As the 2023-24 school year comes to an end, it’s a perfect time to make your Summer to-do list!  Consider the following practice tips when working through end-of-the-year IEP team meetings, preparing for summer programming, and planning back-to-school in-services.

  1. Understand the difference between ESY and summer school.

ESY services are special education and related services provided outside of the regular school term.  In determining whether a student is eligible for ESY services, IEP teams must do a predictive analysis.  The team should consider “all appropriate factors,” including but not limited to the likelihood of regression over the summer, the recoupment/recovery time once school resumes, and whether the progress the child made during the regular school year would be “significantly jeopardized” if the child does not receive ESY services.   ESY services may, but are not required to, be provided through the district’s summer school program. DPI Information Update Bulletin 10.02. 

If a student with an IEP is not eligible for ESY, then the child still may participate in the district’s optional summer school program, but such participation would not be written into the IEP.  In this case, the district would not be required to provide special education and related services to the student in summer school, but the district must ensure the student has an equal opportunity to participate by providing accommodations under Section 504.  IDEA Complaint Decision 23-047.  This equal access analysis is the same analysis that is generally done for participation in extracurricular activities.

  1. Ensure all appropriate staff (not just the special education teacher) have access to IEPs and 504 plans.

For the provision of ESY services and at the start of next school year, it is imperative that regular education teachers and related service providers are aware of the accommodations and/or modifications that a student’s IEP requires them to provide.  For example, in addition to specially designed instruction and related services, an IEP may provide for accommodations or modifications such as preferential seating, written instructions, reminders to stay on-task, extra time to complete a test of assignment, etc.  The IDEA requires IEPs “to be accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation.” It also requires each teacher and related service provider to be informed of (1) his/her specific responsibilities related to implementing the child’s IEP; and (2) the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.  34 CFR 300.323(d).

Before the start of next school year, case managers should meet with the student’s regular education teachers to review the portions of the IEP that the teacher is responsible for implementing.  If the student has a behavior intervention plan (BIP), that should also be reviewed with the teachers.  Arrangements should also be made to ensure implementation by substitute teachers.

  1. Train staff on child find obligations and the standard for referral under the IDEA and Section 504

School districts have an obligation under the IDEA to identify, locate, and evaluate all children with disabilities who are in need of special education and related services.  This includes children who are suspected of having a disability and in need of special education, even though they are advancing from grade to grade.  34 CFR 300.111. 

Any district employee who is required to be licensed under Wis. Stat. § 115.28(7) and who reasonably believes that a child has a disability must refer the child for an IDEA evaluation.  This includes regular education teachers.  Any other person, including a parent, may make a referral.  Wis. Stat. § 115.777.  Even if a parent does not request a special education evaluation, but school staff member(s) have a reason to suspect that the child has a disability, the district still has an obligation to initiate the referral. 

In deciding whether to initiate a referral, school districts should consider comprehensive information about the student, including but not limited to grades, attendance, behavior, and information provided by the parents and/or outside providers.  See, e.g., IDEA Complaint Decision 15-002. 

Ensuring that school staff understand their obligation to refer students is critical, because child find violations can be costly.  DPI or an Administrative Law Judge may order the district to provide compensatory services as corrective action for a child find violation.  Parents also could argue that the district must reimburse the parents for private school tuition or private services (e.g., tutoring). 

The above practice tips cover only a few of the issues that might arise as we transition from one school year to the next.  Other important topics for back-to-school in-services include: strategies for addressing behavior impeding learning; student discipline and manifestation determination best practices; Section 504 eligibility and plan development; and shortened school days. 

For questions regarding this article, please contact the author,

or your Renning, Lewis & Lacy attorney.

Alana Leffler

Alana Leffler | (414) 800-8210

Our legal updates provide general information only and are not intended to provide legal advice or create an attorney-client relationship