On May 8, 2025, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (parent) against the #### (school). This is the department’s decision regarding this complaint. The school is a public independent charter school authorized under Wisconsin law and is not affiliated with any public school district. The school must comply with the federal Individuals with Disabilities Education Act (IDEA) as a local education agency (LEA). The issues identified are described below and pertain to the 2024-25 school year.
Whether the school properly developed and implemented the individualized education program (IEP) of a student with a disability regarding positive behavior supports.
School districts must develop an IEP for each student with a disability for whom they are responsible. The IEP must include measurable annual goals to meet the student’s needs that result from the student’s disability and a statement of the special education services to enable the student to advance toward attaining the annual goals. At the beginning of each school year, each district must have an IEP in effect for each child with a disability, and services must be provided to the student in accordance with the student’s IEP. In the case of a student whose behavior impedes the student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports, and other strategies to address that behavior. In addressing the individualized behavioral needs of a student, the IEP team must consider and include appropriate behavioral goals, specially designed instruction, and other supports in developing the IEP. The Individuals with Disabilities Education Act (IDEA) does not require that there be a separate document labeled a behavior intervention plan (BIP). Rather, behavioral supports can be incorporated throughout the IEP. 34 CFR § 300.324(a)(2)(i); Wis. Stat. § 115.787(3)(b)(1).
The subject of the complaint is a kindergarten student eligible for special education under the disability category of significant developmental delay. The student receives specially designed instruction for reading, math, readiness, self-help, social skills, emotional regulation, and speech.
The IEP team met to develop an annual IEP on November 7, 2024. The team noted the student needed frequent prompts to follow teacher-led instruction and participate in independent work time. The team also noted the student disengaged from instruction by hiding under tables or crawling around the floor. These behaviors were noted to impede the learning of the student and others. The team further observed that the student benefitted from smaller work groups. To support the student, the IEP team included breaks to allow movement during transitions and periods of frustration, use of a digital timer during independent work time, and an “if/then” board and manipulatives during teacher-led instruction, transition, unstructured, and independent work time.
The IEP team did not complete a functional behavior assessment (FBA) or develop a formal BIP. Instead, a support plan was developed with “proactive strategies” that included positive praise, positive narration, use of “calm hands” prompts, use of simple language, kind words, and “cooling off your belly.” Regulation strategies included a calm down spot and both a visual schedule and first/then prompting. Steps for work refusal, yelling/loud voice, and leaving the classroom were documented in the support plan with calling the parent and issuing a suspension documented as the final steps if the behavior continued after attempts to redirect.
The IEP team convened for a review and revise meeting on March 31, 2025, to discuss and add extended school year services (ESY) to the student’s IEP. The student was noted to be telling staff when they became angry but still requiring a number of prompts to support redirection. No other changes were made to the IEP outside of the addition of ESY.
The student’s behaviors increased as spring progressed, and the parent was called more frequently to pick the student up and take them home. The student received a one-day suspension April 28, 2025, for an incident that occurred April 25, 2025, and then a five-day suspension for an incident that occurred April 29, 2025, resulting in staff convening for a manifestation determination meeting on May 7, 2025. No other IEP meetings were convened between March 31, 2025, and May 7, 2025, to proactively address the observed increases in the student’s behavior.
District staff conceded that they did not implement the student’s IEP or support plan with fidelity, nor did they review the student’s IEP when it became clear the supports were not effective to address the student’s behavior. The school did not properly develop or implement the student’s IEP regarding positive behavior supports.
Whether the school properly followed special education disciplinary requirements.
When a student with a disability is subject to a potential disciplinary change of placement, the district must determine whether the student’s conduct is a manifestation of the student’s disability within 10 school days of the decision to change placement. 34 CFR § 300.536. The district, the parent, and relevant members of the student's IEP team must review all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability, or if the conduct in question was the direct result of the district's failure to implement the IEP. 34 CFR § 300.530(e). If the conduct is determined to be a manifestation of the student's disability, the IEP team must address the behavior by either conducting an FBA and implementing a BIP for the student or, if a BIP already has been developed, reviewing and modifying the BIP, as necessary. 34 CFR § 300.530(f)(1). The student must be returned to the placement from which the student was removed unless the parent and the district agree to a change of placement as part of the modification of the student's behavioral intervention plan or one of the limited exceptions discussed below apply. 34 CFR § 300.530(f)(2).
As a result of student behaviors that occurred on April 29, 2025, the student was sent home and initially suspended five days. However, based on school documentation, the suspension extended an additional 12 days, and the student was ultimately out of school for 17 days following the April 29th incident. The student was not provided with instruction or educational materials during this time and the suspension began prior to the manifestation meeting.
