IEP) regarding homebound instruction and properly determined the student’s eligibility for extended school year (ESY) services.

Whether the district properly implemented the student’s IEP regarding homebound services.

School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment to each student with a disability, in part, by developing a program based on the student’s unique, disability-related needs that are 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 § 300.22; Wis. Stat. § 115.787. A school district meets its obligation to provide FAPE to each student with a disability, in part, by providing special education and related services, as documented in the student’s IEP. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2).

The subject of the complaint is a middle school student who receives specially designed instruction for visual impairments; math; English Language Arts (ELA); social, coping, and self-regulation skills; communication; and engagement. The student has related services for orientation and mobility, occupational therapy, and physical therapy. The student also has adaptive physical education through his IEP.

The parent acknowledges the district has provided the student’s related services; however, homebound instruction has not occurred for adapted physical education or academic instruction.

The district has put forth a number of efforts to hire and retain a homebound teacher such as advertising, contacting contracted service providers, and offering financial incentives. The district has been able to hire four homebound teachers over the course of the student’s educational career; however, the district has not been able to retain them.

At the beginning of the 2023-24 school year, the district had hired a homebound teacher; however, the parent notified the district they did not want anyone in the home at that time due to recent medical complications with the student. Given there were no other students on the teacher’s caseload, the district was unable to retain the teacher. The parent later notified the district that staff would now be able to enter the home. Despite posting and contacting contracted service providers, the district was unable to hire for the position.

Furthermore, staff have experienced incidents during and after homebound instruction that have been non-conducive to the student’s learning. These incidents have impacted the district’s ability to hire and retain staff for the homebound instructor position.

The district has acknowledged given the difficulties with staffing the homebound teacher some of the student’s minutes have gone unfulfilled. The district did not properly implement the student’s IEP regarding homebound services.

Whether the district properly determined the student’s eligibility for 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 IEP, that are necessary to ensure the student receives 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. ESY 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 May 30, 2024, the IEP team revised the student’s IEP without a meeting to add ESY services. The student’s communication skills goal, engagement goal, seating (posture) goal, and ELA goal were identified to be addressed as part of the student’s ESY services. The services identified included four sessions of 30 minutes each for the communication and engagement goals (total of eight sessions), and 30 minutes for four sessions for the seating (posture) and ELA goals. The team noted the number of staff the student is exposed to is limited due to specific training for his needs.

The speech language pathologist reviewed the completed forms with the parent. Although the parent initially agreed with the proposed ESY services, the parent questioned why some goals were identified for services and why other goals were not going to be addressed during ESY, such as physical therapy. The district was not able to provide information on how service areas for ESY were selected and why particular service areas were not selected for ESY, such as physical therapy. The district did not properly determine the student’s eligibility for ESY services.

Within 30 days of the date of this decision, the district is directed to reconvene the student’s IEP to determine any compensatory services owed as a result of the missed homebound instruction from March 6, 2024, until the end of the school year. Additionally, the IEP team should consider whether the student is eligible for any additional ESY services. If the student is found to be eligible, the district must determine whether the student requires compensatory services as a result of not properly determining ESY. The district is directed to submit a copy of the revised IEP within 10 days of the meeting.

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