Legal Updates


July 3, 2018

School districts across Wisconsin are currently in the midst of summer school programming.  In many school districts, these summer school programs are voluntary enrichment courses offered to expand school-aged children’s interests.  Summer school programs can be a great opportunity for students to learn and pass the summer break.  However, some students with disabilities need special education and related services over the summer, and other school breaks, in order to receive a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”). 

Extended School Year ("ESY") services are special education and related services provided beyond the school term.  Although most frequently associated with summer break, ESY services include special education and related services provided during any school break, on weekends, or before and after the school day.  What distinguishes ESY services from other school programs offered outside the traditional school day or school term is the student’s need for ESY services to receive a FAPE.

Most often, ESY services are raised by the student’s individualized education program ("IEP") team due to concerns about regression during an extended break from school and concerns about recoupment of skills after special education and related services resume.  However, neither the IDEA nor Wisconsin statutes identify specific factors that an IEP team must consider when determining whether ESY services are necessary.

The United States Court of Appeals for the Seventh Circuit, the federal appellate court with jurisdiction over Wisconsin, has held that a student’s likelihood of regression, the rate of recoupment, and predictive data based on professional opinions are appropriate considerations to determine eligibility for ESY services.  Todd v. Duneland Sch. Corp., 229 F.3d 899, 907 (7th Cir. 2002).  The United States Circuit Court of Appeals for the Tenth Circuit, the federal appellate court with jurisdiction over Colorado, Utah, Oklahoma, Wyoming, Kansas and New Mexico, considers other factors, such as the degree of impairment, the ability of the student’s parents to provide educational structure at home, the student’s rate of progress, behavioral and physical problems, availability of alternatives, the areas of curriculum that need continuous attention, and the student’s vocational needs.  Johnson v. Independent Sch. Dist. No. 4, 921 F.2d 1022 (10th Cir. 1990).

The Wisconsin Department of Public Instruction recommends that IEP teams consider all relevant factors to determine if progress made during the school year will be significantly jeopardized if the student does not receive ESY services. Extended School Year (ESY) Services for Children with Disabilities, DPI Special Education Bulletin No. 10.02 (April 2010).  Even where there is no documentation of past regression or recoupment problems, a student may be eligible for ESY services.  The IEP team can consider predictive information as well as factors such as the degree of impairment, the ability of the parents to provide educational structure, and the student’s rate of progress.

Since the primary focus of ESY services is to prevent regression, a student’s ESY services will not necessarily mirror those services provided during the school term, where the focus is on progress toward academic and IEP goals.  ESY services may be limited to specific subjects or areas where regression is acuter or recoupment is more difficult due to the student’s specific impairment.  Further, ESY services are not limited to the school setting.  In some instances, it would be appropriate to offer ESY services in the student’s home or a community setting.

As is most often the case with special education issues, decisions regarding ESY services must be made on an individualized basis and not based on the student’s category of disability.  It is the IEP team’s responsibility to determine whether a student needs ESY services in order to receive a FAPE.  Further, it is the IEP team’s responsibility to determine ESY services and the setting in which to provide them.  It is advisable for school district officials to review their practices and policies regarding ESY services to ensure that IEP teams are appropriately considering these services for students with disabilities.

For question regarding this article or other special education topics, please contact the author, Attorney Chad P. Wade (email; telephone: 844.833.0826) or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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