The school held an IEP team meeting, including a manifestation determination, on May 7, 2025. The school informed the parent of the meeting via a calendar invitation and a letter notifying the parent that there would be an expulsion hearing pending the outcome of the manifestation determination. The school did not provide the parent a formal IEP team meeting invitation. As a result, the parent was unclear about the intent of the meeting and was not informed of all possible outcomes of the manifestation determination.
The manifestation began with one school staff member serving as the LEA representative. Additional attendees included the Dean of Students, the student’s special education teacher and speech and language pathologist, the student’s parents, and another school staff member who arrived later and upon their arrival assumed the role of the LEA representative for the latter part of the meeting. The team initially came to consensus that the behavior was a manifestation of the student’s disability. When the staff member who served as the second LEA representative arrived well after the start of the meeting, they expressed their opinion that the team’s initial consensus was unfair due to lack of general education teacher representation and input in the decision. The LEA representative decided to override the initial team’s consensus, and ultimately the manifestation determination indicated the behavior was not a manifestation of the student’s behavior, nor a result of the school not implementing the student’s IEP.
The decision as to whether a student’s behavior is a manifestation of their disability must be made by a group of individuals. 34 CFR §300.530(e). No one person can individually make these determinations. (See Metro-Nashville [TN] Pub. Schs., 66 IDELR 289 [OCR 2015]). In this instance, the second LEA representative disagreed with the consensus of the other members of the IEP team regarding whether the student’s behavior was a manifestation of the student’s disability. The LEA representative inappropriately discounted evidence provided by the rest of the team and made the manifestation determination based on their own opinion.
Further, the district acknowledged having called the parent to pick the student up from school due to behaviors. Sending a child with a disability home during the school day for not following school rules constitutes de facto suspension of a child from school. These days must be counted as removals and considered when determining whether a series of removals resulted in a change of educational placement or whether the child had been removed from school for more than ten cumulative days in a school year. The school did not properly follow special education disciplinary requirements.
Whether the school properly conducted IEP team meetings including all required participants.
IEP team decisions are made through a process of consensus decision making with involvement of all IEP team participants. School districts must ensure the IEP team for each student with a disability includes the student’s parent, at least one regular education teacher of the student, at least one special education teacher of the student, and a LEA representative. A required IEP team participant may be excused from attending an IEP team meeting, in whole or in part, when the meeting involves a modification to, or discussion of, the participant’s area of the curriculum or related services if, in writing, the parent and the district agree to the excusal, and the IEP team participant submits written input into the development of the IEP prior to the meeting. 34 CFR § 300.321; Wis. Stat. § 115.78.
After the manifestation determination meeting, conversations among school staff occurred and ultimately the school chose not to proceed with expulsion. Instead, a school staff member called the parent and presented them with four options regarding the student’s return: a “special” class with a K4 teacher for the student where they would attend for three hours per day and receive their specialized instruction and related services; a full day of school working 1:1 with the special education teacher and one other student; switching to another kindergarten class; or to return back to the student’s original class. The parent chose the partial day option, and the school held an IEP team meeting on May 23, 2025, to amend the student’s IEP to reflect the changes. This was one day after the student returned to school on the new schedule. Neither the special education teacher of the student nor the regular education teacher of the student were included in the meeting. The school did not properly conduct an IEP team meeting that included all required participants to determine the student’s placement.
The school acknowledged the student’s missed instruction as a result of the extended suspensions and reported they offered and began providing the student compensatory services June 24, 2025. However, the school did not hold an IEP team to determine the amount of compensatory services. The school is directed to conduct an IEP meeting to document the amount of compensatory services owed to the student for lost instruction during suspensions to include times the parent was called to pick the student up for behavior that resulted in de facto suspensions. Documentation of the meeting is to be provided to the department within 10 days of the meeting date.
Further, the school is directed to conduct a new manifest determination meeting for the student and engage in a review of all manifestation determination meetings that occurred over the 2024-25 school year to ensure the school provided parents proper notice of the meeting and that they were conducted according to legal requirements. The school is also directed to provide staff professional development on properly counting and recording disciplinary removals, including de facto suspensions, and on the manifestation determination process prior to the beginning of the 2025-26 school year. Documentation of these activities are to be provided to the department by September 30, 2025. Finally, documentation from any manifestation determination meetings held during the 2025-26 school year must be submitted to the department within 10 days of the meeting to ensure noncompliance does not recur.
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 resolution options, 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.